((nrn^Il 2Iam ^rljaal Kthrary I 3 1924 024 688 040 The original of tliis 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/cu31924024688040 THE LAW ^^ PJBETAINING TO THE , \ SC "''- '="•'■' SALE OF PERSONAL PROPERTY AS CONTAINED IN THE STATUTES OP MASSACHUSETTS, THE DECISIONS OF ITS SUPREME JUDICIAL COUKT, AND THE STATUTES OF THE UNITED STATES, WITH BEFEEENCES ON MAN? POINTS TO CASES DECIDED IN OTHEK JUEISDIOTIONS, AND A BIBLIOGRAPHIC NOTE. BY EDWAKD P. USHEK. BOSTON: LITTLE, BROWN, AND COMPANY. 1886. Q n O »li Copyright, 1886, By Edwaed p. Usher. UmvEKSiTT Press: John Wilson and Son, Cambkidqe. PREFACE. The scope of this volume is clearly and accurately ex- pressed upon the titlepage. It is believed to be the first attempt to prepare for any single American State a treatise based almost entirely upon the statutes and judicial deci- sions of such State, on a subject as broad and fundamental in its nature as the law pertaining to sales of personal property. The purpose of the author is to furnish to lawyers prac- tising in Massachusetts the quickest and easiest access to the law, as it becomes necessary for them to refer to it in the ordinary routine of professional work; to furnish to lawyers outside of this State, who are counsel for large cor- porations and commercial houses dealing constantly with our merchants, a convenient manual of our law ; to furnish to law students a systematic presentation of the law of a single American jurisdiction, both as to case law and the statutes. The author believes that the respect accorded to Massachusetts throughout the country must give to a work containing the law of that state a force and value analo- gous to that so long conceded to English treatises. It has been prepared as a practical hand-book, and covers much ground not at present touched upon by any text-book on the subject. The necessary limitations im- posed upon a treatise which professes to cover the entire Copyrie/ht, 1886, Br Edwabd p. Usher. Uhiversitt Pbess: John Wilson and Son, Cambkidoe. PREFACE. The scope of this volume is clearly and accurately ex- pressed upon the titlepage. It is believed to he the first attempt to prepare for any single American State a treatise based almost entirely upon the statutes and judicial deci- sions of such State, on a subject as broad and fundamental in its nature as the law pertaining to sales of personal property. The purpose of the author is to furnish to lawyers prac- tising in Massachusetts the quickest and easiest access to the law, as it becomes necessary for them to refer to it in the ordinary routine of professional work; to furnish to lawyers outside of this State, who are counsel for large cor- porations and commercial houses dealing constantly with our merchants, a convenient manual of our law ; to furnish to law students a systematic presentation of the law of a single American jurisdiction, both as to case law and the statutes. The author believes that the respect accorded to Massachusetts throughout the country must give to a work containing the law of that state a force and value analo- gous to that so long conceded to English treatises. It has been prepared as a practical hand-book, and covers much ground not at present touched upon by any text-book on the sxibject. The necessary limitations im- posed upon a treatise which professes to cover the entire IV PREFACE. field of English and American law impair seriously its practical value to the lawyer in any particular jurisdiction. It is no reflection upon any of the distinguished writers upon this subject, to say that a local treatise is better for aU local purposes than the most elaborate of the general works. This book does not come into competition with any existing treatise, for the sole reason that what it pro- fesses to do is different from the work undertaken by any other author. Every effort has been made to secure clearness, concise- ness, and brevity. The sole purpose has been to present as clearly and briefly as possible the law as it is in this jurisdiction. On some points it has been deemed neces- sary to go into the cases decided elsewhere, the reasons for which, on each point, wiU be obvious to most readers. The bibliographic note wiU, it is believed, be found to be of much interest and value, especially to any who are called upon to make elaborate investigation of the law upon any special point. ' E. P. U. Boston, Mass., FeU 16, 1886. TABLE OF CONTENTS. Page Table op Cases Cited ix Table of Statutory Citations xxv BOOK I. FOKMATION OF THE CONTRACT. Chapter Sectiok I. What Constitutes a Sale 1 II. Who mat Sell 4 III. Who may But 54 IV. Mutual Assent 74 V. The Thing Sold 80 VI. The Price 84 VII. Place where Contract Made as Affecting its Validitt, etc 85 VIII. The Statute of Frauds 87 IX. Contracts within the Statute 91 X. What are Goods, Wares, or Merchandise . 95 XL Acceptance and Receipt 101 XII. Earnest ok Part Patment 113 XIII. The Memorandum or Kote in Writing . . . 116 XIV. The Signature of the Partt 126 XV. Agents Dult Authorized to Sign 129 VI CONTENTS. BOOK II. EFFECT OF THE CONTRACT IN PASSING TITLE TO PROPERTY. Chapter Section I. Distinction between Contracts Executed and Executory 134 II. Sale op Specific Goods Unconditionally . . 136 III. Sale of Specific Goods Conditionally . . . 191 IV. Sale of Goods not Specific 218 V. Subsequent Appropriation 223 VI. Reservation of the Jxis disponendi 228 BOOK III. AVOIDANCE OF THE CONTRACT. I. Mistake . 235 II. Failure of Consideration and Breach of Warranty 242 III. Fraud 251 IV. Fraud Injuring the Seller 268 V. Fraud Injuring the Buyer 278 VI. Fraud Injuring Creditors 287 VII. Illegality at Common Law 307 VIII. Illegality by Statute Law 316 BOOK IV. PERFORMANCE OP THE CONTRACT. I. Conditions 357 II. Express Warranty 369 III. Implied Warranty op Title 388 IV. Implied Warranty of Quality 393 V. Delivery 408 VI. Payment and Tender 433 CONTENTS. Vli BOOK V. BKEACH OF THE CONTRACT. Chaptek Section I. Personal Actions by the Seller 453 11. The Seller's Kbmedies against the Goods . 475 III. The Seller's Lien 477 IV. The Right op Resale 486 V. The Right of Stoppage in Transitu .... 490 VI. Rights and Remedies of the Buyer .... 505 Page Bibliographic Note 333 Index 351 TABLE OF CASES. A. SscnoN- Abberger v. Marrin .... 86, 223 Abbott V. Shepard 76 Acebal v. Levy 84 Ackert v. Barker 313 Adams v. Burke 185 «. Coulliard 309 V. Lindsell 76 B.Nichols 365 ■0. O'Connor 202 V. Wheeler 292 Aiken v. Hyde 363 Akers v. Demond 320 Alcock V. Hopkins . . 436, 437, 442 Alderman si. Eastern E. E. 230, 233 Aldrich v. Stockwell .... 517 Alexander v. Gould .... 306 Alford V. Collin 314 Alger V. Thacher 311 Allen V. Ford 471 t,. Fuller 464 V. Hawkes 355 tf. Smith 145 V. Truesdell 527 ». Wheeler 292 1/. Williams 233 Alley V, Winn 65 Allis V. Billings 35, 58 Amos V. Bennett 438 Amsinck v. American Ins. Co. . 88 Angel V. McLellan 61 Angler v. Taunton Paper Co. . 201 V. Webber 83, 311 Appleton V. Bancroft . . . . 6, 7 D.Parker 436,437 Arfridson v. Ladd 466 Armour v. Pecker 203 Armstrong v. Stokes .... 466 SscnoH Arnold v. Brown . 6, 10, 20, 68, 72 V. Delano 136', 138, 475, 478, 479, 481, 482, 490 V. Eichmond Iron Works . 35 Ashcroft V. Butterworth . . 121, 125 Ashmun v. Williams .... 93 Atherton v. Newhall . . . 102, 106 Atkins V. Boylston Ins. Co. . . 417 V. Howe 407 Atkinson v. Atkinson . . . 33, 170 Atlantic Milling Co. v. Eobinson 83 Atwater v. Clancy .... 379, 401 Atwood V. Cobb 414 f. Dearborn 265 Audenried v. Betteley .... 2: Averill »■ Hedge 76; Avery v. Pixley 417 Ayer D. Bartlett 195 Ayres v. Sleeper 2 B. Bacon v. Lincoln 7 Badger v. Phinney 34 Badlam v. Tucker 151 Bailey v. Hervey 207 Baker u. Collins 330 V. Fuller 163,230 V. Warren 47 Baldwin v. Foster 66 V. Sibley 184 V. Williams 95 Balls. Carew 68 V. Gilbert 308 Banfield v. Whipple . . . 303, 464 Bannister v. Alderman .... 254 Barnaby v. Barnaby .... 59 TABLE OF CASES. SEcnoN Barnard v. Eaton S2 ». Poor 192 Barnes v. Bartlett .... 160, 409 Barrett v. Hyde 353 «. McHugh 464 i). Mead 353 V. Pritchard . . . 194, 204, 484 Barrows v. West 177 Barry ti. Page 467 Bartholomew s. Hamilton . . 209 Bartlett v. Blanchard . . . 505, 508 17. Cowles 34 1). Drake . . .34, 236, 268, 279 Bassett v. Brown 236, 268, 279, 280 V. Percival 83 Batchelder v. Queen Ins. Co. . 378 ti. Sturgis 509 Baxter v. Wheeler 292 Beach v. Bemis 255 Beal V. Brown 88 Bearce v. Bowker .... 4, 239 Beaumont v. Crane 160 Beecher v. Mayall 158 Bee Printing Co. «. Hichbom 418, 532 Belcher «. Costello 255, 256, 260, 285 Bemis v. Leonard 417 Benjamin v. Dockham .... 65 Benner e. Puffer 195, 196 Bennett «. Bartlett 389 t). Bedford Bank .... 297 Bent V. Cobb 129, 130 Berkshire Glass Co. v. Wolcott . 2 Bierce v. Stocking 243 Bigelow V. Smith 293 V. Willson 417 Bilding v. Gushing 98 Billings V. Thomas 74 Binnej' v. Annan 514 Bixby «. Franklin Ins. Co. . . 182 Blackstone Bank v. Hill . . . 445 Blake's Case 36 Blanchard v. Child 43, 195, 196, 198 V. Dedham Gas Light Co. . 169 ... Eldridge 184 Bliss V. Clark 17 V. Negus 243 Blood V. French 381 v. Hayman 68 Boardman v. Cutter 95 V. Spooner 110, 116, 122, 128. 149, 249, 379, 403, 408 Bodurtha V. Phelon . . . . 519 , Sectioh Booraem v. Crane 195 Borden v. Borden .... 364, 447 Borrowscale v. Bosworth . . . 109 Boston & Maine R. B. v. Bartlett 75 Boston & Salem Ice Co. v. Royal Ins. Co 199 Boston Bank v. Chamberlin . . 59 Boston Ice Co. v. Potter . . 77, 239 Boston Music Hall v. Cory . . 170 Boutelle v. Smith .... 83, 311 Bowker v. Hoyt ... 77, 418, 532 Boyd V. Brown 293 ». Rockport Mills .... 169 Boyden v. Boyden 59 Brabin v. Hyde 115 Bradford v. Manly 249, 379, 394, 401 V. Tinkham 317 Bradley v. Hale 74 v. Poole 279 «. Rea 324, 526 Bragg V. Boston & Worcester R. R. 18 Brand v. Brand 115 Brayman v. Whitcomb .... 44 Breed v. Hurd 447 V. Judd 56 Brewer v. Housatonic R. R. Co. 415 Brewster v. Burnett . . 236, 242, 279 Briggs V. Boston & Lowell R. R. 501 V, Humphrey 517 II. Life Boat .... 215, 216 ». Parkman 292 Brigham v. Mead 353 ». Potter .... 308, 318, 330 V. Palmer 2 Brinley v. Whiting 313 Brisban v. Boyd 76 Brockway v. Maloney .... 86 Brooks V. Powers 292 Brooks Iron Co. ». O'Brien . . 494 Brow V. Brightman 66 Brown v. Bellows 84 V. Bigelow 377, 524 V. Castles 282, 285 ■u. Foster 215, 363 V. Holbrook 2 ti. Leach 282, 517 V. Phelps 353 V. Pierce . . 159, 264, 267, 388 ». Thayer 293 V. Wellington 10 Browning v. Bancroft .... 457 Bryant v. Booze 76 TABLE OF CASES. XI Bryant «. Clifford i;. Isburgh . V. PoUavd Bucknan e. Goddavd Buffington v. Cui'tis V. Gei'i'isli BufEuin V. Deane . Biigbee ». Kendricken Bullard v. Dame V. Wait . . Bullock V. Williams Biu'bank v. Crookev Burge V. Cone Bulk V. Hollis Burke v. Partridge Burlen v. Shannon Burnett v. Smitli . Burns «. Thayer . Burpee v. Sparhawk Burt V. Dewey Burton v. Scherpf V. Stratton . Bush V. Baldray . Bussing V. Rice . Bustin V. Rogers . Butler «. Hildreth Butterfield v. Baker Buttrick v. Holden Butts V. Dean Byrne v. Van Tienhoven Section 10, 211 249, 517 . 322 . 525 149, 151 265, 457 . 43 . 464 7 110, 155 . 136 10, 195, 196 110, 140, 155 100 184 65 519 390 178 83 450 265 324 271, 293 . 164 364, 417 436, 437, 438 ... 76 270, Cabot ». Winsor 422 Cabot Bank v. Morton 242, 260, 388, 394 Cadwell v. Blake .... 358, 359 Cady V. Shepherd 425 Cahill V. Bigelow 88 Call V. Calef 313 Campbell v. Dearborn .... 3 Cardoze v. Swift . . . 317, 324 Carey v. Guillow 521 Carleton v. Sumner 204 Carnegie v. Morrison .... 85 Carpenter v. Hale 5 V. Holcomb .... 364, 454 Carroll v. Hayward 293 Carter v. Kingman 198 V. Towne 257 V. Willard 109, 110, 140, 149, 151, 153, 155 Seotiow Cartwright v. Bate 66 Cary v, Bancroft 450 Casco Manuf. Co. o. Dixon . . 406 Case V. Hall 390 V. Stevens . . ... 527 Cassidy v. Farrell 317 • Central Nat. Bank v. Williston . 172 Champney v. Smith .... 43 Chandler v. Simmons ... 34, 36 ■u. Sprague 230 Chapman v. Cole . . 4, 38, 78, 237 V. Durant 440 e. Searle 112, 158 Chase v. City of Lowell ... 118 V. Denny 82 V. Ingalis 198 S.Pike 198 Chesley v. Josselyn 82 Chiles V. Nelson 76 Churchill v. Hulbert . . 178, 200 V. Merchants' Bank ... 417 V. Palmer 16, 383 Claflin ». Boston & Lowell R. R. 224 V. Carpenter . . . . 96, 178 Clapp t'. Shepard 512 V. Stoughton .... 28 V. Tha^'er 421 Clark V. Baker 246, 247, 249, 250, 423 V. Dales 76 V. Flint 513 V. Nichols 92 V. Oliver 407 a Clement v. Jones 16 Cobb 17. Farr 331 Coddington v. Goddard 118, 119, 122, 126, 131, 258, 262, 263 Codraan v. Freeman .... 82 Coggill «. Hartford & N. H. R. R. Co. . . 4, 37, 195, 196, 266 Colcord V. McDonald .... 201 Coleman v, Barnes 473 Collins V. Delaporte 362, 364, 418, 453 Colton V. King . . . . 343 c, 469 Colwell ». Richards 47 Comins v. Coe . . . 170, 276, 443 Commonwealth v, Boynton . . 348 V. Carter 337 ^. Clark ....... 1, 331 ■u. Damon 322 V, Dana 356 D.Eaton 358 V. Evans 337 ?u TABLE OF CASES. Sscnos Commonwealth r. Farren ... 337 V. Finnegan 333 V. Fredericks 328 V. Greenfield 139 V. Hall 352 V. Harnden 25 V. Harris 356 ». Haynes 33T V. Holbrook 331 V. Horton 356 V. Jeffries 464 n. Eeenan 337 V. Lattinrille 333 V. Luscomb 337 V. McDuffy 257 V. Nichols 337 V. O'Donnell 331 ■II, Packard 1 V. Ray 128 V. Raymond 348 V. Smith 11 v. Thacher 356 V. Thomiley 331 V. Waite 337 V. Wentworth 346 V. Weiher 58 «. Willard 331 Cone V. Baldwin 38 ■u- Forest 48 Connecticut Trust Co. D.Melendy 436 Conner v. Henderson . 236, 268, 279 Connihan v. Thompson . . . 270 Cook ». Castner .... 261, 518 V. Shearman 60 V. Stearns 178 Cooke V. Oxiey 75 Coolidge V. Brigham 236, 242, 279, 375, 388, 394, 525 0. Inglee 316 Cooper I'. Adams 98 V. Landon .... 254, 517 V, Lovering . . . 254, 255, 282 Copeland v. Mercantile Ins. Co. 68 Cornfoot v. Fowke 262 Cornwall «. Gould 438 Conillard v. Duncan .... 3 Covell V. Loud 42 Cowen V. Banks 186 Cranson v. Goss .... 325, 327 Cox V. Jackson 74 Crafts •». Belden 273 Craig V. Harper 75 Section Crane v. Pratt 435 Creech v. Byron 3 Crocker ». Baker 43 Crompton v. Pratt . . 198, 445, 446 Crowley v. Hyde 26 Crowninshield v. Kittridge 302, 303 Cummings v. Arnold .... 118 Cunningham v. Hall .... 399 V. Reardon 65 Cnrrier v. Enapp 198 Curtis V. Aspinwall . . 130, 252, 286 1/. Hubbard 437 V. Riddle 98 Cushing V. Breed . . 110, 155, 220 Cutter V. Grand Trunk E. K. . 506 Cutting V. Tower 533 D. Palby V. Stearns 21 Dame ». Baldwin 4, 37' Damon v Bryant . . 288, 294, 295 V. Osborn . . . 108, 218, 410 Dana v. King 362 V. Stearns 59. Daniels v. Newton .... 364, 454 ■t). Pond 63 Dater v. Earl 310 David V. Park 256, 285 Davis V. Ball 374, 384 V. Caldwell 56 V. Eastman 101, 108 V. Parker 450 V. Eowell 93 Dawes v. Boylston 28 Dawson v. Wetherbee .... 74 Day V. Bassett 198 " ■<;. Cooley 296, 297 V. Kinney 405 V. Lamb 7 V. McAllister 323 Dean v. Emerson 311 ». Plnnkett 20, 467 Delaney v. Root 96 Dempsey v. Gardner . 140, 146, 155 Denny v. Dana 301, 308 r. Lincoln 7 V. Willard 6, 47 V. "Williams . . 94, 101, 104, 135 Deshon v. Bigelow .... 195, 196 Dewey v. Humphrey .... 451 TABLE OF CASES. XIU Section Dewing v. Sears 450 De Wolf V. Gardner . . . 231, 233 Dickinson v. Central Nat. Bank 170 V. Gav 401, 403 V.Hall 243 Ditmar v. Norman 2 Dixie V. Abbott 317 Dodd«. Adams 297 V. Farlow . . . 131, 381, 403 Dodge V. Adams 61 V. Emerson 436, 437 11. Perkins 472 Dolan V. Green 88, 223 Dole w. Stimpson . . . .101,191 DoUiver e. Ela 99 Dooley v. Smith 460 Dorr «. Fisher . 249,886,388,517 Dotyi). Gorham 98 Douglas Axe Manuf. Co. v. Gard- ner 517, 523 Douglas V. Shumway . 96, 178, 485 Dow V. Sanborn 265, 274 ». Tuttle 433 Dowling ». McKenney . . .1,92 Drake v. Rice 288, 298 «. Wells 96,178 Dresel v. Jordan 126 Dresser Manuf. Co. w. Waterstow 204 Drinkwater v. Drinkwater . 288, 293 Drury v. Herv^y .... 178, 200 Duffy V. Gorman 308 ©ugan V. Nichols . . . .137, 511 Dunbar v. Johnson ><.«.. 330 Duncan v. Topham ..... 76 Dunham v. Barnes .... 372, 379 K. Presby. 315,317 Dunlop II. Higgins 76 Durant v. Burt ...... 353 Durgy Cement Co. «. O'Brien 492, 493, 503 Dutton V. Gerrlsh 397 Dwight V. Hamilton 11. Whitney s ■. Dyer v. Homer . . i>. Shurtleff - » E. . . 83, 311 ... 381 74, 288, 293 ... 68 Eames v. Sweetser .... 56, 64 ». Wheeler ...... 170 Earle v. Seed 55, 58 Section East Boston R. E. Co. v. Hubbard 11 Easter ». Allen 9, 265 Eaton V. Kegan 316 V. Melius 529 Edmunds v. Hill 43, 274 V. Merchants' Transportation 203, 266 Edwards v. Marcy 375 Eldridge v. Benson 1 Eliason v. Henshaw .... 76 Elliot V. Ince 62 V. Stoddard 291 Ellis V. Merrimack Bridge Proprie- tors 33 ». Wild 242 Ely 1). James 438 V. Webster 309 Emerson v. Badger 83 V, Brigham 402 V. Patch . '. 466 ». White 452 Essex Co. V. Pacific Mills . 450, 50S Esson V. Tarbell 511 Estabrook B. Swett . . . .268,459 Everenden v. Beaumont . . . 313 Everett v. Gray 517 F. Fairbanks v, Phelps Falls V. Gaither . Farley v. Lovell . Farlow v. Ellis . Famam ■». Brooks Famum v. Boutelle Farwell v. Rogers Fay V. Mnzzey . Fenton v. Braden Feran v. Rudolphsen Fessenden v. Mussey Fettyplace v. Dutch Finch V. Mansfield . Einn v. Clark . . . First Parish in Sudbury v. First Ward Bank v. Thomas Fisher v. Essex Bank . V, Mellen .... Fitzsimmons v, Joslin . Fletcher v. Herring ■. . V. Willard •. . . Griffin . . . . 204 . 76 . 20 203, 204 68,70 28,445 417 97 84 67 127 6,154 86, 223 . 411 Jones 98 . '6,7 . 169 254, 257 . 262 . 97 261 XIV TABLE OF CASES. Section ; V. Millis 19i, 196 Foote V. Blanchard 472 Forbes v. Boston & Lowell R. E. Ii9 Ford V. Phillipps 59 Foss V. Hildreth 35 V. Richardson 343 Foster v. Rockwell 73 V. Ropes .... 135, 191, 193 V. Starkey 36 V. Thurston 308, 309 Fowler v. Bush 437 Fox V. Harding 507 Frank v. Hoey ... 86, 223, 224 Frazier v. Cushman .... 364, 454 Freeland «i. Freeland . . . 27, 293 Freelove v. Freelove .... 511 Freeman v. Nichols .... 60, 204 French v. Price . . 73, 438, 440, 466 V. Vining 258, 281, 388, 397, 402 Frost II. Belmont 307 V. Blanchard .... 371, 379 Frostburg Mining Co. ». N. E. Glass Co 106, 109 Fuller V. Dame 307 V. Wilson 262 G. Gallop V. Newman .... 148, 143 Gardiner v. Corson .... 361, 362 Gardner v. Rowland 110, 148, 149, 155 „.Joy 92 V. Lane 1, 78, 218, 227, 237, 278 Gayler ». Wilder 185 George v. Gobey 333 a V. Kimball 265 Getchell v. Foster 465 Gibbins «. Peeler 296 Gibbs e. Smith 275 V. Thayer 27 Gibson v. Cook 185 V. Soper 34, 35 Gilbert v. Thompson . . . 195, 196 Giles ». Simonds 96, 178 Gill V. Bicknell 130 Gilman v. Dwight .... 83, 311 V. Hunnewell 83 Gilmore v. Holt 447 V. Newton 4 V. Wilbur 179 Glass V. Hulbert 514 SEonos Goddard v. Binney 91, 137, 138, 215, 41U V. Eawson 318 Goldsmith v. Manheim . . • 381 Goodenow 1). Tyler . . . .381,438 Goodnow V. Hill 436 Goodsell V. Trumbull .... 522 Goodwin v. Boston & Lowell R. R. 202, 204, 409 V. Morse 617 Gordon v. Parmelee .... 282 Goss V. Austin 317 Gossler v. Eagle Sugar Refinery 394 Gottfried v. Miller 185 Gould «. Ward 292 Gonlding i'. Skinner .... 387 Gowing V. Knowles .... 74 Granger v. Ilsley 317 Grant v. Lyman 6, 7 «. Mellen 279,534 Gray v. Cropper 261 V. Portland Bank . . . 505, 515 ». White 462 Green v. Collins 309 ■II, Holmes 137 r. Rowland 168,292 <;. Tanner 266,293 Greenfield Bank «. Leavitt . . 510 Greenwood v. Curtis . 310, 319, 438 Grose K. Hennessey . . . .388,390 Gross V. Kierski 390 Grout «. Hapgood 68 *. Hill 293,491,498 Guernsey v. Cook .... 307, 308 ■,. Wood 467 Gumey v. Howe 435 Gushee v. Eddy 450 Guthrie V. Jones 210 H. Haas V, Myers 76 Hall V. Corcoran 327 V. Holden 449 V. Jackson .... 480, 484 ». Weir 56, 66 Hallett V. Oakes 62 Hallgarten v. Oldham . . 150, 356 Hallock V. Commercial Ins. Co. 76 Hallowell & Augusta Bank v. Howard 450 TABLE OF CASES. XV SEonoN Ham V. Kendall 98 Hamilton v. Lane 56 V. Lycoming Ins. Co. . . 76 Hammond v. M. & H. Organ Co. 185 Hancock v. Merrick ... 65, 66 Hapgood V. Shaw . . 362, 409, 454 Hardy v. Potter 85, 146 Harlow v. Curtis 74 V. Hall 140, 161 V. Putnam 243 Harper v. Boss 3 Harrington v. Brown .... 68 V. King 198 ». Smith 375 V. Stratton 617 Harris's Case 76 Harris v. Sumner 303 V. Thayer 617 Harrison v. Glover 84 Hartwell v. Kelley 98 Harrey v. Harris .... 78, 235 V. Vamey .... 293, 302 Haskell e. Eice 482 Haskins v. "Warren 137, 138, 204, 206, 265,274,409, 410,477 Hassam ». Barrett 3 Hastings v. Levering . . 394, 466 Hatch V. Adams 185 V. Bayley . . 110, 149, 155, 224 V. Lincoln . 110, 149, 155, 224 Hathaway v. Haynes . . 230, 231 Hawkins v. Chace . . 126, 129, 132 Haycock v. Eand 522 Haynes v. Nice 90, 445 Hayward v. Ellis 68 Hazard W.Day 326 V. Irwin . . 252, 254, 264, 285 V. Loring ... 3, 379, 447 Heald v. Builders' Ins. Co. . . 80 Heard v. Fairbanks V. Lodge . . Heath v. Randall Heckle v. Lurvey Hedden v. Roberts Hemmer v. Cooper Henry v. Jones . Henshaw v. Robins 281, 375, Hepburn v. Griswold . Herbert v. Bronson . . Higgins V. Casks of Lime V. Chessman . . v. Livermore . . . 96 . 364 178, 195 4 418, 532 . 282 . 417 394, 401 . 450 . 81 . 321 . 194 357, 394 Beciioh Hight V. Bacon 398 Hildreth v. O'Brien . . . 206, 379 Hill V. Cutting ... 96, 178, 179 II. Freeman 204 V. Hill 96, 179 V. Rewee 117, 245 V. Wright 67 Hills V. Snell 4, 238 Hinckley v. Baxter 98 Hirschom v. Canney . . 4, 196, 203 Hoadly v. McLaine 84 Hobbs V. Carr .... 139, 144 Hodges V. Harris 5, 148 HofEman v. Noble . 9, 265, 268, 280 Hogins V. Plympton . 373, 379, 394 Holbrook v. Burt . . . 252, 268, 280 V. Setchel 84 Holland v. Cruft 296 Holliday o. Matthews .... 185 Holly V. Huggeford .... 159 Holmes v. Hunt 464 Homer v. Perkins . . 256, 282, 285 V. Wood 20 Hopkins v. Toung . . . 358, 364 Home V. Briggs 6 Horton v. Buffington . . 308, 327 ». McCarty 130 V. Weiner 274 Hotchkiss V. Finan 309 Houghton V. Hapgood .... 68 Hourigan v. Nowell .... 346 Household Fire Ins. Co. V. Grant 76 Howard i\ Ames 68 V. Borden 101 V. Emerson 402 V. Fessenden 98 1). Harris 1, 331 ■V. Procter 314 Howe V. Hayward 113 V. Norris 354 V. Nickerson 450 V. Richards 243 V. Starkweather .... 45 V. Walker 379 V. Wooldredge 185 Howland v. Leach . . . 358, 364 Hoyt V. Casey 67 Hubbard v. Bliss .... 6, 217 Hubbell 1). FUnt 309,445 Hulet V. Stratton .... 317, 324 Hull V. Richardson 2 Humaston v. Telegraph Co. . . 84 XVI TABLE OJ" CASES. Section Hunt V. Bay State Iron Co. . . 210 «. Holden 417 V. Wyman 2 Hnnter v. Qiddings . . 116, 120, 126 D.Wright 147,412 Buntington v. Knox 16, 120, 343 c, 467 iluse V. Alexander 438 Hussey v. Je\rett 55 V. Hanuf . & Mech. Bank • 515 D. Thornton . . . 0,94, ,204, 265 Hutcheson v. Blakeman 76 Hntchins v. Shaw 98 V. State Bank .... 28, 32 L Ilsley V. Jewett .... .436,438 V. Merriam 467 V. Stubbs. ..... .496, 502 Ingalls ». Herrick 143, 144, OBQ, 291, 292 Ingersoll v. Jackson .... 378 Irwine ». Watson ..... 466 Ives V. Ashley 68 J. Jackson v. lUayo , , . . . 59 .James V. Bixby 466 V. Muir 84 V. 3pau1ding 464 Jarvis V. Sogers 1 Jennison v. Hapgood .... 68 Jewett V. Smith 28 V. Warren 153 Jehnson V. Babcock .... 43 V. Cuttle 105, 106 V. Merrill 183 V. Reed 363 V. Stoddard 22^, 413 V. Trinity Church . . , . 116 Jjmes V. Ames 318, 353 V. Dexter 68 V. Hoar 2, 471 -». Huggeford . . . ,292,392 V. McLeod ...... 318 *. Jfewliall ....... 513 V. "Eichardsou .... SO, 82 Jordan, Ex parte, 290 Jordan v. Osgopd 274 Seotioh Joy V. Sears ,. 151 Judd V. Gibbs 299 Julliard v. Greenman .... 4S0 K. Kane V.Hood 361 Keegan v. Cox 59 Keeler r. Goodwin . . ,218, 483, 490 Kellers. Webb 117 Kelly ». Munson 467 Kempton v. Bray 185 :Kendall v. May 62 Kennedy «. Doyle . ..... 58,59 V, Duncklee 44 ». Whitwell 510 Kenney v. Ingalls 205 Kent V. Bomstein 242 ». Whitney 505 Kershaw v. Kelsey 315 Kibbe v. Hamilton Ins. Co. .. . 261 Kimball v. Comstock .... 260 V. Cunningham 236, 268, 270, 279., 285 V. Hildreth . V. Parker ■11. Thompson King V. Dewey . V. Eagle Mills v. Green . . V, Johnson . V. McEvoy .. Kingsley v. Davis ■Eittredge v. Sumner Kline v. Baker i Knight V. Mann V. N. E. Worsted Co. Knowles r. Dabney , Knox ». Perkins . . Kountz V. Kirkpatrick Krumbhaar ». Birch Kyle ». Kavanagh . . . 3 . . 6 . . 288 . . 511 578, 517 308, 327 . .. 466 158, 199 6, 223, 224, 274, 277 101, 112 . 358 . 365 . 217 . 84 . 390 78, 235 L. Labaree v. Colby . Ladd «. Kogers . .. Lake v. Clark . ,. . Lamb v. Crafts . . V. Dorant . . 63 .... 327 . . „ .. 394 .. . . 92, 380 10, 20, 152, 182 TABLE OF CASES. xvu Seotioh Lamb v. Stone 304 Lamson v. Patch 162 Lane v, Jackson 498, 499 V. Old Colony R. E. . . . 500 Lanfear v. Sumner ... 8, 140, 149 Langdon «. Hughes 464 Lamed v. Andrews 332 Lathrop v. Amherst Bank . . 313 Lawrence v. Lewis 73 V. Wright 28 Leach v. Fobes 516 Learned v, Foster 68 Leei). Kilburn 144,493 V. Wheeler 464 Leffingwell B. Elliott .... 525 Legal Tender Cases 450 Legg V. Willard ... 144, 155, 160 Leggate v. Moulton 460 Leggett V. Baker 294 Lent V. Padelford 367 Leonard v. Stott 36 Lerned v. Johns 120 V. Wannemacher . 116, 121, 128 Lerow v. Wilmarth .... 293, 296 Lester v. Palmer 243 Levy V. Cohen 76 Lewis V. Bannister 305 o. Browning 76 V. Lyman 80 Libby v. Downey . . 316, 317, 318 Lincoln v, Erie Preserving Co. . 119 Lindsey v. Stone 309 Linton v. Porter 390 Litchfield v. Cudworth .... 68 V. Hutchinson 254 Livermore v. Boutelle . . . 288, 296 Lobdell B. Baker . 242, 254, 261, 394 Locke V. Lewis 20, 467 V. Stearns 261 Lockwood V. Perry 15 Lonergan v. Peck 69 Lord V. Baldwin 20 V. Belknap 361 V. Wheeler 365 Loring v. Boston 75 V. Cooke 449 Lothrop V. Otis 386, 401 Lovell V. Williams 73, 437, 440, 466 Low V. Pew 80, 81 Lowell, City of, v. Allen ... 506 Lucas iJ. Nichols .... 139, 410 Lyman v. Kobinson 78 Section Lynch v. Dodge 36 V. O'Donnell 139 Lynde v. McGregor .... 296, 302 V. Thompson 463 M. Co . 363 56,58 . 76 . 466 . 84 . 295 7 86, 309 . 185 181, 366 . 260 . 398 456, 488 . 178 . 178 . 46 McCarren v. MoNulty . McCarthy v. Henderson McCoUough V. Eagle Lis. V. Thompson McEwen v. Morey McGough ji. Wellington Mclntire v. Maynard V. Parks . . . McKay v. Wooster . McKinney v. Bradlee •ti. Whiting . . McLauthlin v. Wilder McLean v. Richardson . McLeod V. Jones . . McNeal v. Emerson . McNeil V. Adam . . IJacomber v. Parker 135, 169, 191, 192, 193, 292 Mactier v. Frith 76 Mafflyn v. Hathaway .... .366 Maneely v. McGee . . 436, 438, 440 Mann v. Bishop 174, 353 V. Blanchard 260 Manning v. Albee . . 282, 285, 457 Mansfield v. Converse .... 2 V. Trigg . . 245, 248, 249, 250 Manson v. Felton 36 Marble v. Moore 135, 158 Marcus v. Boston 133 Marcy v. Darling 98 Marland v. Stanwood .... 420 Marsh v. Hyde . . . HI, 114, 116 Marston v. Baldwin .... 194, 204 V. Boynton 436 Martin v. Adams . . 159, 181, 366 V. Mayo 59 •V. Roberts 458 «. Root 293,296 Maryland v. R. R. Co 450 Mason v. Briggs 447 V. Thompson .... 140, 194 V. Waite 38 V. Wright 56 Matthews v. Bliss . . 71, 253, 258 XVUl TABLE OF CASES. Sectiom Matthiessen & W. E. Co. v. Mc- Mahon 115 Mattice «. Allen 115 Mattoon v. Rice 402 Maxham e. Dav 512 May V. Chaffee" 185 V. Ward 92, 121 Mayhew v. Thaver 65 Medbury v. Wa'tson 257, 260, 282, 284, 285, 521 Helledge v. Boston Iron Co. 73, 436, 441 Merchant ». Chapman . . .86, 411 Merchants' Bank v. Bangs 135, 218, 224, 229, 232, 234 Meiriam v. Cunningham ... 56 ■0. Granite Bank .... 38 V. Walcott . . . 242, 394, 404 Merrill v. Huunewell .... 218 Merrimack Manuf. Co. v. Quin- tard 506 Men'iman v. Chapman .... 386 Michigan Bank v. Gardner . . 19 Middlesex Co. v. Osgood 89, 215, 410 Middlesex E. E. Co. v. Boston & Chelsea R. R. Co 11 Mill Dam Foundry ». Hovey 360, 365 Miller i;. Baker 96 V. Lord 241 V. Post 316 V. Smith 377 ». Stevens 117 Millett V. Lemon 417 Milliken v. Pratt 85, 86, 310, 319, 320 (/. Thomdike . . 251, 254, 255 Mills V. Perkins 329 Milton V. Colby 98 u. Mosher 20 Miner v. Bradley 244, 250 ^Mitchell V. Black 144 V. Kingman 62 Mixer v. Cobum 394, 517 V. Howarth 91, 215 Mohr V. Boston & Albany E. E. Co 495, 504 Molton J). Camroux 62 Moody V. Blake 4, 266 !). Wright 80, 82 Mooney v. Miller . . 255, 282, 285 Morgan v. Bliss 257 V. Eichardson 435 Morris V. French 209 Section Morse v. Brackett 236, 248, 249, 250, 279 «. Dearborn 254 0. Hill 68 ■u. Hutchins 524 V. Shaw 255, 256 V. Sherman 135, 138, 408, 409 410, 455, 477 w. Wheeler 59 Morse Machine Co. v. Morse 311, 312 Morton v. Dean . . 93, 116, 121, 130 V. Huxley 260 Mount Hope Iron Co. o. Buffinton 2i6 Mudge V. Oliver 239 Mimsell «. Carew 164 Munsey «. Butterfield .... 83 Murphy ». Manning .... 467 V. Marland 93 Murray ». Stevens 515 Musson V. Fales 315 Mutual Life Ins. Co. iJ. Allen 315 o Myers v. Meinrath . . . 308, 327 ■I/. Smith 76 N. Narragansett Bank «. Atlantic Silk Co. 73 Nash V. Lull 243 Nason v. Holt .364 Nat. Bank of Cairo v. Crocker 149, 230, 233 of Chicago v. Bayley ... 233 of Green Bay 'O. Dearborn . 150 Nat. Exchange Co. of Glasgow v. Drew 262 Nat. Eubber Co. v. Sweet . 418, 532 Naylor v. Dennie 493, 496, 498, 603 Nelson v. Dodge 203 Nettleton v. Sikes .... 96, 178 N«wcomb V. Boston & liowell E. E. Co 150, 230 V. Brackett 364 Newell V, Williston 172 Newhall v. Kingsbury .... 198 New Haven & Northampton Co. o. Campbell ...,,.. 500 Newsome v. Davis 39 Newton ». Fay 3 V. Winchester 474 Nichols V. Bishop 174 V. Morse 415, 455 TABLE OF CASES. Section Nickerson v. Darrow .... 19 Northampton Bank v. Mass. Loan & Trust Co 392 Norton v. Norton 296 ■v. Simonds 88 Nourse v. Pope 330 Nowell V. Pratt . . . 22, 136, 223 Nowlan i;. Cain 285 Noyes v. Haverhill 48 Natting V. Dickinson .... 84 o. Oakes v. Tonsmierre . Oakmau v. Boyce . . 0. Dorchester Ins. Co. V. Rogers Oberlin College v. Fowler O'Connor v. Varney . . Odell V. Boston & Maine R. R 83 429 74, 121 . £0 . 519 193, 224 O'Donnell v. Hitchcock ... 98 Orcutt V. Nelson . 224, 239, 309, 411 Oriental Bank ii. Haskins 292, 293, 302 Ormsby v. Dearborn .... 272 Owen V. Loring 59 P. Packard v. Dunsmore .... 149 ■a. Richardson 119 V. Wood ... 8, 43, 140, 161 Packer v. Lockman 252 Page V. Bent 254, 255 ■0. Cole 83 Paige V. Stone 440 Palmer v. Kelleher 316 V. Merrill 316 a Palo Alto, The 76 Parham Machine Co. v. Brock . 437 Park V. Darling 44 Parker r, Brancker .... 21, 39 V. Moulton 282 V. Nick«rson 68 V. Perkins 447 Parkman v. Welch . . . 288, 296 Parks V. Boston 510 r. Hall . 144, 160, 478, 480, 484 Parsons v. Dickinson . . 8, 140, 167 v. Merrill 7 ,,. Trask 319 311 288, 297 421 . 96 . 253 . 126 3 . 264 . 440 308, 330 . 311 . 390 Seotios Patch V. Wheatland .... 20 Patlee v. Greely 324 Peabody v. Norfolk ... 83, 311 Pearson v. Goodwin .... 300 V. Howe 255 V. Mason 455 Peckham v. Holman . . 402, 533 Pedrick v. Porter . . . 282, 53] Peirce v. Benjamin 68 V. Goddard . D. Tobey V. Woodward Pelham v, Aldrich Pembroke Iron Co. v. Parsons Penhallow v. Dwiglit . Penn. Ins. Co. v. Crane Penniman v. Hartslioro Pennock ». McCormick Perkins v. Bailey V, Cady . . I/. Cummings V, Lyman . , V, Whelan Perley v. Balch 236, 249, 268, 279, 280, 617 Peters v. Ballistier .... 16, 271 Phelps V. Cutler 144 V. Willard 215 Philbrook v. Eaton .... 3, 140 Phillips V. Blake 450 0. Stevens 305 Phippen v. Stickney . . . . 275 Pierce v, Benjamin 48 V. Fuller 311 Pierpont v. Fowle 186 Pike V. Fay .... 117, 255, 401 Pitney ». Glen's Falls Ins. Co. . 115 Pitts 9. Whitman 186 Poland V. Brownell 282 Pomroy v. Gold .... 364, 454 V. Rice 437 Pond V. Eddy 3 V. Williams 445 Poor V. Oakman 96 Pope V. Beals 332 Portland Bank v. Stacy . . . 151 Potter V. Irish 183 Potts V. N. Y. & N. E. R. R. Co. 491, 600 Powers V. Mayo .... 255, 282 Pratt ji. Langdon 318 V. Maynard .... 137, 322 XX TABLE OF CASES. Sectiok Pratt V. Parkman 140, 148, 149, 166 Prescott V. Battersby . . . . 316 e. Wright 264 Priest V. Wlieeler 489 Prince V. Boston & Lowell R. E. Co 150, 224, 232, 411 Procter v. Sears 59 Proper v. Cobb 67 Putnam v. Dutch 151 ■V. Tillotson .... 224, 411 Putney v. Hardy 253 Q. Quarles v. George 505 Quiner v. Marblehead Ins. Co. . 170 Quintard t!. Bacon . . . .106,109 R. Eaddin v. Arnold 209 Kamsay ». Warner 445 Randall v. Hazelton .... 257 Randon 1). Toby 390 Ray V. Thompson 366 Raymond v. Crown & Eagle Mills 466 K.Eldridge 61 Eaynes v. Bennett 64 Read v. Hatch 460 V. Smith 461 Reed v. Ashburnham R. R. . . 73 V. Batchelder 68, 59 ■1). Boardman 445 ■v. Upton 436 Reeve v. Dennett 3 Reggio V. Braggiotti .... 525 Remick v. Sandford 101, 106, 107, 108, 129, 131, 517 Reynold v. Sweetser Reynolds v. Reynolds Rhoades v. Castner . Rice V. Austin . . ■1). Codman . . ■II. Dwight Manuf . Co. V. Stone .... . . 65, 66 ... 251 . . 116, 117 . . 109, 149 137, 375, 394 78, 241 . 81 Richards v. Woodward . . . 329 Richardson ». Chemical Laboratory 449 V. Crooker 469 0. Sibley 11 V. Woodbury . . . .445. 446 Richmond Iron Works v. Woodruff 193 SZOTIOH Riddle v. Cobum 195 V. Varnum . . . 135, 153, 192 Kidley v. Knox 67 Riley V. Boston Water Power . 4 1'. Farnsworth 121 Rindge v. Sandford 2 Robbins v. Bates 68 V. Holman 451 V. Luce 415 Roberge v. Burnham .... 333 Roberts v. Myers 186 Robeson v. French . . . 308, 324 Robinson v. Green 308 u. Mansfield 47 t. Talbot 517 Rodgers I'. Jones 101,112 Rodman v. Guilford . . . 415, 455 Rogers ». Taintor 83 Rohan v. Hanson 445 Rommell ». Wingate . . .226,418 Roosevelt v. Doherty . . . 467, 468 Ropes V. Lane . . 136, 137, 143, 218 V. Upton 311 Ross V. Welch 96, 137 Rotch V. Morgan 68 Rourke v. Bullens ... 8, 140, 165 Rowley v. Bigelow 9, 149, 264, 265, 274, 491, 496, 497, 502 Rubber Co. v. Adams .... 282 Rundlett v. Weever 445 Russ V. Butterfield 294 Russell V. Barry 118 V. O'Brien . . . 149, 155, 193 Ryan t;. Hall 433 S. SaJFord v. Grout .... 253, 255 r.McDonough . . 103,112,477 Salomon v. Hathaway .... 203 Sampson v. Shaw 307 Samuel v. Cheney 263 Sanborn v. Flagler 119, 120, 121, 123, 126 Sargent v. Currier 390 V. Essex Marine Railway . 170 V. Franklin Ins. Co. 170, 510, 515 ■V. Metcalf .... 195, 199 Sartwell v. Frost 73, 466 Saunders v. Frost 449 Savage v. Davis 43 Savage v. Stevens . . . 254, 285 TABLE OF CASES. XXI Section Sawyer v. Smith 316 V. SpofEord 212 V. Yale Iron Works ... 209 Schenck v. Saunders .... 2 Schnitzer v. Oriental Print Works 40 1 Scholfield 17. Bell 498 IScott V. Harmon .... 313, 355 Scuddpr V. Bradbury . 1J9, 202, 204 ■n. Worster 13ti. 219 Sears v. Ames 432, 444 V, Dewing 450 V. Lebetter 175 ^. Wills -501 Seaver v. Phelps 62 Seavey v. Potter 272 Seekonk v. Kehobeth .... 417 Sej'mour v. Beunet 364 V. Newton . 230, 492, 602, 503 Shaffer v. Sawyer 118 Shattuck V. Green .... 388, 391 Shaw V. Carbrey 100 V. Finney 120 B.Hall 73 V. Nudd .... 129, 191, 505 •c. Spencer 29 11. Stone 381 Shearer v. Babson 322 Shelton v. Homer 68 Sherley v. McCormick .... 86 Sherwin v. Mudge 192 Shumwav v. Eutter .... 140, 145 Shurtleff'u. Willard 20, 144, 160, 291 Sibley v. Quinsigamond Nat. Bank 170 Silver V. Jordan 466 Sleeper v. Chapman 293 Sloan 1). Merrill 173 Small V. Franklin Mining Co. . 443 Smith V. Arnold 130, 316 i>. Colby . 124 7.. Dennie 204,265 ^. Go-wdv 74,123 V. Kelley 59 ^ 0. Mayo 59 V. Northampton Bank . . 28 Smith Paper Co. v. Servin . 99, 210 Snell V. Dwight 315 Snelling ». Hall 428 Snow V. Lang 293 V.Perry 450 V. Warner 105 Sohier r. JohnRon 83 Somerby v. Buntin .... 95, 514 Section Somers !). Wright 507 Somes V. Brewer ,...,. 265 Southbridge Savings Bank v. Ex- eter Works 210 V. Stevens 210 Southwick V. Harndell .... 37 Southworth v. Smith .... 447 Spencer v. Cone 92 Spencer, Inhabitants of, v. Jones 314 Spooner v. Baxter .... 367, 426 V. Holmes 4, 38 Spring V. Coffin 4 V. Tongue 378 Springfield Bank v. Merrick . . 316 Spm-r V. Benedict .... 78, 240 Stachelberg v. Ponce .... 83 Stackpole v. Seymour .... S15 Stacy V. Kemp 520 Stafford v. Whitcomb .... 322 Stanley v. Gaylord 4 Stanton v. Eager 232, 411, 491, 496, 502 Star Glass Co. v. Morey 77, 418, 518 Stark V. Coffin 450 Stearns v. Barrett 311 ■v. Hall 118 ■V. Quincj' Ins. Co 82 V. Washburn . . 96, 455, 469 Stebbins v. Leowolf ... . 353 Stedman v. Lane . 385, 388, 393, 397 Stern v. Filene 410 Stephenson v. Cady .... 362, 427 Stevens v. Austin . . . . 457 V. Boston & Worcester E. E. 224 V. Cunningham . . . 4, 19 »j. Warren 315 a Stevenson v. McLean ... 76 V. Payne 320 Stewart v. Loring 365 V. Thomas 294 Stiles V. White 257, 624 Stinson v. Clark 142 Stockham v. Stockham ... 76 Stoddard «. Ham .- ... 239 Stollenwerck v. Thacher 19, 149, 230 Stone V. Dennison .... 56, 66 V. Denny 254, 265 V. Hackett 170 Stoop V. Smith 117, 401 Strong V. Doyle 97 Stroud V. Pierce 375 Stubbs V. Johnson 256 xxu TABLE OF CASES. Section Stubbs V. Lund 49U, 496 Sudbiuy, Parish of, v. Jones. . 98 Suffolk Bank v. Worcester Bank 451 Suit V. Woodhall 86, 1-39, 223, 224, 317 Sumner v. Hamlet . . 135, 158, 193 ». McNeil 16 Sutton V. Bowker 430 Swallow V. Emery 199 Swett V. Boyce 208, 446 V. Poor 308, 313 V. Shumway 117, 401 Swift ». Bennett 56 Symmes t;. Frazier 75 T. Taft V. Boyd 436, 437 V, Dickinson 204 V. Stetson 209 K. Travis 84 Taggard v. Loring 182 Tapley v. Buttertield ... 10, 20 »." Forbes 293,301 Tasker v. Bartlett .... 364, 447 Tayloe v. Merchants' Ins. Co. . 76 Taylor v. Blanchard .... 311 " V. Cole .... 386, 400, 416 •c. Weld 293 u. Wilson 443 Teague «. Irwin 256,534 Teed B. Teed 115 Tenney v. Sawyer 34 Thacher v, Dinsmore .... 438 V. Phinney 297 Thayer v. Brackett 449 V. Felt 451 V. Lapham 180 T. Middlesex Mutual Ins. Co 76 V. Turner . . . 236, 268, 279 V. White 73 Thissell v. Page 294 Thomas v. Goodwin .... 302 V. Knowles 365 Thompson v. Alger 95, 114, 225, 453, 455 ». Gould 78 ". Lay 59 V. Thompson 493 17. Tinton 210 Thomson v. James .... 76 Thomdike v. Bath . ' . . 8, 158 SEcnoH Thovndike v. Locke 455 Thrall i-. Hill 5, 80 Thurston v. Blanchard 74, 268, 457, 479 V. Percival- 313 Tibbetts o. Sunnier 470 Tileston ». Newell 358 Tisdale v. Harris 95, 111 Titcomb v. Union Ins. Co. . . 45 Tobey v. Wood '. 59 Todd V. Bishop 69 V. Clapp 59 V. Taft 516 Town V. Trow 448 Towne v. Collins 37 V. Fiske 210, 292 Townsend v. Hargraves 88, 110, 111, 118, 137, 139, 155, 434 V. Weld 378 Tozier ii. Crafts 73, 441 Tracy v. Webster 3U9 Travis v. Tyler 512 Treadwell v. Salisbury Manuf . Co. 11 Trevor v. Wood 76 Trott V. Irish 318 Trout V. Kennedy 84 Trull V. Trull . " 29 Tiyon ». Whitmarsh . . . 255, 257 Tucker v. Drake 437 Tuckwell V. Lambert .... 528 Tufts n. Plymouth Gold Mining Co 118 Tuite V. Stevens 26 Tupper V. Cadwell 56 Turner v. Coolidge 151 V. Langdon 410, 455 Tuttle V. Brown . . . 375, 517, 524 Tuxworth V. Moore .... 110, 155 Tyler v. Freeman 204 Ullman v. Barnard .... 195, 231 Upham V. Lefavour . . . 445, 446 Upton V. Sturbridge Mills . . 204 V. Suffolk County Mills 381, 384 V. Winchester 469 Urann v. Coates 450 V. Valentine ». Brown 223 Valpy V. Gibson 84 TABLE OF CASES. XXUl Section Vancleef v. Therasson . . . 439 Vassar v. Camp . . 76 Veasey v. Doton . . 255, 256, 282 Veazie v. Somerby 8, 140, 153, 183 Vent V. Osgood . 56, 58 Vibbai-d v. Johnson . 390 Vickerv v. Welch 83, 311 Vinal V. Burrill . . 182 Vincent v. Cornell . 198 V. Leland . . . 370, 517, 523 w. Wadsworth v. Gay ... 2, 68, 467 V. Williams 297 Wait V. Maxwell 35 Wakefield v. Lithgow .... 435 Walan v. Kerby 331 Walker v. Nussey 115 V. Buttrick 2 II. Staples 1, 3 Wall V. Lakin 299 Walsh V. Young 34 Wansler v. Messier 390 Ward V. Smith 450 Warden v. Marshall . 159, 424, 455 Wareham Bank v. Burt ... 365 Ware River E. E. v. Vibbard 478, 484 Warren «._ Chapman .... 445 X. Warren Thread Co. . . 83 V. Wheeler . . . 379, 414, 433 Wartman v. Breed 2 Washburn v. Cuddihy .... 377 V. Fletcher 76 V. Pond 39 V. Sproat 98 Washburn Iron Co. K. Russell . 146 Waterman v. Meigs . . 91, 92, 121 Water Patent Heater Co. v. Smith 368 Watkihs v. Hill' 436 Way V. Sperry 60 Webster v. Munger 309 Weddigen ii. Elastic Fabric Co. 443 Weed V. B. & S. Ice Co. . . . 199 Welch V. Bradbury 70 V. Goodwin 120 Weld D. Came . 112, 139, 158, 410 V. Cutler ■ 222 V. Oliver 10 Wellington v. Downer Kerosene Oil Co 258, 281, 346 SEcnoN 257, 304 365 260 75 522 517 76 38 316 262 6, 154, 155 1, 3, 7, 155 438 15 96 261 265 Wellington v. Small Wells V. Bannister V. Calnan V. Prince . . Wentworth v. Day V. Dows . . Westcott V. Ninis Wheat V. Cross . Wheeler v. Guild V, Russell . . Wheelton v. Hardisty Whipple V. Thayer . Whitaker v. Sumner Whitcomb v. Williams White V. Dolliver . V. Foster . . . V. Sawyer . . Whitman v. Merrill Whitmarsh v. Walker Whitmore v. South Boston Iron Co 379, 397, 403, 524 Whitnej' V. Beckford .... 176 v. Boardman . . 117, 395, 487 •«. Dutch 59 V. Eaton 203, 204 V. Esson 444 V. Heywood 388 r. Thacher 419 Whittier ji. Dana 118 Whitwell V. Vincent . . . 194, 204 WJggin V. Day 265, 274 V. Peters 417 Wigton V. Bowley . . 224, 232, 234 Wilde V. Gibson 262 Wilder v. Cowles 382 Wilkins v. Holmes 4 Willey V. Beach 64 Williams v. Bacon .... 116, 120 V. Brimhall 20 V. Hathaway 373 1/. Jackman 215 1-. Mitchell 73 II. Nichols 3 V. Spofford 394, 401 V. Woodman 356 Williamson v. Berry .... 84 Willington v. West Boylston . 365 Williston V. Morse 24 Wilson V. Melvin .... 318 0. Eussell 82, 144 Winchell v. Carey 324 Winchester v. Charter .... 207 XXIV TABLE OF CASES. SEcnoH WiQchester o. Howard . . . 7i, 239 V. Newton 431 ■Winslow V. Merchauts' Ins. Co. 82 Winsor ». Griggs 466 u. Lombard . . . 393, 396, 402 Wiseman ». Lyman 438 Witlierbj v. Sleeper .... 2 Wolcott V. Knight 313 Wonson v. Fenno 530 V. Saj-ward 28 Wood V. Bodwell 436 Woodbury e. Robbins . . . 376, 377 Woods V. Oakman 137 Woodwand v. Boston .... 366 Worcester v. Eaton 308 Word V. Gavin 390 Worthington v. Cowles . . 394, 404 Worthley v. Emerson .... 446 Worthy v. Jones 462 Wright V. Kandel 185 Section Wright ». Tetlow 215 Wylie i: Kelly 115 Wyman v. Fiske 353 V. Hooper 68 Y. Yaeger Milling Co. v. Brown . 79 Yeackel v. Litchtield .... 68 Young V. Adams 394 n. Austin 218 Young & Conant Manuf. Co. v. Wakefield 249,250 Zoller V. Morse . . Zuchtmaun v. Roberts . . . 402 . 196, 197 TABLE OF STATUTORY CITATIONS. MASSACHUSETTS STATUTES. Statutes of Seohoh Statntes of SEOnOK 1692, eh. 15, §7 .... 87 1817, ch. 190, § 35 .... 33 1783 "15 316, 343/ 1817 " 191 . . 356 " " 38, § 7 . . 36 1818 " 69 . . 36 " " 57, §5 43 1819 " 87 . . 43 1784 " 50 . 348 1819 " 132, §1. 23 1785 " 50, § 6 48 1820 " 54, § 3 . 33 1785 " 70, § 2 48 1821 "55 . . 335 1788 " 16, § 2 87 1822 " 87, §2. 23 1788 " 55 . 50 tt " 93, §§1,2 43 1789 " 26 . 511 ti " 93, § 6 . 7 1791 " 8 . 335 " " 110 . . 460 " " 58, §§1 ,4 323 1823 " 121 . . 347 " " 22, § 3 48 1823 " 140, § 1 . 512 1793 " 43 . 50 1824 " 136 . . 316 1795 " 8, §§1-3. 23 1825 " 184 . . 356 1796 " 67, §§ 1, 3, 4 343 c 1826 " 3, § 1 ■ 345 " " 88, § 2 . . 50 (( " 63, § 1 . 36 " " 89, §1. . 323 " " 122, § 1 . 343/ 1798 " 59, § 3 . . 12 1827 " 19 . . 343 c 1799 " 26, § 1 . . 343 c 1827 " 74 . . 50 " " 63, §§1,2 407 a 1828 " 62 . . 347 " " 64, § 1 . . 343/ (( " 112 . . 460 " " 84, § 1 . . 334 " " 118 . . 335 1800 " 28, §§ 2, 4 334 1830 " 27, § 2 . 343 c 1802 " 103, §§ 5-8 . 343/ (1 " 85 . . 451 1803 " 54 . . . 343 a it " 99, § 2 . 336 1804 " 83 . 43 (1 " 128 . . 461 1806 " 14 . 335 1833 " 148, §§1,3 356 1807 " 54 . 335 tl " 187, §8. 172 1809 " 62 . 343/ It " 215, §§1-4 338 1809 " 120 . 335 1834 " 2 . . 460 1811 " 62 . 355 t( " 162 . . 43 1814 " 170 . 50 " " 182, § 5 . 259 1815 " 7 . 356 1836 " 279 . . 353 1815 " 29 . 23 1837 " 111, §1- 343/ 1817 " 87 . 512 1837 " 233 . . 23 " " 130 . 343/ 1838 " 163, §10 299 " " 190, § 19 31 1838 " 163, §11 26 XXVI TABLE OF STATUTORY CITATIONS. Statutes of Ssciioh 1839, ch. 135, § 50, 343 c, 345, 347 1840 " 82 341 1841 " 124, § 3 299 1841 " 124, § 5 7 1845 " 193, § 2 19 1846 " 195, §§1-4 ... 48 1846 "244 52 1847 " 14 343/ " "51 347 " •' 242, §§ 5, 6 ... 344 " " 246, §§ 4, 7 ... 343 " " 267, § 4 43 1849 " 216, §§ 1-5 . . . . 19 1860 "261 340 1850 "284 322 1851 "68 344 " "100 343/ " " 136, §1 31 " "147 60 " "217 336 " "238 340 1852 " 115, § 1 23 " "312 60 " " 312, §§ 14, 16, 18 . 317 " " 312, § 19 ... . 60 1853 " 305, §§1,2 . . .343e 1853 " 394, § 1 348 1854 "361 343 c 1854 " 448, § 33 . . . . 23 1855 "66 7 " "121 41 " " 197, § 1 352 " "232 341 " "239 348 " "356 348 1856 " 121, § 1 356 " , " 232, § 4 14 " "271 343/ " " 284, §§ 25, 26 . . . 299 " " 284, § 27 .... 300 1857 "156 322 " " 232, § 1 23 " "237 49 " "247 7 " " 280, §§ 1, 2 ... 348 1858 "68 340 " "164 343/ " " 164, §15 .... 316 1859 " 174, §§ 1-5 ... 343 " "196 60 " "244 343/ 1860 " 219, § 7 350 Statutes of 1861, ch. 67 . . . 1861 " 104, § 2 . . 1862 " 70 and 134 198, §§ 1, 2 143 .. . 174, §§1-4. 139, §§ 1, 2 1866 " 152, § 1 . . " " 236, §§1,3, 4 " " 253, § 1 . . " 62,§1. . " 112 . . . " 152, §§2-5 " 152, § 6 . . " 152, § 9 . . " 384, §§ 27, 30 " 205, §§3,3, 4 " 224, §§ 27-29 " 395 .. . •• 113 .. . " 381, §§ 7, 10 " 381, § 9 . . " 381, § 31 . " 180, § 2 . . " 303 .. . « 110,§1. . " 153, §§1,2 " 184, §§ 1, 3 " 372, §44 " 372, §45 1862 1863 1863 1864 1867 1869 1870 1871 1873 1873 1874 1875 1876 1876 1877 1878 99, §§ 1-4 99, § 6 . 99, § 15 99, § 16 99, § 18 153 . 147 . 221, § 1 75 . 95 . 185 . 216, §§ 2 24, §§ 66 . 76 . 93 . 93, §3 116 . 169, §§ 2, 224, § 3 258, §§ 1-3 TABLE OF STATUTORY CITATIONS. xxvu Statutes of Seohon 1879, ch. 102, § 1 41 " "178 350 " " 209, §§1,3 ... 852 1880 " 84, § 1 41 " "86 351 " "113 343 b " " 119, § 1 343 6 " "155 50 " " 158, §§ 1-3 ... 341 " " 209, §§1-7. ... 337 " "220 32 " " 239, § 3 328 a " " 239, § 5 328 1881 " 64, §§ 1, 2 ... 328 " " 64, § 1 67 " "165 48 " "222 213 " " 270. § 2 351 " " 292, §§ 1, 2 ... 334 " " 297, §§ 1, 2 ... 352 " " 302, § 1 172 1882 " 98, § 2 351 1882 " 263, §§1-4. ... 349 1883 "118 52 " "168 52 " " 218, §1 343rf " " 257, § 1 343J 1884 "37 324 " " 70, §1 343d " "158 328 a " "171 351 " "175 43 " "212 351 " "229 171 " "277 356 " " 289, §§ 5, 7 ... 349 " " 307, § 1 343 J " " 310, § 1 334 " "313 214 " "824 41 1885 "73 356/ " "90 328(1 " "98 346 " "122 338 " "150 343 6 " "216 328 a " "252 41 " "282 333 a " "305 356 e " "313 51 " "341 50 " " 352 335 Bevised Statutes of Seohon 1836, ch. 2, §6 ... 417 U 8, §§7-10 . . 48 (( 28, §§ 46, 68, 59 334 (( 28, §§ 60-62 . . 343 a ti 28, §§ 69-91 . . 335 " 28, §§ 92-94 . . 347 (( 28, §§ 99-101, 103 343^ i( 28, §§ 104-118 . 335 . Noble (184.3), 6 Mete. 68 ; Easter v. Allen (1864), 8 Allen, 9, 10. Seeposi, § 265 e^ seq. 2 Lamb v. Durant (1815), 13 Mass. 56 ; Arnold v. Brown (1832), 24 Pick. 93 ; Tapley v. Butterfleld (1840), 1 Mete. 518. « Weld V. Oliver (1839), 21 Pick. 559 ; Bryant v. Clifford (1847). 13 Mete. 138, 142 ; Burbank v. Crooker (1856), 7 Gray, 158. * Brown v. Wellington (1871), 106 Mass! 318. WHO MAY SELL. 9 § 11. Corporations. — The directors of a manufacturing corporation, pursuant to the vote of a majority of the stockholders, though against the protest of a minority, may sell the whole property of the corporation to a new corporation, taking payment in shares of the new corpo- ration, to be distributed among those of the old stockholders who are willing to take them.^ The court said in this case: "At common law the right of corporations acting by a majority of their stockholders to sell their property is absolute, and is not limited as to objects, circumstances, or quantity. To this general rule there are many ex- ceptions, arising from the nature of particular corporations, the purposes for which they were created, and the duties and liabilities imposed on them by their charters. Cor- porations established for objects quasi public, such as railway, canal, or turnpike corporations, may fall within the exception, as also charitable and religious bodies. Such corporations may perhaps be restrained from alien- ating their property, and compelled to appropriate it to specific uses. But it is not so with corporations of a private character, established solely for trading and manu- facturing purposes. The new stock is taken in lieu of money, and if it be done fairly and not collusively, it is not open to valid objection by a minority." Thus it was afterwards held that a railroad corporation could not alienate its franchise without the permission of the legis- lature expressly granted. Such a franchise is not in its own nature transmissible.^ Thus it was also held still later that a street-railway corporation has no power to alienate its franchise, road, or property without legislative 1 Treadwell v. Salisbury Maijnf. Co. (1856), 7 Gray, 393, 404, 406. 2 Commonwealtli v. Smith (1865), 10 Allen, 448, 455 ; East Boston K. R. Co. V. Hubbard (1865), 10 Allen, 459 ; Richardson v. Sibley (1866), 11 Allen, 67. 10 SALES OF PERSONAL PROPERTY. authority, and a conveyance by such a corporation of sub- stantially all of its property, without such authority, is wholly void.^ § 12. Power of Corporations to sell Shares of Stock of Members who fail to pay Assessments. — Corporations are authorized by statute to sell the shares of stock of a member when he neglects to pay an assessment legally made there- on. The statute provisions are as follows : ^ " Every cor- poration which is subject to this chapter, from time to time at a legal meeting called for the purpose, may assess upon each share such sums of money as it deems proper, not exceeding in the whole the par thereof; and the sums so assessed shall be paid to the treasurer at such times and by such instalments as the corporation directs." " If the proprietor of a share neglects to pay a sum duly assessed thereon for the space of thirty days after the time appointed for payment, the treasurer of the corporation may sell by public auction a sufficient number of his shares to pay all assessments then due from him, with necessary and incidental Charges." " The treasurer shall give notice of the time and place appointed for such sale, and of the sum due on each share, by advertising the same three weeks successively before the sale in some newspaper printed in the county where the corporation is established, and if there is no such paper, thpn in some newspaper printed in an adjoining county ; and a deed of the shares so sold, made by the treasurer and acknowledged before a justice of the peace, and recorded as provided in section thirty, shall transfer 1 Richardson v. Sibley (1866), 11 AUen, 67-73 ; Middlesex R R. Co. V. Boston & Chelsea K. R. Co. (1874), 115 Mass. 347. See Pub. St. ch. 113, § 56 (prior reference, St. 1871, ch. 381, § 31). 2 Pub. St. oh. 106, §§ 43-45 (prior reference, St. 1870, ch. 224, §§ 27-29). This chapter relates to manufacturing corporations. WHO MAY SELL. H said shares to the purchaser, who shall be entitled to a certificate therefor." There are similar provisions made specially applicable to railroad corporations/ aqueduct corporations,^ and street- railway corporations.^ § 13. Power of Bank to sell Shares on which it has a Lien. — A bank may sell the shares of a stockholder upon which it has a lien by virtue of a by-law or otherwise for any debt due the bank from him. The statute pre- scribes minutely the manner in which the sale must be made.* § 14. Insurance Companies. — It is expressly provided by statute that no insurance company shall buy or sell goods, wares, or merchandise, except articles insured by it on which losses are claimed, and except in replacing, re- building, or repairing property insured.* § 15. May one who replevies Goods sell them and give an Absolute Title ? — The question has been raised whether any one who avails himself of the forms of law in insti- tuting an action of replevin, merely alleging property in himself and giving the required bond, may, upon the ser- vice of the writ of replevin, sell the property replevied absolutely and by an indefeasible title, and thus divest the real owner of his property, irrespective of the judg- ment in the action of replevin. It has been answered in 1 Pub. St. ch. 113, § 67 (prior references, St. 1874, ch. 373, § 45 ; Gen. St. eh. 63, § 9; Rev. St. ch. 39, § 53). ^ Pub. St. ch. 110, § 6 (prior references. Gen. St. ch. 65, § 6 ; Eev. St. ch. 40, § 7 ; St. 1798, ch. 59, § 3). 8 Pub. St. ch. 113, § 17 (prior reference, St. 1871, ch. 381, §9). * Pub. St. ch. 118, §§ 95-98 (prior reference, St. 1863, oh. 174, §§ 1-4). 6 Pub. St. ch. 119, § 49 (prior references. Gen. St. ch. 58, § 23 ; St. 1856, ch. 332, § 4). 12 SALES OF PERSONAL PROPERTY. the negative.^ The court said : " In ordinary cases the purchaser buys subject to the question of the vendor's title, and we think none the less so because the vendor has acquired his possession under a writ of replevin, issued upon his own representation, which may be wholly un- founded in truth. "We perceive no suificient reason for sanctioning the broad doctrine that, by reason of the mere fact that he has acquired his possession through the instru- mentality of a writ of replevin, his vendee has acquired thereby an indefeasible title as against everybody." On a termination of the replevin suit in favor of the defendant, he may therefore replevy the goods from such a purchaser ; and to enable him to do this there need be no judgment for a return in the original action. § 16. Agents. — A sale may, of course, be made by an agent duly authorized ; and if a person make a sale, assum- ing to be such agent, when, however, he has not sufficient authority, it may be rendered valid by a subsequent act of the owner of the thing sold, amounting to an adoption of it.2 § 17. Sale by a Committee. — The members of a com- mittee, authorized by vote of the proprietors of a meeting- house to sell it on a day named, have no authority to make the sale on any other day ; and if they do so and give a bill of sale, it passes no title.^ § 18. Sale by one ■without Authority, the Owner kno'w- ing of it but taking no Steps to prevent it. — Evidence of frequent sales by A of the property of B, which were * Lockwood V. Perry (1845), 9 Mete. 440. See White v. Dolliver (1873), 113 Mass. 401-403. 2 Clement v. Jones (1815), 12 Mass. 60 ; Peters v. Ballistier (1826), 3 Pick. 495 ; Sumner v. McNeil (1847), 12 Mete. 519 ; Huntington v. Knox (1851), 7 Cush. 371 ; ClmrchiU v. Palmer (1874), 115 Mass. 310. » Bliss V. Clark (1860), 16 Gray, 60. WHO MAY SELL. 13 known and not objected to by B, is competent as tending to show that they were made by his permission. B's knowledge may, in the absence of direct evidence, be in- ferred from the frequency and amount of the sales, coupled with proof of ample means of knowledge. But the mere fact that B knew of the unauthorized sales that were being made by A, knew that the purchasers were acting under the mistaken belief that A had authority to sell, and yet gave them no notice to the contrary, does not operate by way of estoppel to prevent his maintaining an action of trover or replevin against the purchasers for the goods or their value, if he was not present at any of the sales, did nothing to induce the purchaser to buy, and has not been guilty of any fraudulent act or contrivance, or meditated or promoted any express fraud. He is not bound to give any such notice, if he has said or done nothing to cause or encourage the mistake.^ § 19. Factors. — By statute it is provided that "every factor or other agent intrusted with the possession of merchandise or of a bill of lading consigning merchandise to him for the purpose of sale, shall be deemed to be the true owner of such merchandise, so far as to give validity to any hona fide contract made by him with any other per- son for the sale of the whole or a part thereof." ^ Shaw, C. J., speaking of this section, said : " The factor may sell for credit against his orders; he may take his own note in payment, — in other words, apply the proceeds to his own debt; or he may make any other definitive or final 1 Bragg V. Boston & Worcester R. R. (1864), 9 Allen, 54. " Pub. St. ell. 71, § 1 (prior references, Gen. St. ch. 54, § 2 ; St. 1845, ch. 193, § 2). See Stollenwerck v. Thaoher (1874), 115 Mass. 224, in which it was held that the broker employed was not a general agent or factor, within the meaning of this section. He was held to be a special agent with restricted instructions. 14 SALES OF PERSONAL PROPERTY. disposition of the property, as by barter or on unusual terms, and yet he shall be so far deemed the owner as to make such sale. But this does not authorize a pledge or mortgage."^ This authority was, however, given by an- other statute.^ § 20. Partners. — Every partner has authority to sell and dispose of any part or the whole of the goods or per- sonal property belonging to the partnership, unless it is known to the purchaser that it is the intention of the partner offering to dispose of such property to apply the proceeds to his own use, instead of accounting for them to the firm.^ If a partner sells partnership property, receiving pay- ment in the form of a discharge of his private debts due the purchaser, the firm cannot sue the party receiving such property, either in contract for goods sold and de- livered or in tort for its conversion; and this is so, although the defendant conspired with the partner who delivered to him the goods to defraud the other part- ners. The remedy of the defrauded partners is probably in equity.^ If the partner at the time of the sale appeared, with the consent of his copartners, to be the sole owner of the goods sold, the buyer, if sued for the price by the firm, 1 Michigan Bank v. Gardner (1860), 15 Gray, 374. 2 Pub. St. cli. 71, §§ 3-6 (prior references. Gen. St. eh. 54, §§ 3-6 ; St. 1849, ch. 216, §§ 1-5) ; Stevens v. Cunningham (1862), 3 AUen, 493 ; Nickerson v. Darrow (1862), 5 Allen, 422. ' Lamb V. Durant (1815), 12 Mass. 54, 56, 57; Arnold v. Brown (1832), 24 Pick. 89, 92, 93 ; Shurtleff v. Willard (1837), 19 Pick. 210; Tapley v. Buttei-field (1840), 1 Mete. 517-519; Milton v. Mosher (1843), 7 Mete. 248; Patch v. Wheatland (1864), 8 AUen, 102. * Homer v. Wood (1853), 11 Gush. 62; Parley v. Lovell (1869), 103 Mass. 387 ; Locke v. Lewis (1878), 124 Mass. 16. WHO MAY SELL. 15 may plead in set-off a private debt due to him from the partner making the sale ; or if the goods were attached as belonging to the firm, he may replevy them from the attaching officer.' § 21. Commission Merchants may sometimes sell beloiv Limit fixed by Consignor. — A commission merchant who has received goods to sell at a certain limited price, and who has made advances on them, has a right to reimburse himself by selling them at the fair market price, though below the limit, if the consignor has after a reasonable time refused, upon application, to repay the advances. The consignee, by acceptance of the consignment, is bound to wait a reasonable time, if the sale cannot be made for the price limited, although by the delay his security may be impaired. But after a reasonable time has elapsed, the consignor has no further power to control the consignee's right of sale to his prejudice.^ § 22. Power of Consignee to sell after having pledged the Goods for his own Private Debt. — A consignee of goods for sale does not lose the power to sell by pledging them for his own debt. The pledge is void as against the owner, the consignor, and so creates no valid Hen in favor of the pledgee. A sale, therefore, with an order on the pledgee to deliver them, which is duly presented by the purchaser, would fully vest the property in him ; and if the pledgee afterwards sold the goods, he would be liable to such pur- chaser for the proceeds.^ 1 Lord V. Baldwin (1828), 6 Pick. 348, 352 ; Locke v. Lewis (1878), 124 Mass. 1, 8 ; Dean v. Plunkett (1884), 136 Mass. 195. See Williams ». Brimliall (1859), 13 Gray, 462. '^ Parker v. Brancker (1839), 22 Pick. 40, 46. As to measure of damage in case he had sold without notice to the consignor, see Dalby V. Stearns (1882), 132 Mass. 230. 8 Nowell V. Pratt (1849), 5 Gush. 111. 16 SALES OF PERSONAL PROPEETY. §23. Auctioneers. — The statute provisions with, re- gard to sales by auctioneers are as follows : — Licenses may be granted to suitable persons as auction- eers by the mayor and aldermen of a city, or by the selectmen of a town.^ In case of unreasonable refusal or neglect by these officials to grant such a license, the applicant has a right of appeal to the county commissioners.^ The auctioneer may be required to give a bond, with sureties, to secure his compliance with the law pertaining to sales at auction.^ If a person who is not duly licensed and qualified sells or attempts to sell any goods or chattels at public auction, he is liable to a penalty not exceeding five hundred dollars for each offence.* An auctioneer is liable to a penalty not exceeding two hundred dollars if he receives for sale by auction any goods from a minor, knowing him to be such, or if he sells by auction any of his own goods before sunrise or after sunset.^ The auctioneer may act as such in any place within Ms county, and when employed by others may act in any place within the State, if the thing sold is at such place. If he sells by auction in a place where he is not author- ized to sell, he is liable to forfeit fifty dollars.® ' Pub. St. oh. 67, § 1 (Gen. St. ch. 50, § 1; Rev. St. ck 39, §§ 1, 3, 13; St. 1795, ch. 8, §§ 1, 3). » Pab. St. ch. 67, § 3 (Gen. St. ch. 50, § 2 ; Eev. St. ch. 29, § 3 ; St. 1815, ch. 29). 8 Pub. St, ch. 67, § 3 (Gen. St. ch. 50, § 3 ; St. 1857, ch. 233, §1). * Pub. St. ch 67, § 9 (Gen. St. ch. 50, § 9 ; Eev. St. ch. 29, § 7; St. 1823, ch. 87, § 3). 6 Pub. St. ch. 67, § 5 (Gen. St. ch. 50, § 5 ; Rev. St. ch. 29, § 4; St. 1795, ch. 8, § 3) ; Clark v. Cushman (1809), 5 Mass. 505. « Pub. St. ch. 67, § 6 (Gen. St. ch. 50, § 6 ; St. 1853, ch. 115, § 1 ; St. 1837, ch. 233. See also Rev. St. ch. 39, § 7). WHO MAY SELL. 17 The license may be granted upon such conditions as the authorities may deem expedient in regard to the place or places where the goods may be sold within the city or town.i The statute does not apply to sales made by sheriffs or their deputies, constables, collectors of taxes, executors, administrators, guardians, assignees of insolvent debtors, or to sales made by any other person required by law to sell personal estate.^ § 24. Title of Purchaser -when Auctioneer has no License. — If a person not duly licensed and qualified sells personal estate by public auction, the fact that he is liable to a pen- alty for his illegal act will probably not affect the title of an innocent purchaser who had no knowledge of the fact.^ § 25. Auctioneer may not delegate his Powers. — An auctioneer cannot delegate his powers, but he may employ another to use the hammer and make the outcry under his immediate direction and supervision.* § 26. Assignees in Insolvency. — It is provided by stat- ute that the assignee of an insolvent estate " shall sell the estate at public auction, unless the court for sufficient cause, upon petition therefor filed, otherwise orders."^ This is construed as merely directory, and not as render- ing the title of bona fde purchasers void for any failure of the assignee to comply with its provisions. It only affects the accountability of the assignee.^ 1 Pub. St. ch. 67, § 13 (Gen. St. ch. 50, § 13 ; St. 1854, ch. 448, § 33 ; Rev. St. ch. 39, §§ 13, 14 ; St. 1819, cli. 133, § 1). 2 Pub. St. ch: 67, § io (Gen. St. ch. 50, § 10 ; Eev. St. ch. 39, §11; St. 1795, ch. 8, § 3). « Wffliston V. Morse (1845), 10 Mete. 17, 33. * Commonwealth v. Hamden (1837), 19 Pick. 483. 6 Pub. St. ch. 157, § 50 (prior references, St. 1861, ch. 104, § 2. See also Gen. St. ch. 118, § 46, and St. 1838, ch. 163, § 11). 8 Tuite V. Stevens (1867), 98 Mass. 305 ; Crowley v. Hyde (1875), 116 Mass. 590. 2 18 SALES OF PERSONAL PEOPEETY. § 27. The assignee, upon clearly manifesting his elec- tion to treat as void a conveyance made by his insolvent in fraud of the creditors, may sell his whole interest, with- out first bringing an action to set aside the conveyance or reclaim the goods. The purchaser may then contest the question of title with the supposed fraudulent holder of the goods.^ § 28. Executors. — Upon the death of the owner of any personal property, all the right and title thereto at once vests in his executor or administrator ; and this includes choses in action and all contingent as well as absolute interests. He is then legally the owner. No valid title can be obtained except through him.^ Thus, A ordered goods to be packed and forwarded to B, a commission merchant, to whom he owed a balance on account, and wrote a letter of advice, enclosing an invoice, but died be- fore the letter was mailed or the goods had left his prem- ises ; and his son, on the day after his death, forwarded the letter and the goods, and B sold them and applied the proceeds to the payment of the balance due from A, whose estate was insolvent. It was held that B had no lien on these goods for the balance due him, and that he must pay the proceeds over to A's administrator.^ §-29. Executor's Sale set aside in Equity. — If the pur- chaser knows that the executor is converting the estate into money for an unlawful purpose, as where it appears • Gibbs V. Thayer (1850), 6 Gush. 30 ; Preeland v. Jreeland (1869), 102 Mass. 475. " Dawes v. Boylston (1812), 9 Mass. 352 ; Jewett v. Smitli (1815), 13 Mass. 809 ; Clapp v. Stoughton (1830), 10 Pick. 468 ; Wonson v. Sayvard (1832), 13 Pick. 404 ; Lawrence v. Wright (1839), 23 Pick. 128 ; Hutchins v. State Bank (1847), 12 Mete. 425 ; Farnum v. Sou- telle (1847), 13 Mete. 159, 165; Smith v. Northampton Bank (1849), 4 Gush. 12. « Parnum v. Boutelle (1847), 13 Mete. 159. WHO MAY SELL. 19 oa the face of the proceedings that he is applying the assets in payment of or as security for a debt of his own, the purchase would doubtless be set aside in equity, and the purchaser would be decreed to hold the assets as if he were, in respect of those assets, the executor,^ § 30. It has been held that the sale was void where an executor sold the property of his testator to his own rela- tives for less than he might have obtained from others, for the purpose of favoring them to the injury of the legatees.^ § 31. Does not need Special License. — An executor or administrator does not need any special license from the court to enable him to sell the personal estate ; but he may secure it, if he see fit, for the purpose of avoiding respon- sibility as to the price for which he shall sell the goods, or for any other purpose.^ § 32. Foreign Executors. — An executor appointed in another State does not need any authority from a probate court of this State to authorize him to sell and transfer shares of stock held by his testator in corporations organ- ized and doing business here, unless the corporation re- fuses to recognize him in such capacity and to make the transfer as requested ; in which case he is obliged to clothe himself with the proper authority by an act of a probate court in this State, for which the statute makes provision.* § 33, Guardians. — A guardian has authority, without obtaining any special license from the court, to sell the 1 See Shaw v. Speaoer (1868), 100 Mass. 392, aud authorities there cited; aud also Trull v. Trull (1866), 13 Allen, 407. a Oherlin College v. Eowler (1865), 10 Allen, 545. » Pub. St. ch. 133, §§ 3, 4 (prior references. Gen. St. ch. 98, §§ 3, 4; Rev. St. ch. 67, § 3; St. 1851, ch. 136, § 1; St. 1817, ch. 190, § 19). * Hutchins V. State Bank (1847), 12 Mete. 421-427; Pub. St. ch. 142, § 3 (prior reference, St. 1880, ch. 220). 20 SALES OF PERSONAL PROPERTY. personal estate of his ward.i At one time, by a statute since repealed, an exception was made as to any shares of stock belonging to the ward.^ It may still be prudent in such cases to demand that a license be secured, and especially so for the corporation before it issues the new certificate.^ § 34. Infants. — If an infant — that is, a person under the age of twenty-one years — makes a contract for the sale of goods, it is absolutely void, if he makes no actual delivery of the thing sold ; while if he make such delivery, the con- tract is voidable at his option, either before or after he arrives at his majority. On avoidance, he may recover the chattel sold, but he must then restore the considera- tion received, if it is in his power ; if not, he may stiU recover, though he has wasted or expended the considera- tion.* The infant on coming of age may confirm and ratify the contract, either expressly or by his conduct.^ § 35. Persons Insane or Drunk. — The same rules apply in the case of sales made by persons insane, who may similarly ratify and confirm the sale on being restored to sound mind.^ They also apply to sales made by a person so drunk as not to know what he is doing.^ 1 Ellis V. Merrimack Bridge Proprietors (1824), 2 Pick. 246. See Pub. St. ch. 139, § 38 (prior references, Gen. St. ch. 109, ^ 22; Rev. St. ch. 79, § 21 ; St. 1820, ch. 54, § 3). 2 St. 1817, ch. 190, § 35, which was repealed in 1836. « Atkinson v. Atkinson (1864), 8 Allen, 15. * Chandler v. Simmons (1867), 97 Mass. 514; Bartlett v. Drake (1868), 100 Mass. 176 ; Walsh v. Young (1872), 110 Mass. 896. These cases overruling dicta to the contrary in Badger ». Phinney (1819), 15 Mass. 363, and Bartlett v. Cowles (1860), 15 Gray, 445. 6 Tenney v. Sawyer (1781), 2 Dane Ab. 17 ; Gibson v. Soper (1856), 6 Gray, 283. « Wait V. Maxwell (1827), 5 Pick. 217 ; Allis v. Billings (1843), 6 Mete. 415 ; Arnold v. Richmond Iron Works (1854), 1 Gray, 434; Gibson v. Soper (1856), 6 Gray, 279. ' Poss V. Hildreth (1865), 10 Allen, 80. WHO MAY SELL. 21 § 36. Spendthrifts. — It is provided by statute that if an application be made for the appointment of a guardian of a person for excessive drinking, gaming, idleness, or de- bauchery, and a copy of the complaint with the order of notice thereon is filed in the registry of deeds for the county or district, and a guardian is appointed on such complaint, all contracts except for necessaries, and all gifts, sales, or transfers of real or personal estate, made by such person after such filing of the complaint and order, and before the termination of the guardianship, shall be void.i § 37. Sales in Market Overt. — The English rule as to the validity of sales made in market overt by one not the owner is not recognized in Massachusetts.^ § 38. Finder of Negotiable Instruments. — A person not the owner, even the finder or 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 usages of trade, provided the buyer has been guilty of no fraud in taking them.^ The same rule applies, of course, to money.* 1 Pub. St. ch. 139, §§ 8, 9 (prior references. Gen. St. oh. 109, §§ 9, 10; Rev. St. ch. 79, §§ 11-13; St. 1783, ch. 38, § 7 ; St. 1818, ch. 69 ; St. 1836, ch. 63, § 1). See Manson v. I'elton (1832), 13 Pick. 206; Poster v. Starkey (1853), 12 Gush. 324; Chandler V. Simmons (1867), 97 Mass. 508 ; Blake's Case (1871), 106 Mass. 501 ; Leonard v. Stott (1871), 108 Mass. 46 ; Lynch v. Dodge (1881), 130 Mass. 458. 2 Towne v. Collins (1785), 14 Mass. 500; Southwiok v. Harndell (1796), 2 Dane Ab. 286 ; Dame v. Baldwin (1812), 8 Mass. 521 ; Coggill V. Hartford & N. H. R. R. Co. (1855), 'S Gray, 550. 8 Cone V. Baldwin (1832), 12 Pick. 545 ; Wheeler v. Guild (1838), 20 Pick. 545 ; Merriam v. Granite Bank (1857), 8 Gray, 254; Spooner V. Holmes (1869), 102 Mass. 507- * Chapman v. Cole (1858), 12 Gray, 143. See Mason v. Waite (1822), 17 Mass, 563. 22 SALES OF PERSONAL PROPERTY. § 39. Pawnees. — Another case in which one not the owner of goods may make a valid sale of them is that of the pawnee. He has the legal power to sell goods pledged to him, if the pawnor makes default in payment at the stipulated time ; and this he may do without taking any legal proceedings against the pawnor, although if it be a mere naked pledge he must sell at public auction, with full notice to the pawnor of the time and place thereof ^ § 40. The statutory provisions are as follows :2 "The holder of personal property in pledge for the payment of money or for the performance of any other thing may, after failure to pay or perform, give written notice to the pledger that he intends to enforce payment or performance by a sale of the pledge, and such notice shall be served, and, together with an affidavit of the service, be recorded in the clerk's of&ce of the city or town where the pledgee resides, in the manner and with like effect as is provided in sections seven and eight for notices of foreclosure." " If the money to be paid or other thing to be done is not paid or performed, or tender thereof made, within sixty days after such notice is so recorded, the pledgee may sell the pledge at public auction, and apply the proceeds to the satisfaction of the debt or demand, and of the expenses of the notice and sale, and any surplus shall be paid on demand to the party entitled ^thereto." "The two preceding sections shall not authorize the pledgee to dispose of the pledge contrary to the terms of the contract under which it is held, nor shall they limit his right to dispose of it in any other manner allowed by the contract or by the rules of law." * Washburn v. Pond (1861), 3 Allen, 477. See Parker ». Brancker (1839), 22 Pick. 46; Newsome v. Davis (1882), 133 Mass. 343. 2 Pub. St. oh. 192, y 10-12 (prior reference. Gen. St. oh. 151, §§ 9-11). WHO MAY SELL. 23 Section 7 referred to provides that the "notice shall be served by leaving a copy with the mortgagor or person in possession of the property claiming the same, or by publishing it at least once a week for three successive weeks in one of the principal newspapers published in the town or city where the mortgage is properly recorded or where the property is situated, or if there is no such paper, in one of the principal newspapers published in such county ; " while section 8 provides that " the notice, . . . when so recorded, or a copy of the record thereof, shall be eidmitted as evidence of the giving of the notice." § 41. Pawnbrokers. — The statutes also provide for the licensing of pawnbrokers by such cities and towns as choose to do so, and regulate the manner in which the business shall be conducted.^ As to sales of the goods pledged it is provided that "articles deposited in pawn with a licensed pawnbroker shall, unless redeemed, be retained by him on the premises occupied by him for his business for at least four months from the date of deposit, if not of a perishable nature; and if perishable, for at least one month from said date ; after which he may sell the same at public auction, and apply the proceeds thereof in satisfaction of the debt or demand and the ex- pense of the notice and sale, and any surplus shall be paid to the party entitled thereto on demand ; and no article taken in pawn by such pawnbroker, exceeding in value the sum of twenty-five dollars, shall be disposed of other- wise than as above provided, any agreement or contract between the parties thereto to the contrary notwith- standing." ^ 1 Pub. St. ch. 102, §§ 32-37 (prior references, St. 1880, ch. 84, § 1 ; St. 1879, ch. 102 ; St. 1877, ch. 185 ; St. 1876, ch. 147 ; Gen. St. ch. 88, §§ 28-30; St. 1855, ch. 121). 2 Pub. St. ch. 102, § 33 (prior reference, St. 1879, ch. 102. § 1). 24 SALES OF PERSONAL PEOPEETT. It is also provided that articles of personal apparel shall not be deemed to be of a perishable nature, within the meaning of this section.^ The operation of this section has been extended by a recent statute which provides that all persons who are engaged in the business of loaning money or its equivalent in sums less than one hundred dollars, on collateral secur- ity represented by household goods, wearing apparel, or articles of personal use or ornament, or on notes secured by pledge or mortgage of any such property, when such property is deposited with the person making the loan, shall, so far as relates to such business, be subject to its provisions in the same manner and to the same extent as pawnbrokers.^ § 42. Broker carrying Stock " on Margin." — Carrying shares of stock upon " margin " by a broker, according to the usual custom, does not create the relation of pledger and pledgee between the parties ; and after the failure of the customer to make the necessary advances upon demand, the stock having depreciated in value, the broker may sell the same at the broker's board without notice to the customer.^ § 43. Sheriffs. — The sheriff, as an officer on whom the law confers a power, may sell the goods of the defendant taken in execution, and confer a valid title on the pur- chaser, provided the goods sold belong to the judgment debtor, and are not exempt from attachment.* The 1 St. 1884, ch. 324. 2 St. 1885, ch. 252. 8 Covell V. Loud (1883), 135 Mass. 41. < Buffam V. Deane (1851), 8 Cusli. 41 ; Packard v. Wood (1855), 4 Gray, 307; Blanchard v. Child (1856), 7 Gray, 155 ; Ghampney v. Smith (1860), 15 Gray, 512 ; Johnson v. Babcock (1864), 8 Allen, 583 ; Edmunds v. HiU (1882), 133 Mass. 445. See Crocker v. Baker (1836), 18 Pick. 407; Sayage i>. Davis (1883), 134 Mass. 401. WHO MAY SELL. 25 statutes cited contain elaborate provisions with regard to sales by sheriffs.^ § 44. If the writ of execution is void, a purchaser at a sale under it obtains no title to the property so pur- chased, and the judgment debtor may reclaim it. Metcalf, J., lays down two principles : First, that when a judgment is satisfied or discharged, any execution subsequently issued thereon, and all proceedings under it, are void, as much so as if it were issued without any judgment at all to support it; second, that when the amount of a judgment on which an execution has issued is paid to the creditor or to an officer, all further proceedings under the execution are void. So it was held that an alias execution issued while the judgment debtor was imprisoned under a com- mitment on the prior execution was void, and a sale under it, though made after the debtor's discharge from prison and to a purchaser without notice, passed no title.^ But where the judgment and previous proceed- ings are merely irregular, the title of the purchaser is valid.2 § 45. The sale may be rendered void by irregular- ity in the proceedings of the officer making the sale. His return ought to show clearly a compliance with the law to enable the purchaser to maintain his title. The sale of shares of stock upon execution, not being justifiable at common law, must be made strictly ac- 1 St. 1884, cli.175; Pub. St. ch. 161, \\ 89-94 (prior references, Gen. St. oh. 123, §§ 72-77 ; Rev. St. ch. 90, §§ 57-61 ; St. 1833, ch. 93, §§ 1, 3); and Pub.' St. ch. 171, §§ 36-51 (prior references, Gen. St. oh. 133, \\ 34-49; Rev. St. ch. 97, §§ 23-31, 33, 36-41 ; St. 1847, eh. 267, § 4; St. 1834, ch. 162; St. 1819, ch. 87; St. 1804, ch. 83; St. 1783, ch. 57, § 5). 2 Kennedy v. Dunoklee (1854), 1 Gray, 65 ; Brayman v. Whiteomb (1883), 134 Mass. 536. » Park «. Darling (1849), 4 Gush. 197. 26 SALES OF PERSONAL PROPERTY. cording to the statute, to give any title whatever to the purchaser ^ § 46. A purchaser at a sale on execution of a lease- hold estate stands in the position of an assignee in law of such, estate, with substantially the same rights as if it had been voluntarily assigned to him by the lessee, so that an assignment and sub-lease made subsequently by the lessee are void, and do not constitute a cloud upon the title, affording ground for relief in equity.^ § 47. If an officer attaches goods and delivers them to a third person, taking his receipt for them, and if such receiptor or keeper delivers them up to the debtor, the of&cer's lien is lost, and the debtor may make a valid sale of the goods. The receiptor or keeper himself, as well as a stranger, may be the purchaser.^ § 48. Collector of Taxes. — If a person refuses or neg- lects to pay his taxes, the collector is authorized and re- quired to levy the same by seizure and sale of his goods, excepting such as are specially made exempt, and includ- ing any share or interest he may have as a stockholder in any corporation organized under the laws of this State.* The statute contains minute provisions for the exercise of this power, which must of course be closely followed to give the purchaser at such sale any title.^ Similar 1 Titcomb V. Union Ins. Co. (1811), 8 Mass. 335 ; Howe v. Stark- weather (1821), 17 Mass. 243. « McNeil V. Adam (1876), 120 Mass. 481. » Denny v. Willard (1831), 11 Pick. 519, 524, 525 ; Eobinson V. Mansfield (1832), 13 Pick. 139, 142 ; Baker v. Warren (1856), 6 Gray, 527 ; Colwell v. Richards (1857), 9 Gray, 374. * Puh. St. ch. 12, §§ 8-13 (prior references. Gen. St. ch. 12, §§ 7-12; St. 1846, ch. 195, §§ 1-4; Rev. St. ch. 8, §§ 7-10; St. 1785, ch. 50, § 6, and eh. 70, § 2 ; St. 1791, ch. 22, § 3). « Pierce ». Benjamin (1833), 14 Pick. 360; Noyes v. Haverhill (1853), 11 Gush. 338 ; Cone v. Forest (1879), 126 Mass. k. "WHO MAY SELL. 27 provisions are made for the sale of the personal property of corporations under like circumstances.^ § 49. Power of Common Carriers, &c., to sell Unclaimed Goods. — The statute provides that " when a common carrier has transported property consisting of fresh meats, fresh fish, shell-fish, fruit, or vegetables to their place of destination, and has notified the owner or consignee of the arrival of the same, and the owner or consignee after such notice has refused or omitted to receive and take away the same and pay the freight and proper charges thereon, said carrier may, in the exercise of a reasonable discretion, sell the same at public or private sale without advertising, and the proceeds, after deducting the amount of said freight and charges and expenses of sale, shall be paid to the owner or consignee ; and if the owner or consignee cannot be found on reasonable inquiry, the sale may be made without such notice."^ It is also provided that " if goods carried by a railroad company, or in a steam or sailing vessel, are not called for by the owner or consignee within one year from the date of their receipt at the city or town to which they are consigned, they may be sold at public auction for the charges of transportation due thereon, notice of the time and place of sale being first given by publishing the same three days in each week for three weeks successively in some newspaper printed in such city or town, if there is any such paper, and if not, then in the newspaper printed nearest thereto."^ It is also provided that " if goods carried by express are not called for by the owner or consignee, and such owner or consignee 1 Pab. St. oh. 13, § 63 (prior references, St. 1881, oh. 155 ; St. 1867, oh. 53, § 1). 2 Pub. St. ch. 96, § 5 (prior references. Gen. St. ch. 80, § 5 ; St. 1857, ch. 237). 8 Pub. St. ch. 96, § 6 (prior reference, St. 1866, ch. 152, § 1). 28 SALES OF PERSONAL PEOPERTY. cannot be found for one year after the carriage, they may be sold at public auction, notice of the time and place of sale being first given by publishing the same four weeks successively in some newspaper printed in the city or town where such sale is to take place, and also in the city or town to which they were consigned, if there is any such paper, and if not, then in the newspaper printed nearest thereto. Such notice shall contain a descriptive list of all such property, with all such specific marks as may'serve to identify the same." ^ § 50. statute Provisions as to Lost or Forfeited Goods. — There are minute provisions authorizing and regulating the sale by the finder of lost goods and stray beasts ;2 the sale of unclaimed effects of passengers by railroad corporations and steamboat proprietors;^ the sale of wrecks and shipwrecked goods by the commissioners of wrecks;* the sale of stolen, lost, or abandoned property coming into the hands of the police, the owner being unknown ; ^ the sale of- goods seized and forfeited by law.^ § 61. Who may sell Drugs, &c. — It is provided by 1 Pub. St. cb. 96, § 8 (prior reference, St. 1864, cb. 139, §§ 1, 2). 2 Pub. St. cb. 95 (prior references, Gen. St. cb. 79 ; St. 1873, cb. 803; Rev. St. cb. 56; St. 1839, cb. 135; St. 1837, cb. 74; St. 1788, cb. 55). s Pub. St. cb. 96, §§ 1-4 (prior references. Gen. St. cb. 80, §§ 1-4; St. 1851, cb. 147; St. 1852, cb. 313). * Pub. St. cb. 97 (prior references, Gen. St. cb. 81 ; Eev. St. cb. 57; St. 1859, cb. 196; St. 1853, cb. 312; St. 1814, cb. 170; St. 1796, cb. 88, § 2). « St. 1885, cb. 341; Pub. St. cb. 96, §§ 10-14 (prior reference, St. 1880, cb. 155). ^ Pub. St. cb. 194 (prior references, Gen. St. cb. 153 ; Rev. St. cb. 118, §§ 20-41; St. 1793, cb. 43). See, too, U. S. Rev. St. §§ 939, 940, 3080, 3460. WHO MAY SELL. 29 statute^ that no person shall engage in the business of retailing or dispensing drugs, medicines, chemicals, or poisons, or compounding them for sale, unless he is reg- istered according to law. The statute expressly excepts physicians who put up their own prescriptions, or dispense medicine to their patients, and also all wholesale trans- actions and the sale of patent and proprietary medicines and non-poisonous domestic remedies usually sold by grocers or others. § 52. Hawkers and Pedlers. — There are elaborate pro- visions as to the rights of hawkers and pedlers to sell goods, the sale of certain goods being allowed without license, the sale of other articles requiring a license, and the sale of certain other articles in such a way being prohibited.^ § 53. May Farm Tenant sell the Manure. — A tenant at will of a farm has no right to sell the manure made thereon in the ordinary course of husbandry. He has merely a qualified possession of it for the purpose of using it on the farm ; and if he sells it, the right of possession vests at once in the lessor, who may maintain trespass de bonis asportatis against the purchaser for removing it. The tenant's sale would convey no title to the purchaser. It would seem as if the same rule would apply to a tenant for a term of years.^ § 53 a. Sales by Collector of Customs of Goods stored in Bonded Warehouse. — It is provided by statute that " any goods remaining in public store or bonded warehouse beyond three years shall be regarded as abandoned to the 1 St. 18S5, ch. 313. '^ St. 1883, ch. 168, and ch. 118 ; Pub. St. cli. 68 (prior refer- ences, Gen. St. oh. 50, \\ 13-38; St. 1846, ch. 244). See also U. S. Eev. St. \\ 3244, 3381-3384. 8 Daniels v. Pond (1838), 21 Pick. 367- 30 SALES OF PERSONAL PEOPERTY. government, and sold under such regulations as the Sec- retary of the Treasury may prescribe, and the proceeds paid into the treasury. In computing this period of three years, if such exportation or transshipment of any merchandise shall, either for the whole or any part of the term of three years, have been prevented by reason of any order of the President, the time during which such exportation or transshipment of such merchandise shall have been so prevented shall be excluded from the computation." ^ It is also provided that " if any merchandise shall remain in public store beyond one year without payment of the duties and charges thereon, except as hereinbefore pro- vided, then such merchandise shall be appraised by the appraisers, if there be any at such port, and if none, then by two merchants to be designated and sworn by the col- lector for that purpose, and sold by the collector at public auction on due public notice thereof being iirst given in the manner and for the time to be prescribed by a general regulation of the Treasury Department." ^ The statutes also declare that " any collector of the customs is authorized, under such directions and regula- tions as may be prescribed by the Secretary of the Treas- ury, to sell upon due notice at public auction any unclaimed merchandise deposited in public warehouse, whenever the same may from depreciation in value, damage, leakage, or other cause in the opinion of such collector, be likely to prove insufficient on a sale thereof to pay the duties, storage, and other, charges, if suffered to remain in public store for the period allowed by law in the case of un- claimed merchandise." ^ 1 U. S. Eev. St. § 2971. 2 U. S. Eev. St. § 2973. « U. S. Rev. St. § 2976. WHO MAY SELL. 31 It is further provided that "all merchandise of a perish- able nature, and all gunpowder and explosive substances, except fire-crackers, deposited in any public or private bonded warehouse, shall be sold forthwith." ^ 1 U. S. Rev. St. § 2975. 32 SALES OF PERSONAL PEOPEBTy. CHAPTEE III. WHO MAY BUY. § 54. Certain classes of persons, incompetent to con- tract in general, may nevertheless, under special circum- stances, make valid purchases. These classes are infants, persons insane or non compotes mentis, and, at common law, married women. § 55. Infants may buy Necessary Articles. — An infant may purchase, for cash or on credit, a supply of necessaries ; but whatever sum he agree to pay, he is held only for the payment of a reasonable price, the consideration being on his behalf always open to inquiry, the seller, of course, never being able to recover more than the agreed price, however small.^ § 56. What are Necessary Articles. — The word " neces- saries " does not mean articles absolutely necessary to sup- port life, but must be regarded as a relative term, to be construed with reference to the infant's age, his circum- stances, and condition in life.^ What expenditures are included in this class is a matter of law to be decided by the court ; but the question whether expenditures, though 1 Hussey v. Jewett (1812), 9 Mass. 101; Stone v. Dennison (1832), 13 Pick. 1, 6 ; Vent v. Osgood (1837), 19 Pick. 575 ; Earle v. Eeed (1845), 10 Mete. 387. 2 Stone V. Dennison (1832), 13 Pick. 6 ; Tapper w. Cadwell (1847), 13 Mete. 562; Merriam v. Cunningham (1853), 11 Gush. 40; Davis V. Caldwell (1853), 12 Cush. 513 ; Breed v. Judd (1854), 1 Gray, 458 ; Hamilton v. Lane (1885), 138 Mass. 359. WHO MAY BUT. 33 embraced in this class, were necessary and proper in the particular case presents a question of fact for the jury.^ If an infant is married, the things necessary for his wife and children are necessary for himself, and what is sup- plied to them on his express or implied credit is considered as purchased by him.^ An infant is not liable on a pur- chase of goods supplied to him for his trad^ as being necessaries, whether he be trading alone or in partnership with another.^ § 57. Infants supported by Parents or Guardian may not bind themselves even for Necessaries. — An infant who is supported by his parent or guardian cannot bind himself even for necessaries ; and when he resides with his parents, it is presumed that he is properly supplied with necessaries, in the absence of proof to the contrary. It is not enough to show that the father is poor and unable to pay for the articles furnished the son. A refusal or neg- lect of the father to support the son must be shown. So when necessary professional services are rendered to a. minor son residing in his father's house, the legal inference is that the father is liable therefor, and not the son, there being no evidence of any refusal or neglect on the part of the father to do his duty.* § 58. Infant's Promise is merely Voidable and not Void. — The promise of the infant is not void in any case, unless 1 Tupper V. Cadwell (1847), 12 Mete. 563; Swift v. Bennett (1852), 10 Cash. 436; Merriam v. Cuuningliam (1853), 11 Cusli. 40, 44; Davis v. Caldwell (1853), 12 Cush. 512; Hall v. Weir (1861), 1 Allen, 261 ; Eames v. Sweetser (1869), 101 Mass. 78, 81. 2 Tupper V. Cadwell (1847), 12 Mete. 562 ; Davis v. Caldwell (1853), 12 Cush. 512 ; Eames v. Sweetser (1869), 101 Mass. 78, 81. » Tupper V. Cadwell (1847), 12 Mete. 563 ; Mason v. "Wright (1847), 13 Mete. 306; MeCarthy v. Henderson (1885), 138 Mass. 310. * Hoyt V. Casey (1874), 114 Mass. 397. 3 34 SALES OF PERSONAL PROPERTY. he chooses to plead his infancy. It is simply voidable at his election.^ The effect of an avoidance of the con- tract hy the infant is to render it void ab initio. The infant buyer may recover all that he paid. The seller cannot deduct by way of recoupment any sum as compen- sation for the use by the infant of the articles sold while in his possession.'* § 59. Ratification on arriving at Pull Age. — On arriving at the age of twenty-one years, he may ratify and confirm a purchase made during infancy. It is then as if valid ai engine? A mere acknowledgment or recognition of the debt is not enough, but a direct and express promise is necessary,* although it was said by Parker, C. J., that the words "I ratify and confirm the debt" woidd be sufficient without any words of direct promise.^ The promise may be merely verbal, for no writing is necessary ; or it may be inferred from the acts and conduct of the party, as if the infant retains the goods and uses them for an unreasonable time after coming of age, giving no notice 1 Reed v. Batchelder (1840), 1 Mete. 659 ; Commonwealth ». Weiher (1841), 3 Mete. 448 ; AUis «. BiDings (1843), 6 Mete. 415, 417 ; Earle v. Reed (1845), 10 Mete 387, 389 ; Kennedy ». Doyle (1865), 10 ARen, 161. 2 Vent V. Osgood (1837), 19 Pick. 574, 575 ; McCarthy v. Hender- son (1885), 138 Mass. 310. ' Boston Bank v. Chamberlin (1818), 15 Mass. 320 ; Reed a. Batchelder (1840), 1 Mete. 559 ; Dana ». Steams (1849), 3 Gush. 372; Kennedy v. Doyle (1865), 10 AEen, 161; Keegan v. Cox (1874), 116 Mass. 289; Todd u. Clapp (1875), 118 Mass. 495; Tobey w.Wood (1877), 123 Mass. 88. * Jackson v. Mayo (1814), 11 Mass. 147 ; lord v. Phillips (1822), 1 Pick. 203 ; Thompson v. Lay (1826), 4 Pick. 48 ; Peirce v. Tobey (1842), 5 Mete. 172 ; Smith i-.'Kelley (1847), 13 Mete. 310; Proctor V. Sears (1862), 4 Alien, 95. 6 Thompson v. Lay (1826), 4 Pick. 48. See, too, Whitney v. Dutch (1817), 14 Mass. 460. WHO MAY BUY. 35 of an intention to avoid the contract, it operates as a rati- fication.i But where, before the infant came of age, the seller attached the goods which remained in the hands of the officer at the time of the trial, the infant, who had mean- while come of age, having given no notice of an intention to avoid the contract, there was held to be no ratification and no liability.^ Partial payment is not of itself a ratification so as to bind the party to pay the balance.^ If the infant on com- ing of age make his will directing all tis just debts to be paid, his executor is not liable to pay a debt contracted during infancy unless for necessaries.* It is not required that the adult should know that his infancy avoided his contract. He is presumed to know it.^ If the ratifying promise is conditional, the fulfilment of the condition must be shown.® § 60. Ratification need not be alleged in Declaration. — The ratification need not be alleged in the declaration. It serves as replication, if infancy is pleaded. Nor under the Practice Act need it be alleged by way of replication, unless specially ordered by the court. It may be given in evidence in support of the original promise declared on.'' 1 Barnaby v. Barnaby (1822), 1 Pick. 223; Boydeu v. Boyden (1845), 9 Mete. 519. 2 Smith V. Kelley (1847), 13 Mete. 309. 8 Per Putnam, J., in Tord v. PHUips (1822), 1 Pick. 203. * Smith V. Mayo (1812), 9 Mass. 62 ; Jackson v. Mayo (1814), 11 Mass. 151. ^ Morse v. Wheeler (1862), 4 Allen, 570 ; but see Owen v. Lorrng (1873), 112 Mass. 404. The earlier dicta in Smith v. Mayo (1812), 9 Mass. 64, and Ford v. Phillips (1822), 1 Pick. 203, were contra. « Thompson v. Lay (1826), 4 Pick. 48 ; Proctor v. Sears (1862), 4 Allen, 95. See note appended to Martin v. Mayo, 10 Mass. 141. ^ Pub. St. eh. 167, § 24 (prior references. Gen. St. ch. 129, § 23; St. 1853, oh. 313, § 19). See Way v. Sperry (1850), 6 Gush. 241; Cook V. Shearman (1869), 103 Mass. 21. 36 SALES OF PERSONAL PROPERTY. The ratification must, however, be made before the action is brought, or it will not avail.^ § 61. When the Father is held for the Child's Purchases. — Where the father actually fails to furnish the child, who lives at home and forms part of the family, with clothing and food necessary to the support of life, any one who sells and furuishes such necessaries to the child may main- tain an action against the father, upon the presumption of an assent on his part.^ So if the father cruelly and cause- lessly turn the child out of doors, he would perhaps carry with him a credit on the father for the means of support.^ But where a child voluntarily leaves his father's house to seek his fortune or to avoid discipline and restraint, he carries with him no credit, and the father is under no obligation to pay for necessary articles furnished him.* § 62. Lunatics and Persons Non Compotes Mentis. — The rules regulating the capacity of lunatics and persons non compotes mentis to purchase do not differ materially from those governing such contracts when made by infants. So far as relates to supplies of necessaries to a person of unsound mind having at the time no guardian, there can be no question that, where no advantage is taken of his condition by the seller, the purchase will be held valid.^ Where the articles were not necessaries, the buyer may plead that he was non compos mentis, or show it in evi- dence under the general issue in avoidance of his contract. It is no legal defence or reply to show that the seller was 1 Freeman v. Nichols (1885), 138 Mass. 313. 2 Parker, C. J., in Angel v. McLellan (1819), 16 Mass. 31. 8 Raymond v. Eldridge (1873), 111 Mass. 391. See also case last cited. « Angel u. McLellan (1819), 16 Mass. 28 ; Dodge v. Adams (1837), 19 Pick. 431. 5 HaUett V. Oakes (1848), 1 Gush. 298 ; Kendall v. May (1865), 10 Allen, 59-66. WHO MAY BUY. 37 ignorant of the fact and practised no imposition. The fairness of the seller's conduct cannot supply the buyer's want of capacity. Nor is there in this respect any ma- terial difference between a contract executed and one executory.^ § 63. Married Women. — The old rules of the common law in regard to married women have been almost entirely abrogated by statute. A married woman may now make contracts in the same manner as if she were unmarried, except that she may not contract with her husband.^ Ordinarily, if a married woman living with her husband purchase goods appropriate to common family use, of one who knows she is married and so living with her husband, without any express agreement pledging her own credit, the natural as well as legal inference is that she is buying on her husband's account and for the family use, in which case she would not herself be liable.^ § 64. Living with her Husband. — If a husband refuses or neglects to supply his wife with whom he is living with what is necessary for decency and comfort in his condition in life, he gives her credit to procure it for her- self on his account and at his charge. He is then liable, if the goods she buys are such as her reasonable necessities require her to have.* § 65. Living apart from her Husband. — If she is living apart from her husband because of his unjustifiable deser- 1 Mitoliell V. Kingman (1827), 5 Pick. 431; Searer v. Phelps (1831), 11 Pick. 304. The English rule seems entirely contra. See Molton V. Camroux, 2 Ex. 487, and 4 Ex. 17, iu error; Elliot v. Ince, 7 De G. M. & G. 475, 487, per Lord Cranworth. 2 Pub. St. ch. 147, §§ 2, 7 (prior reference, St. 1874, ch. 184, §§ 1. 3). ' See Labaree w. Colby (1868), 99 Mass. 559. * Eames v. Sweetser (1869), 101 Mass. 80; Raynes v. Bennett (1874), 114 Mass. 424 ; Willey v. Beach (1874), 115 Mass. 559. 38 SALES OF PERSONAL PROPERTY. tion and abandonment of her.^ or if she has left him with his consent or because of his cruelty, or from a reasonable apprehension for her safety, then so long as she continues her marital purity ^ she carries with her the credit of her husband for necessaries, and he to whom it is pledged by her for that purpose may avail himself of the husband's liability.^ § 66. A wife who leaves her husband without cause, taking their child with her, has no authority to bind the husband for necessary articles bought by her for the child, if the husband is able and willing to support it, although he has made no effort to obtain the custody of the child.^ If she had, however, left him for just cause, he would be liable.^ But the father is not lia- ble in any event for necessaries furnished for the support of the child, after its custody has been given to the mother by a decree of court under the statute, unless such liability is imposed on him by the terms of the decree.^ § 67. Married Woman carrying on Business. — If a mar- ried woman carries on business and does not file a proper certificate as required by the statute, her husband will be liable upon all contracts lawfully made by her in the prosecution of such business, in the same manner and to » Hall V. Weir (1861), 1 Allen, 261. 2 Cartwright v. Bate (1861), 1 Allen, 510. 5 Hancock v. Merrick (1852), 10 Cush. 41; Mayhew v. Thayer (1857), 8 Gray, 172 ; Burlen v. Shannon (1860), 14 Gray, 434 ; Rey- nold V. Sweetser (1860), 15 Gray, 78 ; Cunningham v. Reardon (1868), 98 Mass. 538 ; Benjamin v. Dockham (1883), 134 Mass. 418; Alley V. Winn (1883), 134 Mass. 77- * Dodge V. Adams (1837), 19 Pick. 429 ; Baldwin v. Foster (1885), 138 Mass. 449. 5 Reynolds v. Sweetser (1860), 15 Gray, 78. 8 Brow V. Brightman (1883), 136 Mass. 187. See Hanoook v. Mer- rick (1852), 10 Gush. 41, and Pub. St. ch. 147, § 33. WHO MAT BUY. 39 the same extent as if made by himself.^ Even if exclu- sive credit were given to the wife, the husband is liable, if the certificate has not been filed.^ But where the hus- band resided and was domiciled in another State, it was held that he was not liable.^ § 68. One may not unite in himself the Opposite Char- acters of Buyer and SeUer. — Certain classes of persons, competent to contract in general, may, however, under cer- tain conditions and circumstances, be unable to purchase. No person can become a purchaser of property where he has a duty to perform, which is inconsistent with the character of a purchaser of that property. This rule embraces every relation in which there may arise a conflict between the duty which the purchaser owes to the person with whom he is dealing or on whose account he is acting and his own individual interest. Thus a trustee cannot directly or indirectly purchase on his own account what he sells on account of another, or purchase on account of another what he sells on his own account. He cannot unite in himself the opposite characters of buyer and seller. And if he does so, the cestui que trust, unless upon the fullest knowledge of all the facts he elects to con- firm the act of the trustee, may repudiate it, or he may charge the profits made by the trustee with an implied trust for his benefit. In other words, the transaction is not void, but voidable at the election of the cestui, who must, how- ever, exercise his option to avoid it within a reasonable time, or he will be bound, as having acquiesced and assented.* 1 Pub. St. ch. 147, § 11 (prior references, St. 1881, ch. 64, §§ 1, 3, and St. 1862, ch. 198, §§ 1, 2) ; Proper v. Cobb (1870), 104 Mass. 589 ; Kidley v. Knox (1884), 138 Mass. 83. 2 Feran v. Rudolphsen (1871), 106 Mass. 471. ' Hill V. Wrigbt (1880), 129 Mass. 296. * Jennison v. Hapgood (1828), 7 Pick. 8 ; Pamam v. Brooks (1830), 9 Pick. 225; Ball v. Carew (1832), 13 Pick. 31; Arnold v. Brown 40 SALES OF PERSONAL PROPERTY. This rule extends to all agents,^ guardians,^ executors and administrators,^ attorneys* sheriffs, mortgagees,^ assignees in insolvency, directors and officers of a corporation,^ auc- tioneers," partners,^ and also to a collector of taxes who buys at a sale of goods seized and sold by him for refusal of the owner to pay his taxes.* § 69. Thus A employed B, a broker, to purchase cer- tain shares of stock upon a margin, and to carry them for him. B reported that he had made the purchase. On a decline in value A instructed B to sell the shares, and B reported he had done so, whereupon A paid him the dif- ference between the purchase price and the sale price, (1832), U Pick. 96, 97 ; Litchfield v. Cudwortli (1833), 15 Pick. 31 Howard v. Ames (1841), 3 Mete. 311; Slielton v. Homer (1843)^ 5 Meto. 467, 468; Parker v. Nickerson (1873), 113 Mass. 196 Jones V. Dexter (1881), 130 Mass. 383 ; Morse v. Hill (1883), 136 Mass. 60. 1 Copeland v. Mercantile Ins. Co. (1828), 6 Pick. 204 ; Arnold v. Brown (1832), 24 Pick. 96 ; Wadsworth v. Gay (1875), 118 Mass. 44, 53. '^ Hayward v. ElUs (1832), 13 Pick. 272 ; Arnold v. Brown (1832), 24 Pick. 96 ; Wyman v. Hooper (1854), 2 Gray, 141, 145. ' Harrington v. Brown (1827), 5 Pick. 521 ; Jennison v. Hapgood (1828), 7 Pick. 1, and (1830), 10 Pick. 77, and (1833), 14 Pick. 345 ; Arnold v. Brown (1832), 24 Pick. 96 ; Houghton v. Hapgood (1833), 13 Pick. 154; Grout w. Hapgood (1832), 13 Pick. 159; Litchfield v. Cudwortli (1833), 15 Pick. 33 ; Shelton v. Homer (1843), 5 Mete. 467, 468 ; Blood v. Hayman (1847), 13 Mete. 231, 336 ; Bobbins v. Bates (1849), 4 Cush. 104 ; Yeackel v. Litchfield (1866), 13 Allen, 419 ; Ives v. Ashley (1867), 97 Mass. 198 ; Botch v. Morgan (1870), 105 Mass. 426. * Dyer v. Shurtleff (1873), 112 Mass. 165. 6 Howard v. Ames (1841), 3 Mete. 308 ; Dyer v. Shurtleff (1873), 112 Mass. 168, 169 ; Bums v. Thayer (1874), 115 Mass. 89 ; Learned V. Foster (1875), 117 Mass. 365, 369. 8 Parker v. Nickerson (1873), 112 Mass. 195. » See Arnold v. Brown (1832), 34 Pick. 96. 8 Jones V. Dexter (1881), 130 Mass. 380. 9 Pierce v. Benjamin (1833), 14 Pick. 356. WHO MAY BUY. 41 together with interest and commissions. It was held that if no purchase from or sale to any third person was in fact made, and B simply assumed the contract himself, buying of and selling to himself, A was entitled to recover from B all money paid him, unless A paid with knowledge of these facts.i § 70. Where Purchaser stands in a Confidential Relation to the Owner, what is his Duty ? — It was said in a leading case ^ that those who stand in a confidential relation to the owner of property, as agents, factors, stewards, and the like, if they would purchase of the principal or owner the property committed to their care, must deal with the utmost fairness, and conceal nothing within their knowl- edge which may affect the price or value ; for if they do, the bargain may be set aside. They are held not only not to misrepresent and not to conceal, but also to disclose everything known to them, which in the mind of a pru- dent man would be likely to affect the bargain; and if this is not done, though there may be no design to cheat, yet there is a constructive fraud. But where tlie subject- matter of the bargain is of a complicated nature, such as an account running through many years and many volumes, and relating to transactions which may in a measure have gone out of the memory, all that fairness requires would seem to be to give sufBcient information to lead the party into an inquiry, a willingness to answer all questions, and a submission of all the materials of knowledge by the purchaser to the seller. The case referred to was as follows : A and B had been partners in business for many years. A died, and a settle- 1 Todd V. BisLop (1884), 136 Mass. 386 ; Lonergan v. Peck (1884), 136 Mass. 361. 2 Parnum v. Brooks (1830), 9 Pick. 212, 225, 226, 233, 234, 238. See Welch v. Bradbury (1835), 16 Pick. 375. 42 SALES OF PERSONAL PROPERTY. ment was made by B with the administrators of A, where- by for a fixed sum B virtually purchased all of A's interest, " with all its advantages and disadvantages." In making this settlement, B omitted to mention claims existing in the nature of salvage against the government of Spain for illegal captures, which claims at the time of the settlement were thought to be of little or no value, but afterwards, by reason of a treaty between Spain and the United States, became of great value. It was held that as B's statement did not purport to give an account of the sources from which by possibility advantages might accrue, and as aU such claims might be traced in the books exhibited to the administrators, and as B in his answer stated that they escaped his recollections, the omission did not show actual or constructive fraud on B's part, so that the settlement could not be set aside, and the benefit of these claims belonged to B. The court said : " If .bona fde on his part, and no advantage taken of his superior knowledge or of the ignorance of his creditor, the bargain will be valid, although he may gain advantage by it ; and in this case he differs from a trustee in the strict sense, who is scarcely allowed to purchase of the cesUd que trust at all." § 71. Tenants in Common selling to each other. — As a general rule tenants in common do not stand towards each other in such a relation of mutual trust and confidence that each is bound, in his dealings with the other, to com- municate information of all the facts within his knowl- edge which may affect the price or value, but they may deal with each other as if they were owners of separate property. Thus a tenant in common of a vessel, in con- , tracting with his co-tenant for the purchase of his share at a certain price, is under no legal obligation to disclose that a third person had previously agreed with him to purchase the whole of the vessel at a higher rate. But if WHO MAY BUY. 43 there be any studied efforts to prevent the co-tenant from coming to a knowledge of the truth, or if there be any, though slight, false and fraudulent suggestions or repre- sentations, then the transaction is void.^ § 72. Attaching Officer may buy of the Debtor the Goods attached. — The relation in which an attaching of&cer stands to the debtor, the attaching creditor, and other creditors is not such as to render the officer incom- petent to purchase of the debtor the property attached, subject, of course, to the lien.^ The court said : " There is no such fiduciary relation between them as to form any obstacle to their contracting with each otiier. There may be something in the situation of the debtor and the power of the officer which should induce a close scrutiny into their dealings to see that there is no fraud or oppression in their contracts, but nothing which is so much to be feared as to inhibit all contracts between them. The at- taching creditor has quite as much power over the debtor as the officer employed by him, and yet there is nothing in their relative situation which will prevent them from buying and selling with each other. If either the creditor or the officer, by extortion or taking advantage of the necessities of the debtor, should obtain from him an un- conscionable bargain, the law would set it aside. But we can see nothing in the situation of the property or the relation of the parties which by the rules of law or upon principles of sound policy should annul a fair contract of sale.'' § 73. Purchases by Agents. — A person is liable for all purchases made by his agent duly authorized thereto, the same as if they were made by himself. If a person assume to act as such agent, when, however, he has not sufficient 1 Matthews v. Bliss (1839), 33 Pick. 48, 53. 2 Arnold «. Brown (1833), 24 Pick. 89, 97. 44 SALES OF PERSONAL PROPERTY. authority to do so, his acts may be rendered valid and binding upon the principal by subsequent acts of the latter, amounting to a ratification or adoption.^ 1 Williams V. Mitchell (1821), 17 Mass. 98 ; Prencli v. Price (1833), 24 Pick. 13 ; Narragansett Bauk v. Atlantic Silk Co. (1841), 3 Mete. 282; Thayer v. White (1847), 12 Mete. 343; Melledge v. Boston Iron Co. (1849), 5 Cush. 179 ; Foster v. Rockwell (1870), 104 Mass. 167 ; Eeed b. Ashbumham R. R. (1876), 120 Mass. 43 ; Sartwell v. Prost (1877), 122 Mass. 184 ; Tozier v. Crafts (1878), 123 Mass. 480 ; Lov- ell V. Williams (1878), 125 Mass. 439; Lawrence v. Lewis (1882), 133 Mass. 561 ; Shaw v. Hall (1883), 134 Mass. 103. MUTUAL ASSENT. 45 CHAPTER IV. MUTUAL ASSENT. § 74. Assent must be Mutual. — A mere proposal by one person obviously constitutes no bargain of itself. It must be accepted by another, and this acceptance must be un- conditional. The assent must be mutual, and intended to bind both sides, and must coexist at the same moment of time.i Thus a merely colorable sale, made with the intention that the title should not be transfeiTed in reality, but only in appearance, conveys no title whatever to the apparent purchaser.^ The question as to what was the meaning and intention of the parties, and whether there was mutual assent, is for the jury.^ § 75. Continuing Offer. — The proposer may withdraw his offer, so long as it is not accepted ; but while it remains in force and unrevoked, it is a continuing offer, and as soon as it is accepted it ripens into a contract. The ac- ceptance by the one party constitutes a sufficient legal consideration for the engagement on the part of the other. It is precisely as if the parties had met at the time of the 1 Thraston v. Thornton (1848), 1 Gush. 91, 93 ; Smith v. Gowdy (1864), 8 Allen, 566; Gowing v. Knowles (1875), 118 Mass. 232; Harlow V. Curtis (1876), 121 Mass. 820 ; Oakman v. Rogers (1876), 120 Mass. 214. 2 Dawson v. Wetherbee (1860), 16 Gray, 123 ; Cox v. Jackson (1863), 6 Allen, 108 ; Bradley i). Hale (1864), 8 Allen, 59 ; Billings i). Thomas (1874), 114 Mass. 570. But see Dyer v. Homer (1839), 22 Pick. 253, 257. 8 Thraston v. Thornton (1848), 1 Cush. 89 ; Winchester v. How- ard (1867), 97 Mass. 305. 46 SALES OF PERSONAL PROPERTY. acceptance, and the offer had then heen made and accepted, and the bargain completed at once.^ But an offer will not, however, stand open forever. If no time is fixed within which it is to be accepted, it must still be accepted within a reasonable time, considering the nature of the contract and the circumstances surrounding the parties.^ § 76. Contract is complete when the Letter of Accept- ance is posted. — In creating the contract, the negotiation may be conducted by letter, and the contract is then com- plete when the answer containing the acceptance of a distinct proposition is despatched by mail or otherwise, provided it be done with due diligence after the receipt of the letter containing the proposal, and before any in- timation is received that the offer has been withdrawn. Putting in the mail the answer by letter containing the acceptance, and thus placing it beyond the control of the party, is valid as a constructive notice of acceptance.^ This is stated as the law, because it is in accordance with the whole current of English and American authorities 1 Symmes v. Prazier (1810), 6 Mass. 344 ; Wentwortli v. Day (1841), 3 Mete. 354; Craig v. Harper (1849), 3 Gush. 158 ; Boston & Maine R. R. v. Bartlett (1849), 3 Cush. 237. The English doctrine of Cooke V. Oxiey, 3 T. E.. 653, is disapproved and denied. 2 Loring V. Boston (1844), 7 Mete. 409. s England. Adams v. Lindsell (1818), 1 Barn. & Aid. 681 ; Dun- lop V. Higgins (1848), 1 H. L. C. 381 ; Duncan v. Topham (1849), 8 C. B. 235 ; Thomson v. James (1855), 18 Dunlop, 1 ; Harris's Case (1872), L. E. 7 Ch. 587 ; Household Tire Ins. Co. v. Grant (1879), L. R. 4 Ex. Div. 217; Byrne ». Van Tienhoven (1880), L. R. 5 C. P. Div. 344 ; Stevenson v. McLean (1880), L. R. 5 Q. B. Div. 346. United States Supreme Court. Tayloe v. Merchants' Ins. Co. (1850), 9 How. 390. See Eliason v. Henshaw (1819), 4 Wheat. 225 ; and The Palo Alto (1847), 2 Ware, 844, 357, 358. New Fori. Maetier v. Erith (1830), 6 Wend. 103 ; Brisban v. Boyd (1832), 4 Paige, 17; Vassar v. Camp (1854), 1 Kern. 441; MUTUAL ASSENT. 47 outside of Massachusetts, and because it is extremely doubtful whether the now famous case of McCullough v. Eagle Insurance Company, decided in 1822,^ would at present be followed. In that case A wrote to ask B on what terms he would insure a vessel. B wrote January 1, offering to insure at a specified rate, and on January 2 wrote a letter retracting his offer. A, before he received this last letter, wrote and sent by mail an answer acceding to the terms, and it was held there was no contract. This decision has, however, been almost universally condemned. Eeferring to it, Mr. Duer says* that although the case of Thayer v. Middlesex Mutual Insurance Company ^ did not overrule it in express terms, yet the language of the court involved a plain renunciation of the principle upon which it was founded. Clark V. Dales (1855), 20 Barb. 42 ; Trevor v. Wood (1867), 36 N. Y. 307 ; Myers v. Smith (1867), 48 Barb. 614. New Jersey. Hallock v. Commercial Ins. Co. (1857), 2 Dutch. 268, 283. Kentucky. Chiles v. Nelson (1838), 7 Dana, 281 ; Hutcheson ». Blakeman (1860), 3 Mete. 80. Georgia. Levy v. Cohen (1848), 4 Ga. 1 ; Bryant w. Booze (1875), 55 Ga. 438. New Hampshire. Abbott v. Shepard (1868), 48 N. H. 14. Maryland. Wheat ». Cross (1869), 31 Md. 99 ; Stockham ». Stookham (1869), 33 Md. 196. Connecticut. See Averill u. Hedge (1838), 12 Conn. 424. Pennsylvania. Hamilton v. Lycoming lus. Co. (1847), 5 Barr, 339. Wisconsin. Washburn v. Fletcher (1877), 42 Wise. 153. Alabama. See Falls v. Gaither (1839), 9 Port. 605, 612-614. Illinms. Haas v. Myers (1885), 111 111. 000, and 33 Albany L. J. 276. See, too, Duer on Marine Insurance, vol. i. 67, 116-131 ; 2 Kent, Com. *-478 ; 1 Parsons, Contracts, *484. 1 1 Pick. 283. See in defence of this case an article in 7 Am. Law Rev. 433, and Langdell on Contracts, 2d ed. 989-996. 2 In his treatise on Marine Insurance, p. 121. 8 (1830), 10 Pick. 333. 48 SALES OF PERSONAL PROPEETY. But the person making the offer may always, if he chooses, make the formation of the contract which he pro- poses dependent upon the actual communication to him- self of the acceptance, as where he writes, " If I do not hear from you by Monday, I shall conclude 'no.'" The acceptance then is not binding on the offerer, unless it reaches him within the time.^ § 77. Assent is presumed in Certain Cases. — Contracts of sale are implied, under certain circumstances, without any formal expression of the will or intention of the parties ; as where, for example, an express contract has been made, and goods are sent, not in accordance with it, but are nevertheless retained by the purchaser. In such case, a new contract is implied that the purchaser will pay for them their value. There is a presumption of assent. Thus, there being an entire contract for one thousand bushels, only four hundred and ten bushels were delivered, and the seller refused to deliver the residue. It was held that the purchaser was liable for the four hundred and ten bushels retained by him, but that he could reduce the seller's claim by showing that he had sustained damage by the seller's failure to fulfil his contract.^ In Boston Ice Company v. Potter, decided ^ in 1877, the court refused to presume any assent or imply any con- tract. The case was as follows : A, who had bought ice of B, ceased to take it on account of dissatisfaction with B, and contracted for ice with C. Subsequently B bought C's business, and delivered ice to A, without notifying him of the purchase until after the delivery and consump- tion of the ice. It was held that B could not maintain an 1 Lewis V. Bro-wning (1881), 130 Mass. 173. ^ Bowker v. Hoyt (1836), 18 Pick. 555. See, too, Star Glass Co. v.' Morey (1871), 108 Mass. 570. » 123 Mass. 28. MUTUAL ASSENT. 49 action for the price of the ice against A, who had never assented to any contract with B. § 78. Assent caused by Mistake of Pact. — Where through some mistake of fact each was assenting to a different contract, there is no real valid agreement, not- withstanding the apparent mutual assent. Thus no prop- erty passes where there is a mistake respecting the identity of the subject-matter intended to be sold, as where the seller has reference to one article and the buyer to another, or where the parties to a sale suppose the subject of it to be in existence, when in fact it has been destroyed. The minds of the parties do not meet as to the subject-matter of the sale.^ § 79. Commumcation of Assent. — While it is generally true that an assent which is neither communicated to the other party, nor followed up by action, — a mere " mental assent," as it is termed, — is insufficient, it would seem not to be law in this State without some qualification. Thus A sent goods to B, without any order so to do. B was informed by letter that he could, as he might elect, take the goods as purchaser or as consignee, to sell on A's account. B became bankrupt, and the goods were taken by his assignee, from whom A took them by replevin. A was never notified by B of any election by him as to how he should hold the goods. In the replevin suit, it was held that B might properly testify that, when he received A's letter, he decided to purchase the goods. Judgment was rendered for the assignee.^ 1 Thompson v. Gould (1838), 20 Pick. 139 ; Eioe v. Dwight Manuf. Co. (1848), 2 Cush. 86; Chapman v. Cole (1858), 12 Gray, 142; Gardner v. Lane (1865), 9 Allen, 498, and (1866), 12 Allen, 39, 44 ; Lyman v. Robinson (1867), 14 Allen, 242, 253 ; Spnrr v. Benedict (1868), 99 Mass. 463 ; Kyle v. Kavanagh (1869), 103 Mass. 356 ; Harvey v. Harris (1873), 112 Mass. 32. See post, Book III. ch. 1. 2 Taeger Milling Go. v. Brown (1880), 128 Mass. 171. 4 50 SALES OF PERSONAL PEOPERTY. CHAPTEE V. THE THING SOLD. § 80. Things not yet in Existence, or not yet belonging to Seller. — Things not yet in existence, or not yet belong- ing to the seller, the law divides into two classes, one of which may be sold, while the other can only be the sub- ject of an agreement to sell ; that is, of an executory con- tract. 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 in- crease of something already belonging to the seller. Thus, he may sell the crop to be grown on his field, the wool to be clipped from his sheep, or the milk that his cows may yield.-' So a transfer by a tenant of a farm, to his land- lord, of all the crops that may be grown upon the land during the lease is valid. The title in the crops, when grown, would be in the landlord.^ If the seller have a present vested interest in the thing sold, it is enough ; as where a lessee put furniture into the leased premises under an agreement that it should become the property of the lessor at the end of the term, it was held that the lessor had an interest he could sell before the end of the term. He had a vested interest, which would ripen into a perfect title by the lapse of time.^ ^ Jones V. Richardson (1845), 10 Mete. 488 ; Moody v. Wright (1847), 13 Mete. 29 ; Low v. Pew (1871), 108 Mass. 350. " Lewis V. Lyman (1839), 22 Pick. 437 ; Heald v. Builders' Ins. Co. (1872), 111 Mass. 38. 8 Thrall v. Hill (1872), 110 Mass. 330. THE THING SOLD. 51 § 81. Mere Possibility not coupled with any Interest. — But he caa only make an agreement to sell, where the subject of the contract is something to be afterwards acquired, as the wool of any sheep he may buy within a month, the fish he may catch on a certain voyage, or any goods to which he may obtain title within a month.^ A mere possibility coupled with no interest is not the sub- ject of sale, and would not pass by a bill of sale. Thus there was an agreement by the owner of a fishing schooner, in the form of a present sale of all the halibut that might be caught by the crew on a certain voyage. The owner became bankrupt before the vessel returned. The buyer and the assignee both claimed the fish. It was held that the sale passed no title.^ § 82. Thus a sale or mortgage of goods which the seller or mortgagor may afterwards acquire is void in equity as well as at law as against subsequent hona fide purchasers or attaching creditors, or as against the assignee in insol- vency of the seller or mortgagor, except as hereafter stated.^ But though in these cases the actual sale is void, the agreement will take effect if the seller, by some act done after his acquisition of the goods, and before any attach- ment, alienation, or insolvency, clearly shows his intention to give effect to the original agreement, or if the buyer within such time obtains the goods under an authority to seize them. There must, however, be some positive, un- equivocal act done by the seller for the avowed purpose 1 Rice V. Stone (1861), 1 Allen, 569. See Herbert v. Bronson (1878), 125 Mass. 475. 2 Low V. Pew (1871), 108 Mass. 347. ' Winslow V. Merchants' Ins. Co. (1842), 4 Mete. 306 ; Jones v. Eichardson (1845), 10 Mete. 488 ; Moody ». Wright (1847), 13 Mete. 17, 28 ; Barnard v. Eaton (1848), 2 Gush. 294 ; Codman v. Preeman (1849), 3 Cush. 309 ; Chesley ». Josselyn (1856), 7 Gray, 490 ; Chase V. Denny (1881), 130 Mass. 568. 52 SALES OF PEESONAL PROPERTY. of carrying the former grant or agreement into effect, amounting to a delivery of the goods to the buyer for that purpose. The law in case of mortgage, which illustrates the general rule, is clearly stated by Dewey, J., as follows : "A stipulation that future-acquired property shall be holden as security for some present engagement is an executory agreement, of such a character that the creditor, with whom it is made, may under it take the property into his possession, when it comes into existence and is the subject of transfer by his debtor, and hold it for his security ; and whenever he does so take it into his pos- session before any attachment has been made of the same, or any alienation thereof, such creditor, under his execu- tory agreement, may hold the same ; but until such an act is done by him, he has no title to the same. Such act being done and the possession thus acquired, the executory agreement of the debtor authorizing it, the property will then become holden by virtue of a valid Uen or pledge. The executory agreement of the owner in such case is a continuing agreement, so that, when the creditor does take possession under it, he acts lawfully under the agree- ment of one then having the disposing power, and this makes the lien good. If, however, before taking posses- sion or doing such acts as are necessary to give vitality to the mortgage, as to the subsequently acquired property, an attachment or assignment for the benefit of creditors is made, the opportunity for completing the lien is lost." ^ § 83. Good-will and Trade Secrets. — The good-will ^ » Moody ». Wright (1847), 13 Mete. 32, 33. See, too, Jones v. Ricliardson (1845), 10 Mete. 493 ; Steams v. Quincy Ins. Co. (1878), 124 Mass. 63 ; Chase v. Denny (1881), 130 Mass. 568 ; Wilson v. Russell (1884), 136 Mass. 311. 2 Gilman v. Dwight (1859), 13 Gray, 356; Bassett ». Perciral (1862), 5 Allen, 345; Angier v. Webber (1867), 14 Allen, 211; Dwight V. Hamilton (1873), 118 Mass. 175 ; Boutelle v. Smith (1874), THE THING SOLD. 53 of a business may be a subject of sale, and so may a trade secret ; ^ and the courts will recognize and enforce the cov- enants made expressly or impliedly by the seller, so as to protect the buyer in his rights. Trade-marks. — Whatever may be the law as to a trade- mark, strictly personal in its character, it is the settled law that the right to use a trade-mark in connection with the business in which it has been used is property which will be protected by the courts, and which may be sold and transferred. Whether it is so far property that it could be sold to a stranger, detached from the business in which it has been used, is doubtful.^ The courts may refuse to treat the sale of a trade-mark as valid, if the purchaser invoke their aid for its protection as his property, when the manner in which he has used it has tended to deceive the public. A sale will generally be upheld, except where this element of deceit is actually or potentially present.* § 83 a. Distilled' Spirits, how must be sold vrhen for- feited. — It is provided by statute that "all distilled spirits, forfeited to the United States, sold by order of court or under process of distraint, shall be sold subject to tax, and the purchaser shall immediately, and before he takes pos- session of said spirits, pay the tax thereon." * 116 Mass. Ill ; Page v. Cole (1876), 120 Mass. 37 ; Munsey v. Bat- terfleld (1882), 133 Mass. 492. 1 Vickery v. Welch (1837), 19 Pick. 523. See Peabody v. Norfolk (1868), 98 Mass. 452, 460. 2 Sohier v. Johnson (1872), 111 Mass. 242, 244; "Warren v. War- ren Thread Co. (1883), 134 Mass. 248. See Rogers v. Taintor (1867), 97 Mass. 291; Emerson v. Badger (1869), 101 Mass. 82; Gilman b. Hunnewell (1877), 122 Mass. 139 ; and seeposf, §§ 184, 190. » Burton v. Stratton (1882), 12 Fed. Bep. 696 ; Oakes v. Tonsmi- erre (1883), 4 Woods C. Ct. 547 ; Atlantic Milling Co. v. Bobinson (1884), 20 Fed. Bep. 217 ; Stachelberg v. Ponce (1885), The Beporter, xix. 710. * Bev. St. of U. S. § 8334. 54 SALES OF PERSONAL PROPERTY. CHAPTEE VI. THE PKICE. § 84. Seasonable Price implied when nothing said. — It must consist of money paid or promised.^ If nothing has been said as to price when a commodity is sold, the law implies an understanding that it is to be paid for at what it is reasonably worth, and this applies to executory as well as executed contracts.^ Reasonable price is what the jury shall decide to be such under all the circum- stances. This price may or may not agree with the cur- rent or market price of the day. Ordinarily when an article of sale is in the market, and has a market value, there is no difference between its value and the market price, and the law adopts the latter as the proper evidence of the value. The market price is not itself the value of the article, but is merely evidence of its value. The law adopts it as a natural inference of fact, but not as a con- clusive legal presumption. The true value may be drawn from other sources, when it is shown that the market price for the particular day has been unnaturally inflated or depressed. The current price of the day may be highly unreasonable from accidental circumstances, as on account of the commodity having been kept back by the seller himself.^ 1 Williamson v. Berry (1850), 8 Hotr. 544. ' Taft V. TraTis (1883), 136 Mass. 95, 102. See also Penton v. Braden (1825), 2 Crancli C. C. 550 ; Acebal v. Levy (1834), 10 Bing. 376; Hoadly v. MoLane (1834), 10 Bing. 487; Valpy v. Gibson (1847), 4 C. B. 837. « Acebal v. Levy (1834), 10 Bing. 383 ; Trout v. Kennedy (1864), THE PRICE. 55 Agreement that Appraisers shall fix Price. — The parties may agree that the price shall be fixed by appraisers ap- 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.^ Where A sells and transfers goods to B at a price to be so deter- mined by certain appraisers or valuers, and owing to the fault of B no appraisal is made, as where B, who has the goods, withdraws his submission and refuses to pro- ceed with the appraisal, A may sue for the value of the goods, and in lieu of the finding of the appraisers he may have recourse to the verdict of the jury to determine the price.^ 47 Peim. St. 393 ; MoEwen v. Morey (1871), 60 El. 32 ; Kountz v. Earkpatrick (1872), 72 Perm. St. 376, 386 ; James v. Muir (1876), 33 Mich. 223, 227; Harrison v. Glover (1878), 72 N. Y. 451. 1 Browu V. Bellows (1826), 4 Pick. 189; Nutting v. Dickinson (1864), 8 AUen, 540;-Holbrook v. Satchel (1874), 114 Mass. 435. ^ Humaston v. Telegraph Co. (1873), 20 Wall. 20. 56 SALES OF PERSONAL PROPERTY. CHAPTEE VII. PLACE WHEKE CONTEACT MADE AS AFFECTING VALIDITY, ETC. § 85. The validity of the contract of sale is determined by the law of the State where it is made. By this law must be determined whether what is done constitutes a contract of sale, and if so, what is the nature, validity, obligation, and legal effect of such contract, and by what rules it is to, be construed and interpreted.^ This is true even when the validity of the contract depends on a ques- tion as to the legal capacity of the parties.^ § 86. Where the buyer in this State sent an order for goods to the seller in another State, who there delivered them to a carrier for transportation to the buyer, it was held that the sale was completed in the State where the seller resided, although all the terms thereof were originally agreed on by agents of the parties at the resi- dence of the buyer.^ But in such case, if the agreement is that the seller shall pay the freight and make delivery of the goods to the buyer here, the sale is then made in this State.* 1 Carnegie v. Morrison (1841), 2 Mete. 397. See^jos^, § 319, and Hardy v. Potter (1857), 10 Gray, 90. 2 Milliken v. Pratt (1878), 135 Mass. 374. » Kline v. Baker (1868), 99 Mass. 253. See Mclntire v. Parks (1841), 3 Mete. 207; Merchant v. Chapman (1862), 4 Allen, 362; Knch V. Mansfield (1867), 97 Mass. 89; Abberger v. Marrin (1869), 102 Mass. 70; Brockway v. Maloney (1869), 102 Mass. 308; Dolan ». Green (1872), 110 Mass. 322; Milliken v. Pratt (1878), 125 Mass. 374; Prank ». Hoey (1880), 138 Mass. 263; Sherley v. MoCormick (1883), 135 Mass. 126. * Suit V. Woodhall (1873), 113 Mass. 391; and see cases last cited. THE STATUTE OF FRAUDS. 57 CHAPTEE VIII. THE STATUTE OF FRAUDS. § 87. The Statute. — By statute it is provided that " no contract for the sale of goods, wares, or merchandise for the price of fifty dollars or more shall be good or valid, unless the purchaser accepts and receives part of the goods so sold, or gives something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain is made and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized."^ The statute assumed its present phraseology in 1836. For nearly a century and a half prior to that time it had read as follows, viz., "No contract for the sale of goods, wares, and merchandise for the price of ten pounds or upwards 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 of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." § 88. Its Purpose and Meaning. — This was intended to prevent fraud and falsehood by requiring a party who seeks to enforce an oral contract in court to produce as additional evidence some written memorandum or proof of some act confirmatory of the contract relied on. It does not prohibit such contract. It does not declare that ' Pub. Si. cli. 78, § 5 (prior references. Gen. St. oh. 105, § 5 ; Rev. St. ch. 74, § 4; St. 1788, ch. 16, § 2; St. 1692, ch. 15, § 7). 68 SALES OF PERSONAL PEOPERTY. it shall be void or illegal, unless certain formalities are observed. If the contract is executed, the effect of its performance on the rights of the parties is not changed, and the consideration may be recovered. The memo- randum required and the alternative acts proceed from one of the parties only. They presuppose a contract, and are in affirmance or partial execution of it. They are not essential to its existence, need not be contemporaneous, and are not prescribed elements in its formation. The statute only affects the mode of proof as to all contracts within it. It affects the remedy and not the validity of the contract. The contract is treated as subsisting and valid when it comes in question between other parties for purposes other than a recovery upon it. " Allowed to be good " means good for the purpose of a recovery.^ § 89. Must be pleaded if relied on. — The defendant may always waive its protection, and the court wUl not interpose the defence. If relied on by the defendant, it must be set forth in clear and precise terms in his answer. Otherwise he cannot have recourse to it.^ § 90. Application of Payments not affected by the Stat- ute. — A creditor receiving payment from his debtor, with- out any direction as to its application, may apply it to a debt upon which no action can be maintained by reason of this statute.* 1 Townsend v. Hargraves (1875), 118 Mass. 334; Norton v. Si- monds (1878), 124 Mass. 19 ; Amsinck v. American las. Co. (1880), 129 Mass. 185. See also Cahill v. Bigelow (1836), 18 Pick. 372 ; Beal V. Brown (1866), 13 AUen, 115. * Middlesex Co. v. Osgood (1855), 4 Gray, 447. 8 Haynes v. Nice (1868), 100 Mass. 327. CONTRACTS WITHIN THE STATUTE OF FRAUDS. 59 CHAPTER IX. CONTRACTS WITHIN THE STATUTE OF FEAUDS. § 91. Distinction between a Contract of Sale and a Contract for Labor and Materials. — The statute embraces executory as well as executed contracts.^ The question whether a contract is a contract of sale or a contract for labor and materials, sometimes termed a contract to make and deliver, is often a difficult one to determine. The rule in Massachusetts mainly regards the point whether the products can, at the time stipulated for delivery, be regarded as " goods, wares, and merchandise " in the sense of being generally marketable commodities made by the manufacturer. The test is not the non-existence of the goods at the time of the bargain; it is rather whether the manufacturer produces the article in the general course of his business, or as the result of a special order. The rule is thus stated by Ames, J. : "A contract for the sale of articles then existing, or such as the seller 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." ^ § 92. Thus a contract to buy a certain number of boxes 1 Mixer v. Howarth (1838), 21 Pick. 207 ; Waterman v. Meigs (1849), 4 Gush. 497. 2 Goddard v. Binney (1874), 115 Mass. 454. 60 SALES OF PERSONAL PROPERTY. of candles at a fixed price per pound, which the seller said he would make and deliver in about three months, was held a contract of sale within the statute.^ But a con- tract with a carriage manufacturer that he should make a buggy for the person ordering it, that the color of the lining should be drab, and the outside seat of cane, and that the buggy should have on it the monogram of the purchaser, was held not to be a contract of sale within the statute, but a contract for labor and materials.^ § 93. Sales at Auction. — Sales at public auction are within the statute.^ § 94. Conflict of Laws. — Where a contract is made and is to be performed in another State, the question whether it is within the Statute of Frauds depends upon the laws of that State.* 1 Gardner v. Joy (1845), 9 Mete. 177. See also Lamb v. Crafts (1847), 12 Mete. 355 ; Waterman v. Meigs (1849), 4 Cust. 497 ; Clark V. Nichols (1871), 107 Mass. 547 ; May v. Ward (1883), 134 Mass. 127. ^ Goddard v. Binney (1874), 115 Mass. 450. See also Mixer v. Howarth (1838), 21 Pick. 205 ; Spencer v. Cone (1840), 1 Mete. 283 ; Bowling V. MoKenney (1878), 124 Mass. 480. " Davis V. Kowell (1823), 2 Pick. 64; Morton v. Dean (1847), 13 Mete. 385. * Denny v. WilHams (1862), 5 AUen, 1, 3. WHAT ARE GOODS, WARES, OB MERCHANDISE? 61 CHAPTEE X. WHAT ARE GOODS, WARES, OK MERCHANDISE? § 95. Term covers Notes, Shares of Stock, &c. — In England these words are held not to cover incorporeal rights and property, such as notes, shares of stock, &c. ; but in Massachusetts they are held to cover a contract for the sale of a promissory note,^ of shares in a manu- facturing corporation, or any securities which are the subject of common sale and barter, and which have a visible and palpable form.^ But a contract for the sale of an interest in an invention, before the letters-patent have been issued, has been held not to be within the statute.^ § 96. Things attached to the Soil — Pruotus Naturales and Fructus Industriales. — Things attached to the soil are not goods, though when severed from it they are. Thus growing trees are a part of the land, but the cut logs are goods. Thus, too, bricks or stones, which are goods, cease to be so when built into a wall; they then become part of the soiL But crops, though attached to the soil, are not for aU purposes part of the freehold. The rules on this subject are as follows : First, An agree- ment to transfer the property in anything 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 1 Baldwin v. Williams (1841), 3 Mete. 367. " Tisdale v. Harris (1838), 20 Pick. 9 ; Thompson v. Alger (1847), 12 Mete. 428 ; Somerby v. Buutin (1675), 118 Mass. 285 ; Boardman V. Cutter (1880), 128 Mass. 388. 8 Somerby v. Buntin (1875), 118 Mass. 379. 62 SALES OF PERSONAL PROPERTY. is transferred to the purchaser, is an executory agreement for the sale of goods, and is therefore within section 5 of the statute.! Second, Where there is a perfect bargain and sale, vesting the property at once in the buyer before severance, a distinction is made between fructus naturales, the natural growth of the soil, as grass, timber, fruit on trees, &c., which at common law are part of the soil, and fructus indusiriales, fruits which are produced by the annual labor of man in sowing and reaping, planting and gathering. The former are an interest in land, and there- fore come within another section of the statute. But in the absence of evidence which clearly shows that the parties did really intend a transfer before severance, it will always, in Massachusetts, be presumed that they did not. The contract will be construed as passing an interest after severance, and not any interest in the land, on the ground that the parties must have known that such was its effect. The form of the contract is much regarded as indicative of intention.^ The fructus indus- iriales are chattels, and an agreement for the sale of them, whether mature or immature, and whether the property in them passes before or after severance, falls within section 5 of the statute.^ 1 Claflin V. Carpenter (1842), 4 Mete. 580; Nettleton v. Sikes (1844), 8 Mete. 34; Steam v. Waslibum (1856), 7 Gray, 188; Doug- las V. Shumway (1859), 13 Gray, 602 ; Giles v. Simon'ds (1860), 15 Gray, 442 ; Poor i;..Oakman (1870), 104 Mass. 316. See Hill v. Cat- ting (1871), 107 Mass. 597 ; HiH y. Hill (1873), 113 Mass. 105. ^ Claflin V. Carpenter (1842), 4 Mete. 583 ; Douglas v. Shumway (1859"), 13 Gray, 502 ; Giles v. Simonds (1860), 15 Gray, 442; Drake V. Wells (1865), 11 Allen, 142; White v. Foster (1869), 102 Mass. 378, 379. 8 Miller v. Baker (1840), 1 Mete. 31-33 ; Whitmarsh v. Walker (1840), 1 Mete. 313 ; Eoss v. Welch (1858), 11 Gray, 235 ; Delaney V. Root (1868), 99 Mass. 548. See Penhallow v. Dwight (1810), 7 Mass. 35 ; Heard v. Fairbanks (1842), 5 Mete. 112. WHAT ARE GOODS, ■WARES. OR MERCHANDISE? 63 § 97. Manure. — Manure made upon a farm in the course of husbandry is so connected with the realty that, in the absence of any express stipulation to the contrary, it is considered as a part of the real estate, although it is standing in a pile upon the land, and is not yet in a fit condition for incorporation with the soil. So long, how- ever, as it is only constructively annexed to the soil, it will be personal property, if the parties interested agree to so treat it, and an oral contract for its sale is valid, if section 5 of the Statute of Frauds is satisfied. If it be made otherwise than in the usual course of husbandry, it is mere personal property, as, for instance, the manure from a hotel stable.^ § 98. Building put on Land of another vrith his Con- sent. — A building put upon the land of another, with his consent, though without any express agreement for its removal, is personal property, and may be sold as such. The owner of the land has no lien thereon for ground rent, and if he forbids the removal thereof by the purchaser, he is liable in replevin or trover.^ But if a building be erected, without any express or implied agreement on the part of the land-owner to the contrary, it becomes a part of the real estate, and belongs to the owner of the soil.^ 1 Pay e. Muzzey (1859), 13 Gray, 65, 56; Strong v. Doyle (1872), 110 Mass. 93 ; Hetcher v. Herring (1873), 112 Mass. 382. 2 Wells V. Bannister (1808), 4 Mass. 515 ; Doty v. Gorham (1827), 5 Pick. 487 ; Marey v. Darling (1829), 8 Pick. 283 ; Ashmun v. Wil- liams (1829), 8 Pick. 404; Bilding v. Gushing (1854), 1 Gray, 576; Curtis V. Riddle (1863), 7 Allen, 185 ; Hinckley v. Baxter (1866), 13 Allen, 139 ; Howard v. Pessenden (1867), 14 Allen, 124, 129 ; Ham V. Kendall (1873), 111 Mass. 297 ; Hartwell v. Kelley (1875), 117 Mass. 237; O'Donnell v. Hitchcock (1875), 118 Mass. 401. 8 Washburn v. Sproat (1820), 16 Mass. 449 ; Peirce v. Goddard (1839), 22 Pick. 562; Milton u. Colby (1842), 5 Mete. 78, 81; Hutch- ins V. Shaw (1850), 6 Cush. 58 ; Cooper v. Adams (1850), 6 Cush. 87; First Parish in Sudbury v. Jones (1851), 8 Cush. 184, 190; 64 SALES OP PERSONAL PROPERTY. § 99. Effect if the Land is sold to Bona Fide Purchaser without Notice of the Agreement. — But the person who SO builds upon the land of another with his consent may lose his right to it, if the land is sold to an innocent pur- chaser, without notice of the agreement. He cannot set up his title against such innocent purchaser, whom he has misled by permitting the building to be attached to, and to become apparently a part of, the realty bought by him. The agreement binds only the original owner of the land and all persons taking under him with notice.-' § 100. Building sold to be severed from the Land. — A building which is ^old without the land on which it stands, with the intention of all parties to sever it from the land, will pass to the purchaser, with a right to remove it as personal property within a reasonable time.^ Murphy V. Marland (1851), 8 Gush. 578 ; King v. Johnson (1856), 7 Gray, 239 ; Howard v. Fessenden (1867), 14 Allen, 128 ; Oakman V. Dorchester Ins. Co. (1867), 98 Mass. 57. 1 Dolliver v. Ela (1880), 128 Mass. 559. See Smith Paper Co. v. Serrin (1881), 130 Mass. 511. = Shaw V. Carbrey (1866), 13 Allen, 463. See Burk v. Hollis (1867), 98 Mass. 55. ACCEPTANCE AND RECEIPT. 65 CHAPTEE XL ACCEPTANCE AND EECEIPT. § 101. Must be some Clear and Unequivocal Act. — The question is not whether the purchaser ought to accept, but whether he has accepted the goods. It is generally a question as to what was his intention as sig- nified by his outward acts. Something more than mere words is necessary. Added to the language of the contract must be some clear and unequivocal act on the part of the purchaser, amounting to an acceptance of the goods with the intent to take pos- session as owner ; and the case of cumbrous articles is not an exception to this rule.^ § 102. Acceptance of Part without Intention to perform Whole Contract. — "Where there was an acceptance and receipt of a part of the goods, but not with an intention to perform the whole contract and to assert the purchaser's ownership under it, he at once informing the seller's clerk that he would be responsible only for the part received, it was held that he was not bound to take the rest of the goods.^ § 103. Refusal by Seller to give Possession. — Where the buyer is willing to accept and receive, but the seller, 1 Dole V. Stitnpson (1838), 21 Pick. 387; Davis v. Eastman (1861)^ 1 Allen, 423 ; Denny v. Williams (1863), 5 Allen, 3 ; Howard v. Borden (1866), 13 Allen, 299 ; Knight v. Mann (1875), 118 Mass. 145, and (1876), 120 Mass. 219; Eemick v. Sandford (1876), 120 Mass. 316; Rodgers v. Jones (1880), 139 Mass. 420. 2 Atherton v. Newhall (1877), 123 Mass. 143. 6 66 SALES OF PEESONAL PROPERTY. in order to maintain his lien for the price, refuses to per- mit him to take possession and control, the statute is not satisfied ; and if the goods are meanwhile destroyed hy fire the loss falls on the seller.^ § 104. Question of Acceptance is for the Jury. — The question whether the facts proven amount to an accept- ance, actual or constructive, is one of fact for the jury. But the court may withhold the facts from the jury when they are not such as can afford any ground for finding an acceptance.^ § 105. Acceptance may be by Purchaser's Agent. — The act of acceptance may be by the agent of the pur- chaser as well as by himself personally. Thus there was held to be an acceptance and receipt by the purchaser, when the goods were sent by the seller to the place of delivery appointed by the agent, who contracted for them, and were there delivered to another agent of the purchaser, and were by him shipped to a port where the purchaser had given him general directions to ship goods of the same kind.^ § 106. Receipt of the Goods. — The receipt of the goods is the taking possession and control of them. Such a receipt is often evidence of an acceptance, but it is not the same thing. The receipt by the buyer may be, and often is, for the express purpose of seeing whether he wUl accept or not.* A receipt of goods by a carrier, or on board ship, though it may be a sufficient delivery to the purchaser, if he has ordered the goods to be so sent, is not an acceptance by him so as to bind the contract, for the 1 Safford v. MoDonough (1876), 120 Mass. 290. 2 Denny v. WilHams (1862), 5 Allen, 3. 8 Snow V. Warner (1845), 10 Mete. 132, 138 ; Johnson v. Cuttle (1870), 105 Mass. 449. * Remicko. Sandford (1876), 120 Mass. 316. ACCEPTANCE AND EECEIPT. 67 carrier, if he be an agent to receive, is clearly not one to accept the goods.^ § 107. Resale by Buyer. — If the buyer does any act to the goods which would be wrong if he were not the owner, but which would be right if he were, such as a resale, the doing of that act is evidence that he has ac- cepted them.^ § 108. Acceptance of a Sample. — The acceptance and receipt of a sample will be sufficient, if it is considered and treated by both parties as part of the goods bargained for, and diminishes the bulk thereof to be finally deliv- ered ; but it will be otherwise if the sample is considered only as a specimen, and forms no portion of the goods sold.^ § 109. Acceptance of Bill of Lading. — A dealing with goods may take place as effectively with the bill of lading, which represents the goods, as with the goods them- selves.* § 110. Goods in Warehouse. — The acceptance of a bill of goods which are in a general warehouse, with an order on the warehouseman for their delivery, without any notice to him, is not an acceptance or receipt which will satisfy the statute.^ If notice had been given by the 1 Frostburg Mining Co. v. N. E. Glass Co. (1851), 9 Cush. 119 ; Quintard v. Bacon (1868), 99 Mass. 185 ; Johnson v. Cuttle (1870), 105 Mass. 447; Atherton v. NewhaU (1877), 123 Mass. 142. 2 Remick v. Sandford (1876), 120 Mass. 316. » Damon V. Osbom (1823), 1 Pick. 480, 481 ; Davis v. Eastman (1861), 1 Allen, 422 ; Eemick v. Sandford (1876), 120 Mass. 309. * Eice ». Austin (1821), 17 Mass. 205 ; Carter v. Willard (1837), 19 Pick. 9 ; Frostburg Mining Co. ti. N. E. Glass Co. (1851), 9 Cush. 115 ; Quintard v. Bacon (1868), 99 Mass. 185 ; Borrowsoale v. Bos- worth (1868), 99 Mass. 381. 6 Carter o. WiUard (1837), 19 Pick. 1 ; Burge v. Cone (1863), 6 Allen, 412 ; Boardman v. Spooner (1866), 13 Allen, 357. 68 SALES OF PERSONAL PROPERTY. buyer to the warehouseman, it would then have been an acceptance and receipt, especially if he expressly assented to hold them for the buyer.^ § 111. Time of the Acceptance. — The acceptance and receipt need not be contemporaneous with the verbal agreement. There is nothing in the statute which fixes or limits the time within which the purchaser is to accept and receive part of the goods sold. It is the fact of ac- ceptance under and in pursuance of an agreement of sale, and not the time when it is made, that the statute renders essential.^ It is enough if there is an acceptance and receipt of a part of the goods at any time, before action is brought, although it be after the rest of the goods have been destroyed by fire while in the hands of the seller.^ § 112. Goods retained by Seller as Bailee of Buyer. — The goods may remain in the hands of the seller, if he distinctly assume a changed character, and yet be accepted and received by the buyer so as to satisfy the statute. The seller becomes then bailee to hold the goods for the buyer. His possession becomes the buyer's possession, and he loses his lien for the price. His thus becoming bailee is not consistent with his retaining this lien. Some facts must therefore be proven showing its abandonment.* 1 Gardner v. Howland (1834), 2 Pick. 599, 604; Tuiworth v. Moore (1830), 9 Pick. 347 ; Carter v. Willard (1837), 19 Pick. 1 ; Hatcli V. Bayley (1853), 12 Cush. 27; Hatch v. Lincoln (1853), 12 Cush. 31 ; BuUard v. Wait (1830), 16 Gray, 55 ; Gushing v. Breed (1867), 14 Allen, 376 ; Townsend v. Hargraves (1875), 118 Mass. 332. a Marsh v. Hyde (1855), 3 Gray, 331. s Tisdale v. Harris (1838), 20 Pick. 14; Townsend v. Hargraves (1876), 118 Mass. 325. « Chapman v. Searle (1825), 3 Pick. 38, 43 ; Weld v. Catne (1867), 98 Mass. 154; Knight v. Mann (1875), 118 Mass, 146; Safford v. McDonough (1876), 120 Mass. 290 ; Rodgers v. Jones (1880), 129 Mass. 422. EARNEST OK PART PAYMENT. 69 CHAPTER XII. EARNEST OE PART PAYMENT. § 113. Meaning of term "Earnest." — Money deposited with a Third Person. — As used in the Statute of Frauds, " earnest " is regarded as merely meaning a part payment of the price. Money deposited with a third person by the parties to an oral contract, to be by him paid to either of them as a forfeiture if the other should neglect to fulfil his part of the contract, was, therefore, held not to be given in earnest or part payment to bind the bargain within the statute.^ § 114. Time of the Part Payment. — The part payment contemplated by the statute need not be made at the same time that the parties make their original verbal agreement. It is enough if it be made before the action is brought.^ § 115. Whether Agreement to set off Debt due to Buyer is a Part Payment. — An agreement to set off a debt due to the buyer would be considered a part payment, taking the case out of the statute, if made subsequently to the sale 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 such an agreement, when it is merely one of the terms of the contract of sale itself, is not such a part payment as wiU avail to make the sale valid under the statute. It would seem in these cases that there must be some act, such as the surrender or cancellation of the 1 Howe V. Hayward (1871), 108 Mass. 54., 2 Thompson v. Alger (1847), 12 Mete. 435, 436 ; Marsh v. Hyde (1855), 3 Gray, 332. 70 SALES OF PERSONAL PEOPEETY. . evidence of the debt, or a receipt or discharge of the in- debtedness. Where there is nothing but mere words, it would seem that the statute is not satisfied.^ ' Walker v. Nussey (1847), 16 M. & W. 303; Wylie v. Kelly (1864), 41 Barb. 598 ; Brabin v. Hyde (1865), 32 N. Y. 519 ; Teed v. Teed (1865), 44 Barb. 96 ; Brand v. Brand (1866), 49 Barb. 346 ; Mattice V. Allen (1867), 3 Keyes, 493 ; Pitney v. Glen's Palls Ins. Co. (1875), 65 N. Y. 26, 27; MattMessen & W. R. Co. v. McMahon (1876), 38 N. J. L. 536, THE MEMORANDUM OR NOTE IN WRITING. 71 CHAPTEE XIII. THE MEMORANDUM OE NOTE IN WRITING. § 116. Nature of the Memorandum. — The contract it- self and the memorandum, which may be necessary to its validity under the statute, are in their nature distinct things. The statute presupposes a contract by parol. The contract may be made at one time, and the note or memo- randum of it at a subsequent time, provided it be before the action is brought. The contract may be proved by parol, and the memorandum 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 statement or reference all the essential parts of the bargain signed by the party to be charged or his agent.^ Where the memorandum consists of several papers, they must be shown upon their face to have a mutual relation to each other, and this relation cannot be established by extrinsic evidence.^ §117. How far affected by Parol Evidence. — Parol evidence is admissible to identify the subject-matter to which the memorandum refers, to show the situation of the parties at the time the writing was made, and the 1 "Williams v. Bacon (1854), 2 Gray, 387, 391 ; Marsh v. Hyde (1855), 3 Gray, 333 ; Lemed v. WanneTiiaclier (1864), 9 Allen, 412, 416 ; Johnson v. Trinity Church (1865), 11 Allen, 126 ; Rhoades v. Castner (1866), 12 Allen, 130 ; Hunter v. Giddings (1867), 97 Mass. 41, 44. ^ Morton v. Dean (1847), 13 Mete. 385 ; Lemed v. Wannemacher (1864), 9 AUen, 417 ; Boardman v. Spooner (1866), 13 Alien, 358. 72 SALES OF PEESONAL PKOPEETY. circumstances under which it was made, and also to ex- plain the language used.^ Thus, where the agreement was for a cargo of coal " water nine and one half feet," parol evidence was admitted to show what number of tons of coal would be contained in such a cargo, that being a latent ambiguity.2 Thus, again, it was permitted to show by parol that the term " barrel " meant, iinder the agreement, a vessel of a certain capacity, viz. forty-two gallons, and not the statute measure of quantity, viz. thirty-one and one half gallons.^ Similarly, where the contract was for the purchase of a certain number of casks of black-lead, at a certain price per pound, oral evidence of the size of casks agreed on was admitted, as showing the sense in which the parties understood and used an ambiguous word in the contract;* but where the contract specified only black-lead of a particular kind, oral evidence was not admitted to show that the bargain really was for pure lump lead of that same kind, because it tended to vary the written contract, the term used involving no ambi- guity.^ Oral evidence was admitted to show that the sale of "white willow cuttings" was by sample, and that the goods tendered did not correspond with the sample, and were not identical in kind with those described by the seller.® It was also admitted for the purpose of showing the meaning of the terms " horn chains,"^ " all faults." 8 1 Hill V. Eevee (1846), 11 Mete. 372, 273 ; Stoop ». Smith (1868), 100 Mass. 66, and cases there cited. 2 Rhoades v. Castner (1866), 12 Allen, 130. " Miller v. Stevens (1868), 100 Mass. 518. * Keller v. Webb (1878), 125 Mass. 88. 6 Keller v. Webb (1879), 126 Mass. 393. 8 Pike V. Pay (1869), 101 Mass. 134. ' Swett V. Shumway (1869), 102 Mass. 368. 8 Whitney v. Boaidman (1875), 118 Mass. 242, 247. THE MEMORANDUM OR NOTE IN WRITING. 73 § 118. Parol evidence is also admissible to prove a sub- sequent oral agreement, enlarging the time of performance of the contract or varying its terms, or to show a waiver or discharge.^ The note or memorandum need not be addressed to or pass between the parties, but may be ad- dressed to a third person. It 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 express repudiation of the contract. This is because it is evidence of, but does not go to make, the contract.^ Thus a vote of an authorized committee of a city, duly recorded and signed by the clerk of the committee, was held sufficient to bind the city ; ^ and similarly the record of a stockhold- ers' vote, signed by the clerk of the corporation, was held sufficient.* So, too, of an entry in a broker's book, although not signed by any one.^ § 119. What must appear. — It is not necessary that the consideration of the contract should appear in the note or memorandum;® but it is indispensable that it should 1 Cummings v. Arnold (1842), 3 Mete. 486 ; Steams v. Hall (1851), 9 Cush. 31 ; Whittier v. Dana (1865), 10 Allen, 327 ; Shaffer V. Sawyer (1877), 123 Mass. 296. This is contrary to the doctrine held by the courts of England, the United States Supreme Court, and most of the State courts. Evidence of a contemporaneous oral agree- ment to vary the terms of the written contract would, however, be inad- missible. Russell V. Barry (1874), 115 Mass. 300, 303. ^ Per Colt, J., in Townsend u. Hargraves (1875), 118 Mass. 335 ; Johnson ». Trinity Church (1865), 11 Alien, 123. » Chase v. City of LoweU (1856), 7 Gray, 33. * Tufts V. Plymouth Gold Mining Co. (1867), 14 Allen, 413. 6 Coddington v. Goddard (1860), 16 Gray, 442-444. ' Packard v. Richardson (1821), 17 Mass. 122, confirmed by statute. See Pub. St. ch. 78, § 2 (prior references. Gen. St. ch. 105, § 2 ; Rev. St. ch. 74, § 2). It is to be observed that this section is not made ex- pressly applicable to cases arising under § 5. There is no doubt, how- ever, that this rule would be applied to such cases. See above-cited case. 74 SALES OF PERSONAL PEOPERTY. show not only who is the person to be charged, but who is the party in whose favor he is charged, distinguishing also between buyer and seller.^ § 120. Where Agent signs his own Name, not disclosing Agency. — Parol evidence is admissible to show that a sig- nature to the note or memorandum, though made by A in his own name, was really made on behalf of B, his princi- pal, when the action is brought for the purpose of charging B ; 2 but it is not admissible on behalf of A, for the pur- pose of showing that he is not personally bound.^ § 121. Must contain all Essential Terms. — The memo- randum must contain all the essential terms of the contract, expressed with such certainty that they may be under- stood from the paper itself, or some other writing to which it refers.* Thus where an auctioneer at a sale, after read- ing written conditions of sale, made a memorandum in writing which did not contain nor refer to these conditions, it was held to be insufficient, and not to take the case out of the statute.^ Likewise, where at an auction sale the auc- tioneer made a memorandum containing all the other essen- tial features, but stated that the seller should in all respects fulfil the conditions of sale, without setting forth what 1 Coddington v. Goddard (1860), 16 Gray, 443 ; Sanborn v. Flagler (1864), 9 Allen, 476 ; Lincoln u. Erie Preserving Co. (1882), 133 Mass. 129. " Williams v. Bacon (1854), 2 Gray, 393 ; Lerned v. Johns (1864), 9 AUen, 421 ; Sanborn v. Magler (1864), 9 AHen, 477 ; Hunter v. Giddings (1867), 97 Mass. 41. See Shaw v. Finney (1847), 13 Mete. 453, 457. 8 Huntington u. Knox (1851), 7 Gush. 374; Welch v. Goodwin (1877), 133 Mass. 77. * Waterman v. Meigs (1849), 4 Gush. 497 ; Lerned v. Wannemacher (1864), 9 Allen, 416 ; Sanborn v. Flagler (1864), 9 Allen, 476 ; Oak- man V. Rogers (1876), 120 Mass. 214 ; May v. Ward (1883), 134 Mass. 137 ; Ashcroft v. Butterworth (1884), 136 Mass. 511. 5 Morton v. Dean (1847), 13 Mete. 385. THE MEMORANDUM OR NOTE IN WRITING. 75 those conditions were, it was held insufficient. These con- ditions had been orally stated at the sale.^ § 122. May show by Parol that the Memorandum is In- complete. — Parol evidence is admissible to show that the written paper is not a note or memorandum of the entire antecedent parol agreement, but only of a part of it, and therefore insufficient.^ § 123. Written Offer accepted verbally. — A note or memorandum of the bargain, although it contain a mere proposal, is sufficient to bind the signer of the proposal, if supplemented by parol proof of acceptance.^ § 124. In an action brought by A against B, the latter, on notice, produced a memorandum, dated Lowell, Novem- ber 19, signed by A only, which set forth an agreement for B to furnish A ten thousand croquet sets at a price named. A then produced two letters written to him and signed by B. The first, dated N"ovember 29, had these words : " We will undertake the croquet job, upon the terms agreed upon when at your place." A lived in Lowell and B in Vermont. The second letter, dated in the following March, had these words : " We wrote you that we would undertake the job of 10,000 sets." This was held to be a sufficient memorandum to satisfy the statute.* § 125. A wrote to B, "At what price will you fill my orders for gauge glasses ? " to which B replied by letter, " We will supply you with gauge glasses at the same rates we supply C." Subsequently B wrote to A, "We have put you on exactly the same terms as C ; the present price, 1 Rfley V. lamsworth (1874), 116 Mass. 223. 2 Coddington v. Goddard (1860), 16 Gray, 436, 445 ; Boardman v. Spooner (1866), 13 Allen, 353. 8 Smitli V. Gowdy (1864), 8 Allen, 566 ; Sanborn v. Flagler (1864), 9 Allen, 475. * Smitli V. Colby (1884), 136 Mass. 563. 76 SALES OF PERSONAL PROPERTY. 8^ pence per lb." On a refusal by B to fill certain orders, it was held there was no sufficient memorandum to satisfy the statute. The court said : " The offer is not certain, or capable of being made certain, in regard to the quantity or particular quality, size, and kind of goods which the mer- chant agrees to sell. It is not intended to bind him abso- lutely to sell his whole stock, or any specific part of it, which the customer may order. It does not contain the means of identifying the property he offers to sell. It expresses a general willingness to sell this customer out of his stock at the same price at which he sells another, and leaves the merchant the right to accept or reject any particular order. The price is not made certain by any writing signed by the defendant. The present price is indeed given, but the prices generally are to be the same as those paid by C, and it does not appear that those prices are contained in any writing signed by the defend- ant to which this offer refers." ^ 1 Ashcroft V. Butterworth (1884), 136 Mass. 511. THE SIGNATURE OF THE PAKTY. 77 CHAPTER XIV. THE SIGNATURE OF THE PAETT. § 126. Whose Signature is Necessary, and ho'w it must be made. — The only signature required is that of the party against whom the contract is to be enforced. The contract is good or not at the election of the party who has not signed.^ Mere initials, if intended as a signature by the party writing them, will be sufficient, and parol evidence is admissible to explain and apply them.^ It is not material that the names should be written at the bottom of the memorandum. It is sufiicient if the names of the parties are inserted in such form and manner as to indicate that it is their contract, by which one agrees to sell and the other to buy the goods specified upon the terms expressed. The great purpose of the statute is answered if the con- tract is authenticated by written evidence, and does not rest in parol proof.^ § 127. Parol Evidence to explain Signature. — Where, at an auction sale, the auctioneer made a memorandum sufficient in other respects, but omitted the initial for the middle name of the purchaser, it was held that it was ' Penniman v. Hartshorn (1816), 13 Mass. 87 ; Hawkins v. Chace (1837), 19 Pick. 502 ; Hunter v. Giddings (1867), 97 Mass. 44 ; Dresel v. Jordan (1870), 104 Mass. 412. 2 Sanborn v. Plagler (1864), 9 Allen, 478. ' Peuniman v. Hartshorn (1816), 13 Mass. 87 ; Hawkins v. Chace (1837), 19 Pick. 505 ; Coddington v. Goddard (1860), 16 Gray, 444. 78 SALES OF PERSONAL PEOPERTY. competent to show by parol that the defendant was in- tended, or that he was well known by the name, or that he subsequently recognized the signature.^ § 128. Printed or Stamped Signature. — If at the trial the defendant purchaser, on notice, produces the seller's bill of sale of goods, bearing the purchaser's name stamped thereon with a press, and there is no evidence to show when or under what circumstances it was so stamped, this is not enough to authorize the jury to find it a memoran- dum made and signed by the purchaser.^ But if there is evidence sufficient to verify a printed or stamped signa- ture as coming from the party to be charged, and to show that it was made as a substitute for being written with a pen and so intended, the signature is the same as if written.^ 1 Fessenden v. Mussey (1853), 11 Cush. 127. ^ Boardman v. Spooner (1866), 13 Allen, 358. * Per Dewey, J., ia Common-wealtli u. Kay (1855), 3 Gray, 447 ; Lemed v. Wannemaclier (1864), 9 Allen, 417. AGENTS DULY AUTHOEIZED TO SIGN. 79 CHAPTER XV. AGENTS DULY AUTHOEIZED TO SIGN. § 129. Agency, ho'w proven — Agent must be a Third Person. — The agency may be proven by parol,^ and may be shown by subsequent ratification, as well as by ante- cedent delegation of authority.^ It is necessary that the agent be a third person, and not the other contracting party. Thus a guardian who acts as auctioneer in selling land of his ward, under license of court, is not authorized as such to sign for the purchaser a memorandum to take the sale out of the statute. This is because he is a party to the contract, and his interest and bias would naturally be in favor of those whom he represented ; and in case of doubt or dispute his duties and interests would be adverse to those of the purchaser. He would stand in a position which would necessarily disqualify him from acting as agent of both parties.* § 130. Auctioneer is Agent to sign for both Parties. — At a public sale, an auctioneer acting solely as such is an agent for both parties for the purpose of signing.* But the memorandum must be made at the time of sale. He can- » Shaw V. Nudd (1829), 8 Pick. 9; Hawkins v. Chace (1837), 19 Pick. 502. 2 Shaw V. Nudd (1829), 8 Pick. 12 ; Eemick v. Sandford (1875), 118 Mass. 106. » Bent V. Cobb (1857), 9 Gray, 397. * Morton v. Dean (1847), 13 Mete. 388 ; Bent v. Cobb (1857), 9 Gray, 397 ; Curtis v. Aspinwall (1873), 114 Mass. 195. 80 SALES OF PERSONAL PROPERTY. not after the sale complete and perfect an insufficient memorandum made at the time of the sale.^ § 131. Broker's Authority, and how limited. — Brokers, as a general rule, are agents for both parties, and their signature to the memorandum of the agreement is binding on both principals, if the memorandum be otherwise sufficient. By dealing with him, the parties give him authority as broker to sign a memorandum of the contract actually made which would be binding upon them. But his authority is strictly limited to this. He could reduce to writiug and sign the contract into which the defendant entered, but not a different one. And for the purpose of showing that the contract signed by the broker was not within his authority, it is competent for the defendant to show by parol evidence that the contract he actually made was different.^ § 132. Bill of Parcels as Memoranduta to bind the Seller. — A bill of parcels in the usual form, written by a third person by the direction of the seller, is sufficient as against the seller, although not signed by him, and although there is nothing on the paper to show the agency. In such case it should be left to the jury to find whether the seller authorized such third person to make and sign any mem- orandum in his behalf, or whether, after the memorandum was written, the seller adopted it and delivered it, or directed it to be delivered as a memorandum of his agree- ment with the plaintiff.^ 1 GiU V. BickneU (1848), 2 Gush. 358 ; Smith v. Arnold (1829), 5 Mason, 414, 419 ; Horton v. MoCarty, 53 Me. 394. 2 Coddington v. Goddard (1860), 16 Gray, 442 ; Dodd v. Farlow (1865), 11 Allen, 426 ; Remick v. Sandford (1875), 118 Mass. 107. s Hawkins v. Chace (1837), 19 Pick. 502. The paper read thus: " W. H. Hawkins & Co. hought of William H. Chace 20 bbls. of Mour at 51 . . . $110. Reo'd Paym't." The date, "Peb. 24, 1835," was in the left-hand comer. AGENTS DULY AUTHORIZED TO SIGN. 81 § 133. Remedy 'where Auctioneer signs Memorandum for Party not entitled to it. — A person claiming to be the highest bidder at an auction sale cannot maintain a bill in equity against the auctioneer, his principal, and the person who had been declared the highest bidder, and for whom a memorandum had been made, to compel the auctioneer to sign a memorandum declaring the plaintiff to be the purchaser, and to enjoin the other parties from completing any sale except to the plaintiff. The remedy, if there is any, is at law for damages.^ 1 Marcus v. Boston (1884), 136 Mass. 350. BOOK II. EFFECT or THE CONTEACT IN PASSING TITLE TO PEOPEETY. CHAPTEE I. DISTINCTION BETWEEN CONTRACTS EXECUTED AND EXECUTORY. § 134. Contracts Xizecuted and Executory. — The dis- tinction between the two contracts consists in this, that in a bargain and sale the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the seller, whereas in the executory agree- ment the goods remain the property of the seller till the contract is executed. In the one case, A sells to B. In the other, he only promises to sell. In the one case, as B becomes the owner of the goods themselves as soon as the contract is completed by mutual assent, if they are lost or destroyed he is the sufferer. In the other case, as he does not become the owner of the goods, he cannot claim them specifically, is not the sufferer if they are lost, can- not maintain trover for them, and has at common law no other remedy for breach of the contract than an action for damages. § 135. Depends on Intention of Parties — Presumption where no Intention is manifested. — Whenever a dispute .DISTINCTION BETWEEN CONTRACTS, ETC. 83 arises as to the true character of an agreement, the ques- tion is one of fact rather than of law. The agreement is just what the parties intended to make it. When there has been no manifestation of intention, the presumption of law is that the contract is an actual sale, if the specific thing is agreed on and it is ready for immediate delivery, but that the contract is only executory when the goods have not been specified, or if, when specified, something remains to be done to them by the seller, either to put them into a deliverable shape or to ascertain the price. Of course these presumptions yield to proof of a contrary intent.^ 1 Sumner v. Hamlet (1831), 12 Pick. 82, 83 ; Macomber v. Parker (1832), 18 Pick. 183 ; Riddle v. Vamum (1838), 20 Pick. 283 ; Denny V. Williams (1862), 5 Allen, 3, i ; Marble v. Moore (1869), 102 Mass. 443 ; Merchants' iBank v. Bangs (1869), 102 Mass. 295 ; Morse v. Sher- man (1871), 106 Mass. 432 ; Poster v. Ropes (1872), 111 Mass. 10. 84 SALES OF PERSONAL PKOPERTY. CHAPTEK II. SALE OF SPECIFIC GOODS UNCONDITIONALLY. § 136. 'When the Goods are Specific. — The goods are specific when they are clearly identified ; and the reason why marking, measuring, weighing, &c., is necessary, is that the particular goods may be identified. Thus, 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 identified until separation. But if they are capable of being identified, and by the contract of sale are identified, that is sufficient, and the property passes ; as if in the last case there are one hundred bales of cotton, numbered from one to one hundred, and the contract is for the fifty odd numbers, or the fifty even numbers, or any other specified fifty numbers, the bales sold are identified though not separated. A designation by some visible mark is a sufficient separation. It is not necessary that an artificial mark should be made for this sole purpose.^ § 137. Title vests at once in the Buyer. — Where the goods are specific, — that is, where they are ascertained, identified, and appropriated to the contract, and nothing more remains to be done by the seller for that purpose, — » Per Shaw, C. J., in Arnold e. Delano (1849), 4 Cush. 40 ; Bul- lock V. Williams (1834), 16 Pick. 35 ; Novell v. Pratt (1849), 5 Gush. 114 ; Scudder v. Worster (1853), 11 Gush. 573; Ropes v. Lane (1865), 9 Allen, 510. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 85 the title, if the Statute of Frauds be satisfied, will at once vest 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.^ There need be no visible change of posses- sion. The thing sold may remain in the hands of the seller, and yet as against him the title may pass effectually to the buyer. The appropriation of the chattel to the buyer is equivalent, so far as passing title is concerned, to a delivery by the seller.^ § 138. And indeed the title may pass and the goods may be at the buyer's risk, and yet he may have no right to take them away, because the right of possession or lien for the price is in the seller, who may refuse to deliver till the price is paid.* § 139. 'Where the Seller is to make Delivery at a Cer- tain Place. — Where it is agreed that the seller shall de- liver the goods at a certain specified place, or to a certain specified party, as to a carrier, as a general rule the con- tract is not completed and the title will not pass till such delivery is made.* But even in such cases the title passes at once on the sale, if such is really the intent. ' Such 1 Eoss V. Weleli (1858), 11 Gray, 235; Rice c. Codman (1861), 1 Allen, 379 ; Ropes c. Lane (1865), 9 AUen, 502, and (1866), 11 ADen, 591 ; Goddard v. Binney (1874), 115 Mass. 456 ; Haskins v. Warren (1874), 115 Mass. 533 ; Pratt v. Maynard (1874), 116 Mass. 388 ; Woods V. Oakman (1875), 116 Mass. 601 ; Townsend v. Hargraves (1875), 118 Mass. 332. 2 Dugan V. Nichols (1878), 125 Mass. 43; Greene. Holmes (1878), 125 Mass. 46. 8 Arnold v. Delano (1849), 4 Cush. 38, 39 ; Morse v. Sherman (1871), 106 Mass. 430 ; Goddard v. Binney (1874), 115 Mass. 456 ; Haskins v. Warren (1874), 115 Mass. 533. See posf, Book V. ch. 3. * Suit o. Woodhall (1873), 113 Mass. 394 ; Townsend v. Hargraves (1875), 118 Mass. 325; Commonwealth v. Greenfield (1876), 121 Mass. 40. See Lucas v. Nichols (1855), 5 Gray, 309. 86 SALES OF PERSONAL PKOPEETY. intent may be expressly declared, or may be inferred from circumstances.^ § 140. Delivery Necessary as against Subsequent Bona Fide Purchasers and Attaching Creditors. — While no de- livery is necessary to pass title, as between the parties and as against trespassers and strangers,^ it is certain that as against a subsequent lona fde purchaser for value' of the same goods from the same seller, or as against an attaching creditor of the seller, there must be some delivery, either actual, constructive, or symbolical.^ If there were no de- livery, actual or constructive, to the first purchaser, and no possession obtained by him, the subsequent lona fide pur- chaser for value to whom delivery is made, or who first secures possession, wiU have the full legal title to the property, notwithstanding by the first sale the title as against the seller had passed to the first purchaser.* § 141 . Slight Evidence is sometimes SufScient. — In favor of a hona fide, purchaser for value the courts have always held that slight evidence of delivery is sufficient to give him a preference as against an attaching creditor of the seller. ' Weld ». Came (1867), 98 Mass. 152 ; Hobbs v. Carr (1879), 127 Mass. 533 ; Lyncb ». O'Donnell (1879), 127 Mass. 311. 2 Parsons v. Dickinson (1831), 11 Pick. 354; Packard v. Wood (1855), 4 Gray, 307, 310 ; Philbrook ». Eaton (1883), 134 Mass. 398. 8 Shumway «. Rutter (1838), 7 Pick. 56, 58, and (1829), 8 Pick. 443, 447 ; Pratt v. Parkman (1834), 24 Pick. 46 ; Mason v. Thompson (1836), 18 Pick. 308 ; Carter v. Willard (1837), 19 Pick. 1 ; Packard ». Wood (1855), 4 Gray, 307; Rourke v. Bullens (1857), 8 Gray, 549; Veazie v. Somerby (1862), 5 Allen, 280, 289 ; Burge v. Cone (1863), 6 Allen, 413; Dempsey v. Gardner (1879), 127 Mass. 381; Harlow v. Hall (1882), 132 Mass. 232. * Lanfear v. Sumner (1821), 17 Mass. 110 ; Parsons ». Dickinson (1831), 11 Pick. 353 ; Packard v. Wood (1855), 4 Gray, 311 ; Rourke V. Bullens (1857), 8 Gray, 549 ; Veazie v. Somerby (1863), 5 Allen, 289. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 87 § 142. Thus A bought of B in good faith eight hun- dred and sixty horseshoes, which were at the time of sale in B's shop. B taking one of them said, " Take them. These are the shoes. I deliver them to you." A paid the price. Several days after, but before any removal of them, they were attached as the goods of B. It was held that there was a sufficient delivery by B to render A's title good, and that it would hold as against the attachment.^ § 143. Thus A, the owner of a lot of wool, contained in large bales not easily moved, sold them to B, who bought for purpose of resale. B.had no place of his own to store it, and so bargained with A to let it remain where it was and pay for its storage, and directed A to obtain sam- ples for him to use in reselling it. A opened the bales, took out samples, and sewed them up again, delivering the samples to B together with an itemized bill of parcels which acknowledged receipt of the contract price. It was held that there was evidence for the jury of a delivery sufl&cient to avail against a subsequently attaching creditor of the seller.2 § 144. Delivery of a Part in Token of the 'Whole. — A delivery of a portion in token of the whole is a sufficient constructive delivery as against creditors, although the goods are in the possession of various persons.^ Where a certain lot of lumber was sold by an instrument in writing, on condition that the seller might repurchase it at the same price on or before a certain day, it was held 1 Stinson v. Clark (1863), 6 Allen, 340. 2 Ingalls V. Herrick (1871), 108 Mass. 351. See Hopes v. Lane (18G5), 9 Allen, 513, and (1866), 11 Allen, 591, 600. » Parks V. Hall (1824), 3 Pick. 213, 214 ; Legg v. Willard (1836), 17 Pick. 140; Shurtleff v. WiUard (1837), 19 Pick. 202, 210; Phelps V. Cutler (1855), 4 Gray, 137, 139 ; Ingalls v. Herrick (1871), 108 Mass. 354 ; Hobbs v. Carr (1879), 127 Mass. 533 ; Wilson v. Kussell (1884), 136 Mass. 216. 88 SALES OF PERSONAL PEOPERTY. that the transaction was not a mortgage, and that the in- strument need not be recorded ; that as between the parties the title passed without delivery ; that possession of a part taken by the buyer, though opposed by the seller, before publication of notice of proceedings in insolvency against the seller, and before any other notice to the buyer, though after the issuing of the warrant in insolvency, completed the buyer's title to all the lumber sold as against the assignee in insolvency of the seller. The taking possession of part was in legal effect taking possession of the whole.^ As between an attaching creditor of the seller and a lona fide purchaser for value, evidence that the seller, in the presence of a witness called for the purpose, declared that he delivered to the purchaser all the chattels named in a bill of sale, including a horse and carriage which he was then driving, and that the purchaser then entered the carriage and the two drove away together, may properly be submitted to the jury as evidence of a delivery of aU the chattels, although there is evidence that the seller afterwards continued in possession, use, and control of them.^ § 145. Where the First Buyer obtains Possession before any Attachment or Second Sale, no Formal Delivery is needed, — If the buyer, with the consent of the seller, obtains possession before any attachment or second sale, the transfer is complete without formal delivery. Thus furniture in a tavern was sold, and the buyer took a lease of the house, and went to live there, using the furniture in common with the seller, who had occupied the house under a previous lease, and who continued to live there and keep the tavern. Afterwards the seller removed to another » Lee V. Kilbum (1854), 3 Gray, 594, 598. See Mitchell v. Black (1856), 6 Gray, 100. 2 Phelps V. Cutler (1855), 4 Gray, 137. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 89 house, carrying the furniture with him and using it as his own, and it was there attached as his property. There was no evidence of any symbolical delivery, or of any actual delivery of the whole or any part, except so far as it might be inferred from the facts recited. It was held that there was evidence of a possession sufficient to make the sale complete and perfect, because of the purchaser's entry under the lease.^ § 146. 'What is a Sufficient taking Possession. — A purchaser of lumber bought and paid for it in another State, and merely took a bill of sale, the lumber being then in the custody of an agent of the seller in this State, to whom the seller promised to write. Nothing more remained to be done between the buyer and seller in relation to the sale. The buyer went to the place where the lumber was and saw it. There was held to be suffi- cient evidence to be submitted to the jury to show a de- livery, good as against a subsequent attachment of the lumber as the property of the seller.^ The same decision was made where the seller had carried goods to the place agreed upon between him and the purchaser, and had noth- ing more to do in reference to them, and the buyer had exercised some slight acts of control over them before they were attached. In this case the goods, which were very heavy, were in certain freight-cars. The buyer went to the cars, took their numbers, and went to get a locomotive to draw them to his yard, and while he was gone the goods were attached.^ § 147. Where goods which have been sold by A to B, 1 SHumway v. Eutter (1829), 8 Pick. US, 447, and (1828), 7 Pick. 56. See Allen v. Smith (1813), 10 Mass. 308. ^ Hardy v. Potter (1857), 10 Gray, 89. See remarks on tliis case in Dempsey v. Gardner (1879), 127 Mass. 383. 8 Washburn Iron Co. v. Russell (1881), 130 Mass. 543. 90 SALES OF PERSONAL PROPERTY. who has paid for them before they are ready for delivery, are afterwards got ready and boxed and marked with B's name, and by his order delivered to C, a warehouseman, to be kept for him, it was held that this was a sufficient delivery to pass the title as against an attaching creditor of A, although B did not inform C of his title personally or by any other agent than A.^ § 148. Symbolical Delivery. — It may be laid down as a general rule that where there can be no manual delivery of the whole or any part of the goods sold, a delivery of the muniments of title wiU be a good symbolical delivery and will pass the property, provided the purchaser uses due diligence to obtain the actual possession. The prop- erty vests in the purchaser, but may be divested by his own laches.^ Thus the delivery of a bill of sale, an assign- ment, or an invoice of goods at sea would be sufficient to pass the title in them.^ Where it is not in the power of the seller to deliver any of these documents, the property will pass without it, provided all is done that the nature of the case admits, and proper exertions be used to make the earliest practicable delivery.* § 149. Ponderous Goods. — Where goods are ponderous and incapable of being handed over from one to another, there need not be 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 1 Hunter v. Wright (1866), 12 Allen, 548. => Pratt i>. Parkman (1834), 34 Pick. 42, 47. » Hodges V. Harris (1828), 6 Pick. 360 ; Gallop ». Newman (1828), 7 Pick. 382 ; Pratt v. Parkman (1834), 24 Pick. 42, 47. * Gardner v. Howland (1824), 2 Pick. 599 ; Pratt v. Parkman (1834), 24 Pick. 43, 47. « Gardner v. Howland (1824), 2 Pick. 603 ; Pratt ». Parkman (1834), 24 Pick. 46; Carter v. Willard (1837), 19 Pick. 8 ; Packard V. Dunsmore (1853). 11 Gush. 282. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 91 delivery of the proper indicia of property, as by the in- dorsement and actual transfer to the buyer of bills of lading,^ dock and wharf warrants,^ delivery orders,^ and other like instruments which among merchants are known as representing the goods. § 150. Thus the delivery of a common carrier's receipt for goods, not negotiable in its nature, with the intention to transfer the property in the goods, which are so situated at the time that an actual delivery is impossible, is a sym- bolical delivery of them sufficient to pass the title and give immediate right of possession to the purchaser against all parties.* § 151. Vessel at Sea. — The delivery of a bill of sale of a vessel at sea has always been held to be an effectual delivery of the vessel, subject indeed to be defeated as against attaching creditors of the seller by the omission of the buyer to take the actual possession as soon as he can be reasonably expected to do so.^ 1 Bufflngton v. Curtis (1819), 15 Mass. 528, 533 ; Lanfear v. Sum- ner (1821), 17 Mass. 113 ; Rice v. Austin (1821), 17 Mass. 204, 205; GaUop V. Newman (1828), 7 Pick. 282 ; Rowley v. Bigelow (1832), 12 Pick. 307 ; Pratt v. Parkman (1834), 24 Pick. 42, 47 ; Bank of Cairo V. Crocker (1872), 111 Mass. 163, 167, 169 ; Stollenwerok v. Tbacher (1874), 115 Mass. 224, 227; Forbes v. Boston & Lowell R. R. (1882), 133 Mass. 154. 2 Carter v. Willard (1837), 19 Pick. 10. ' Hatch V. Bayley (1853), 12 Gush. 37 ; Hatch v. Lincoln (1853), 12 Cush. 31 ; Boardman v. Spooner (1866), 13 Allen, 357 ; Soudder v. Bradbury (1871), 106 Mass. 423, 427 ; Russell r. O'Brien (1879), 127 Mass. 349. * Nat. Bank of Green Bay v. Dearborn (1874), 115 Mass. 219 ; Newcomb v. Boston & Lowell R. R. (1874), 115 Mass. 230. See- Prince V. Boston & Lowell E. R. Co. (1869), 101 Mass. 542 ; and especiaUy HaUgarten v. Oldham (1883), 135 Mass. 10. 6 Portland Bank v. Stacy (1808), 4 Mass. 661 ; Putnam v. Dutch (1811), 8 Mass. 290; Buffington v. Curtis (1819), 15 Mass. 528, 532 ; Badlam v. Tucker (1823), 1 Pick. 396 ; Joy v. Sears (1829), 9 Pick. 4 ; 92 SALES OF PEESONAL PROPERTY. § 152. Where a ship was owned by two persons as copartners, and a sale was made by one while the ship was abroad under the management and control of the other, and the partner abroad sold the ship for the purpose of paying a copartnership debt, and delivered possession immediately to the purchaser, it was held that the sale and delivery abroad, though posterior to the other, but being made without notice of that other, transferred the property in the ship, notwithstanding the prior sale at home.^ § 153. liogs lying in a River. — Where the sale was of logs which were lying in a river, enclosed in what is called a boom, there was held to be a sufficient delivery, the seller going with the buyer within sight of the logs and showing them as the property sold. It is not necessary for the buyer to take any other possession than what is thus con- structively given. Parker, C. J., said : "There was all the delivery that could have been usefully made of property of this nature. It was as effectual for such kind of property as a delivery over in hand of a chattel capable of such personal possession." ^ Eeferring to this case, Putnam, J., said subsequently : " The possession was taken by the eyes." ^ § 154. Goods held by OfScer under Attachment. — When goods are sold, which are at the time held by an of&cer un- der attachment, as no actual delivery can be made, a sym- bolical delivery is sufficient, such as mere delivery of a bill of sale which passes the title subject to the attachment Carter v. Willard (1837), 19 Pick. 9, 11 ; Turner v. CooMge (1841), 2 Mete. 350. 1 Lamb V. Durant (1815), 12 Mass. 54. =" Jewett V. Warren (1815), 12 Mass. 300. See Riddle v. Varnum (1838), 20 Pick. 280, 284. 8 Carter v. Willard (1837), 19 Pick. 6. See Veazie v. Somerby (1862), 5 Allen, 289. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 93 lien.^ It is advisable and perhaps necessary to give notice of the sale to the officer. § 155. Goods in Hands of Third Party for Storage, &c. — Where the goods are in the hands of a third party to be kept for the use of the seller, a notice of the sale to such keeper by the parties is held to be a valid constructive delivery, so that the goods cannot afterwards be attached as the property of the seller.^ But under such circum- stances the delivery and recording of a biU of sale does not amount to a constructive or symbolical delivery, if no notice of the sale is given to the person in whose possession the property is.^ § 156. Goods in Hands of Private Warehousen^en. — Where a private warehouseman gives a receipt for goods stored with him, in which he merely agrees to deliver them to the bailor, the indorsement and delivery of this receipt by the bailor will not pass the title to the indorsee as against a creditor of the bailor, who attaches the goods before notice of the transfer has been given to the ware- houseman. If the latter had agreed to deliver to the order of the bailor, thus making the receipt negotiable in form, it is possible that it might have rendered him bailee for the indorsee without more, on the ordinary principles of 1 Whipple V. Thayer (1834), 16 Pick. 25. See Pettyplace v. Dutch (1832), 13 Pick. 388. 2 Gardner v. Howland (1824), 2 Pick. 599, 602 ; Tuxworth v. Moore (1830), 9 Pick. 847 ; Whipple v. Thayer (1834), 16 Pick. 25, 28 ; Legg V. Willard (1835), 17 Pick. 140 ; Carter v. Wfflard (1837), 19 Pick. 1, 10 ; Whitaker v. Sumner (1838), 20 Pick. 405 ; Hatch v. Bayley (1853), 12 Gush. 29 ; Hatch v. Lincoln (1853), 12 Gush. 31 ; BuUard v. Wait (1860), 16 Gray, 55; Gushing v. Breed (1867). 14 Allen, 376 ; Townsend v. Hargraves (1875), 118 Mass. 325, 332 ; RusseU V. O'Brien (1879), 127 Mass. 349, 354. » Burge V. Cone (1863), 6 Allen, 412 ; Dempsey v. Gardner (1879), 127 Mass. 381. 94 SALES OP PERSONAL PEOPERTY. contract. He might then be held to have assented in advance.^ § 157. Goods in Hands of Public 'Warehousemen. — As regards licensed public warehousemen, the statute ^ pro- vides that " every such warehouseman shall give to each person depositing property with him for storage a receipt therefor, which shall be negotiable in form, and shall de- scribe the property, distinctly stating the brands or dis- tinguishing marks upon it, and if such property is grain, the quantity and inspected grade thereof The receipt shall also state the rate of charges for warehousing the property, and the amount and rate of insurance thereon." It also, provides that " the title to goods and chattels stored in a public warehouse shall pass to a purchaser or pledgee by the indorsement and delivery to him of the warehouse- man's receipt therefor, signed by the person to whom such receipt was originally given or by an indorsee of such re- ceipt." § 158. Where the Seller becomes Bailee of the Buyer. — In certain cases the seller by virtue of his agreement be- comes special bailee of the buyer, and his possession is then the buyer's possession. Thus where A sold to B a piano, then unfinished, and agreed to finish it, retaining it for that purpose, it was held that there was a constructive delivery of it so as to pass title to B against a subsequent purchaser.^ So, too, where steam-boilers were left in the possession of the seller to be repaired for the buyer.* So, too, where a hog was left with the seller to be altered, with an agreement that if the hog did not fully recover from » Hallgarten v. Oldham (1883), 135 Mass. 1. ^ Pub. St. ch. 72, §§ 5, 6 (prior reference, St. 1878, oh. 93). 8 Thomdike v. Bath (1873), 114 Mass. 116. See Sumner v. Ham- let (1831), 12 Pick. 76. * Beecher v. Mayall (1860), 16 Gray, 376. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 95 the operation the seller was to pay a certain sum to the buyer.i On the same principle, an agreement of the seller to hold the goods sold in storage for the purchaser is equiv- alent to a delivery. It changes the relation of the parties to each other and to the property .^ § 159. 'Where Buyer already has Possession of the Goods. — Where, at the time of sale, the buyer already has actual possession of the thing sold, nothing need be done by the seller in the nature of an act of delivery, and it is indeed difficult to see what delivery could be made by the latter in order more effectually to pass title.^ This same principle has been applied where the buyer's posses- sion was merely consti-uctive. Thus A, to whom certain goods were consigned for sale, sold them to himself and B, the goods to be stored by A for a certain period free of expense. At the end of that time A sold his interest to B who was to pay storage from that date. The goods were afterwards attached as the property of A. An action by B against the attaching officer was sustained. The court said that by the first sale A and B became tenants in common of the goods, and the possession of A was the possession of B, and that B being so in constructive pos- session at the time of the second contract, no new delivery was necessary in order to complete the sale.* § 160. Sales by Copartners or Tenants in Common to each other. — When, indeed, one copartner or tenant in 1 Marble i>. Moore (1869), 102 Mass. 443. 2 Chapman v. Searle (1825), 3 Pick. 88 ; Weld v. Came (1867), 98 Mass. 154. See Kittredge v. Sumner (1831), 11 Pick. 50 ; Thorn- dike V. Bath (1873), 114 Mass. 116 ; and anU, § 143. Macomber v. Parker (1832), 13 Pick. 176, 183 ; Brown v. Pierce (1867), 97 Mass. 48; Warden ». Marshall (1868), 99 Mass. 306; Martin v. Adams (1870), 104 Mass. 362. See HoUy v. Huggeford (1829), 8 Pick. 77. * Kittredge v. Sumner (1831), 11 Pick. 50, 54, 55. 96 SALES OF PERSONAL PROPERTY. common sells to another, the delivery does not so much consist in the actual tradition of the chattels from the one to the other, as in the surrender and relinquishment of the possession by the seller to the purchaser, thereby giving him the absolute and exclusive occupation and control of what before he held in common for himself and others. The delivery is, therefore, rather a matter of form required to perfect the sale and complete the transfer, than any substantial part of the conveyance ; but it is nevertheless deemed to be an indispensable requisite. In such case, where the sale is of numerous and various chattels scat- tered in distant and different places, it may be done by a mere symbolical delivery, or by a delivery of a part for the whole, in which event the delivery operates upon all the property contained in the agreement of parties, and intended by them to be transferred.^ § 161. Where Buyer gives Seller a Lease. — The de- livery of a bill of sale to the purchaser, who thereupon gives the seller a lease of the chattels, if nothing else is done by way of delivery, is not sufficient to pass the title as against one who subsequently purchases and gets pos- session in good faith from the original seller, or as against an attaching creditor of such original seller.^ § 162. Sale of Half-grown Grass. — Plucking a handful of half-grown grass, and delivering it to a purchaser in the field, upon a sale of the grass, with an agreement that the seller shall cut and cure it for the buyer at the proper time, is not a constructive delivery of the hay, as a 1 SLurtleff v. Willard (1837), 19 Pick. 203, 210. See Beaumont v. Crane (1817), 14 Mass. 400 ; Parks v. Hall (1824), 3 Pick. 213 ; Barnes v. Bartlett (1833), 15 Pick. 77; Legg v. "Willard (1835), 17 Pick. 140 ; Ingalls v. Herrick (1871), 108 Mass. 354. 2 Packard v. Wood (1855), 4 Gray, 307 ; Harlow v. Hall (1882), 132 Mass. 232. SALE OF SPECIFIC GOODS UNCONDITIONALLY- 97 chattel, which will pass a title to it as against third per- sons, although the purchaser at the time pays the price.^ § 163. Goods in Hands of Carrier at Time of Sale. — A delivered certain goods to a carrier in Providence, to be carried to Boston and left at the carrier's office there, sub- ject to A's orders. A then went to Boston and sold the goods to B, stating that they were on the way. B paid the price. After this sale, and while the goods were on the way, they were attached at the suit of a creditor of A, and it was held that this attachment was valid, the creditor's claim being paramount to that of B.^ § 164. Sale of Crops not yet grown. — Where A, the owner of a farm, sells to B " all crops which may or shall grow on said farm during a certain speciiied time," it is held that until actual delivery of the crops to B, or pos- session thereof taken by him, the sale would not be com- plete and valid as against attaching creditors of A or subsequent bona fide purchasers from him.^ § 165. Sale of Hog to be paid for according to its Weight -when called for. — Where a hog was sold on credit, to be kept by the seller untH the purchaser should call for it, and to be then paid for at its market price, according to its then weight, after which the parties went together to the pen where the hog was, and the purchaser directed the seller to keep it well, to which he assented, it was held not a sufficient sale and delivery as against a subsequent purchaser.* § 166. Where Attaching Creditor knows of the Sale and assents to it. — It was suggested in one case by Morton, J., 1 Lamson ». Patch (1863), 5 Allen, 586. "^ Baker v. FuUer (1838), 21 Pick. 318, 321. 8 Butterfield v. Baker (1827), 5 Pick. 522 ; Mnnsell ». Carew (1848), 2 Cush. 50. * Eourke u. Bullens (1857), 8 Gray, 549. 7 98 SALES OF PERSONAL PROPERTY. that if the attaching creditors not only knew of the sale and of the circumstances attending it, but also to some extent assented to it, and became parties to the arrange- ment, they could not object to the want of a delivery, but that as to them there was in effect a delivery.^ § 167. 'Where Buyer's Failure to take Possession is due to Wrongful Act of the Attaching Creditor. — But al- though a purchaser to whom no delivery is made, and who secures no possession of the goods purchased, is put aside in favor of an attaching creditor of the seller, this rule does not apply where the failure of the purchaser to take possession was due to the wrongful act of the attaching creditor. Thus, late on Saturday night A sold certain goods to B, who used all due diligence on Sunday to obtain possession of them, but C, a creditor of A, took the goods on that day, secreted them, and caused them to be attached early on Monday on a writ against A. An action by B was sustained against C and the attaching of&cer for the value of the goods. C in taking them was a stranger and a trespasser, and could not purge the original wrong by the subsequent attachment.^ § 168. Delivery by Seller, and Redelivery to him by Buyer. — A delivered certain goods to B, under an agree- ment that they should belong to B, that B need not pay for them until he sold them, and should then pay a certain price for them. B then redelivered the goods to A for sale. It was held that, in the absence of fraud, the title had passed to B, even as against attaching creditors of A* § 169. Transfer of Shares of Stock at Common Law. — Prior to the recent statutes, the transfer of shares of stock in corporations was elaborately discussed and definitely 1 Pratt V. Parkman (1834), 24 Pick. 46. 2 Parsons v. Dickinson (1831), 11 Pick. 352. » Green v. Eowland (1860), 16 Gray, 58. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 99 settled. If the act of incorporation or any other statute required that the assignment of the shares should he recorded on the books of the corporation in order to give it validity, it was held that the title to the shares would not pass to the purchaser as against au attaching creditor of the seller until the transfer was duly made on the corpo- ration books, even if notice of the transfer had been given to the corporation before the attachment was made.^ § 170. But if this requirement rested merely upon a by-law of the corporation which was not subject to any general law containing provisions of this kind, it was held to be an arrangement of the corporation for its own conven- ience, and so far binding upon purchasers that they could not compel any payment of dividends or insist upon certifi- cates without applying to have a transfer made conforma- bly to the by-laws. The title to the shares would, however, pass without such compliance as between the parties and as against creditors of the seller.^ Indeed, as between the parties themselves and their representatives, the title always passed without any transfer on the records of the company or the issuing of any new certificate. The delivery of the owner's certificate properly indorsed was held to be enough.^ An assignment of shares need not be under seal.* 1 Fisher v. Essex Bank (1855), 5 Gray, 373 ; Boyd v. Rockport Mills (1856), 7 Gray, 406 ; Blanchard v. Dedham Gas Light Go. (1858), 12 Gray, 213. 2 Sargent v. Essex Marine Eailway (1829), 9 Pick. 202 ; Boston Music Hall V. Cory (1880), 129 Mass. 435. See Dickinson v. Central Nat. Bank (1880), 129 Mass. 282 ; Sibley v. Quinsigamond Nat. Bank (1882), 133 Mass. 515. s Quiner v. Marbleliead Ins. Co. (1813), 10 Mass. 476, 482 ; Sar- gent V. ErankKn Ins. Co. (1829), 8 Pick. 97, 98 ; Eames ». Wheeler (1837), 19 Pick. 444 ; Stone v. Hackett (1858), 12 Gray, 231 ; Comins V. Coe (1875), 117 Mass 48 ; Dickinson v. Central Nat. Bank (1880), 129 Mass. 281, 283. * Atkinson v. Atkinson (1864), 8 Allen, 15,' 19. 100 SALES OF PERSONAL PROPERTY. § 171. Statute Provisions as to Stock Transfers. — By a recent statute ^ it is now provided that " the delivery of a stock certificate of a corporation to a bona fide purchaser or pledgee, for value, together with a written transfer of the same, or a written power of attorney to sell, assign, and transfer the same, signed by the owner of the certificate, shall be a sufficient delivery to transfer the title as against all parties ; but no such transfer shall affect the right of the corporation to pay any dividend due upon the stock, or to treat the holder of record as the holder in fact, until such transfer is recorded upon the books of the corpora- tion, or a new certificate is issued to the person to whom it has been so transferred." The application of this stat- ute is probably restricted to the transfer of shares of stock in corporations organized under the laws of this State. § 172. The provisions previously covering this subject, which have not been expressly repealed, and which, in some cases, may still have an application, are as follows : " No sale, assignment, or transfer of stock in a corporation shall affect the right of the corporation to pay any divi- dend due upon the same, or affect the title or rights of an attaching creditor, until it is recorded upon the books of the corporation, or a new certificate is issued to the person to whom it has been transferred ; but no attachment of such stock as the property of the vendor, made after such sale, assignment, or transfer, shall defeat the title or affect the rights of the vendee, if such record is made or a new certificate issued within ten days after such transfer is made." ^ 1 St. 1884, ch. 229. 2 Pub. St. ch. 105, § 24 (prior reference, St. 1881, ch. 303, § 1). See, as to railroad shares. Pub. St. ch. 112, § 56 (prior references, St. 1881, ch. 302 ; St. 1874. ch. 872, § 44 ; Gen. St. ch. 63, § 11 ; Rev. St. ch. 39, § 52 ; St. 1838, ch. 187, § 8) ; and as to street-railway SALE OF SPECIFIC GOODS UNCONDITIONALLY. 101 § 173. Purchase by Agent for Undisclosed Principal. — Where A, who is B's agent, with full authority to buy in B's name, makes a purchase of goods as if for B, stores and insures them as B's, but intends to make such pur- chase for himself alone, and actually pays for them with his own money, the title is in A, and the goods are, not liable to attachment as belonging to B. Such a purchase stands on the ordinary footing of a purchase by an agent for an undisclosed principal.^ § 174. Sale of Stock deliverable at Buyer's Option. — Where A signed a paper stating that he had purchased of B certain shares of stock " payable and deliverable buyer's option in sixty days with interest," it was held that A was bound by the contract to accept and pay for the stock at the expiration of sixty days from the date thereof, un- less he had exercised his election to have the stock deliv- ered at an earlier date. A contended that the agreement imposed no absolute obligation on him to take the stock at any time.^ § 175. Sale for Cash, Five per Cent off, Thirty Days. — A sale of goods for " cash, five per cent off, thirty days," the goods having been delivered, is an absolute sale.^ § 176. Purchase of Goods by A on B's Order. — A bought goods on B's order, annexed to a draft on B for the price a bill of lading of them, made to A's order and by him in- dorsed in blank, and sent the draft through a bank for presentment to B. B accepted the draft, and the bill of lading was given up to him. It was held that the relation shares, see Pub. St. oh. 113, § 13 (prior references, St. 1881, eh. 302 ; St. 1871, oh. 381, §§ 7, 10). See also Newell v. WUliston (1885), 138 Mass. 240 ; Central Nat. Bank v. WUliston (1885), 138 Mass. 244. 1 Sloan V. MerriU (1883), 135 Mass. 17. 2 Niehols v. Bishop (1884), 136 Mass. 849 ; Mann v. Bishop (1884), 136 Mass. 495. 3 Sears v. Lebetter (1884), 137 Mass. 374. 102 SALES OF PERSONAL PROPERTY. between A and B was that of principal and agent, not buyer and seller ; that the general property in the goods vested in B at once on their purchase, subject only to A's lien as factor for money advanced and commissions ; that a delivery of the goods by A to C, although before accept- ance of the draft by B, passed no title to C, who was liable to B in trover for a refusal to deliver on demand ; that C, however, having received the property in good faith, and having paid certain freight charges, was entitled in esti- mating B's damages to a deduction of the amount so paid. The course of A in regard to the bill of lading and draft was no implied assertion of general property. It was a proper course to take to protect his special property and preserve his lien, and to this extent it might be effectual ; but it gave A no right to assert absolute ownership of the goods or to change their destination by sale to other parties, without notice to B and without default on his part.^ § 177. Transfer of Title vrhere the Goods are represented by Bill of Lading. — A, who lived in this State, was the owner of a cargo which was on its way to Europe, con- signed to B, the master of the vessel. A assigned to C the cargo with the bill of lading unindorsed by B. After this assignment was made, the vessel arrived at Antwerp, where D resided, to whom A was indebted. B then, follow- ing the orders of A, delivered to D the cargo and the bill of lading, without however indorsing it. D disposed of the cargo and applied the proceeds to his debt, having a bal- ance left in his hands which was trusteed by E, another creditor of A, and paid over to him by order of the court in Antwerp. C then sued D for the proceeds of the cargo and recovered judgment by default. D then sued A to recover this amount. It was held that D, having had no 1 Whitney ». Beckford (1870), 105 Mass. 267. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 103 notice of the assignment, was entitled to be allowed both as against A and C the amount paid E, as to the propriety of which the judgment of the Antwerp court was conclu- sive ; that beyond this D had no lien on or right to the cargo or its proceeds which would hold against C because of the failure of B to indorse the bill of lading to D ; that A being owner, and the shipment being on his account and risk, he could, by an assignment on the bill of lading or by a separate instrument, pass the title so as to hold against all persons except purchasers for value without notice, by indorsement of the bill of lading by the consignee, and tlfet such assignment would hold against his agents, factors, and creditors in favor of the consignee ; that if D had any lien, he could waive it, and was under no obligation to set it up as a defence against C. D was therefore allowed to recover from A the amount paid C with interest from the time of payment.^ § 178. Sale of Goods on Laud of Seller implies License to enter and take. — A sale of goods which are on the sell- er's land, or on the land of one who assents to the sale, implies and creates an irrevocable license to the buyer to enter and take his property; but the fact that such license exists does not justify a breach of the peace, but, if resisted, the buyer must resort to his legal remedies.^ Where the subject-matter of the contract is to be severed from the freehold, being timber or other product of the soO, the im- plied license is revocable until the severance ; and when only part has been severed, it is revocable as to the remain- der not yet severed, the only remedy being an action for 1 Barrows v. West (1839), 23 Pick. 370. 2 Nettleton v. Sikes (1844), 8 Mete. 34; Heath v. Randall (1849), 4 Gush. 195 ; McNeal v. Emerson (1860), 15 Gray, 384 ; Drake v. Wells (1865), 11 Allen, 143; MoLeod v. Jones (1870), 105 Mass. 406 ; Churcliill v. Hulbert (1872), 110 Mass. 42 ; Drury v. Hewey (1879), 126 Mass. 519. 104 SALES OF PERSONAL PROPERTY. damages.^ Thus an absolute deed of the laud by the seller to a third persou, when made known to the licensee, will operate as a revocation of the license, although the grantee had knowledge of it, the severance not having been made at the time of the deed.^ § 179. License must be acted on within a Reasonable Time. — But a parol license to enter upon land "at any and all times," and cut and carry away growing wood, must be acted upon within a reasonable time ; and if not acted upon within a period of more than three years may be revoked, and after revocation a sale of the wood by the licensee is as against the licensor a nullity.^ § 180. Sale of Fixtures by Tenant to Landlord. — "Where A, being tenant of B, agrees that B at the end of the lease " shall have to his own use to become then his property " the machinery and fixtures which otherwise A could law- fully have removed, it was held that they intended not an executory agreement for a future delivery, but a present bargain of the property, the title passing subject to A's right to use till the end of the lease.* § 181. Buyer agrees to pay on a Certain Day, or return the Goods. — Where A agreed to sell to B certain goods of A, then being in B's possession, for a sum payable on or before a certain day, and B agreed to buy the goods and pay before the specified day or return the goods, it 1 Ckflin V. Carpenter (1842), 4 Mete. 5S0, 582 ; Nettleton v. Sikes (1844), 8 Mete. 34; Douglas v. Shumway (1859), 13 Gray, 498; Giles V. Simonds (1860), 15 Gray, 441 ; Burton v. Scherpf (1861), 1 AUen, 134, 185 ; Drake v. Wells (1865), 11 AUen, 143 ; Hill v. iCutting (1871), 107 Mass. 597. " Drake v. Wells (1865) 11 Allen, 141. See Cook v. Steams '(1814), 11 Mass. 538. 8 Hill V. Hill (1873), 113 Mass. 103 ; Hill v. Cutting (1874), 113 Mass. 107. See Gilmore v. Wilbur (1831), 12 Pick. 120. * Thayer ». Lapham (1866), 13 Allen, 26. SALE OP SPECIFIC GOODS UNCONDITIONALLY. 105 was held to be a present sale, and that the title to the goods at once vested in B. The agreement of B to pay the price or return the goods is executory, and does not imply that he is to have no title in the mean time.^ § 182. Sale of Ship at Common Law. — With regard to the sale of a ship, Parker, C. J., said : " We do not find that a biU of sale, or other instrument in writing or under seal, is essential to the transfer of a ship more than of any other chattel. Such a document may be required in the admi- ralty courts, but we are not aware that the principle has been introduced into the common law. Inconveniences may arise in foreign countries and in the custom-house from the want of a bill of sale, but the transfer is good between the parties." ^ § 183. United States Statute as to Sale of Ships. — By statute of the United States it is provided that no bOl of sale or conveyance of any vessel or part of any vessel of the United States shall be valid against any person other than the grantor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale or conveyance is recorded in the ofJBce of the collector of the customs where such vessel is registered or enrolled.^ The statute applies only to the conveyance of ships and vessels which have been already enrolled, registered, or licensed under the laws of the United States.* § 184. To convey Patents, Copyrights, and Trade-marks, a 'Writing is Necessary. — It is expressly provided by 1 Martin v. Adams (1870), 104 Mass. 2G3 ; McKinney v. Bradlee (1875), 117 Mass. 821. 2 Bkby V. Franklin Ins. Co. (1829), 8 Pick. 88, 89. See Lamb v. Durant (1815), 12 Mass. 57 ; Taggard v. Loring (1820), 16 Mass. 340 ; Vinal v. Burrill (1835), 16 Pick. 406. 3 Eev. St. of U. S, § 4192 (prior reference, St. 1850, ch. 27). * Potter V. Irish (1858), 10 Gray, 418, 427 ; Veazie v. Somerby (1862), 5 Allen, 280, 285 ; Johnson v. Merrill (1877), 122 Mass. 153. 106 SALES OF PERSONAL PROPERTY. statute that, in order to pass the title in patent-rights, copyrights, and registered trade-marks, a written convey- ance shall be necessary. At common law such a privilege or monopoly could not be assigned except by deed, for the reason that, being a franchise and part of the royal prerogative, it could only subsist by grant. At common law such privileges would not probably have been consid- ered assignable, unless made so by the letter of the grant.^ A verbal assignment of a patent might, however, vest in the assignee certain equitable rights.^ § 185. Sale of Patents. — The statutes of the United States provide that " every patent or any interest therein shall be assignable in writing, and the patentee or his assigns or legal representatives may in like manner grant and convey an exclusive right "under his patent to the whole or any specified part of the United States," and that "an assignment, grant, or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the Patent Of&ce within three months from the date thereof." 3 Eeferring to this section Gray, J., said : " The franchise conferred by letters-patent under the laws of the United States cannot be divided, except as those laws authorize. No transfer of less than the whole of the patent-right is valid, except an assignment of an undivided share in the whole patent, or a grant of the exclusive right within a specified part of the United States, either by an express assignment of the entire right within such limits, or at 1 See Blanchard v. Eldridge (1849), 1 Wall. Jr. 337 ; Baldwin v. Sibley (1858), 1 CHfford, 150, 154. 2 Burke v. Partridge (1878), 58 N. H. 349, 853. a U. S. Rev. St. § 4898 ; Pitta v. Whitman (1843), 2 Story, 609, 614-618. SALE OF SPECIFIC GOODS UNCONDITIONALLY. 107 least by license to make, use, and vend the patented article therein exclusively of the patentee himself as well as of all other persons."^ The assignment need not be under seal, even if the assignor be a corporation;^ nor need it necessarily be witnessed or acknowledged. For the period of three months the purchaser must protect himself in the best way he can against a prior assignment, which, although not recorded at the time of his purchase, may be subse- quently recorded so as to prevail over his claim.^ The assignment may be made before the patent has issued, and then no new assignment need be made, although the patent is afterwards issued directly to the assignor. As soon as the patent issues, the legal right to it vests in such assignee.^ The sale of a patented article, lawfully manufactured and sold, without condition or restriction, by a territorial grantee within his territory, gives the purchaser the right to use or sell the article in another territory, for which another person has taken a grant under the patent. By the sale the article ceases to be within the monopoly.^ § 186. Sale of Copyrights. — The Statutes of the United States provide that copyrights shall be assignable in law by any instrument in writing, and such assignment shall ' be recorded in the office of the librarian of Congress with- 1 Kempton v. Bray (1868), 99 Mass. 353. 2 Gottfried v. Miller (1881), 104 U. S. 521, 527. s Gibson v. Cook (1850), 2 Blatch. 144. * Gayler v. Wilder (1850), 10 How. 477 ; Hammond v. M. & H. Organ Co. (1875), 92 U. S. 724 ; Wright v. Randel (1881), 19 Blateh. 495. 6 Howe V. Wooldredge (1866), 12 Allen, 22 ; May v. Chaffee (1871), 2 DUlon, 385 ; Adams v. Burke (1873), 17 Wall. 453 ; McKay v. Woos- ter (1873), 2 Sawyer, 373 ; HoUiday v. Matthews (1883), The Reporter, xix. 136. See, contra, Hatch v. Adams (1884), The Reporter, xix. 3. 108 SALES OF PERSONAL PEOPERTY. in sixty days after its execution, in default of which it shall be void as against any subsequent purchaser or mortgagee for value without notice.^ The statute does not say what interest may be assigned, but there is no reason to suppose that an author may not convey a distinct portion of his right.2 The mere assignment of a copyright will not pass a right to a renewal subsequently granted.^ § 187. Sale of Registered Trade-marks. — The right to use any trade-mark which is registered under the statute of the United States is assignable by an instrument in writing, and the assignment must be recorded in the Pat- ent Office within sixty days after its execution, in default of which it may be void as against any subsequent pur- chaser or mortgagee for value without notice. No par- ticular form of assignment or conveyance is prescribed, but the trade-mark must be identiiied by the certificate number.* § 188. Transfer of Claims against United States, how to be made. — It is provided by statute that " all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, order, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the 1 U. S. Rev. St. § 4955. 2 Roberts v. Myers, in U. S. Circuit Ct. District of Mass. (1860), 23 Law Rep. 401. » Pierpont v. Fowle (1846), 2 W. & M. 23. See Cowen v. Banks (1802), 24 How. Pr. 72. * U. S. Rev. St. §§ 4937-4947 ; Rules of Patent Office with regard to trade-marks, § 15. See ante, § 83. SALE OF SPECITIC GOODS UNCONDITIONALLY. 109 amount due, and the issuing of a warrant for the pay- ment thereof. Such transfers, assignments, and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an oflficer having authority to take acknowledgments of deeds, and shall be certified by the officer ; and it must appear by the certificate that the officer at the time of the acknowl- edgment read and fully explained the transfer, assign- ment, or warrant of attorney to the person acknowledging the same." ^ § 189. Title of Groods imported to remain in Consignee until Duties paid. — It is provided by statute that " aU merchandise imported into the United States shall, for the purpose of ' the collection of duties,' be deemed and held to be the property of the person to whom the merchandise may be consigned, any sale, transfer, or as- signment, prior to the entry and payment of the duties on such merchandise, and the payment of all bonds then due and unsatisfied by the consignee, to the contrary notwithstanding." ^ § 190. Assignment of Wages by Persons in Naval Ser- vice. — The statutes provide that " every assignment of wages due to persons enlisted in the naval service, and all powers of attorney or other authority to draw, receipt for, or transfer the same, shall be void, unless attested by the commanding officer and paymaster. The assignment of wages must specify the precise time when they com- mence." ^ Sale of Prize or Bounty Money. — The statutes also provide that " every assignment of prize or bounty money due to persons enlisted in the naval service, and 1 U. S. Rev. St. § 3477. 2 V. S. Rev. St. § 3058. 8 U. S. Eev. St. § 1576. 110 SALES OF PERSONAL PROPERTY. all powers of attorney or other authority to draw, receipt for, or transfer the same, shall be void, unless the same be attested by the captain or other commanding officer and the paymaster." ^ 1 U. S. Eev. St. § 4643 ; and see § 1430. SALE OF SPECIFIC GOODS CONDITIONALLY. Ill CHAPTER III. SALE OF SPECinC GOODS CONDITIONALLY. § 191. First Rule : Where Seller is to do Something to the Goods before Delivery. — Where by the agreement the seller.is to do anything to the goods, for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of such thing shall, in the absence of circumstances indicating a con- trary intention, be taken to be a condition precedent to the vesting of the title in the purchaser.^ § 192. Second Rule: Where Goods are to be 'weighed, measured, or tested. — Where anything remains to be done to the goods, for the purpose of ascertaining the price, as by weighing, measuring, or testing, where the price is to depend on the quantity or quality, the perform- ance of such act is held to be a condition precedent to the vesting of the title in the purchaser, although the indi- vidual goods be ascertained, and they are in the state in which they ought to be accepted, provided always that there is no evidence tending to show an intention of the parties to make an absolute and complete sale.^ § 193. These Rules do not apply V7here there is an Actual Delivery. — These two rules were said by Shaw, C. J., to 1 Sbaw V. Nudd (1839), 8 Pick. 9, 13; Macomber». Parker (1833), 13 Pick. 183 ; Dole v. Stimpson (1838), 21 Pick. 388; Posters. Eopes (1872), 111 Mass. 10. 2 Macomber v. Parker (1832), 13 Pick. 175, 183 ; Riddle v. Var- num (1838), 20 Pick. 280 ; Barnard v. Poor (1838), 21 Pick. 378, 380; SLerwin v. Mudge (1879), 127 Mass. 547. 112 SALES OF PERSONAL PROPERTY. be applicable only to cases of constructive delivery and constructive possession, and, not to cases where there is an actual delivery.! In a later case, Wilde, J., said that where the goods are actually delivered, that shows the intent of the parties to complete the sale by delivery, and the weigh- ing, measuring, or counting afterwards would not be con- sidered as any part of the contract of sale, but would be taken to refer to the adjustment of the final settlement as to the price. The sale would be as complete as a sale upon credit before the actual payment of the price.^ The inten- tion of the parties is a question of fact for the jury, and can be ascertained only from the terms of the agreement, as expressed in the language and conduct of the parties, 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 affected by their undisclosed purpose or by their understanding of its legal effect.^ § 194. Third Rule: Where Buyer is bound to do Any- thing as a Condition. — Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the title depends, the title will not pass until the condition be fulfilled, even though the goods may have been actually delivered into the possession of the buyer.* Where the bargain is for specific goods, and the price is paid, if at the time of the 1 Sumner v. Hamlet (1831), 12 Pick. 83. 2 Macomber v. Parker (1832), 13 Pick. 183 ; Richmond Iron Works V. Woodruff (1857), 8 Gray, 451 ; OdeE v. Boston & Maine R. R. (1871), 109 Mass. 50 ; Russell v. O'Brien (1879), 127 Mass. 349. 8 Per Colt, J., in Poster v. Ropes (1872), 111 Mass. 10. * Hussey v. Thornton (1808), 4 Mass. 405 ; Marston v. Baldwin (1822), 17 Mass. 610, 611 ; Barrett v. Pritchard (1824), 2 Pick. 512 ; Whitwell V. Vincent (1827), 4 Pick. 451; Pogg v. MElis (1885), 138 Mass. 443. SALE OF SPECIFIC GOODS CONDITIONALLY. 113 contract it is understood and intended that some other act is to be done to complete the sale, such as a formal deliv- ery or a bill of sale, the transfer is not complete until such act is done.^ The owner must intend to part with his property at once, and the purchaser must intend to be- come the immediate owner. Their two minds must meet on this point. If anything remains to be done before either assents, it may be an inchoate contract, but it is not a per- fect sale, and the title does not pass.^ § 195. Title not to pass till Price is paid. — Thus where goods are sold at a fixed price to be paid on a certain day, and delivery is made upon an agreement, express or im- plied, that until the price is paid the title is to remain in the seller, payment is a condition precedent, and until per- formance the title to the property is not vested in the buyer.2 Such an agreement is valid, though the goods were not in existence so as to be a subject of bargain and sale when the agreement was made, if when delivered they were delivered under the agreement.* § 196. Seller may reclaim Goods even from Bona Fide Purchaser. — The seller, in such cases, where the price has not been paid, if he be guilty of no laches, may reclaim the goods even from one who has purchased them from his purchaser in good faith and without notice.^ Good faith 1 Higgins V. Chessman (1829), 9 Pick. 10. 2 Mason v. Thompson (1836), 18 Pick. 308. ^ 3 Ayer v. Bartlett (1827), 6 Pick. 71 ; Heath v. Eandall (18i9), 4 Cush. 195 ; Coggill v. Hartford & N. H. R. R. (1854), 3 Gray, 545 ; Sargent v. Metcalf (1855), 5 Gray, 306 ; Gilbert v. Thompson (1856), 3 Gray, 550 ; Blanchard v. Child (1856), 7 Gray, 155 ; Bur- bank V. Crooker (1856), 7 Gray, 158 ; Ullman v. Barnard (1856), 7 Gray, 557 ; Deshon v. Bigelow (1857), 8 Gray, 159 ; Riddle v. Cobum (1857), 8 Gray, 241 ; Booraem v. Crane (1870), 103 Mass. 522. * Benner v. Puffer (1874), 114 Mass. 376. « Coggill V. Hartford & N. H. R. R. (1854), 3 Gray, 545 ; Sargent «. Metcalf (1855), 5 Gray, 306 ; Gilbert v. Thompson (1856), 3 Gray, 8 114 SALES OF PERSONAL PROPERTY. does not aid the second purchaser, because his seller having no title to the property could convey none. Such purchasers are in the same legal condition as bona fide purchasers of stolen goods.^ § 197. Thus A sold a piano to B, on the express con- dition that it should remain A's property until the promis- sory note given by B in payment was actually paid in full. A gave to B a receipted biU of parcels therefor, omitting, at his request, any statement of the condition, which was, however, set forth in the promissory note given by B. Afterwards A, in reply to an inquiry respecting the title to the piano, told C that he had sold it to B, and C, hav- ing seen the bill from A, loaned a sum of money to B and took the piano, together with the bill receipted by A, as security, without notice, express or implied, of this condi- tion as to the passing of title, the note never having been paid. It was held that, in the absence of fraud, A was entitled to take on replevin the piano from C.^ § 198. Rights of One who buys on Condition. — Where A sells and delivers goods to B, but it is agreed that the title shall not pass to B till the price is paid or on some other condition, B has still an interest which he may sell ; and if the condition is afterwards performed, the title of his purchaser will be complete.^ But in such a case, if it be specially provided that B shall not sell or remove the goods from a certain place without A's consent, and B sells them 650; Blauohard v. Child (1856), 7 Gray, 155; Burbank v. Crooker (1856), 7 Gray, 158 ; Hirschorn v. Canney (1867), 98 Mass. 150 ; Zucttmann v. Roberts (1871), 109 Mass. 53 ; Benner v. Puffer (1874), 114 Mass. 376 ; Fogg v. Millis (1885), 138 Mass. 443. 1 Desbon v. Bigelow (1857), 8 Gray, 160. 2 Zucbtmann v. Eoberts (1871), 109 Mass. 53. « Crompton v. Pratt (1870), 105 Mass. 255 ; Currier v. Knapp a875), 117 Mass. 324 ; Chase v. Ingalls (1877), 122 Mass. 381 ; Newhall v. Kingsbury (1881), 131 Mass. 445. SALE OF SPECIFIC GOODS CONDITIONALLY. 115 to C, who removes them and resells them, C is liable to A in trover, although he acted in good faith, and A may sue ■without any previous demand.^ If no special time is agreed on for the payment, and B, before the payment is made, sells to C, who knows of the condition, A may maintain replevin against C at once without any demand, or he may treat it as a conversion and sue in trover.^ If time be given for the payment, and before that time arrives B sells and delivers the goods to C, A cannot, merely for this, sue B in trover as for a conversion.^ If at the agreed time B tenders the price to A, the title of C is complete and per- fect, although the tender is refused by A.* But it was held no defence to an action of replevin brought by A that the defendant C, having obtained possession of the goods from B with his consent, but not by purchase, had after- wards tendered to A the balance of the agreed price. C was held to be a stranger to the trade between A and B, and not entitled to the benefit of B's bargain, although he had furnished B with the money which, at the time of the sale, B had paid to A as a part of the price.^ If the goods are wrongfully taken from B, even after the condition is broken, he, as well as A, may maintain trover against the wrongful taker. This is on the ground that B is in the position of a bailee responsible for the goods to the owner, and therefore entitled to sue for them.® § 199. Risk of Loss is on the Seller. — In the absence of any agreement to the contrary, the risk of loss of the property remains with the seller and owner, although pos- 1 Carter v. Kingman (1870), 103 Mass. 517. 2 BlanohardK. Child (1856), 7 Gray, 165. 3 Vincent v. Cornell (1832), 13 Pick. 294 ; Newhall v. Kingsbury (1881), 131 Mass. 445. * Day V. Bassett (1869), 102 Mass. 445. 6 Chase v. Pike (1878), 125 Mass. 117. « Hariington v. King (1876), 121 Mass. 269. 116 SALES OF PERSONAL PROPEKTY. session and use is given to the buyer. Thus, if the thing sold were a horse, and it died without fault on the part of the buyer, before payment or fulfilment of the condition, it is held that this disables the seller from performing the contract on his part, and he cannot sue the buyer for the price.^ He would even be bound to refund what portion had been paid to him, as being money received on a con- sideration which had failed.^ § 200. Seller's Eight to enter and retake. — If the seller reserves title, and it is agreed that on default he may enter the buyer's premises and retake the property, this license is irrevocable, and the seller will not be liable for trespass for such entry, wliich must, however, be made in a reason- able manner and without needless violence."' § 201. Partial Payments forfeited. — Where the seller reserves title till the price is paid, and no special agree- ment to the contrary is made, it would seem that partial payments are forfeited on a default in payment of the residue.* § 202. Where Goods are to be paid for on Delivery, which is made, but Payment is evaded. — Where payment and delivery are agreed to be simultaneous, and the pay- ment is omitted, evaded, or refused by the purchaser on getting possession of the goods, the seller may at once reclaim them. No title passes till the terms of the sale have been complied with.^ Where nothing is said about payment at the time of the purchase, the law presumes 1 Swallows. Emery (1873), 111 Mass. 355. "■ Weed V. B. & S. Ice Co. (1866), 12 Allen, 377 ; B. & S. Ice Co. V. Royal Ins. Co. (1866), 12 Allen, 381. ' Churchill V. Hulbert (1872), 110 Mass. 42 ; Drary v. Hervey (1879), 126 Mass. 619. * Angler v. Taunton Paper Co. (1854), 1 Gray, 621 ; Golcord v. McDonald (1880), 128 Mass. 470. 5 Adams v. O'Connor (1868), 100 Mass. 515. SALE OF SPECIFIC GOODS CONDITIONALLY. 117 that the sale is for cash, and in such case payment and delivery are concurrent acts.^ § 203. When goods are sold on time, and delivered under an agreement that they are to be paid for in a prom- issory note of the purchaser, such payment is a condition precedent, and the title will not pass till it is made.^ § 204. Performance of Condition may be vrarveA. — The performance of the condition may be waived by an express understanding or by implication from the acts of the parties, as where the goods are delivered without any objection on the part of the seller that the condition has not been complied with, and under circumstances indi- cating an intent and purpose not to insist upon the condition.^ But the fact that the goods were actually forwarded or delivered to the purchaser before a compli- ance with the terms of sale is not necessarily a waiver of the condition* A secret understanding or intent of the seller that the title should not pass by delivery will not * But a cash sale is not necessarily conditional It is for the jury to say on all the evidence whether it is so or not. Scudder v. Bradbury (1871), 106 Mass. 427 ; Goodwin v. Boston & Lowell R. E. (1873), 111 Mass. 489. " Whitney v. Eaton (1860), 15 Gray, 225 ; Earlow v. Ellis (1860), 15 Gray, 229 ; Hirsohom v. Canney (1867), 98 Mass. 149 ; Nelson v. Dodge (1874), 116 Mass. 367 ; Armour v. Pecker (1877), 123 Mass. 143 ; Salomon v. Hathaway (1879), 126 Mass. 482. 8 Carletonc. Sumner (1827), 4 Pick. 516 ; Smith v. Dennie (1828), 6 Pick. 262; Fairbanks v. Phelps (1839), 22 Pick. 539; Dresser Manuf. Co. v. Waterstow (1841), 3 Mete. 17, 18 ; Whitney v. Eaton (1860), 15 Gray, 227; Earlow v. Ellis (1860), 15 Gray, 231; Scudder ». Bradbury (1871), 106 Mass. 427 ; Upton v. Sturbridge Mills (1873), 111 Mass. 446 ; Goodwin v. Boston & Lowell B. R. (1873), 111 Mass. 489; Haskins v. Warren (1874), 116 Mass. 533; Ereeman ». Nichols (1874), 116 Mass. 309. * Hussey v. Thornton (1808), 4 Mass. 405 ; Marston v. Baldwin (1822), 17 Mass. 611 ; Barrett v. Pritohard (1824), 2 Pick. 515 ; Whitwell V. Vincent (1827), 4 Pick. 451 ; Hill v. Ereeman (1849), 118 SALES OF PERSONAL PROPERTY. prevent its passing.^ Evidence is not admissible to show that no waiver was intended, because the seller relied upon a usage that no title passes upon an ordinary sale and delivery without g,ctual payment of the price within a certain number of days after the delivery. Such usage is unreasonable and invalid.^ § 205. Where goods were sold on the condition that they should be paid for by the note of the buyer " satisfac- torily indorsed " by a third person, the taking of the note by the seller, without indorsement, on the buyer's prom- ise that it should be furnished, even when coupled with a failure to make any subseq^uent demand for such in- dorsement or to return the note, does not, as matter of law, amount to a waiver of the condition. The note was taken September 3, and the writ of replevin brought by the seller was dated September 7, the buyer having meantime failed in business.' §206. Parol Evidence of the Condition. — Where the seller gave a bill of parcels, in which he acknowledged receipt of payment by note, it was held that this was not conclusive evidence of the contract, but that parol evidence was admissible to show that the sale was conditional, and that title was to remain in the seller until the note was paid or discounted at a certain bank without the seller's indorsement.* If the goods sold are delivered to the pur- chaser, and there is some evidence that the delivery was for the purpose of examination or other special and limited 3 Gush. 257 ; Tyler ». Freeman (1849), 3 Gush. 261 ; Whitney b. Eaton (1860), 15 Gray, 228 ; Farlow v. Ellis (1860), 15 Gray, 229. 1 Taft V. Dickinson (1863), 6 Allen, 553 ; Soudder v. Bradbury (1871), 106 Mass. 422 ; Upton v. Sturbridge MiHs (1873), 111 Mass. 453. ' Haskins v. "Warren (1874), 115 Mass. 514. « Kenney v. Ingalls (1879), 126 Mass. 488. * Hildreth v. O'Brien (1865), 10 Allen, 104. SALE OF SPECIFIC GOODS CONDITIONALLY. 119 purpose, and not for the purpose of giving absolute pos- session, evidence is admissible that it was in the usual course of dealing to give opportunity for examination in that mode.^ § 207. Consideration of Sale called " Rent." — A deliv- ered goods to B under a written agreement, which recited that B had "hired and received" the goods from A, for which B agreed to pay A certain sums of money as " rent " at stated times, and " the balance " at a certain rate per month "until paid;" that upon default in making such payments B's right to retain the goods should cease ; and that title to the goods should vest in B only upon perform- ance of all the conditions of the agreement. After failure by B to make payments according to the agreement, A brought an action against him for rent, attached his prop- erty by trustee process, and entered the action in court, and B was defaulted. A then took possession of the goods, and afterwards prosecuted his action against B to judgment, and took out an execution upon which he col- lected a small sum of money from the trustee. It was held, in an action by B against A for conversion of the goods, that A had elected to treat the transaction between them as a sale, before reclaiming the goods ; and that title to the goods passed to B. The court said that the sum to be paid constituted the agreed price of the goods, and that it was a misnomer to call it rent. A "would have no right to exact payment in full and also to reclaim the goods. Two inconsistent coiirses were open to him, and electing one of them he is debarred from the other.^ § 208. Successive Conditional Purchases — Construction of Contract. — A bought of B goods under a written con- tract, by which the title to them was to remain in B until 1 Haskins v. Warren (1874), 115 Mass. 514, 536. " Bailey v. Hervey (1883), 135 Mass. 172. 120 SALES OF PERSONAL PROPEKTY. they were paid for. Afterwards A, from time to time, bought other goods, and at each time a schedule of the goods bought was entered upon the original contract, A signing an agreement stating that he authorized the addi- tions to the within upon the same terms as therein con- tained. A made payments from time to time, for which receipts were given " as per lease." The entire amount not having been paid when due, B took possession of all the goods, and A replevied them. It was held that the facts would warrant a finding that the successive purchases were intended to be separate contracts, and in the absence of evidence as to any appropriation of the payments, by either party, to any particular portion of the goods, they should be applied to the earliest items of the account, and when they amounted to the price of the goods originally bought, there was a payment for that lot, and the title thereto was transferred thereby to A. The same rule ap- plied to the later purchases.^ § 209. Conditional Sale of Cbattels which the Buyer annexes to the Realty. — A sold to B a machine, under an agreement that it should not become the property of B till paid for. It was set up in B's mill in such a manner that, as between B and a mortgagee of the mill, it was perma- nently annexed to the realty. Upon default in payment according to the terms of the agreement A severed and removed it with the consent of the mortgagee, who was then in possession. Subsequently the mortgage was as- signed to C, who replevied the machine from A. C had also taken a mortgage of the real estate and machinery, after the machine was set up, but with notice of the agree- ment. The court held that C had no right to the machine, and said : " As between the parties to a contract like this, and as against a mortgagee, who with full knowledge con- 1 Swett V. Boyoe (1883), 134, Mass. 381. SALE OF SPECIFIC GOODS CONDITIONALLY. 121 sents to the arrangement, or while in possession under his mortgage treats the property as personal, and consents to its removal, this property, although it has the character of a fixture and has been permanently annexed, must be con- sidered personal. The assignee could claim no greater in- terest than the assignor had at the time of the assignment. The agreement between A and B superseded the general rule of law as to fixtures, and is binding not only upon the parties to it and those claiming under them, but upon one who, after the machine is put in the mill, takes a mortgage of the real estate and machinery with notice of this agree- ment." ^ § 210. But such an agreement between buyer and seller does not bind one who subsequently purchases or takes a mortgage of the realty without notice of it. In such case the machine will pass as part of the realty .^ Nor would such an agreement be binding upon the holder of a mort- gage previously made. His rights, unless he waives them and consents to the agreement, will be paramount to those of the seller of the machine. A mortgagor in possession cannot bind existing mortgagees by any arrangement to treat as personalty annexations to the freehold.^ With reference to gas-fixtures sold thus on condition, and put up by the purchaser for use in his house or store, it would seem that, though attached to the gas-pipes by screws and made tight by cement, they do not lose 1 Bartholomew v. Hamilton (1870), 105 Mass. 239. See Morris v. French (1871), 106 Mass. 326; Baddin v. Arnold (1874), 116 Mass. 270 ; Sawyer v. Yale Iron Works (1874), 116 Mass. 424 ; Taft v. Stetson (1875), 117 Mass. 473. 2 Soutlibridge Savings Bank v. Exeter Works (1879), 127 Mass. 543 ; Smith Paper Co. v. Servin (1881), 130 Mass. 511 ; Southbridge Savings Bank v. Stevens Tool Co. (1881), 130 Mass. 551. » Hunt V. Bay State Iron Co. (1867), 97 Mass. 279 ; Thompson v. Vinton (1876), 121 Mass. 139. 122 SALES OF PERSONAL PROPERTY. their character as chattels. They are regarded as in the nature of furniture, and do not become a part of the realty by reason of the manner in which they are afi&xed. The seller w6uld therefore probably have a right to reclaim them on failure of the condition even as against a mortga- gee or purchaser of the realty.^ § 211. Conditional Sale of Leather whicb is made into Boots by the Buyer. — A furnished B with upper-leather to be made into boots, under a parol agreement that the leather should remain A's until it was paid for. B made boots, and for a while sent them to a commission merchant, who made acceptances for B alone and made remittances to B alone. A lot of boots afterwards made by B from leather furnished by A was attached as B's property, and was subsequently sold as such on execution by the attach- ing officer. It was held that A was either the owner of the whole property in the boots or was owner in common with B, and on either ground might maintain trover against the officer for a conversion by the sale on execution.^ § 212. No Presumption that a Sale vtslb Absolute. — Where evidence is given of circumstances tending to prove a sale of goods, no presumption arises that the sale, if made, was an absolute one, but it is to be left to the jury on all the evidence to decide whether it was absolute or condi- tional. The plaintiff alleging a sale to him and the defend- ant contending that if there was a sale, it was on a condition precedent which was not performed, the burden is on the plaintiff to prove, either that the sale was an absolute one, or that it was upon a condition precedent which has been performed.^ 1 Guthrie v. Jones (1871), 108 Mass. 193; Towne v. Fisk (1879), 127 Mass. 125, 131. " Bryant v. Clifford (1847), 13 Mete. 138. 3 Sawyer v. Spofford (1849), 4 Cush. 598. SALE OF SPECIFIC GOODS CONDITIONALLY. 123 § 213. statutory Kight of Hedemption by Buyer. — The statute^ provides that "when a sale of personal property- is made on condition that the title to the propertj' sold shall not pass until the price is paid in full, and the ven- dor takes from the vendee possession of the property for failure to comply with such condition, the vendee shall have the right, at any time within fifteen days after such taking, to redeem the property so taken, by paying to the vendor the full amount of the price then unpaid, together with interest and all lawful charges and expenses due to the vendor." § 214. Conditional Sales of Furniture and Household Effects. — A recent statute ^ provides that " all contracts for the sale of furniture or other household effects, made on condition that the title to the property sold shall not pass until the price is paid in full, whether such contract be in the form of a lease or otherwise, shall be in writing, and a copy thereof shall be furnished the vendee by the vendor at the time of such sale ; and all payments made by or in behalf of the vendee, and all charges, whether in the nature of interest or otherwise, as they accrue shall be indorsed by the vendor or his agent upon such copy, if the vendee so requests. If the vendor fails to comply with any of the provisions of this section through negli- gence, his rights under such contract shall be suspended while such default continues ; and if he refuses or wilfully or fraudulently fails to comply with any of such provi- sions, he shall be deemed to have waived the condition of such sale." " The vendor, upon taking possession of such furniture or effects for non-compliance with the terms of sucb contract of sale, shall furnish the vendee or other 1 Pub. St. ch. 192, § 13 (prior reference, St. 1881, ch. 222). 2 St. 1884, oil. 313. 124 SALES OF PERSONAL PEOPERTY, person in charge of such furniture or effects an itemized statement of the account, showing the amount then due thereon ; and the fifteen days provided by section thirteen of chapter one hundred and ninety-two of the Public Stat- utes, during which the vendee shall have the right to redeem the furniture or household effects so taken, shall not begin to run until such statement is furnished, pro- vided the vendee or other person in charge can be found by the vendor by the exercise of reasonable care and diligence." § 215. Pourth Rule : Where the Chattel is Unfinished or Incomplete. — Under a contract for supplying labor and materials, and making a ship or other chattel, no property passes to the purchaser till the chattel is completed and delivered, or is ready to be delivered. This rule must pre- vail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract. The con- tract is ordinarily an entire one, and the fulfilment of it by the seller is a condition precedent to his right to re- ceive any portion of the stipulated price.^ There must be an acceptance of the article, either express or implied, before the title will pass.^ § 216. Where a contract for building a ship or other chattel provides for payment by instalments, regulated by particular stages of the work, this, in absence of direct evidence to show a contrary intent, is generally held to be ecLuivalent to an express provision that on the payment of each instalment the general property in so much of the 1 WiUiams v. Jackman (1860), 16 Gray, 517; Briggs v. Life Boat (1863), 7 Allen, 292 ; Wright v. Tetlow (1868), 99 Mass. .397, 404. 2 Mixer V. Howarth (1838), 21 Pick. 207 ; Brown v. Foster (1873), 113 Mass. 136 ; Goddard v. Binney (1874), 115 Mass. 455. See Phelps V. Willard (1834), 16 Pick. 29; Middlesex Co. v. Osgood (1855), 4 Gray, 449. SALE OF SPECIFIC GOODS CONDITIONALLY. 125 vessel or thing as is then constructed shall vest in the purchaser. It is, however, a question of intent, depending on the interpretation of the entire contract in each case. Such a provision, although very significant as indicating the intention of the parties, is not in every case decisive ; but it would seem, unless explained and controlled by other terms of the contract, to destroy the entirety of the contract.^ § 217. Sale on Condition Subsequent. — A sale may be made upon a condition subsecLuent, the happening of which will divest the purchaser of his title. In this case the title passes to the purchaser defeasible upon the con- dition subsecLuent. Thus A sold to B certain real and per- sonal estate at a fixed price, for part of which B gave eight promissory notes to A, secured by a mortgage of the real estate. An agreement was indorsed upon the written con- tract of sale that the sale of some of the personalty should be so far I conditional, that if B should neglect or refuse to pay or cause to be paid any of the eight notes, with interest for three months after the same should become due, the sale should become void. It was held that this was a sale upon a condition subsequent, and, being for an entire sum, amounted to an agreement that B should have all the property for a certain price, if paid punctually, but if not so paid, should have less property for the same price ; and that after three months' default of payment on any of the notes A might repossess himself of the personal property embraced in the indorsed agreement, and recover the whole amount of the purchase-money from B.^ 1 Williams v. Jackman (1860), 16 Gray, 514; Briggs v. Life Boat (1863), 7 Allen, 387, 293; Mt. Hope Iron Co. v. Buffinton (1869), 103 Mass. 62. 2 Kuox V. Perkins (1860), 15 Gray, 529. 126 SALES OF PERSONAL PROPERTY. Upon a breach of the condition subsequent the original owner may, by a new sale, convey a valid title to a new purchaser, without first taking actual manual possession of the property.^ * Hubbard v. Bliss (1866), 12 Allen, 590. SALE OF GOODS NOT SPECIFIC. 127 CHAPTEE IV. SALE OF GOODS NOT SPECIEIC. § 218. Can only be an Executory Agreement. — When the specific goods to which the bargain is to attach are not agreed on, it is clear that the parties can only con- template an executory agreement. If A buys from B ten sheep to be delivered hereafter, or ten sheep out of a flock of fifty, whether A is to select them or B is to choose which he will deliver, or any other mode of separating the ten sheep from the remainder be agreed on, it is plain that no ten sheep in the flock can have changed owners by the mere contract. Something more must be done before it can be true that any particular sheep can have ceased to belong to B and have become the property of 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.^ § 219. Thus A sold B two hundred and fifty barrels of pork, part of a larger lot, all of the same quality, having the same marks and all stored in the same cellar of A ; but no separation was made. B sold and delivered to one hundred barrels of the same pork, and afterwards sold D the remaining one hundred and fifty barrels, and gave him an order on A therefor, which being presented to A he 1 Young V. Austin (1828), 6 Pick. 280 ; Merrill v. Hunnewell (1832), 13 Pick. 215; Gardners. Lane (1865), 9 Allen, 498; Ropes V. Lane (1865), 9 Allen, 502; Merclants' Bank v. Bangs (1869), 102 Mass. 295 ; Keeler v. Goodwin (1873), 111 Mass. 490. See Damon v. Osbom (1823), 1 Pick. 476. 128 SALES OF PERSONAL PROPERTY. assented to hold the same on storage for D ; but nothing was done to distinguish or separate the one hundred and fifty- barrels from the other pork of similar brand stiU in A's cellar. While the pork remained so stored, B became in- solvent, and A then refused to deliver the one hundred and fifty barrels to D on said order. D thereupon brought an action of replevin against A, but the court held that it could not be sustained.^ § 220. Sales at Common Law of Grain in Elevators. — With regard to the sale of grain stored in elevators, the law is as follows : The proprietors of the elevator are the agents of the various parties for whom they act. When several parties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they must be deemed to have assented, they are tenants in common of the grain. When one of them sells a certain number of bushels, it is a sale of property owned by him in common. If the seller gives an order on the agents to deliver it to the buyer, and the agents accept the order, and agree with the buyer to store the property for him, and give him a receipt therefor, the delivery is thereby complete, and the property belongs to the buyer. The property is in the hands of an agent, and the same person who was the agent of the seller to keep becomes the agent of the buyer to keep, and the possession of the agent becomes the possession of the principal. The ten- ancy in common results from the method of storage agreed upon, and supersedes the necessity of measuring, weighing, or separating the part sold.'-* § 221. Such Sales now covered by Statute. — The Stat- ute now provides that " where grain or other property is stored in a public warehouse, in such a manner that differ- 1 Scndder v. Worcester (1853), 11 Cush. 573. 2 Gushing v. Breed (1867), 14 AUen, 376, 380. SALE OF GOODS NOT SPECIFIC. 129 ent lots or parcels are mixed together so that the identity thereof cannot be accurately preserved, the warehouse- man's receipt shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification." ^ § 222. Delivery of Entire Mass for Buyer to take out Portion sold to him. — A mortgaged to B four hundred tons of coal, part of a larger pile on the wharf of A. B, on foreclosure, took possession with the assent of A of the whole pile, for the purpose of separating and securing his part. A having subsequently become insolvent, it was held, on a dispute as to title between B and the assignees in insolvency, that the delivery of the entire mass to the buyer, under the contract of sale, for the purpose of en- abling him to separate and take out the portion sold, makes the sale and delivery complete between the parties ; that thereby the title to the goods sold passes out of the seller and vests in the buyer, who has the right to retain the whole until he has had sufficient time and opportunity to separate and take out the part belonging to him in pur- suance of the contract of sale.^ 1 Pub. St. ch. 72, § 7 (prior reference, St. 1878, ch. 93, § 3). » Weld V. Cutler (1854), 2 Gray, 195, 198. 130 SALES OF PERSONAL PROPERTY. CHAPTER V. SUBSEQUENT APPROPRIATION. § 223. Completes the Bargain. — After an executory contract has been made, it may be converted into a com- plete bargain and sale by specifying the goods to which the contract is to attach, or, in legal phrase, by the appro- priation of specific goods to the contract. The sole ele- ment deficient in a perfect sale is thus supplied. The contract has been made in two successive stages, instead of being completed at one time ; but it is none the less one contract, namely, a bargain and sale of goods.^ Where the executory agreement was made in one State and the sub- sequent appropriation was made in another State, it was held that the contract was completed in the latter State, and must be governed by its laws.^ § 224. How it is made. — When from the nature of the agreement the seller is to make the appropriation, then, as soon as any act is done by him, identifying the property which is then set apart with the intention to uncondition- ally apply it in fulfilment of the contract, the title vests, and the sale is complete. Thus the delivery of goods to the buyer or his agent, or to a common carrier, consigned to him, whether a bUl of lading is taken or not, if there is 1 Valentine v. Brown (1836), 18 Pick. 549; Nowellw. Pratt (1849), 5 CusL 115. 2 Pinch e. Mansfield (1867), 97 Mass. 91 ; Kline v. Baker (1868), 99 Mass. 254; Abberger v. Marrin (1869), 102 Mass. 70; Dolan v. Green (1872), 110 Mass. 323 ; Prank v. Hoey (1880), 128 Mass. 263. See Suit v. Woodhull (1873), 118 Mass. 394. SUBSEQUENT APPROPRIATION. 131 nothing in the circumstances to control the effect of the transaction, will be suf&cieut, and the title will at once vest in the purchaser.^ In the language of Shaw, C. J., the act of appropriation is, " in general any act which changes the dominion and control of property, after an agreement for a sale, superseding the power and control of the seller and transferring it to the buyer." ^ § 225. In Case of Shares of Stock. — Where the Sale was of shares of stock, the act of appropriation was a transfer on the books of the corporation, and the issuance of the proper certificate, ready to be delivered to the pur- chaser, the interest of the seller being by that act trans- ferred to him.^ § 226. Appropriation must be in Conformity ■with the Contract. — But the property does not pass, even when the seller has the power to select and appropriate, unless he exercise it in conformity with the contract. He cannot send a larger quantity of goods than were ordered, and throw the selection on the purchaser against his will.* § 227. Appropriation of Different Article by Mistake. — Where by mistake an entirely different article is appropri- ated to the contract, constituting a mistake as to the very 1 Per Colt, J., in Merchants' Bank v. Bangs (1869), 102 Mass. 295. See also Putnam v. Tillotson (184.7), 13 Mete. 520 ; Hatch v. Bayley (1853), 12 Cush. 27; Hatch v. Lincoln (1853), 12 Cash. 31, 33-35; Oreutt V. Nelson (1854), 1 Gray, 537 ; Stevens v. Boston & Worcester R. R. (1857), 8 Gray, 262 ; Claflin v. Boston & Lowell E,. R. (1863), 7 Allen, 341, 344 ; Kline v. Baker (1868), 99 Mass. 254 ; Johnson v. Stoddard (1868), 100 Mass. 306 ; Prince v. Boston & Lowell R. R. (1869), 101 Mass. 547 ; Odell ». Boston & Maine R. R. (1871), 109 Mass. 50 ; Suit v. Woodhull (1873), 113 Mass. 391, 394 ; Prank e. Hoey (1880), 128 Mass. 263 ; Wigton v. Bowley (1881), 130 Mass. 254. 2 Hatch V. Bayley (1853), 12 Cush. 27. « Thompson v. Alger (1847), 12 Mete. 444. See anie, §§ 169-172. " RommeU v. Wingate (1869), 103 Mass. 327. 132 SALES OF PERSONAL PROPEKTY. subject-matter, the title does not pass. Neither party can be held. But if the seller acted fraudulently, the pur- chaser may keep the goods, if he wiU, and sue for damages. The fraudulent seller cannot reclaim property sold by him, because it is not what he represented it to be.^ 1 Gardner v. Lane (1865), 9 Allen, 492, and (1866), 13 Allen, 39, and (1868), 98 Mass. 517. RESERVATION OF THE JUS DISPONENDL 133 CHAPTEE VI. RESERVATION OF THE JUS DISPONENDL § 228. It ia a Conditional Appropriation. — However definite and complete may be the act of appropriation on the part of the seller, when the contract has left the choice to him, the title to the property will not pass, notwith- standing such appropriation, if his acts show clearly his purpose to retain the ownership. The appropriation he then makes is said to be provisional or conditional. The cases arise chiefly where the parties live at a distance from each other, a^d the seller is desirous of securing himself against the insolvency or default of the purchaser. § 229. How exercised. — The seller may retain his hold upon the goods to secure payment of the price, al- though he puts them in course of transportation to the place of destination by delivery to a carrier. He may take the bill of lading or carrier's receipt in his own or some agent's name, to be transferred on payment of the price, by his own or his agent's indorsement to the purchaser ; and in all cases where he manifests an intention to retain this jus disponendi the title to the property will not pass to the buyer.i § 230. Xiffect of making Bill of Lading to Order of Seller. — The fact of making, by the bill of lading, the goods deliverable to the order of the seller or his agent is, when not rebutted by evidence to the contrary, almost de- 1 Per Colt, J., in Merchants' Nat. Bank ». Bangs (1869), 102 Mass. 295. 134 SALES OF PERSONAL PROPERTY. cisive to show his intention to reserve the jus disponendi and to prevent the passing of title to the bnyer.^ Thus goods were shipped to the consignor's own order, and the bill of lading was sent to a bank, with authority to indorse it to the buyer on payment of drafts for the price. The buyer sold the goods to arrive to B. On the presentation of the drafts the buyer induced C to pay them, whereupon the bank indorsed the bill of lading to the buyer, who at once indorsed it to C The carrier soon after delivered the goods to B, on his representation that he was the pur- chaser, and C, holding the bill of lading, brought trover against the carrier. The action was sustained. Gray, C. J., saying: "The sale and delivery to B passed no title, be- cause at the time of sale the seller had acquired none, and at the time of the delivery the title of C had already vested." ^ Thus, again, the seller A took a bill of lading to his own order, indorsed it in blank and sent it to his special agent, with instructions to hold the bill of lading until a draft drawn on the buyer, B, for the price was paid. The agent delivered the bill of lading to B, on his accept- ing the draft, but before he paid it. B obtained the goods and pledged them to C for advances. It was held, on an action in trover brought by A, that C acquired no title as against him.^ § 231. Where the seller draws a draft on the buyer, takes a bill of lading in his own name as consignee, which he indorses in blank and attaches to the draft which is discounted by a bank, the bank has a special property in 1 Baker u. Fuller (1838), 21 Pick. 331; Seymour u. Newton (1870), 105 Mass. 273 ; Nat. Bank of Cairo i>. Crocker (1873), 111 Mass. 167 ; Newcomb v. Boston & Lowell R. R. (1874), 115 Mass. 330 ; Hatha- way 0. Haynes (1878), 124 Mass. 311. See Chandler ». Sprague (1843), 5 Mete. 306. 2 Alderman v. Eastern R. R. (1874), 115 Mass. 333. « StoUenwerck v. Thacher (1874), 115 Mass. 234. RESERVATION OF THE JUS DISPONENDI. 135 the goods as collateral security for the money advanced, and the title is in the bank so far as is necessary to pro- tect its rights as lender.^ So where the seller drew upon the buyer in favor of the bank a draft made in express terms against the goods, and attached to the draft a warehouse receipt and certificate, which stated that the goods were held subject to the sole order of the buyer or assigns, and that the receipt and cer- tificate should remain attached to the draft and be evidence of a lien on the goods in favor of the holder of the draft until payment, and the bank discounted the draft which on presentment was accepted by the buyer, it was held that the consignee received the goods on account of the bank ; that he became its agent to receive and hold the goods of which it was from that time the owner. To the extent of its advances the bank was a purchaser, and the legal title was in it to protect its advances. The pos- session of the consignee is the possession of the bank.^ § 232. Effect of taking Bill of Lading in Name of Buyer. — On the other hand, if the bill of lading or other written evidence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by in- dorsement, this, if not controlled by other evidence, affords the strongest proof of the intention of the seller not to re- tain his hold on the property after it is taken by the carrier as security for payment of the price.^ Thus, in pursuance of orders from A, goods were shipped by B for the account of A, on board a general freighting vessel which had been consigned to B and designated by A for the piirpose. A ' UUman v. Barnard (1856), 7 Gray, 554, 557 ; Hathaway v. Haynes (1878), 124 Mass. 311. 2 De Wolf «. Gardner (1853), 12 Gush. 19. 8 Prince v. Boston & Lowell R. R. (1869), 101 Mass. 547 ; Mer- chants' Nat. Bank v. Bangs (1869), 102 Mass. 295 ; Wigton v. Bow- ley (1881), 130 Mass. 254. 136 SALES OF PERSONAL PROPEETY. bill of lading was obtained by B, by the terms of which the merchandise was deliverable to A. This was a sale and constructive delivery of the goods, and it was held that B, by withholding the bill of lading from A and sub- sequently enclosing it and the invoice in a letter to his agent, with directions to deliver it to A only upon pay- ment for the goods, could not convert such absolute appro- priation into a conditional one, or divest A of his title to the goods.^ § 233. But even where by the bill of lading the goods are deliverable to the buyer, if a bill of exchange for the price of the goods is sent to the buyer for acceptance along with the bill of lading, the buyer cannot retain the bill of lad- ing unless he accepts the bill of exchange. If he refuse acceptance, he acquires no right to the bill of lading or the goods of which it is the symbol. The bill of lading is then manifestly designed to merely vest the property in the buyer provisionally, — that is, in case of his acceptance of the accompanying bill of exchange.^ § 234. It is a Question of Pact for Jury. — The question of intention in all these cases is properly one of fact for the jury, under proper instructions, and must be submitted to them unless it is plain as matter of law that the evi- dence will justify a finding but one way.^ 1 Stanton v. Eager (1835), 16 Pick. 467. " Allen V. Williams (1832), 12 Pick. 297 ; De Wolf v. Gardner (1853), 12 Cusli. 23; Nat. Bank of Cairo v. Crocker (1873), 111 Mass. 163, 166 ; Nat. Bank of Chicago v. Bayley (1874), 115 Mass. 228 ; Alderman v. Eastern R. R. (1874), 115 Mass. 233. 8 Merchants' Nat. Bank v. Bangs (1869), 102 Mass. 291 ; Wigton V. Bowley (1881), 130 Mass. 254. BOOK ni. AVOIDANCE OF THE CONTEACT, CHAPTER I. MISTAKE. § 235. Mutual Mistake as to Essential Fact. — When there has been a common or mutual mistake as to some essential fact forming an inducement to the sale, — that is, when the circumstances justify the inference that no contract would have been made if the whole truth had been known to the parties, — the sale is voidable. Thus a contract was made for the sale of land on Prospect Street, in Waltham. There were two streets of that name ; and each party mistaking the intent of the other as to which was meant, it was held that there was no contract.^ Thus, again, a sale was made of two rows of barrels of flour as being badly damaged. In fact, the flour was per- fectly sound, having been placed by mistake in a lot of damaged flour. The buyer sued for failure to deliver ; but it was held that there was no contract, owing to this mistake.^ § 236. When may the Sale be set aside after Perform- ance. — If either party has performed his part during the » Kyle V. Kavanagh (1869), 103 Mass. 356. See ante, § 78. 2 Harvey v. Harris (1873), 112 Mass. 32. 138 SALES OF PERSONAL PROPERTY. continuance of the mistake, he may set aside the sale on discovering the truth, unless he has done something to render it impossible to restore the other party to the con- dition in which he was before the contract was made ; in which event the complaining party must be content with compensation in damages. Thus the purchaser of a chattel cannot rescind the sale without returning it to the seller, unless it be absolutely worthless. If it be of any value to the seller, or if its loss would be any injury to him, it must be returned, regardless of its intrinsic or mar- ket value. This rule is held with great strictness, requir- ing in the various cases cited the return of casks that contained worthless lime, a sack or bag that covered a re- jected bale of cotton, shares of stock practically worthless, a promissory note on which all the indorsements were a forgery, an ox afflicted with an incurable disease practi- cally destroying its value, but not requiring the return of bonds of the United States which were proved to be counterfeit.^ This rule is applicable to cases even where the mis- take of the complaining party was caused by the fraud of the other.^ § 237. Delivery of Wrong Articles by Mistake. — Where parties agree to sell and purchase a certain kind or de- scription of property not yet ascertained or set apart, and subsequently a delivery is made by mistake of articles dif- fering in their nature or quality from those agreed to be sold, no title passes by such delivery. Thus where the 1 Conner v. Henderson (1818), 15 Mass. 319; Perley v. Balch (1839), 23 Pick. 283; Coolidge v. Brigham (1840), 1 Meto. 547; Morse v. Brackett (1867), 98 Mass. 209, and 104 Mass. 494 ; Bassett 0. Brown (1870), 105 Mass. 551, 558 ; Brewster v. Burnett (1878), 125 Mass. 68. 2 Kimball v. Cunningliam (1808), 4 Mass. 502 ; Thayer ». Turner (1844), 8 Mete. 562 ; Bartlett v Drake (1868), 100 Mass. 176. MISTAKE. 139 contract was for one hundred and thirty-five barrels of No. 1 mackerel, and of the barrels delivered pursuant to the contract by mistake forty-five contained No. 3 mack- erel, and forty-eight contained salt only, it was held that no title passed to the salt or No. 3 mackerel. In the same case, there were delivered fifteen half-barrels of No. 1 mackerel which it was claimed did not correspond to the bill of sale. But it was held that a mere mistake in the bill of sale or in the description of the mode in which the property was packed would not prevent the property passing by delivery, if it was of the same kind and quality as that which the parties intended to include in their agreement.^ § 238. Goods consumed in Ignorance of the Mistake. — But if the goods have been consumed in ignorance of the mistake, there would seem to be no liability, either in contract or tort. Thus A, a warehouseman, had on storage two lots of flour, one belonging to B, the other and more valuable to C. B sold to D twenty-eight barrels of his flour, and gave him an order on A for them. A by mistake delivered to D twenty-eight barrels of C's flour. D received this flour, and consumed it, not knowing, sup- posing, or believing that it was difierent from that he had purchased, and gained no benefit from the mistake. It was held that D was not liable to A in contract for the value of the flour, or any part of its value, nor in tort for its conversion.^ § 239. Order sent to A, executed by B -without Notice to the Sender. — A sends an order for goods to B, whom he supposed to be still in business, but in consequence of a change the order is, without notice to A, executed by C,. ^ Gardner v. Lane (1865), 9 Allen, 493. See also Chapman v. Cole (1858), 12 Cush. 143. ' Hills V. Snell (1870), 104 Mass. 173. 140 SALES OF PERSONAL PROPERTY. who has purchased B's shop and business. A receives and consumes the goods, but is not liable to C. If C had notified him of the facts, he could have rescinded the con- tract and declined to have it executed by C, and if on such notice he had not rescinded the contract, he would have been liable. He had a right to know with whom he was dealing. Wor does A's liability to C at all depend upon whether he had a claim in set-off against B, or any other good and sufficient reason for preferring to deal with B.^ But where goods were sold and delivered, the seller sup- posing that the buyer was acting in the purchase as agent for a particular person, and finding that the buyer was not acting as such agent, the seller brought trover, it was held that he could not recover, the buyer not being aware of the mistake. It was a mistake on one side of which the other had no knowledge or suspicion, and which consisted solely in the unauthorized assumption that he was acting as agent for a third person. The seller, if he had any other intention than that of selling to the buyer, neglected to disclose it.^ § 240. Misrepresentations made by Mistake of Parties are Good Ground for Relief in Equity. — A bargain founded on material misrepresentations of matters of fact, even though they are inadvertently made through a mutual mistake of the parties or by mistake of one of them alone, will be annulled in equity. The court said that " relief was granted on the ground that it would be unconscientious to oblige a man, who has not been himself negligent or in fault, to adhere to his bargain and to retain property 1 Orcutt o. Nelson (1854), 1 Gray, 542 ; Mudge r>. Oliver (1861), 1 Allen, 74; Winchester v. Howard (1867), 97 Mass. 303 ; Boston Ice Co. V. Potter (1877), 123 Mass. 28. See Bearce v. Bowker (1874), 115 Mass. 132 ; and anie, § 77. " Stoddard ». Ham (1880), 129 Mass. 383. MISTAKE. 141 which he was induced to purchase by a misapprehension as to a material and essential circumstance which he was led into by the other party. The defendant was himself mistaken, and consequently misled the plaintiff, and under the influence of the mutual error the transaction was con- summated. But the prejudicial consequences to the pur- chaser are the same as if the conduct of the seller had been designedly fraudulent. He has obtained, not what he expected to have, but something else which he did not intend to buy, and would not have bought, if he had known the truth." ^ § 241. Mistake as to the Legal Effect of the Contract. — But where the mistake is as to the legal effect of an agree- ment, or as to the construction of its terms, the party mis- understanding it cannot be relieved from its performance on that ground. When a contract is reduced to writing, it may and probably does sometimes happen that one or both of the parties misapprehend the legal effect ; yet if it be not altogether unintelligible, the court will read the contract for the parties, and they will be bound by its legal effect. The same doctrine is applicable when the contract is made by parol. The jury are to find what language was used, while the court is to say what is its legal effect, taking the words in their usual and ordinary acceptation.^ 1 Spurr V. Benedict (1868), 99 Mass. 466, 467. 2 Miller v. Lord (1831), 11 Pick. 27; Bice v. Dwight Manuf. Co. (1848), 2 Gush. 86. 142 SALES OF PERSONAL PROPERTY. CHAPTER II. FAILUEE OF CONSIDEEATION AND BREACH OF WARRANTY. § 242. Effect of Failure of Consideration, etc. — The buyer may, on the ground of a failure of consideration or breach of warranty, recover his money paid for the pur- chase of goods, where he does not get that for which he paid. Thus where the holder of a note fraudulently pro- cures it to be indorsed by a minor, and then sells it to a person who relies on the validity of such indorsement, such seller is held to restore the consideration, though at the time of the sale he had no fraudulent intent. The sale, without erasing the indorsement and without disclos- ing the minority of the indorser, is equivalent to a direct affirmation or warranty that such indorsement constitutes a valid contract.^ The same rule was applied where a note was sold, the signature of which was a forgery, it being held immaterial whether the note was bought for cash or taken in payment of a debt, — a distinction main- tained in an early decision.^ So, too, where government bonds were sold, which proved to be false and counterfeit ; ^ and, again, where a counterfeit biU was passed, the pur- chaser was held entitled to recover the consideration paid, and no return of the bonds or biU was necessary.* The • LobdeU v. Baker (1840), 1 Mete. 193, and (1842), 3 Mete. 469. " Cabot Bank v. Morton (1855), 4 Gray, 156 ; Merriam v. Walcott (1861), 3 Allen, 258, repudiating the case of Ellis v. Wild (1810), 6 Mass. 321. See also Coolidge v. Brigham (1840), 1 Meto. 547. » Brewster v. Burnett (1878), 125 Mass. 68. * Kent V. Bomstein (1866), 12 Allen, 342. FAILURE OF CONSIDEEATION, ETC. 143 rule was also applied where a note, tlie indorsements on which proved to be forged, was taken in payment for goods sold and delivered ; but in that case a return or offer to return the note was held necessary to enable the party to sue as for the price of the goods sold and delivered.^ § 243. Sale of Letters-patent which prove to be Void. — Where letters-patent are sold or an interest therein, and the price has not been paid, its payment may be avoided as for failure or want of consideration, by showing that the seller was not the owner of any legal patent-right, because the same was wholly void, the invention not being of any beneficial use. It is immaterial that the seller supposed the patent to be valid, and was wholly innocent of fraud in the matter. The issue is the same as in a suit in the courts of the United States for the infringement &f a patent the validity of which is denied by the defendant.^ If the purchaser has paid the price, he may probably re- cover it, if he can show that the patent is void or worth- less ; but where the conveyance is by a written instrument which the buyer has accepted, and there is no fraud or warranty, he cannot show by parol that it embraced in the contemplation of the parties any other invention or article than that which it did in fact include and describe. He cannot show a failure of consideration by proving that the seller exhibited an article not in fact patented, and represented that it was the article which the specifications of the patent described. If the money was paid for the patent, which was of some value, however slight, and the 1 Coolidge V. Brigham (1840), 1 Mete. 547, and (1842), 5 Meto. 68. 2 Bliss V. Negus (1811), 8 Mass. 46 ; Dickinson v. HaU (1833), 14 Pick. 217 ; Bierce v. Stocking (1858), 11 Gray, 174 ; Lester v. Palmer (1862), 4 Allen, 145; Nash v. Lull (1869), 103 Mass. 60; Howe V. Richards (1869), 102 Mass. 64; Harlow v. Putnam (1878), 124 Mass. 553. 144 SALES OF PERSONAL PEOPEETT. contract in writing was for the conveyance of such patent, and the purchaser by the conveyance obtained title to such patent, there is no failure of consideration, for the writing is conclusive, and cannot be varied or affected by parol evidence.^ § 244. Failure of Seller to comply 171111 his Entire Con- tract. — A buyer who has advanced money on a contract of sale in its nature entire has a right to rescind the con- , tract for failure of consideration, and recover in an action for money had and received, if the seller fails to comply with his entire contract. But if he rescind, he must do it in toto. He cannot disclaim it in part and enforce it in part. He must also put the other party in statu quo. If this can- not be done, the contract cannot be rescinded. If he does not or cannot rescind it, he must seek his remedy in some other form of action. Thus if several different chattels are sold together for one gross sum which is paid by the pur- chaser, and a part of them is delivered, but the seller refuses to deliver the rest, the purchaser cannot, if he retain such as were delivered, recover any part of the purchase-money in an action for money paid or money had and received, but his remedy is upon the special contract for damages.^ § 245. VTben the Goods are of Uniform Character and readily Divisible. — But where the goods are of such uni- form character as to be readily divisible proportionally by weight or measure, or are contained in packages of uniform quantity and value, then if the buyer has paid the price, and the seller delivers only a part and makes default as to the residue, the buyer may wholly rescind the con- tract, returning what he has received, and recover all that he has paid; or he may rescind merely as to the deficiency, 1 Foss V. Eiohardson (1860), 15 Gray, 303-305 ; and see cases cited in the preceding note. 2 Miner v. Bradley (1839), 22 Pick. 457. FAILURE OF CONSIDERATION, ETC. 145 and recover the proportion of the price paid for the quan- tity deficient. For if he retain the part delivered, the par- ties have then by their conduct given an implied assent to a severance of the contract by the delivery on the one part and acceptance on the other of a portion only of the goods sold. The entirety is broken by the concurrent act of both parties, so that a partial rescission may be effected. The buyer may elect to treat the seller's refusal to deliver the residue as a repudiation or rescission of the unfulfilled part of the contract.^ § 246. Mere Failure as to Quality. — But this principle does not apply when all the goods are delivered, there be- ing a failure merely as to their quality or as to the quality of a part. The buyer must then rescind in toto, if fce re- scind at all. Thus A bought of B a cargo of yellow and white corn on board B's schooner, the quantity not being known, and agreed to pay one sum per bushel for the yel- low and another sum per bushel for the white; B warrant- ing it to be of a certain quaUby. A paid B $1,200, " on account of corn per schooner." The schooner was hauled to A's wharf, and he took therefrom and put into his ware- house a part of the corn, and then refused to receive any more, because the residue was not such as B had warranted it to be, and immediately gave notice to B that he would receive no more of the cargo, and requested B to take the schooner away. The corn thus taken by A amounted at the agreed price per bushel to $1,067 ; and A sued B in an action for money had and received, to recover back the difference between that sum and $1,200. Held, that the contract was entire, and that the action could not be main- tained ; that A might have rescinded the contract by re- turning all the corn, and then have maintained an action 1 Hill V. Eewee (1846), 11 Mete. 268 ; Mansfield v. Trigg (1873), 113 Mass. 354. 10 146 SALES OF PEESONAL PROPEETY. to recover back the money advanced ; or might have main- tained an action on the warranty.^ § 247. On a subsequent consideration of this case, it was held that evidence was admissible to prove a usage in the port of Boston that when a cargo of corn is sold in bulk, lying in the vessel in which it is imported, and the sale is made with a warranty, the buyer receives and re- tains so much of the corn as answers the warranty, and rejects the residue, which thereupon becomes again the property of the seller.^ § 248. Thus, too, it was held that the sale of a specific number of packages at a given price per package was an entire contract, and that the buyer could not, because of a failurQ as to quality, rescind it as to some of the packages and affirm it as to others.^ § 249. Remedy of the Buyer in Case of a Breach of ■Warranty. — It may be stated broadly that according to the rule adopted in Massachusetts, which follows the lead of the earlier as against the later English cases, a warranty may, at the election of the purchaser, be treated as a con- dition subsequent ; and whether the warranty be express or implied, if there be a breach of it, he may by a season- able return of the property have a full defence to a suit brought against him for the price, or, if he has already paid it, he will be entitled to recover it by action against the seller. The restoration within a reasonable time of the goods and of all other benefits derived from the sale is a direct condition, and without exact performance of it the purchaser may not rescind.* » Clark V. Baker (1843), 5 Mete. 462. 2 Clark V. Baker (1846), 11 Mete. 186. » Morse v. Brackett (1867), 98 Mass. 305, and (1870), 104 Mass. 494 ; Mansfield v. Trigg (1873), 118 Mass. 350. * Bradford v. Manly (1816), 13 Mass. 139, 145 ; Parley v. Balch FAILURE OF CONSIDERATION, ETC. 147 § 250. Entirety of Contract, what it is. — That a con- tract should be entire, it is not sufficient merely that the subjects of purchase are included in the same instrument of conveyance. If but one consideration is paid for aU the articles sold, so that it is not possible to determine the amount paid for each, the contract is entire.^ So if the purchase is of goods as a particular lot, even if the price is to be ascertained by the number of pounds in the lot or the number of barrels in which the goods are packed, the contract is also held to be entire. For although it could be ascertained what was the amount paid for each pound or barrel, yet, the articles having been sold as one lot, it was to be inferred that one pound or barrel would not have been sold unless all were sold. While, therefore, the seller must have expected that the purchaser would have the right to rescind the contract, if the goods did not cor- respond to the warranty, he could not have intended that the purchaser should divide them merely because they were divisible by weight or measure, and claim the right to rescind as to part and affirm as to the remainder.^ But where many different articles are bought at the same time for distinct prices, even if they are articles of the same general description, so that a warranty that they are all of a particular quality would apply to each, the contract is not entire, but is in effect a separate contract for each article sold, — as where the articles sold differed each from the other, but all were of the india-rubber goods (1839), 23 Pick. 283 ; Clavk v. Baker (1843), 5 Mete. 452 ; Dorr v. Pisber (1848), 1 Cush. 374 ; Bryant v. Isburgh (1859), 13 Gray, 607; Boardman v. Spooner (1866), 13 AHen, 361; Morse v. Brackett (1867), 98 Mass. 305 ; Mansfield v. Trigg (1873), 113 Mass. 350 ; Toung & Conant Manuf. Co. v. Wakefield (1876), 121 Mass. 91. 1 Miner v. Bradley (1839), 32 Pick. 457. 2 Clark V. Baker (1843), 5 Mete. 452 ; Morse v. Brackett (1867), 98 Mass. 205 ; Mansfield v. Trigg (1873), 113 Mass. 350. 148 SALES OF PERSONAL PROPERTY. manufactured by the seller. To each article a separate price was affixed, and the sale of it in no way depended upon that of the others, so that they were 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 did not make of them a single transaction only. As to each article there was a right to rescind, if the warranty in regard to it was broken.* 1 Yoimg & Conant Manuf. Co. v. Wakefield (1876), 121 Mass. 91. FRAUD. 149 CHAPTER III. FEAUD. § 251. No Heal Assent ■where it is procured by Fraud. — Fraud renders all contracts voidable at law as well as in equity, on the ground that assent is necessary to a valid contract, and that there is no real assent where fraud has been used to control the will and influence the assent.^ The courts refrain from any attempt to define with exact- ness what constitutes a fraud.^ Some of the elements ■which must necessarily exist before a party' can at com- mon la^w be said to have been defrauded are as follows : — § 252. Means used must be Successful in deceiving. — The means used must be successful in deceiving. Other- ■wise, if the contract is made, the inducement or motive for making it is obviously not the false or fraudulent repre- sentations which are not believed, but some other inde- pendent motive.^ But where such representations are made by one party, it is presumed, in the absence of evi- dence to the contrary, that they were relied on by the other party, and that he was deceived.* § 253. Fraudulent Representation must be Material in its Nature. — It must be a misrepresentation or fraud ma- terial in its nature, and a determining ground of the trans- 1 Milliken v. Thomdike (1869), 103 Mass. 386. " See remarks by Bigelo^w, C. J., ia Reynolds ». Reynolds (1862), 3 Allen, 606. 8 Hazard v. Irwin (1836), 18 Pick. 104, 105. « Holbrook v. Burt (1839), 23 Pick. 546 ; Curtis v. Aspinwall (1873), 114 Mass. 196 ; Packer v. Lockman (1874), 115 Mass. 73, 80. 150 SALES OF PEESONAL PROPERTY. action, materially influencing and inducing it ; but it is not necessary that it should have been the sole or even the predominant motive. It is enough if it had material in- fluence upon the party deceived, though combined with other motives.^ The question of the materiality of the representations is for the court, and not for the jury. If the jury find that the representations were falsely and fraudulently made, it is for the court to d-^'termine their bearing on the contract and the responsibility of the party making them.^ § 254. Dishonest Intention, how far Necessary. — There can be no fraud without dishonest intention, or what the law regards as equivalent to it, and construes as such. Where there is a representation of a material fact, asserted to be true by a party as of his own knowledge, which, how- ever, is not true, and it is in relation to a subject-matter susceptible of knowledge, it is conclusively held to be made falsely and fraudulently, even if he did not know whether it was true or not, and so made the statement recklessly without real knowledge. Such an averment, it is held, has all the elements and consequences of fraud. The falsity and fraud consist in representing that he knows the facts to be true of his own knowledge, when he has not such knowledge. It is no defence that he believed the facts to be true. It is a legal fraud. The law concludes that it was made main animo? 1 Matthews v. Bliss (1839), 22 Pick. 48 ; Safford v. Grout (1876), 120 Mass. 20, 25. See Putney v. Hardy (1868), 99 Mass. 5. 2 Penn. Ins. Co. v. Crane (1883), 134 Mass. 56, 58. 8 Hazard v. Irwin (1836), 18 Pick. 95, 109 ; Lobdell ». Baker (18M), 1 Mete. 201 ; Page v. Bent (1841), 2 Mete. 374 ; Stone ». Denny (1842), 4 Mete. 162 ; Cooper v. Landon (1869), 102 Mass. 59 ; MiUiken v. Thomdike (1869), 103 Mass. 385 ; Msherw. Mellen (1870), 103 Mass. 506 ; Cooper v. Levering (1870), 106 Mass. 79 ; Morse ». Dearborn (1872), 109 Mass. 593; Bannister v. Alderman (1873), FEAXJD. 151 § 255. In Matter of Opinion, Judgment, and Estimate. — But in a matter of opinion, judgment, and estimate, if one state a thing as of his own knowledge, if he in fact be- lieves it to be true, and it is not intended to deceive, it is not a fraud, although the matter thus stated is not in fact true. The reason is that it is apparent from the subject- matter that what is thus stated as knowledge must be con- sidered and understood by the party to whom it is addressed as an expression of strong belief only, because it is a sub- ject of which knowledge in its strict sense cannot be had.-^ But if such statement is made with actual intent to deceive, knowing it to be false, it is a fraud, with all the attendant consequences,^ — although there are later cases which seem to indicate that no representation of this char- acter is actionable, confining the scope of actionable fraud- ulent representation to facts susceptible of knowledge ; but qumre as to whether in these cases any such effect was really intended.^ § 256. Whether a given statement or representation is of a fact or is merely the expression of an opinion must often be for the jury to decide, — as where the language of the statement is capable of two interpretations with reference 111 Mass. 263; LitcMeld v. Hutchinson (1875), 117 Mass. 195; Savage v. Stevens (1879), 126 Mass. 208. 1 Tryon v. Whitmarsh (1840), 1 Meto. 1, 9 ; Page v. Bent (1841), 2 Mete. 371, 374; Stone v. Denny (1843), 4 Mete. 162; Powers v. Mayo (1867), 97 Mass. 187 ; Milliken v. Thomdike (1869), 103 Mass. 385 ; Pike v. Pay (1869), 101 Mass. 137 ; Mooney v. Miller (1869), 102 Mass. 220 ; Cooper v. Lovering (1870), 106 Mass. 79. 2 Tryon v. Whitmarsh (1840), 1 Mete. 1, 7, 9 ; Page v. Bent (1841), 2 Mete. 371, 375; Pearson v. Howe (1861), 1 Allen, 207; Pike V. Pay (1869), 101 Mass. 137 ; Bavid v. Park (1870), 103 Mass. 501 ; Cooper v. Lovering (1870), 106 Mass. 79 ; Beach v. Bemis (1871), 107 Mass. 499. See Veasey v. Doton (1862), 3 Allen, 380. « Safford v. Gront (1876), 120 Mass. 25 ; Belcher v. Costello (1877), 123 Mass. 190 ; Morse v. Shaw (1878), 124 Mass. 59. 152 SALES OF PERSONAL PEOPERTY. to this distinction. It is often impossible to say as matter of law whether a statement is of fact or opinion. It will de- pend upon the nature of the representation, the meaning of the language used as applied to the subject-matter, and as interpreted by the surrounding circumstances in each case. Such a question must generally be submitted to the jury.^ § 257. Must be Damage to the Party deceived. — There must be damage to the party deceived before any cause of action can arise. The gravamen of the charge is that the plaintiff has been deceived to his hurt, not that the de- fendant has gained an advantage.^ The damage contem- plated must not only be caused by the fraud, but must be its direct and immediate consecLuence. The fraud and damage must sustain the intimate relation of proximate cause and effect." But it is not enough to show that a de- ceived purchaser sold the goods for the same sum which he paid for them, and so sustained no damage. If he paid by reason of fraud a higher price than the goods were worth, and the fraud was actionable in its character, he is entitled to recover for the injury occasioned by such fraud, what- ever disposition he afterwards made of the goods, — whether he sold them or gave them away. What he sold the goods for is not the rule by which to measure the damage.* 1 Belcher v. CosteUo (1877), 122 Mass. 189 ; Morse v. Shaw (1878), 124 Mass. 59 ; Homer v. Perkins (18/8), 124 Mass. 434 ; Teague v. Irwin (1879), 127 Mass. 217 ; Stubbs v. Johnson (1879), 127 Mass. 219. See Veasey v. Dotou (1862), 3 Allen, 381. " Morgan v. Bliss (1806), 2 Mass. Ill ; Tryon v. Whitmarsh (1840), 1 Mete. 1, 6 ; Wellington v. Small (1849), 3 Cush. 149 ; Ksher v. Mellen (1870), 103 Mass. 505. See Commonwealth ». MoDuffy (1879), 126 Mass. 467. » Eandall v. Hazelton (1866), 12 Allen, 415. See Carter v. Towne (1870), 103 Mass. 507. * Medbury v. Watson (1843), 6 Mete. 257- See Stiles v. White (1846), 11 Mete. 356. FRAUD. 153 § 258. Silence as Fraud. — The fraud may consist in mere silence when it is a duty to speak ; but it is only where a party is under some pledge or obligation to reveal facts to another that mere silence will be considered as a means of deception.^ § 259. Statute concerning Representations as to Credit. — The law regarding certain fraudulent representations has been modiBed somewhat by statute, which provides that " no action shall be brought to charge a person upon or by reason of a representation or assurance made con- cerning the character, conduct, credit, ability, trade, or dealings of any other person, unless such representation or assurance is made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." ^ § 260. The present wording of this section is identical with that inserted in the Eevised Statutes of 1836, which varies from the original statute passed two years before in that it omits the clause which was there inserted, provid- ing that the representation must be made "to the intent or purpose that such person may obtain credit, money, or goods thereupon." This variance was soon passed upon by the court, and it was held that the omission had not changed the law. The court said : " Our first impression was that it was intended to limit still farther than the act of 1834 the rights of persons suing for injuries occasioned by false representations, and that thereafter to make such representations actionable they must be in writing. But, on more reflection, we think that no such alteration was 1 Matthews v. Bliss (1839), 22 Pick. 52 ; Coddington v. Goddard (1860), 16 Gray, 436; Erenoh v. Vining (1869), 102 Mass. 133, 136; Wellington v. Downer Kerosene Oil Co. (1870), 104 Mass. 69. 2 Pub. St. eh. 78, § 4 (prior references, Gen. St. eh. 105, § 4 ; Kev. St. ch. 74, § 3 ; St. 1834, oh. 182, § 5). 154 SALES OF PERSONAL PEOPERTY. intended, and that the section of the Eevised Statutes is not applicable to cases other than those where the intent or purpose of the representation is to enable a third person to obtain credit, money, or goods by means of it." There- fore, in the case in which these remarks were made, the statute was held not to apply, it being shown that B falsely and fraudulently represented to A, who desired to buy a tannery, that he well knew such a tannery as A wanted, which was worth four thousand dollars ; that the owner paid that sum for it, and would sell it for just what it cost him ; whereas the owner only paid three thousand dollars for it, which was more than it was worth when A bought it, — all of which was well known to B.^ The same view has been taken in the subsequent cases, in the latest of which the statute was held not to apply, it being shown that A, who had bought goods of B, paid for them by giving certain notes of third parties, falsely and fraudulently repre- senting that the makers were in good pecuniary circum- stances and able to pay the notes.^ § 261. Representations fraudulently made by Agent. — A representation fraudulently made by an agent, while acting in the business of his principal, and within the scope of his authority, binds the principal the same as if made by himself, although he is personally innocent of the fraud.^ When goods are owned by two persons 1 Medbury v. Watson (1843), 6 Meto. U7, 249, 260. * Cabot Bank v. Morton (1855), 4 Gray, 157 ; Norton v. Huxley (1859), 13 Gray, 287; KimbaU v. Comstock (1860), 14 Gray, 510; WeUs V. Prince (1860), 15 Gray, 563 ; Mann v. Blanohard (1861), 2 AUen, 386 ; McKianey v. Whiting (1864), 8 Allen, 208 ; Belcber v. Costello (1877), 122 Mass. 189. » Lobdell V. Baker (1840), 1 Mete. 201, 202 ; Locke v. Steams (1840), 1 Mete. 560, 563; Kibbe v. Hamilton Ins. Co. (1858), 11 Gray, 163, 168 ; White ». Sawyer (1860), 16 Gray, 589 ; fogg v. Griffin (1861), 2 Allen, 6. FKAUD. 155 jointly, and fraudulent representations are made by one of them acting for both, in the sale of the goods, they are jointly liable in an action of deceit.^ Similarly all the members of a partnership are answerable in tort for a fraud committed by one of them in the sale of partnership property.^ § 262. statement False to the Knowledge of the Princi- pal, but believed to be True by Agent. — Where a contract is made by an agent, which the other party is induced to enter into by a representation made by the agent of a material fact which is false within the knowledge of the principal, but not so within that of the agent, the contract is probably void on the ground of fraud.^ But where the agent does not make any representation or statement on behalf of the principal or as his agent, but the question is addressed to him individually, seeking to draw out only his own personal knowledge, and the answer is expressly confined to the agent's own individual information, and does not affirm or deny any fact absolutely, or import either directly or by implication any knowledge of it on the part of the principal, it will not avail the seller for the purpose of avoiding the contract. Thus the agent was asked in Boston if the steamer which had that day arrived in New York brought intelligence of any advance 1 Cook V. Castner (1852), 9 Gush. 276 ; White v. Sawyer (1860), 16 Gray, 586. 2 Locke V. Steams (1840), 1 Meto. 560; Cook v. Castner (1852), 9 Cush. 275, 276. See Gray v. Cropper (1861), 1 Allen, 339. « See Coddiiigton v. Goddard (1860), 16 Gray, 441, 443 ; Smith's Merc. Law (5th ed.), 166, 167 ; 2 Kent, Com. *621, note ; 1 Parsons Contracts (5th ed.), 61 ; per Lord Abinger in Cornfoot v. Sowke (1840), 6 M. & W. 358 ; Puller v. Wilson (1842), 3 Q. B. 58 ; Pitz- simmons v. Joslin (1849), 21 Vt. 129; Lord St. Leonards, in Nat. Exchange Co. of Glasgow v. Drew (1855), 2 Macq. 145, 146; per Lord Campbell, in Wheelton v. Hardisty (1857), 8 E. & B. 270. 156 SALES OF PERSONAL PROPERTY. in the price of the goods in q^uestion in Europe, to which he replied, "None that I know of." This answer was true ; but the principal, before directing the agent to buy, knew that the steamer referred to had brought news of a material advance in the price of the goods, and the seller would not have sold on the proposed terms if he had known it. There was held to be no misrepresentation or concealment.^ 1 Coddington v. Goddard (I860), 16 Gray, 436. FRAUD INJURING THE SELLER. 157 CHAPTEE IV. FRAUD INJURING THE SELLER. § 263. A Sale passes Title, ho'wever Fraudulent the De- vice by which it is induced. — Where the facts show a sale to the party guilty of the fraud, as distinguished from a mere delivery of the goods into his possession, induced by fraudulent devices on his part, the title passes, however fraudulent the device. If A, fraudulently assuming the name of a reputable merchant in a certain town, buys certain goods in person or by letter of B, the title to the goods passes to A, and a common carrier to whom the goods are intrusted for carriage may, if sued by B, jus- tify a delivery to A on the ground that he was the real owner.^ § 264. But it is Voidable at the Election of the SeUer. — The contract is, however, voidable at the election of the seller, but it is not void db initio. The seller may there- fore af&rm and enforce it, or he may rescind it and reclaim the goods.2 Thus the owner of a lot of land offered to sell all the wood standing thereon at a certain price per acre, and either have the land measured or call it seven acres, and gave the purchaser a week to consider it. At the end of this time the purchaser took it at seven acres, paid the price, and received a bill of sale of all the wood on the lot. 1 Samuel v. Cheney (1883), 135 Mass. 278; Edmunds v. Merchants' Transportation Co. (1883), 185 Mass. 283. 2 Rowley V. Bigelow (1832), 12 Pick. 312, 313 ; Hazard v. Irwin (1836), 18 Pick. 102 ; Brown v. Pierce (1867), 97 Mass. 49 ; Perkins V. Bailey (1868), 99 Mass. 61. 158 SALES OF PERSONAL PROPERTY. On evidence that while the bill of sale was being drawn up, the purchaser, in reply to questions of the seller, said that he had not fully measured the lot, but thought there were little more than eight acres in it, when in fact since the offer he had ascertained by actual survey that it con- tained sixteen acres, it was held that the seller was en- titled to rescind the sale.'' § 265. Sale of the Goods by the Fraudulent Purchaser to Innocent Third Party. — But if before the sale is re- scinded the buyer sell or pledge the goods to an innocent third person for value, the rights of the original seller will be subordinate to those of such innocent third person.^ The rule only covers hona fide, purchasers who have actu- ally paid for the goods. If they have only given security for them, or discharged an old debt by the purchase, the goods may be reclaimed by the owner, and when reclaimed the security given becomes void and the old debt revives. In other words, the rule covers only a party who, if the goods are reclaimed, cannot be left in as good a condition as if he had not bought.^ It does not extend to creditors of the fraudulent purchaser who attach the goods as his property, but the seller may reclaim them in the hands of the attaching officer.* Similarly, he may reclaim the goods from the messenger who has seized them under a warrant 1 Prescott V. Wriglit (1855), 4 Gray, 461. ^ Hussey V. Thornton (1808), 4 Mass. 407 ; Somes v. Brewer (1824), 2 Pick. 184, 301 ; Rowley v. Bigelow (1832), 12 Pick. 313 ; George v. Kimball (1836), 24 Pick. 241 ; Hoffman v. Noble (1843)^ 6 Mete. 68, 74 ; Green «, Tanner (1844), 8 Mete. 411, 4^1 ; Dow w. Sanborn (1861), 3 Allen, 181, 183; Haskins v. Warren (1874), 115 Mass. 515, 538. 8 George v. Kimball (1836), 24 Pick. 241. * Buffington ». Gerrish (1818), 15 Mass. 156 ; Smith v. Dennie (1828), 6 Pick. 266 ; Wiggin v. Day (1857), 9 Gray, 97 ; Atwood v. Dearborn (1861), 1 Allen, 483 ; Whitman v. MerriU (1878), 125 Maas. 127. FRAUD INJURING THE SELLER. 159 of insolvency as the property of the fraudulent buyer.^ The burden of proof is on such purchaser to establish that he bought the goods in good faith, without notice and for value paid.^ § 266. 'Where there is Mere Delivery of Possession in- duced by Fraud. — If, however, the intention of the seller was not to pass the title and make a sale, but merely to part with the possession, there is no sale, and he who gets such possession by fraud can convey no title to any third person, however innocent, for no title has passed to himself from the true owner.^ Thus A, falsely representing him- self to be a member of a firm, bought in the name of the firm goods from B, who sent them by a carrier to the firm. On the refusal of the firm to receive them, A sold them to C, to whom they were delivered by the carrier at A's re- quest. It was held that A had no title to the goods, and that B could maintain his action against C for their con- version, although C was a purchaser for value, acting in. entire good faith.* § 267. Wo one but the Seller can avoid the Sale. — As the contract is valid at the election of the defrauded seller, it foUows that no one else can treat it as void, if he does not. Thus where the defrauded seller resold the goods, without taking steps to rescind the first sale and regain the title, it was held that the second buyer could not claim an avoidance of the former sale or hold the property against the dishonest buyer.^ § 268. Seller must rescind in toto, if at all. — If the' 1 Bussing V. Rice (1848), 2 Cush. 48. 2 Easter v. Allen (1864), 8 Allen, 7, 10. 8 CoggiU V. Hartford & N. H. R. R. (1854), 3 Gray, 545. ^ Moody V. Blake (1875), 117 Mass. 23; Edmunds v. Merchants' Transportation Co. (1883), 135 Mass. 283. 6 Brown V. Pierce (1867), 97 Mass. 46. 160 SALES OF PERSONAL PROPERTY. seller rescind, he must do so in toto. He cannot treat part of the contract as valid, and rescind the rest. He must not seek to retain any part of the consideration he has re- ceived.^ He must rescind, if at all, within a reasonable time after coming to a knowledge of the fraud, otherwise his silence will be construed as an election to affirm or an affirmance by acquiescence.^ Whether the act of avoid- ance is within a reasonable time is a question of law to be decided by the court upon all the circumstances of the case, unless something equivocal in these circumstances or material facts in dispute require a submission to the jury with instructions.^ § 269. Rescission, how effected. — It is not necessary that there should be a judgment of court in order to effect the avoidance of the contract when the deceived party re- pudiates it. The rescission is the legal effect of his elec- tion to reject it, and takes date from the time at which he announces this election to the opposite party. The seller may, if the buyer refuse to deKver the goods on demand, treat it as a conversion and sue in trover, or he may sue in replevin or bring an action in tort for deceit. § 270. Adoption of one Remedy when a Waiver of others. — If, with a full knowledge of all the facts which ought to influence him in his election, he commences an action for the price, it is held that he has then by neces- sary implication once for all affirmed the sale, and cannot, * Kimball v. Cunningham (1808), 4 Mass. 505 ; Conner v. Hender- son (1818), 15 Mass. 319 ; Thurston v. Blanchard (1839), 22 Pick. 20 ; Thayer v. Turner (1844), 8 Mete. 550, 552 ; Bartlett v. Drake (1868), 100 Mass. 176 ; Estabrook v. Swett (1874), 116 Mass. 303. See ante, § 236. "■ Perley r. Balch (1839), 23 Pick. 283 ; Hoffinan v. Noble (1843), 6 Mete. 74 ; Bassett v. Brown (1870), 105 Mass. 551. ' Holbrook v. Burt (1839), 22 Pick. 546, 555 ; Bassett v. Brown (1870), 105 Mass. 557. FRAUD INJURING THE SELLER. 161 ty discontinuing his action, resort to the other remedies.^ So where he brought an action for deceit, this was held to show his election to affirm the contract and recover dam- ages for the breach of it, and that he could not thereafter sue in trover.^ § 271. But it seems otherwise where facts subsequently come to his knowledge which, if he had known them he- fore, would have led him to a different election, whether these facts relate to the character of the sale or whether they relate to the remedy ; as if he supposed he had se- cured a valid attachment of the defendant's property, but afterwards discovers that it is not the property of the defendant and that his supposed remedy has failed, or if he discovered that the defendant had an offset which would be good against assumpsit for the price, but not good against an action of trover;^ or where before trial he found that he had misconceived his remedy, and thereupon discontinued his suit, which, under the circumstances as they were found to be, could not have been maintained.* § 272. Where the defrauded seller replevied the goods which had been paid for by the giving of several promis- sory notes by the buyer, and subsequently joined with other creditors in a petition for involuntary bankruptcy against the buyer, representing and making oath that he was the owner of all of these notes, and afterwards proved one of them in bankruptcy, and voted in the choice of an assignee, it was held that he could not maintain the re- plevi^l suit. The claim of a right to rescind the contract 1 Butler V. Hildreth (18*2), 5 Mete. 49 ; Connihan v. Thompson (1873), 111 Mass. 272. 2 Kimball v. Cunningham (1808), 4 Mass. 502, 506. 8 Butler V. Hildreth (1842), 5 Mete. 49. * Peters v. Ballistier (1826), 3 Pick. 495, 506. 11 162 SALES OF PERSONAL PEOPERTY. was wholly inconsistent with his acts in regard to the bankruptcy.^ § 273. But the plaintiff may join a count in contract for the price of the goods with a count in tort for their conversion, and this will be no waiver of his right to re- scind the sale when it appears that all the counts were intended to disaffirm it, although before bringing the action he made a demand for the price. It is within the discre- tion of the presiding judge to decide at what stage of the trial the plaintiff must elect on which count he will rely ; and the decision of the judge in this respect is not a sub- ject of exceptions.^ § 274. Purchase by One who at the Time inteudE not to pay the Price. — A purchase of goods by one who at the time intends not to pay for them is such a fraud as will entitle the seller to avoid the sale, although there were no fraudulent misrepresentations or false pretences.* It is enough to show that the buyer knew himself to be insol- vent, and had no reasonable expectation of being able to pay for the goods when purchased.* Evidence is admis- sible that purchases of the same fraudulent character were made by him of other parties at or about the same time, provided it is shown that the several purchases are parts of one scheme or plan of fraud committed in pursuance of a common purpose.^ A purchase of goods with an intent 1 Seavey v. Potter (1876), 121 Mass. 297. See Ormsby v. Dear- born (1874), 116 Mass. 386. 2 Crafts V. Belden (1868), 99 Mass. 535. " Wiggin V. Day (1857), 9 Gray, 97 ; Dow v. Sanborn (1861), 3 Allen, 181 ; Kline w. Baker (1868), 99 Mass. 255 ; Jordan v. Osgood (1872), 109 Mass. 461. * Rowley «. Bigelow (1832), 12 Pick. 307, 311. 6 Rowley v. Bigelow (1832), 12 Pick. 307 ; Wiggin v. Day (1857), 9 Gray, 97 ; Jordan v. Osgood (1872), 109 Mass. 457, 461 ; Haskins V. Warren (1874), 115 Mass. 515, 538 ; Horton v. Weiner (1878), 124 Mass. 93 ; Edmunds v. HUl (1882), 133 Mass. 445. FRAUD INJURING THE SELLER. 163 not to pay for them is expressly recognized by statute as a fraud which will deprive the debtor of the benefit of the act for the relief of poor debtors, and may subject him to sentence of imprisonment.^ § 275. Fraud in Auction Sales. — It is sometimes a fraud upon the seller to prevent other persons from bidding at -an auction of the goods sold. Thus a sale at auction will be invalidated when the purchasers are guilty of fraudulent acts or combinations having for their object to stifle fair competition at the biddings, with the design of becoming the purchasers at a price less than the fair value of the property. The existence of such fraud not only en- ables the seller to rescind the sale if he choose, but also operates to prevent any one of the fraudulent associates from compelling the other or others to carry out the agree- ment entered into, and also prevents any suit for damages growing out of a breach of the agreement. Dewey, J., stated the rule as follows : " An agreement between A and B that A will permit B to become the purchaser of certain property about to be offered at sale at public auction, and that A shall participate with B in the benefits of the pur- chase, will or will not be fraudulent as the circumstances of the case show innocence of intention or a fraudulent purpose in making such agreement ; that where such ar- rangement is made for the purpose and with the view of preventing fair competition, and, by reason of want of bid- ders, to depress the price of the article offered for sale below the fair market value, it will be illegal, and may be avoided as between the parties as a fraud upon the rights of the vendor. But, on the other hand, if the arrangement is entered into for no such fraudulent purpose, but for the 1 Pub. St. oh. 162, §§ 17, 53 (prior references. Gen. St. eh. 124, §§ 5, 34; Rev. St. oil. 98, §§ 31, 36); Horton v. Weiner (187S), i24 Mass. 92. 164 SALES OF PERSONAL PROPERTY. mutual convenience of the parties, as with the view of en- abling them to become purchasers, each being desirous of purchasing a part of the property offered for sale, and not an entire lot, or induced by any other reasonable and hon- est purpose, such agreement will be valid and binding." ^ § 276. Rescission must be for Fraud 'vrhich forms Part of the Transaction. — The fraud which will entitle the seller to rescind must enter into and form part of the transaction of sale. It is immaterial that the buyer has been guilty of crime or fraud in entirely independent transactions, having no connection with this particular purchase, although one of the incidental effects of its dis- covery is to prevent the seller from obtaining payment. The fact that a man commits a crime or fraud the exposure of which will destroy his credit and render him insolvent, and conceals it, cannot be held to make voidable every purchase which he makes upon credit, if made without fraud and in good faith.^ § 277. Contract made in another State is governed by Law of that State. — Where the contract was made in another State, and the seller sought to avoid it and reclaim the goods here, on the ground that the buyer purchased them with an intention not to pay for them, it was held that the case was governed by the law of that State, which to make the sale void required " artifice intended and fitted to deceive, practised by the buyer upon the seller." ^ 1 Phippen v. Stickney (1841), 3 Mete. 384, 388 ; Gibbs v. Smith (1874), 115 Mass. 593. 2 Comins v. Coe (1875), 117 Mass. 45, 49. « Kline v. Baker (1868), 99 Mass. 253. FEAUD INJURING THE BUYER. 165 CHAPTER V. FRAUD INJURING THE BUYER. § 278. Buyer's Rights. — Where a buyer has been im- posed on by the fraud of the seller, he has a right to repudiate the contract. Under such circumstances he may refuse to accept the goods, if he discover the fraud before delivery, or return them, if the discovery be not made till after delivery ; ^ or he may affirm the sale, keep the goods, and sue in deceit for damages.^ § 279. Must restore the Goods unchanged in Condition. — If he has paid the price, he may recover it back, on offering to return the goods in the same state in which he received them. But this ability to restore the goods un- changed in condition is indispensable to the exercise of the right to rescind, so that if the purchaser has innocently changed that condition, vv'hile ignorant of the fraud, he cannot rescind, unless the thing bought be entirely worth- less to both parties. If it be of any value to the seller, or if its loss would be any injury to him, it must be returned, regardless of its intrinsic market value.^ 1 King V. Eagle Mills (1865), 10 Allen, 551. 2 Gardner v. Lane (1868), 98 Mass. 517, 520. ^ Kimball v. Cunningham (1808), 4 Mass. 502 ; Conner v. Hender- son (1818), 15 Mass. 319 ; Perley v. Baloli (1839), 23 Pick. 283 ; Coolidge V. Brigliam (1840), 1 Mete. 547 ; Thayer v. Turner (1844), 8 Mete. 552 ; Morse v. Brackett (1867), 98 Mass. 209, and (1870), 104 Mass. 494; Bradley v. Poole (1867), 98 Mass. 169; Bartlett ». Drake (1868), 100 Mass. 176; Bassett v. Brown (1870), 105 Mass. 551, 558 ; Brewster v. Burnett (1878), 125 Mass. 68 ; Grant v. Mellen (1883), 134 Mass. 335. 166 SALES OF PERSONAL PROPERTY. § 280. Effect of Unreasonable Delay by Buyer. — The contract is only voidable, not void, and if after discovery of the fraud the buyer acq[uiesces in the sale by an un- reasonable delay in disaffirming, or by express words, or by any unequivocal act, such as treating the property as his own, his election will be determined, and he cannot after- wards reject the property.^ But though for any reason he may not be able to rescind, or may not choose to do so, he has a remedy by action of deceit for damages against the seller, or he may recoup in damages, if sued for the price. The affirmance of the contract by the buyer after discovery of the fraud merely extinguishes his right to rescind. His other remedies remain unimpaired. § 281. Silence of Seller as to Defects. — In general, where an article is offered for sale, and is open to the in- spection of the purchaser, the law does not permit him to complain that the defects of the article, if any, are not pointed out to him. But where a person sold for the pur- pose of being fed to a cow part of a lot of hay on which he knew white lead to have been spilt, and the cow died from the effect of the lead in the hay, he was held liable for her loss, although he carefully endeavored to separate and remove the damaged hay, and thought that he had suc- ceeded. The court said that the act of sale under such circumstances was equivalent to an express assurauce that the hay was suitable for such use. If he knew that the hay had a defect about it, or had met with an accident that rendered it not only unsuitable for that use, but dan- gerous or poisonous, it would plainly be a violation of good faith and an illegal act to sell it to the plaintiff, without disclosing its condition. Silence in such a case would be 1 Holbrook V. Burt (1839), 32 Pick. 546, 555 ; Perley v. Baleh (1839), 23 Pick. 386 ; Hoffman v. Noble (1843), 6 Mete. 74 ; Bassett V. Brown (1870), 105 Mass. 551, 557. FRAUD INJURING THE BUYER. 167 deceit.^ So although the goods are examined by the pur- chaser at or before the sale, if they are so prepared and made to present such an appearance as to deceive skilful dealers, the buyer would be entitled to rescind the con- tract, and if he had paid the price, could, by returning the goods, recover on a count for money had and received, if there had been no warranty.^ § 2S2. Rules of Caveat Emptor and Simplex Commen- datio non Obiigat. — There is a class of cases where it is virtually held that the buyer has no right to be deceived, — no right to rely on the seller's statements or repre- sentations, or to place confidence in them. These are cases governed by the rules of caveat emptor and simplex com- mendatio non obiigat. Thus the mere statements of a seller as to the quaLity or value of the goods, or the price which he has given or been offered for them, however exaggerated, false, and deceptive, are not actionable, if the buyer has a full and fair opportunity of inspection, and no means are used for hiding the defects. He is bound to examine or inquire for himself, and trust his own judgment, or take a warranty from the seller.^ § 283. It appears by the cases cited that the same rule applies to the affirmations or expressions of opinion of a 1 French «. Vining (1869), 102 Mass. 132, 136 ; Welliiigton V. Downer Kerosene Oil Co. (1870), 104 Mass. 69. 2 Henshaw v. Robins (1845), 9 Meto. 83, 90. 8 Rubber Co. v. Adams (1839), 23 Pick. 265 ; Medbury v. "Watson (1843), 6 Mete. 259; Brown v. Castles (1853), 11 Cusb. 350; Gordon V. Parmelee (1861), 2 Allen, 214; Veasey v. Daton (1862), 3 Allen, 380 ; Pedrick v. Porter (1862), 5 Allen, 324, 326 ; Hemmer v. Cooper (1864), 8 Allen, 334 ; Manning v. Albee (1866), 11 Allen, 522 ; Powers V. Mayo (1867), 97 Mass. 187 ; Mooney v. Miller (1869), 102 Mass. 217, 220 ; Cooper v. Lovering (1870), 106 Mass. 79 ; Brown v. Leaoh (1871), 107 Mass. 364; Parker v. Monlton (1873), 114 Mass. 100; Homer v. Perkins (1878), 124 Mass. 433 ; Poland v. Brownell (1881), 131 Mass. 142. 168 SALES OF PERSONAL PEOPEETY. purchaser in regard to the value of the property he desires the seller to take in payment for property he is attempting to buy. It also applies to expressions of opinion as to the solvency or pecuniary ability of third parties, whose notes are offered in payment for goods purchased. In these cases, the seller is in the position of a buyer of the thing which is so offered in payment, and the rules that apply to a buyer then apply to him. § 284. Same Statements if made by Third Person. — But these false statements, if made by a third person, with intent to deceive, would be actionable ; nor is it necessary that he should be benefited by the deceit, or that he should be in collision with the person who received the benefit. The distinction is obvious. In the one, the buyer is aware of his position. He is dealing with the owner of the goods, whose aim is to secure a good price, whose interest it is to put a high estimate upon his goods, and whose great object is to induce the purchaser to make the. purchase. But in the other case, he who makes the false assertions has apparently no object to gain. He stands in the situation of a disinterested person who has no motive or intention to depart from the truth, and who thus throws the buyer off his guard and exposes him to be misled by the deceitful representations.^ § 285. Misrepresentation of Particular Facts. — The seller is liable, however, for fraudulent misrepresentations of par- ticular facts in relation to the goods which the buyer has not equal means of knowing, by which he is induced to forbear inquiries that he otherwise would have made, or, as it is sometimes put, the seller is liable for misrepresenta- tions as to facts which have a bearing and throw light on the question of value.^ Thus on the sale of the good-will 1 Medbary v. Watson (1843), 6 Mete. 360. « Medbiiry v. Watson (1843), 6 Meto. 260 ; Brown v. Castles FEAUD INJURING THE BUYER. 169 of a business and certain property used therein, the seller was held liable for fraud in representing that a horse which was a part of the property sold was good and true to work, when in fact he was vicious and incapable of any useful employment ; that he had four stands for business which he could transfer to the buyer, when in fact he had none ; and in falsely representing the amount and extent of the business, these being facts peculiarly within the seller's knowledge.^ So, too, the seller was held liable when he falsely and fraudulently represented that the steam-engine S0I4, was of twenty horse power ; that it was fit for mining purposes ; that it was in perfect order, bright, and clear of rust ; that engineers had examined it and certified it to be in fine order ; that it had been standing but two or three years, and that it was ready for immediate use.^ So, too, the seller was held liable when, in selling certain railroad bonds, he falsely and fraudulently represented that they were selling in the market at a certain price, and exhibited as reliable and correct a newspaper containing false quota- tions thereof Here the court said the buyer had not equal means of knowing the truth or untruth of the state- ment, and might rely on it without imputation of negli- gence.* The seller was held liable in an action of deceit for false and fraudulent representations in the sale of a patent-right, made as to what was covered by the patent and what was not covered by an earlier patent, and this although by searching the records of the Patent Of&ce the buyer might have discovered the fraud.* The same rule (1853), 11 Cash. 350; Mooney v. Miller (1869), 103 Mass. 220; Homer v. Perkins (1878), 124 Mass. 433 ; Savage v. Stevens (1879), 126 Mass. 208. 1 Nowlan v. Cain (1861), 3 Allen, 261, 263. 2 Hazard v. Irwin (1836), 18 Pick. 95, 104. 8 Manning v. Albee (1866), 11 Allen, 520, 522. 1 David V. Park (1870), 103 Mass. 501. 170 SALES OF PERSONAL PROPERTY. was applied where a person, to induce another to accept an assignment of a certain mortgage as collateral security, fraudulently and falsely represented that the land covered by it had been sold by the owner, a third party, for a certain sum.^ Thus the purchaser was held entitled to rescind for fraud a sale to him of a horse which the seller warranted to be sound, knowing at the time that it was not so.^ § 286. Employment of Fufiers at Auction Sales. — When a sale at auction is advertised or stated to be with- out reserve, the secret employment by the seller of puffers or by-bidders renders the sale voidable by the buyer. The offer of property at auction without reserve is an implied guaranty that it is to be sold to the highest bidder ; and each bidder has the right to assume that all previous bids are genuine. The seller in substance so assures him. The secret employment by the seller of an agent to make ficti- tious bids is equivalent to a false representation by him touching a matter in respect to which he is bound to speak the truth and act in good faith. The real bidder is de- ceived, and the price is enhanced by artifice and false pre- tences. The statement that the sale will be " positive " is equivalent to stating that it will be without reserve. Where the sale was of a large piece of land cut up into several lots, the sale of all the lots being on the same day and part of the same transaction, it was held that any arti- fice or fraud used to deceive the bidders and to enhance the price of the lots first sold would tend to fix the apparent value of all the lots, and to mislead the judg- ment of the real bidders upon the lots afterwards sold. So a purchaser of the last lots sold was allowed to show that the seller secretly procured fictitious bids to be 1 Belcher v. Costello (1877), 123 Mass. 189. '^ Kimball v. Cunningham (1808), 4 Mass. 504, 505. FRAUD INJURING THE BUYER. 171 made upon the lots previously sold, and that he was there- by deceived and misled. He was thereupon entitled to avoid the sale and recover back the deposit paid to the auctioneer.! 1 Curtis V. Aspinwall (1873), 114 Mass. 187, 191. 172 SALES OF PERSONAL PEOPEETY. CHAPTER VI. FRA.UD INJURING CEEDITOES. § 287. Statute of Elizabeth. — The basis of our law on this subject is to be found in the English statute of 13 Elizabeth, ch. 5.^ This was made for the protection of creditors, and it declares all conveyances and dispositions of property, real or personal, made with the intention of defrauding creditors, to be null and void as against them. It also had a proviso that nothing contained therein should extend to defeat any estate or interest made on good con- sideration and lona fide to any person not having at the time any notice of such fraud. This was held to be merely declaratory of the common law, which in this respect fol- lowed the Eoman civil law. § 288. This statute and the principle it embodies was early held to have been adopted and to be in force in this State.2 As it forms part of our common law, it is proper to insert its language in full, omitting only those sections unquestionably not now in force here. " I. For the avoiding and abolishing of feigned, covin- ous, and fraudulent feoffments, gifts, grants, alienations, ' This statute, passed in 1570, was made perpetual in 1587 by 29 Eliz. ch. 5. For earlier statutes of the same effect, see 50 Edw. III. ch. 6, passed in 1376, 2 Rich, II. ch. 3, passed in 1379, and 3 Hen. VII. ch. 4, passed in I486. ^ Drinkwater u. Drinkwater (1808), 4 Mass. 357; Damon v. Bryant (1824), 2 Pick. 413, 414 ; Parkmau v. Welch (1837), 19 Pick. 233, 237; Dyer v. Homer (1839), 22 Pick. 258; Kimball v. Thompson (1849), 4 Cush. 446 ; Pelham v. Aldrich (1857), 8 Gray, 517 ', Livermore v. Bou- telle (1858), 11 Gray, 220; Drake v. Rice (1881), 130 Mass. 412. PRAUD INJURING CREDITORS. 173 conveyances, bonds, suits, judgments, and executions, as well of lands and tenements as of goods and chattels, more commonly used and practised in these days than hath been seen or heard of heretofore, which have been and are de- vised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful ac- tions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, not only to the let or hin- drance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining, and chevisance ^ between man and man, with- out the which no commonwealth or civil society can be maintained or continued. " II. Be it therefore declared, ordained, and enacted that all and every feoffment, gift, grant, alienation, bargain, and conveyance of land, tenements, hereditaments, goods, and chattels, or of any of them, or of any lease, rent, common, or other profit or charge out of the same lands, tenements, her- editaments, goods, and chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment, and execution at any time had or made since the beginning of the Queen's Majesty's reign that now is, or at any time hereafter to be had or made to or for any intent or pur- pose before declared and expressed shall be from hence- forth deemed and taken (only as against that person or persons, his or their heirs, successors, executors, adminis- trators, and assigns, and every of them, whose actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, by such guileful, covinous, or fraud- ulent devices and practices, as is aforesaid, are, shall, or might be in any ways disturbed, hindered, delayed, or de- frauded) to be clearly and utterly void, frustrate, and of ' i. e. enterprise. 174 SALES OF PERSONAL PROPERTY. non-effect, any pretence, color, feigned consideration, ex- pressing of use, or any other matter or thing to the contraiy notwithstanding. "VI. Provided also, and he it enacted, that this act, or anything therein contained, shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods, or chattels had, made, conveyed, or assured, or hereafter to be had, made, conveyed, or as- sured, which estate or interest is or shall be upon good consideration and bona fide lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having at the time of such conveyance or assurance to them made any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid, anything before mentioned to the contrary hereof notwithstanding." § 289. The words " creditors and others " seem to have been inserted with the express intention that the operation of the statute may not be confined to those who are cred- itors at the time; and in the enacting clause the word " creditors " is not used, but general words, " person or per- sons," pointing more strongly in the same direction. § 290. The statute of Elizabeth applied to such convey- ances as were intended to defraud all creditors, and to secure the property to the seller himself, or to some one not a bona fide creditor. It did not avoid conveyances made in satisfaction of an actual debt, but, on the contrary, allowed any preference, provided only that the conveyance was made to satisfy or secure a real debt.^ § 291. The question whether the transfer of the goods was hona fide or fraudulent is one of fact for the jury,^ 1 Per Shaw, C. J., m Ex parte Jordan (1845), 9 Mete. 295. 2 Shurtleff V. Willard (1837), 19 Pick. 211 ; Ingalls ». Herrick (1871), 108 Mass. 354; and the other cases cited in this section. FRAUD INJURING CREDITORS. 175 the turden of proving the fraud being tpon the party- alleging it.^ § 292. Continuance of Seller in Possession. — The con- tinuance of the seller in possession is not of itself enough to render void a sale of goods as fraudulent. It is not in law a fraud per se, but it is a fact to be considered by the jury as evidence of fraud, which may be rebutted by proof that it was a sale for value and in good faith, and that pos- session was retained under an agreement not inconsistent with honesty in the transaction.^ § 293. Sale in Fraud of Creditors is good as between the Parties. — A sale or transfer in fraud of creditors is good as between the parties and their representatives. The law refuses to relieve any man or his representatives from the consequences of his own fraudulent act. The transferee may hold as against the fraudulent transferror.^ Even as to creditors it is not void, but voidable. If the considera- tion was executory, they may affirm and enforce the sale.* 1 EUiott V. Stoddard (1867), 98 Mass. 145. 2 Brooks V. Powers (1818), 15 Mass. 247; Gould v. Ward (1826), 4 Pick. 103 ; Baxter v. Wheeler (1829), 9 Pick. 22 ; Adams v. Wheeler (1830), 10 ]'ick. 202 ; Pletcher v. Wfllard (1833), 14 Pick. 466 ; Macomber v. Parker (1833), 14 Pick. 497, 505, 509 ; Shurtleff «. Wil- lard (1837), 19 Pick. 211; Briggs v. Parkmau (1841), 2 Mete. 263; Oriental Bank v. Haskins (1841), 3 Meto. 338 ; Jones v. Huggeford (1842), 3 Mete. 517, 518; AUen v. Wheeler (1855), 4 Gray, 127; Green v. Rowland (1860), 16 Gray, 59 ; Ingalls v. Herrick (1871), 108 Mass. 354 ; Towne v. Piske (1879), 127 Mass. 125. s Drinkwater v. Drinkwater (1808), 4 Mass. 358 ; Taylor v. Weld (1809), 5 Mass. 116 ; Dyer ». Homer (1839), 22 Pick. 253, 258 ; Brown v. Thayer (1858), 12 Gray, 1; Lerow v. Wilmarth (1864), 9 AUen, 385; Harvey v. Varney (1867), 98 Mass. 120; Preeland V. Preeland (1869), 102 Mass. 477- * Martin v. Boot (1821), 17 Mass. 222 ; Butler «, Hildreth (1842), 5 Mete. 50, 51 ; Snow v. Lang (1861), 2 Allen, 18 ; Tapley v. Forbes (1861), 2 Allen, 25 ; Harvey v. Varney (1867), 98 Mass. 120 ; Pree- land ». Preeland (1869), 102 Mass. 477. 176 SALES OF PEESONAL PROPERTY. So if the transferee makes a sale or conveyance to a bona fide third person for a valuable consideration, before the original bill of sale is impeached by creditors as being in fraud of their rights, the title of such bona fide third person will not be disturbed.^ § 294. As the transfer is good not only between the parties but as against strangers not creditors, the sheriff would be held liable as a trespasser if he attached the goods in the purchaser's hands as belonging to the fraudu- lent seller, unless he put in evidence the writ to show that he was acting for a defrauded creditor of the seller, with evidence that a debt was due such creditor ; and this writ, if returnable, must have been returned and duly entered in court to justify the attachment and protect the officer.^ And if the officer justifies under an execution, he must show the judgment. It is only by showing that he acted for a creditor that he can question the title of such a purchaser.^ Such defence must be specially pleaded in the answer.* § 295. If the sheriff's proceedings under the writ, though proper and legal at the commencement, are afterwards ir- regular and unlawful, he becomes a trespasser ah initio, and is liable. If he justifies under his precept, and has con- ducted himself strictly according to the requirements of law, he is protected. Thus where, execution having been obtained, the officer sold the property attached in a manner unauthorized by law, the sale was tortious, and he became 1 Boyd V. Brown (1835), 17 Pick. 453, 460; Oriental Bank v. Haskins (1841), 3 Mete. 340 ; Grout v. Hill (1855), 4 Gray, 369 ; Green v. Tanner (1844), 8 Mete. 411; Bigelow v. Smith. (1861), 2 Allen, 264 ; Sleeper v. Chapman (1876), 121 Mass. 404, 408 ; Car- roll V. Hayward (1878), 124 Mass. 120. ^ Russ V. Butterfield (1850), 6 Cush. 242. See Stewart v. Thomas (1860), 15 Gray, 171 ; Leggett v. Baker (1866), 13 Allen, 470. 8 Damon o. Bryant (1824), 2 Pick. 418. * ThisseU v. Page (1858), 11 Gray, 394. FRAUD INJURING CREDITORS. 177 a trespasser ab initio, and an action against him by the fraudulent purchaser was sustained.^ § 296. Distinction bet-ween Existing and Subsequent Creditors. — A transfer, fraudulent as to existing creditors,, may be avoided by subsequent creditors. If a conveyance is made with the purpose of defrauding either existing or future creditors, it may be impeached by either class, or by an assignee in insolvency, or by the administrator of the intestate debtor as representing both classes.^ It was urged that, as the transfer was good and valid as between the parties, the creditors must appear and prosecute in their own name, and that the administrator must be deemed the persgnal representative of the deceased, and as such could only avoid a conveyance which his intestate might have avoided. The court, however, held that he was also trustee and representative of creditors, and as, such could stand upon their rights and assert claims which the intestate himself could not have asserted. § 297. But if it is not fraudulent as to existing credit- ors, the subsequent creditors can avoid it, only by showing that it was made with a fraudulent view to incurring lia- bilities, or with a view to embarking in a hazardous busi- ness which gives rise to their debts. The evidence in such case should go far enough to satisfy the jury that there was fraudulent intent on the part of the transferror to contract debts, and a design to avoid payment of such debts by such transfer, though it is not necessary to 1 McGough V. Wellington (1863), 6 Allen, 505. 2 Martin v. Koot (1821), 17 Mass. 228 ; Damon v. Bryant (1824), 2 Pick. 414; Gibbens v. Pesler (1839), 8 Pick. 254; Parkman v. Welch (1837), 19 Pick. 237 ; Holland v. Gruft (1838), 20 Pick. 321, 328-331 ; Norton v. Norton (1850), 5 Gush. 524, 530 ; Livermore v.. Bontelle (1858), 11 Gray, 220 ; Lynde v. McGregor (1866), 13 AUen, 180 ; Day v. Cooley (1875), 118 Mass. 527- See Lerow v. Wilmarth (1864), 9 Allen, 386. 12 178 SALES OF PERSONAL PROPERTY. show that he intended to contract any particular debt or debts.i § 298. The cases cited show also that when the buyer participates^in the fraudulent intention the sale may then be avoided by the existing or subsequent creditors of the seller, although it was made for a full consideration and by a seller who at the time was fully solvent. An as- signment of a chose in action made in fraud of creditors is void as against them. In this State it may be avoided by trustee process,^ § 299. Sales made in Fraud of Insolvency Law^s. — Contracts of sale wiU also be avoided as fraudulent against creditors, when made in furtherance of an attempt to dis- turb the principles on which the insolvency act is based, the object of such act being to secure an equal ratable dis- tribution of the debtor's property among his creditors. The law in respect to such cases is fixed by statute, which provides that "if a person, being insolvent or in contem- plation of insolvency, within six months before the filing of the petition by or against him, with a view to give a pref- erence to a creditor or person who has a claim against him, or is under any liability for him, procures any part of his property to be attached, sequestered, or seized on execution, or makes any payment, pledge, assignment, transfer, or con- veyance of any part of his property, either directly or in- directly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, having reasonable cause to believe such person is insolvent or in contemplation of 1 Bennett v. Bedford Bank (1814), 11 Mass. 420 ; Pelham v. Aldrich (1857), 8 Gray, 517 ; Thacher v. Phinney (1863), 7 AUen, 150; Win- chester V. Charter (1866), 12 Allen, 609-611 ; Wadsworth v. Williams (1868), 100 Mass. 131 ; Day r. Cooley (1875), 118 Mass. 524. 527 ; Dodd V. Adams (1878), 125 Mass. 398.' 2 Drake v. Bice (1881), 130 Mass. 410. 413. FRAUD INJURING CREDITORS. 179 insolvency, and that such payment, pledge, assignment, or conveyance is made in fraud of the laws relating to insol- vency, the same shall be void ; and the assignees may re- cover the property, or the value of it, from the person so receiving it or so to be benefited." ^ § 300. In another section it is further provided that "if a person, being insolvent or in contemplation of insolvency, ■within six months before the filing of the petition by or against him, makes a sale, assignment, transfer, or other conveyance of any description of any part of his property to a person who then has reasonable cause to believe him to be insolvent or in contemplation of insolvency, and that such sale, assignment, transfer, or other conveyance is made with a view to prevent the property from coming to his assignee in insolvency, or to prevent the same from being distributed under the laws relating to insolvency, or to defeat the object of, or in any way to impair, hinder, impede, or delay the operation and effect of, or to evade any of said provisions, the sale, assignment, transfer, or con- veyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the insolvency. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, that fact shall be prima facie evidence of such cause of belief."^ § 301. Under this section, as weU as under the statute of Elizabeth, no offer to return the consideration received by an insolvent debtor for goods sold by him in violation 1 Pub. St., ch. 157, § 96 (prior references, Gen. St. ch. 118, § 89 ; St. 1838, eh. 163, § 10 ; St. 1841, ch. 124, § 3 ; St. 1856, ch. 284, §§ 25, 36). See Wall v. Lakin (1847), 13 Mete. 167 ; Judd ». Gibbs (1855), 3 Gray, 539 ; Burpee v. Sparhawk (1867), 97 Mass. 342. 2 Pub. St. ch. 157, \ 98 (prior references, Gen. St. oh. 118, § 91 ; St. 1856, oh. 284, § 27). See Pearson v. Goodwin (1864), 9 Allen, 180 SALES OF PERSONAL PROPERTY. of its provisions is necessary in order to enable his assignees to sustain an action against the purchaser to recover the value of the goods.^ A mortgage of personal property which, as to some portion of the debt thereby secured, is in contravention of these sections is wholly void.^ § 302. Restoration by the Fraudulent Grantee. — If B, the party to whom goods are conveyed by A in fraud of A's creditors, has, before any service of process upon him by or on behalf of such creditors, delivered back to A the goods received in such manner, that they may be attached by the creditors, or if he has paid the proceeds to honafide creditors of A in satisfaction of their just claims, so that at the time of service of the writ he truly has nothing in his hands, he cannot be subjected to a judgment. If B has repented of the fraudulent purpose, and restored the goods or their proceeds or their value to A for his own use, it is enough to free B of any further liability, and the pay- ment of iona fde creditors of A without notice is such a restoration to A.^ § 303. Conveyance 'where one of the Minor Purposes is to defraud Creditors. — Where A conveys certain goods to B, and one of the purposes in so doing is to defraud A's creditors and deter them from attaching the goods in ques- tion, the conveyance is wholly void as to those creditors, although the principal purpose of the parties is to secure a Iona fide debt due from A. Such a purpose taints the conveyance and renders it wholly inoperative as against creditors.* The court said : " It would be no discourage- 1 Tapley v. Porbes (1861), 2 Allen, 20. 2 Denny v. Dana (1848), 2 Cush. 160. « Thomas V. Goodwin (1815), 12 Mass. 140 ; Oriental Bank v. Haskins (1841), 3 Mete. 332 ; Crowninshield v. Kittridge (1844), 7 Mete. 622-524. See Lynde e. MeGregor (1866), 13 Allen, 181 ; Harvey v. Vamey (1867), 98 Mass. 130. * Harris v. Sumner (1824), 2 Pick. 137, 138 ; CrowninsMeld v. FKAUD INJURING CREDITORS. 181 ment to such practices, if the party grantee could avail himself of all his claims, after the legal fraud should have heen detected, as he might have done, if he had not joined or aided in such an unlawful attempt; but had taken a con- veyance only for the security of his own debt or for other lawful purposes. He would reason thus, ' If the convey- ance shall be established, I shall save my own debt and enable my friend to cover up his property from his cred- itors, while if it shall be avoided only in part, I shall notwithstanding save my debt. I will therefore help my friend to lock up his property from attachment, as in no event am I to be prejudiced by so doing.' " § 304. "Where one buys G-oods fraudulently and aids the Seller to abscond. — An action on the case for the defendant's fraudulently purchasing personal property of the plaintiff's debtor, and aiding the debtor to abscond, in order to prevent the plaintiff from enforcing payment of his debt by attaching the property or arresting the body of the debtor, cannot be sustained; but the proper remedy is either to attach specifically the property fraudulently transferred, or to attach it in the defendant's hands by the trustee process. '^ The reasons given were that the action was without precedent ; that the plaintiff had no lien on the property of his debtor, no interest in it, claim on it, or right to it, when the defendant converted it to his own use; that such conversion merely lessened the plaintiff's chances of acc[uiring a right to the property, or a hold upon it by way of security for his dues; that the defendant would be liable to a like action by every other creditor as well as by the plaintiff; and that the damage, if any, was Kittridge (1844), 7 Meto. 530. See Banfleld v. Wliipple (1867), 14 Allen, 13. 1 Lamb v. Stone (1831), 11 Pick. 527, 533-635 ; Wellington v. Small <1849), 3 Cusli. 145, 148, 149. 182 SALES OF PERSONAL PROPERTY. too remote and contingent to be the ground of an action. The case is not varied by the fraudulent intent of the defendant, because such intent could not make the plain- tiff's damages any greater or any less remote and contingent than it would have been if no such intent had existed. The uncertainty of the plaintiff's damage seems of itself alone a sufficient reason for his not recovering. How could he prove that he would have secured his debt by attaching the property of his debtor, if the defendant had not inter- meddled ? Other creditors might have attached it before him, or it might have been stolen, lost, or destroyed while in the debtor's possession. It depends on numberless un- known contingencies, and can be nothing more than a matter of conjecture. § 305. Sale obtained by Duress, &o. — A bill of sale cannot be impeached or avoided by the seller's creditors, or by an officer attaching the property in their behalf, on the ground that it was obtained from the seller by duress or by other unlawful means. The right of avoidance in such case is personal to the seller. Neither strangers nor any of his creditors have the like right.^ § 306. Although a sale be fraudulent as to creditors, yet it cannot be avoided by a creditor the consideration of whose claim is illegal.^ 1 Lewis V. Bannister (1860), 16 Gray, 500. 2 Alexander v. Gould (1804), 1 Mass. 165. ILLEGALITY AT COMMON LAW. 183 CHAPTEE VII. ILLEGALITY AT COMMON LAW. § 307. 'What Sales are Void. — Sales are void at com- mon law if the contract be tainted with illegality, as if it be forbidden by law, or be contrary to good morals or pub- lic decency, or if it be opposed to what is termed public poKcy.i Thus a contract by which a shareholder in a corporation, in consideration of the purchase of a part of his stock at a price named, agrees to secure to the pur- chaser the office of treasurer of the corporation with a fixed salary, and in case of his removal to repurchase the stock at par, is void as against public policy and as a fraud on the other shareholders, in the absence of evidence that the transaction was not for the private benefit of the share- holder, or that it was consented to by the other members of the corporation.^ Thus, again, an agreement to make " a corner " in stock by buying it up so as to control the mar- ket, and then purchasing for future deliveries, is illegal. Ames, J., said : " No association to carry out such a pur- pose would be recognized at law or in equity. Neither party, as against the other, can enforce what remains to be done or correct what has been done under a contract, or rather a conspiracy, of that description. The law will not help either party. It does not depend on any technical 1 See Fuller v. Dame (1836), 18 Pick. 472, 481-486 ; Frost ». Belmont (1863), 6 Allen, 160. 2 Guernsey v. Cook (1875), 117 Mass. 648, and (1876), 130 Mass. 501. 184 SALES 01" PEESONAI, PROPEKTY. rule as to which party is the first to urge it upon the court in the pleadings. The court will take the whole transaction together, and consider what it is in substance and effect." ^ § 308. Law leaves Parties where it finds them. — The law, from motives of public policy, leaves the parties where it finds them, without remedy against each other.^ Thus the seller can neither recover the price agreed to be paid, nor reclaim the goods from the purchaser. This disability on the part of the seller to reclaim the goods will avail the purchaser holding them as a sufficient title.^ No ac- tion lies even for fraud in connection with a contract void for illegality ; and so where, in an exchange of horses on the Lord's day, one of the parties is guilty of deceitful and fraudulent misrepresentations which induce the other party to consent to the exchange, no action lies for it* Even where part only of the consideration is illegal, the whole contract, if it is in its nature entire, is void and cannot be enforced.^ § 309. Sale elsewhere of Goods to be resold here in Violation of Law. — Where the contract of sale is valid by the law of the State or country where it is made, and the only circumstance affecting its legality here is the mere fact that the seller knew that the purchaser intended to remove the property purchased into this jurisdiction, and 1 Sampson v. Shaw (1869), 101 Mass. 145, 149, 152. 2 Worcester v. Eaton (1814), 11 Mass. 368 ; Ball v. Gilbert (1847), 12 Mete. 402 ; Foster v. Thurston (1853), 11 Cusli. 323 ; King v Green (1863), 6 Men, 139. » Myers v. Meinrath (1869), 101 Mass. 367 ; Horton v. Buffing^jon (1870), 105 Mass. 400 ; Guernsey v. Cook (1876), 120 Mass. 503. See Duffy v. Gorman (1852), 10 Oush. 45. . * Eobeson v. Trench (1846), 12 Mete. 24 ; Myers ». Meinrath (1869), 101 Mass. 369. See, too, Swett v. Poor (1814), 11 Mass. 549. 5 Robinson v. Green (1841), 3 Mete. 161 ; Denny v. Dana (1848), 2 Gush. 160 ; Perkins v. Cummings (1854), 2 Gray, 258; Brigham v. Potter (1860), 14 Gray, 522. ILLEGALITY AT COMMON LAW. 185 to sell it here in violation of our laws, it is nevertheless at common law valid and enforceable here, so far as to per- mit the seller to sue upon it,^ provided that the contract was not made with a fraudulent view to such resale here contrary to law ; ^ and provided also that the seller neither did nor agreed to do anything in aid or furtherance of the unlawful design.^ § 310. Conflict of Laws — Comity. — It was said in an early case that a contract made in a foreign place, valid there and to be there executed, may be enforced by action brought in this State, although the contract is not valid by our law or is even prohibited to our citizens ; unless the Commonwealth or its citizens may be injured by giving the contract a legal effect here, or the enforcing it in our courts would exhibit to the citizens of this State an ex- ample pernicious and detestable.* On similar principles, a sale of goods in another State, the seller knowing but not participating in the intent of the purchaser to sell them again in violation of the law of that State, if held to be valid in that State, wiE support an action in this State for their price.® § 311. Sales in Restraint of Trade. — A contract of sale by the terms of which the seller is restrained generally 1 Mclntire v. Parks (1841), 3 Mete. 307 ; Green v. Collins (1870), 3 Clifford, 494. But see Webster v. Munger (1857), 8 Gray, 587 ; Adams v. Coulliard (1869), 103 Mass. 167, 173; Ely v. Webster (1869), 103 Mass. 304 ; Tracy t>. Webster (1869), 103 Mass. 307 ; Hotchkiss V. linan (1870), 105 Mass. 86 ; Lindsey v. Stone (1877), 133 Mass. 383. 2 Orcutt V. Nelson (1854), 1 Gray, 541 ; Webster v. Munger (1857), 8 Gray, 584, 587. 8 Poster e. Thurston (1853), 11 Cush. 333; Hubbell v. Pliut (1859), 13 Gray, 377. * Greenwood ». Curtis (1810), 6 Mass. 358, 377. See Milliken v. Pratt (1878), 135 Mass. 375, 380. 6 Dater v. Earl (1855), 3 Gray, 482. 186 SALES OF PERSONAL PEOPEETT. in the carrying on of Ms trade or business is against public policy and is void.^ These cases arise generally in the sale of a business, including the good-will, where the buyer desires to guard himself against the competition in trade of the person whose business he is purchasing. But an agreement not to run a stage-coach on a certain road specified, as between Boston and Providence,^ or an agree- ment not to carry on a trade or business within a particu- lar town or city'' or county,* is valid; but a restraint extending throughout the State is void.^ A covenant not to be interested directly or indirectly in any voyage to the northwest coast of America, or in any traffic with the natives of that coast, for seven years, was held to be valid.^ A person may lawfully sell the right to carry on a trade based on a secret process, and bind himself not to carry it on in competition and not to divulge the secret.^ So, also, as to any business which is protected by a patent.^ § 312. Where a man sold a patent-right, and in order to sell it to greater advantage, and as a part of the trans- action of sale, and for one and the same consideration received by him for the patent, covenanted to use his best 1 Alger V. Thacher (1837), 19 Pick. 61, a leading case. " Pierce v. Fuller (1811), 8 Mass. 323. See Angier v. Webber (1867), 14 Allen, 311. ' Pierce v. Woodward (1838), 6 Pick. 306 ; Oilman v. Bmght (1859), 13 Gray, 356 ; Dwight v. Hamilton (1873), 113 Mass. 175 ; Boutelle v. Smith (1874), 116 Mass. Ill ; Eopes v. Upton (1878), 125 Mass. 358. * Dean v. Emerson (1869), 102 Mass. 480. 6 Taylor v. Blanchard (1866), 13 Allen, 370. 6 Perkins v. Lyman (1813), 9 Mass. 522. ' Vickery v. Welch (1837), 19 Pick. 533, 527; Peabody v. Nor- folk (1868), 98 Mass. 453 ; Morse Machine Co. v. Morse (1869), 103 Mass. 75. 8 Steams v. Barrett (1823), 1 Pick. 443 ; Morse Machine Co. v. Morse (1869), 103 Mass. 74. ILLEGALITY AT COMMON LAW. 187 efforts to invent improvements in the process and to trans- fer them to the buyer, to do no act which might injure the buyer or the business, and " at no time to aid, assist, or encourage in any manner any competition against the same," it was held not to be void as in restraint of trade. ^ In this same case the court said: " In former times almost every species of business that was carried on was of a local character. Eecent English cases have considered this prin- ciple with reference to business which was not local It is said that public policy recLuires that when a man has by skill or other means obtained something that he wants to sell, he should be at liberty to sell it in the most advanta- geous way in the market ; and in order to enable him to do this, it is necessary that he should be able to preclude him- self from entering into competition with the purchaser, provided the restriction is not unreasonable. He may not have any more restraint than is necessary for the benefit of the purchasers, but to that extent he may have it. In this country there are periodical publications that have a very wide circulation, and it is obvious that a purchaser of the proprietorship cannot afford to pay the full value, un- less he can obtain from the seller a valid restriction against competition, which restriction shall be as extensive as his interest requires, though it may cover the whole of a State or the whole of a country. The same would be true of some books. For example, the author of a popular school- book could not sell its proprietorship for its full value, unless he could bind himself not to prepare another book which should be used in competition with it. The same would be true as to some manufactured articles." § 313. Champerty and Maintenance. — Contracts for the sale of lawsuits or interests in litigation are in certain cases void, as being against public policy. Champerty 1 Morse Macliine Co. v. Morse (1869), 103 Mass. 73. 188 SALES OF PERSONAL PEOPEETY. and maintenance are offences at common law, and cannot therefore form the subject of a valid contract.^ The object of the law is to prevent the purchase or assignment of a matter in litigation, for the purpose of maintaining the action for the profit of the purchaser in whole or in part. Champerty is defined as 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. Thus the buy- ing up of dormant titles to land by a stranger, when the grantor is not seised, is an offence at law, if made wittingly ■to disturb the tenant in his possession, and the conveyance by which the sale is sought to be effected is void. No right whatever passes, because, as it is said, the law will not permit any person to sell a quarrel. The title is unaffected by the .transaction, which in no way binds the grantor.2 The statute 32 Henry VIII. ch. 9, passed in 1540, against buying pretended titles, is adopted here, and forms part of our common law, as appears in the cases last cited. § 314. Sale of Public OflSces. — Contracts for the sale of public offices or appointments, or for the salary, fees, or emoluments of office, are void, upon the most obvious principles of public policy. Thus a sale by a town to the highest bidder of the right of collecting taxes, without any express provision as to his fitness or qualifications for the office, and without any other form of election, is void.^ ^ Thurston v. Percival (1823), 1 Pick. 415 ; Lathrop v. Amherst Bank (1845), 9 Mete. 489 ; CaH v. Calef (1847), 13 Mete. 362, and (1849), 4 Gush. 388 ; Scott v. Harmon (1872), 109 Mass. 237 ; Ackert V. Barker (1881), 131 Mass. 436. 2 Wolcott V. Knight (1810), 6 Mass. 418, 421 ; Everenden v. Beau- mont (1810), 7 Mass. 76, 78; Swett v. Poor (1814), 11 Mass. 549; Brinley v. Whiting (1827), 5 Pick. 348. 2 Inhabitants of Spencer v. Jones (1856), 6 Gray, 502. See Alford V. Collin (1838), 20 Pick. 428 ; Howard v. Procter (1856), 7 Gray, 128, 132. ILLEGALITY AT COMMON LAW. 189 § 315. Sales to an Alien Enemy. — By the common law, a sale to an alien enemy is void, all commercial intercourse being strictly prohibited with such alien enemy, except when specially licensed by the sovereign. It includes every kind of trading or commercial dealings or inter- course, whether by transmission of money or goods, or orders for the delivery of either, between citizens of the two nations at war ; although it seems that if the two trad- ing parties are actually residing in this country, and there is no agreement for transmitting money or property of any kind from this country to the other, the transaction is not illegal, simply because one of them is in fact a citizen or subject of the nation with which this country is at war.^ The same principles are recognized and enforced in the courts of equity.^ § 315 a. Sale or Assignment of Life Insurance Policy. — The sale and assignment of a policy of life insurance to one who has no interest in the life insured is held valid, if made not as a contrivance to circumvent the law, but as an honest and hona fide, transaction. There is nothing in the contract of life insurance which will prevent the assured from thus selling his right under the contract for his own advantage. An assignment made by the assured in good faith, for the purpose of obtaining its present value, and not as a gaming risk between him and the assignee, or a cover for a contract of insurance between the insurer and the assignee, will pass the equitable interest of the assignor. The fact that the assignee has no insurable interest in the life insured is not even •prima facie, evidence 1 Coolidge V. Inglee (1816), 13 Mass. 33, 35 ; Musson ». Pales (1820), 16 Mass. 334 ; Kershaw v. Kelsey (1868), 100 Mass. 562, 573, 577. 2 Snell». D wight (1876), 120 Mass. 9; Dunham v. Presby (1876), 120 Mass. 285. 190 SALES OF PEESONAL PROPERTY. that the transaction is illegal. If it should appear, how- ever, that the assignment was a cover for a speculating risk contravening the general policy of the law against wagers, it would not be sustained.^ 1 Mutual Life Ins. Co. v. Allen (1884), 138 Mass. 24. See Palmer V. Merrill (1850), 6 Cush. 282 j Stevens v. Warren (1869), 101 Mass. 564. ILLEGALITY BY STATUTE LAW. 191 CHAPTEE VIII. ILLEGALITY BY STATUTE LAW. § 316. Effect of Statute prohibiting Contract. — Wher- ever the law imposes a penalty for making a contract, it impliedly forbids parties making such a contract ; and when a contract is so prohibited, whether expressly or by impli- cation, it is illegal and cannot be enforced. Where the statute prescribes or directs the mode in which the con- tract shall be made, not following the direction is equiva- lent to disobeying a prohibition. Thus no action lies to recover the price of milk sold by the can at wholesale, in cans not sealed according to the requirements of the statute ; and this is so, although the State sealer refused to seal them for the statute price. The statute imposed a penalty for a failure to comply with its provisions. This made a sale of milk in cans which were not sealed an unlawful and prohibited sale.-^ Similarly it was held that no action would lie for the price of shingles not of the size then prescribed by statute.^ So, too, no action lies for the price of coal sold without observance of the terms of the statute as to its being weighed by a sworn weigher ;^ or for the price of meat sold 1 Miller v. Post (1861), 1 Allen, 434. " Wheeler ». Russell (1821), 17 Mass. 358, whieli has full citation of cases and was elaborately argued. See, as to sales of shingles, St. 1783, ch. 15 ; St. 1824, eh. 136 ; Rev. St. ch. 28, §§ 156-158. These laws were repealed by St. 1858, ch. 164, § 15. 8 Libby o. Downey (1862), 5 Allen, 299. 192 SALES OF PERSONAL PROPERTY. by weights which were not sealed according to the require- ments of the statute ; ^ or for the price of hay sold by the ton, when weighed on scales not provided by the buyer and which had not been sealed, as required by statute ; ^ or for the price of lumber not surveyed, marked, or num- bered, as required by statute ; ^ or for the price of oats and meal sold by the bag, when the statute directs that such sales must be by the bushel.* The subsequent repeal of the statute can have no effect upon a contract made while it was in force. Parker, C. J., said, "As well might a contract made for the purpose of trade with an enemy during a war be purged of its illegality by the return of peace." ^ § 317. Defence of Illegality must be pleaded. — The defendant is not entitled to avail himself of the defence that the contract of sale was illegal, without clearly and precisely setting it up in his answer.^ This is due to the provisions of the statute,'^ the rule of pleading having formerly been otherwise.^ But although it is not pleaded, the court may refuse to entertain the qase, if the illegality appear on the plaintiff's own showing. No waiver by the 1 Smith V. Arnold (1871), 106 Mass. 269 ; Palmer v. Kelleher (1873), 111 Mass. 320. 2 Sawyer v. Smith (1872), 109 Mass. 220. ' Prescott V. Battersby (1876), 119 Mass. 285. * Eaton V. Kegan (1874), 114 Mass. 433. 6 Springfield Bank v. Merrick (1817), 14 Mass. 322, 325. * Granger v. Ilsley (1854), 2 Gray, 521 ; Bradford v. Tinkham (1856), 6 Gray, 494; Libbey v. Downey (1862), 5 Allen, 300; Goss V. Austin (1866), 11 Allen, 525 ; Cassidy v. Farrell (1872), 109 Mass. 397; Cardoze v. Swift (1873), 113 Mass. 252; Suit v. Woodhull (1875), 116 Mass. 549. ' Pub. St. ch. 167, §§ 17, 18, 20 (prior references, Gen. St. ch. 129, §§ 17, 18, 20 ; St. 1853, ch. 312, §§ 14, 15, 18). 8 See Hulet v. Stratton (1850), 5 Cush. 539 ; Dixie v. Abbott (1851), 7 Cush. 610. ILLEGALITY BY STATUTE LAW. 193 defendant, and no consent of parties, can oblige tlie court to try it.i § 318. Burden of Proof. — As to the burden of proof in cases where the pleadings put the legality of tlie sale in issue, it is held that where the transactions on which the plaintiffs claim is founded are such that at common law he might recover, the illegality arising by virtue of statu- tory provisions, the burden is on the defendant to prove the sale to be unlawful.^ § 319. Validity of Sale determined by Law of Place where it is made. — The general rule is that the validity of the contract of sale is to be determined by the law of the State in which it is made. If it is valid there, it is deemed valid everywhere, and will sustain an action in the courts of a State whose laws do not permit such a contract. Even a contract expressly prohibited by the statutes of this State, if valid by the laws of the State where it is made, and if not in itself positively immoral, is. usually sustained by the courts here.^ § 320. The right of the court to entertain such action' may, however, be restricted by positive prohibition of statute ; for a State may always, by express enactment, protect itself from being obliged to enforce in its courts contracts made abroad by its citizens, which are not authorized by its own laws.* On the same principle, a contract of sale which is 1 Cardoze v. Swift (1873), 113 Mass. 250; Dunham v. Presbv (1876), 120 Mass. 285, 289. 2 "WUson V. Melvin (1859), 13 Gray, 73; Brigham v. Potter (1860), 14 Gray, 522 ; Trott v. Irish (1861), 1 Allen, 481 ; Pratt ». Langdon (1867), 97 Mass. 97 ; Jones v. McLeod (1869), 103 Mass. 58 ; God- dard v. Eawson (1881), 130 Mass. 97 ; Jones v. Ames (1883), 135 Mass. 431. See Libbey v. Downey (1862), 5 Allen, 300, which is contra. " Greenwood v. Curtis (1810), 6 Mass. 358, 377-379; Parsons v. Trask (1856), 7 Gray, 476 ; Milliken v. Pratt (1878), 125 Mass. 375. See ante, § 85. * Milliken v. Pratt (1878), 125 Mass. 383. 13 194 SALES OF PERSONAL PROPERTY. illegal and void by the law of the place where it is made and to be performed is void everywhere.^ § 321. No Constitutional Power for State to discrimi- nate against Goods introduced from a Certain other State. — This State has no authority to prescribe different regula- tions in regard to the commerce in certain articles, depend- ent on the particular State from which they are brought. Thus where a statute prescribed a certain size of cask in which alone Maine lime might lawfully be sold here, which was different from the size of cask prescribed by statute for Massachusetts lime, there being no provision as to the size of cask in which lime might be sold if imported from any other State than Maine, the statute was held to be void, as being repugnant to the United States Constitu- tion giving Congress power to regulate commerce among the several States.^ § 322. Sale by Mortgagor •without Written Consent of Mortgagee. — It is provided by statute that a mortgagor, hirer, or lessee of personal property, who sells or conveys the same without the written consent of the mortgagee, owner, or lessor, and without informing the purchaser that it is so mortgaged, hired, or leased, shall be held criminally liable, and punished by fine or imprisonment.^ But it has been decided that if a sale is made by a mortgagor with the oral consent of the mortgagee, it will pass a good title to the purchaser, although he was not at the time informed of the existence of the mortgage.* So, too, where the mort- gage expressly provides that no sale shall be made with- 1 Akers v. Demond (1869), 103 Mass. 323, 324; Stevenson v. Payne (1872), 109 Mass. 878, 380. ^ Higgins V. Casks of Lime (1880), 130 Mass. 1. 8 Pub. St. ch. 203, §§ 70, 71 (prior references, Gen. St ch. 161, §§ 62, 63 ; St. 1857, ch. 156; St. 1850, ch. 284). * Stafford v. Whitcomb (1864), 8 Allen, 518 ; Pratt v. Maynard (1874), 116 Mass. 388. ILLEGALITY BY STATUTE LAW. 195 out the -written consent of the mortgagee, the purchaser, though advised of the existence of the mortgage, will have a good title as against the mortgagee, if he prove a verbal authority to sell given by him to the mortgagor.^ But if the sale is made in violation of the terms of the statute, the purchaser may treat it as void, and on returning the goods will not be liable to any action for the price.^ The mortgagor in making a sale is held not to be criminally liable, except where there is an absence of both require- ments of the statute. If he has the proper written consent, or has duly informed the purchaser, it is enough.* § 323. Sales on Sunday. — At common law a sale made on Sunday was not void. At present it is by statute pro- vided that whosoever on the Lord's day does any manner of labor, business, or work, except works of necessity and charity, shall be punished by fine not exceeding fifty dollars for each offence, and that the Lord's day shall be deemed to include the time from midnight to midnight,* — the earlier statute rule having for these purposes termi- nated the Lord's day at the setting of the sun. It was intended to prohibit all secular business; not only all manual labor, but the making of bargains, and all kinds of trafficking. A contract, therefore, made in violation of the terms of this statute is absolutely void, and cannot be made valid ah initio by any subsequent ratification. Any arrangement or agreement between the parties on a subse- quent day would be a new and independent transaction.^ § 324. Thus if a bargain is made on Sunday for the 1 Shearer v. Babson (1861), 1 Allen, 486. 2 Bryant v. Pollard (1865), 10 Allen, 81, » Commonwealth v. Damon (1870), 105 Mass. 580. ■ *■ Pub. St. ch. 98, §§ 2, 16 (prior references, Gen. St. oh. 84, §§ 1, 12 ; St. 1863, ch. 143 ; Rev. St. ch. 50, §§ 1, 4; St. 1796, ch. 89, § 1; St. 1791, ch. 58, §§ 1, 4). 6 Day V. McAllister (1860), 15 Gray, 433. 196 SALES OF PERSONAL PROPERTY. sale of goods, which are accordingly delivered and accepted on Monday, the seller may sue to recover the value of the goods upon an implied assumpsit ; but the price fixed " on Sunday will not be binding on either party, nor will the seller be bound by any warranty made on that day.' Again, if goods are sold and delivered on Sunday to A an(i B, the sale being induced by false representations made by A on a previous secular day, and subsequently on a secular day the seller demands the price of A, and he promises to pay it, this amounts to a sale to him, and he is liable.^ No action can be had on a bond which was executed on Sunday, although it bears date as of a secular day. Parol evidence is admissible to show the truth as to the date.^ Nor can an action be maintained for breach of a warranty on the sale of a horse, which took place on Sunday,* nor for a deceit and fraud practised in such sale,* unless, it being an action of tort, the recent statute should be held to apply, wherein it is provided that the provisions of the chapter on the observance of the Lord's day shall not con- stitute a defence to an action for a tort or injury suffered by a person on that day.* § 325. But one who takes a promissory note bearing date as of a secular day, before maturity, in good faith and for value, may maintain an action thereon against the maker, although the note was in fact made on Sunday, so 1 Bradley v. Eea (1867), 14 Allen, 20, and (1869), 103 Mass. 188. 2 Winchell v. Carey (1874), 115 Mass. 560. 8 Pattee v. Greely (1847), 13 Mete. 284. See also Bustin v. Rogers (1853), 11 Cush. 346. * Hulet V. Stratton (1850), 5 Cush. 539 ; Bradley v. Eea (1867), 14 AUen, 23. « Robeson v. Trench (1846), 12 Mete. 24; Cardoze v. Swift (1873), 113 Mass. 251. « St. 1884, ch. 37. ILLEGALITY BY STATUTE LAW. 197 that no action could be maintained on it by the original payee. ^ § 326. A memorandum to satisfy the Statute of Prauds, sufficient in other respects, will not avail if it be shown that it was made and signed on Sunday.^ § 327. When the purchaser on Sunday has, with the assent of the seller, obtained possession of the property sold to him, it is held that a valid title has passed, and that he may maintain his possession under the void con- tract as against both the seller and his creditors.^ It has been intimated in one case, however, that if the price were not paid, the seller might sue in trover as for conversion, if the purchaser afterwards retains and uses the thing sold.* But where a debt was contracted on Sunday, which was void under the statute, and on that day the debtor made a pledge of certain articles to secure the payment, it was held that he could not afterwards reclaim them without making the payment. This case was an action of tort alleging the conversion of the articles pledged.^ § 328. The statutory provisions regulating the sale of personal property are numerous and extend to minute par- ticulars, so that only the most important of them will be set forth. Sales of Intoxicating Liquors. — All sales of spiritu- ous or intoxicating liquors, except in the cases hereafter specified, are prohibited, unless they be made by a per- 1 Cranson v. Goss (1871), 107 Mass. 439, 443. 2 Hazard v. Day (1867), 14 Allen, 487. « Myers v. Meinrath (1869), 101 Mass. 368 ; Horton v. Buffinton (1870), 105 Mass. 399; Hall v. Corcoran (1871), 107 Mass. 253; Cranson v. Goss (1871), 107 Mass. 439, 441. * Ladd V. Rogers (1865), 11 Allen, 209. See, too. Hall «. Corco- ran (1871), 107 Mass. 251 ; Myers v. Meinrath. (1869), 101 Mass. 370. 6 King V. Green (1863), 6 Allen, 139. 198 SALES OF PERSONAL PEOPEETY. son duly licensed to sell under the provisions of the stat- ute.^ Ho license is required where the sales are made by a person under a provision of law requiring him to sell personal property ; or where the sales are of cider or of na- tive wines by the makers thereof, not to be drunk on their premises ; ^ or where the sales are, by druggists and apothe- caries, of pure alcohol for medicinal, mechanical, or chemi- cal purposes.^ There is a further provision of the same nature that "importers of liquor of foreign production, imported under authority of the laws of the United States, may own, possess, keep, or sell such liquor in the original casks or packages in which it was imported, and in quan- tities not less than those in which the laws of the United States require such liquor to be imported, and when sold such liquor shall be as pure and unadulterated as when imported." * The term " intoxicating liquors " extends to ale, porter, strong beer, lager beer, cider, all wines, and any beverage containing more than three per cent of alcohol by volume at sixty degrees Fahrenheit, as well as to distilled spirits.^ This statute has been held to be constitutional.® § 328 a. Every license is granted subject to certain con- ditions, a breach of which may work a forfeiture. Upon conviction in court of a violation of any of such conditions, the license becomes thereupon void. These conditions are^ that no liquor shall be sold between the hours of eleven 1 Pub. St. ch. 100, § 5 (prior references, St. 1881, oh. 54, §§ 1, 2 ; St. 1875, ch. 99, § 4). 2 Pub. St. ch. 100, § 1 (prior reference, St. 1875, ch. 99, § 1). 8 Pub. St. ch. 100, \ 2 (prior reference, St. 1875, ch. 99, § 2). « Pub. St. ch. 100, § 4 (prior reference, St. 1875, ch. 99, § 3). 5 Pub. St. ch. 100, § 27 (prior references; St. 1880, ch. 239, § 5 ; St. 1875, ch. 99, § 18). « Commonwealth v. Fredericks (1875), 119 Mass. 200. ' Pub. St. ch. 100, § 9 (prior references, St. 1880, ch. 339, § 3; St. 1875, ch. 99, § 6). ILLEGALITY BY STATUTE LAW. 199 at night and six in the morning ; ^ nor during the Lord's day, except that if the licensee is also licensed as an inn- holder he may supply such liquor to guests who have resorted to his house for food or lodging ; that no liquor shall be sold except such as is of good standard quality and free from adulteration ; that no sale or delivery shall be made to a person known to be a drunkard, to an intoxi- cated person, or to a person who is known to have been intoxicated within the six months next preceding, or to a minor either for his own use, the use of his parent, or of any other person ; or to persons known to have been sup- ported in whole or in part by public charity within twelve months before, the date of the license;^ that there shall be no disorder, indecency, prostitution, lewdness, or illegal gaming on the premises described in the license, or on any premises connected therewith by an interior communica- tion ; that the license shall be displayed in a conspicuous place, where it can easily be read. It is also provided^ that no common victualler or innkeeper may make any sale, gift, or delivery of liquor on the day of any national, state, municipal, or annual town election in his town or city, except that any innkeeper may on such day sell to guests who are duly registered. § 329. A commission merchant dealing principally in alcohol cannot properly be described as a druggist, in the sense in which that word is used in the statute, and a suit for the price of alcohol sold by such a person without license cannot be maintained.* A sale made by an im- porter under the provisions above set forth is not affected 1 As amended by St. 1885, ch. 90, the statute having previously allowed sales till midnight. ^ This special provision was added by St. 1884, ch. 158. » St. 1885, ch. 216. 4 Mills V. Perkins (1876), 120 Mass. 41. 200 ■ SALES OF PERSONAL PROPERTY. by the fact that he knows that the purchaser intends to and will resell the liquor in violation of the statute. Sales by importers of original packages may be made as if no statute prohibiting or regulating sales existed in this State.^ But one who receives from an iniporter and duly forecloses a mortgage of liquors which are in the United States ware- house in bond, and pays the duties and receives the liquors, does not thereby become the importer thereof within the meaning of the statute ; and if he consign the liquors to another to be sold in violation of the statute, he cannot sue for a breach of an agreement by the consignee to ren- der an account of sales, pay the value of the liquors sold, and return the residue.^ § 330, A note, part of the consideration of which is liquor unlawfully sold, is wholly void in the hands of the promisee; ^ and a mortgage made to secure such note is also wholly void.* Where the plaintiff sues to recover a balance due upon an account stated, the defendant may plead that the account consisted of items for liquor sold in violation of law, and upon proof of this the defendant must prevail.^ § 331. A license granted under a statute of the United States VFill not authorize a sale of liquors in this State contrary to the provisions of this statute.^ The prohibi- > Eichards v. Woodward (1873), 113 Mass. 285. 2 King V. McEtoj (1862), 4 Allen, 110. » Brigham v. Potter (1860), 14 Gray, 522; Nourse v. Pope (1866), 13 Allen, 87. * Perkins v. Cummings (1854), 2 Gray, 258 ; Baker v. Collins (1864), 9 Allen, 253. 6 Dunbar v. Johnson (1871), 108 Mass. 519. ' Commonwealth v. Thomiley (1863), 6 Allen, 445 ; Commonwealth V. O'Donnell (1864), 8 AUen, 548 ; Commonwealth v. Holbrook (1865), 10 Allen, 200. The statutes of the United States provide that no one shall sell, at retail or wholesale, intoxicating liquors or tobacco until he has paid a special tax and complied with certain provbions as to regis- tration. Kev. St. of U. S. §§ 3232-3246. ILLEGALITY BY STATUTE LAW. 201 tion extends not only to sales for money, but also to cases in which liquors are bartered or exchanged for other articles.^ A sale, though made in violation of the statute, has been held to nevertheless pass the title to the purchaser. Hoar, J., saying that " the seller commits an ofience for which he is punishable, but he does not retain his property in the article sold. It has never been held under any of the statutes regulating the sale of liquors in this State that the purchaser was guilty of any offence or was particeps criminis." ^ § 332. The neglect or refusal of a wholesale dealer to pay an internal revenue tax, imposed by the United States upon him in respect and proportion to his sales, does not invalidate sales made by him during the period of his de- fault, or prevent his recovery of the price of the goods sold. Morton, J., said : " It is to be observed that the act does not expressly declare that sales by a wholesale dealer who neglects to pay the tax shall be illegal. The tax is not laid upon each sale, but upon the business or calling. The illegality does not attach to the sale, but consists in not paying the tax upon the business. He is liable to the same penalty without regard to the number of his sales. The payment of the tax is not a condition precedent to the right to make sales. The object of the tax was to provide revenue to support the government, and not to regulate domestic trade in the State." ^ § 333. It is provided that if a person sell or give liquor 1 CommonweaM v. Clark (1860), 14 Gray, 367, 372 ; Howard v. Harris (1864), 8 Allen, 397- 2 Cobb V. Earr (1860), 16 Gray, 597. See also Commonwealth v. Willard (1839), 22 Pick. 476 ; Walan v. Kerby (1868), 99 Mass. 2. 8 Lamed v. Andrews (1871), 106 Mass. 435. See also Pope v. Beals (1871), 108 Mass. 561. 202 SALES OF PERSONAL PROPERTY. to any minor, he shall forfeit one hundred dollars for each offence, to be recovered by the parent or guardian of such minor in an action of tort.^ In such an action, it is held not necessary to prove any knowledge on the part of the defendant that the person to whom he sold or gave the HcLUor was a minor. Knowledge or guilty intent is not one of the elements of, his liability.^ A sale and delivery of liquor to a minor for his parents' use is probably not a sale to a minor within this section ; ^ but if the minor had authority from his father to buy the liquor for him, and stated at the time that he was buying it for his father, but in fact bought it for himself and for his own use, it will probably support an action under this sec- tion, although the seller believed and relied upon the state- ment of the minor.* § 33.3 a. It is provided ® that the husband, wife, parent, child, guardian, or employer of a person who has the habit of drinking spirituous or intoxicating liquor to excess, or the. mayor of a city or any one of the selectmen of a town in which such person having such habit resides, may give notice in writing, signed by him or her, to any person, in- cluding druggists and apothecaries, requesting him not to sell or deliver such liquor to the person having such habit. If the person so notiiied, at any time within twelve months thereafter sells or delivers any such liquor to the person having such habit, or permits such person to loiter on his premises, the person giving the notice may, i6 an action of tort, recover of the person notified such sum not less 1 Pub. St. ch. 100, § 34 (prior reference, St. 1875, oh. 99, § 15). 2 Roberge v. Burnbam (1878), 124 Mass. 277. » Commonwealtb v. Lattinville (1876), 120 Mass. 385. * Commonwealth v. Mnnegan (1878), 124 Mass. 324. « Pub. St. cb. 100, § 25, as amended by St. 1885, oh. 282 (prior ref- erence, St. 1875, eh. 99, § 16). ILLEGALITY BY STATUTE LAW. 203 than one hundred nor more than five hundred dollars, as may be assessed as damages : provided that an employer giving such notice shall not recover unless he is injured in his person or property. A married woman may bring such action in her own name, and all damages recovered by her shall inure to her separate use. In case of death of either party, the action and right of action shall survive to or against his executor or administrator. When the notice is given by the mayor or by a select- man, he may in his own name bring such action of tort, and it shall be, as he may elect, for the benefit of the hus- band, wife, child, parent, or guardian. No druggist or apothecary is liable, however, for a sale made upon the prescription of a physician. A dealer to whom such notice is given is liable for a sale made by his servant in the course of business to the intemperate person specified in the notice, although the dealer instructed the servant not to make a sale to such person, and the sale was with- out the knowledge or consent of the dealer.^ The court said : " The defendant engages in the business of selling liquor voluntarily. He chooses to intrust the details of the business to a servant. If the servant negligently, through forgetfulness of the instructions given him, or through a failure to recognize the person, continues to make sales to that person, there is no reason why the defendant should not be responsible for the wrongful act. The sale is his sale, made in the performance of his busi- ness, and is an act within the general scope of the servant's employment." § 334. Sales of Butter, Lard, and Cheese. — No one is to export or ship for exportation from this State butter or lard not inspected and branded as required by the statute, 1 George v. Gobey (1880), 128 Mass. 289. 204 SALES OF PERSONAL PROPERTY. except it be butter or lard imported into this State from any other of the United States ; and for every violation a penalty is imposed upon the exporter and upon the master of the vessel receiving it, the goods being also liable to seizure and forfeiture.^ Substances in semblance of butter or cheese, but not made wholly from milk or cream, shall, under penalty, be in packages on the top and side of which shall appear in printed, uncondensed, Gothic letters, each not less than one half inch in length, the words " imitation butter," or the word "butterine," or "oleomargarine," or " imitation cheese," as the case may be ; and in retail sales the seller shall attach to each parcel sold a label or wrapper bearing conspicuously on the outside these same words.^ § 335. Sales of Fot and Pearl Ashes, Hops, and Fish. — Stringent provisions are also made with regard to the ex- portation of pot and pearl ashes,^ hops,* and certain kinds of fish, as smoked alewives and herrings,^ which have not been duly inspected according to the statute. § 336. Sales of Leather. — " No sole or belt leather made of the hides of neat cattle, except such as has been previously inspected and sealed by one of the inspectors of this Commonwealth, or by some inspector lawfully ap- pointed for that purpose in some other of the United 1 Pub. St. ch. 56, § 15 (prior references. Gen. St. ch. 49, §§ 22, 23 ; Kev. St. cli. 28, §§ 46, 58, 59, and ch. 118, §§ 20, 21 ; St. 1800, ch. 28, §§ 2, 4; St. 1799, ch. 84, § 1). 2 St. 1885, ch. 352, § 1 ; St. 1884, ch. 310, § 1 ; Pub. St. ch. 56, §§ 17, 18 (prior reference, St. 1881, ch. 292, §§ 1, 2). 8 Pub. St. ch. 56, §§ 73-87 (prior references, Gen. St. ch. 49, §§ 165-179; Rev. St. ch. 28, §§ 177-191 ; St. 1831, ch. 55; St. 1791, ch. 8). * Pub. St. ch. 56, §§ 49-62 (prior references. Gen. St. ch. 49, §§ 89-102; Eev. St. ch. 28, §§ 104-118; St. 1828, ch. 118; St. 1806, ch. 14). 6 Pub. St. ch. 56, §§ 23-48 (prior references. Gen. St. ch. 49, §§ 33- 59; Rev. St. ch. 28, §§ 69-91; St. 1809, ch. 120; St. 1807, ch. 54). ILLEGALITY BY STATUTE LAW. 205 States, shall be sold for any purpose whatsoever, within a place in which there is an inspector, until it has been inspected, weighed, and sealed by one of the inspectors of such place ; " but the buyer and manufacturer of leather may, by agreement, waive this inspection and sealing.^ " No upper leather shall be sold, unless it has been pre- viously measured and sealed by a measurer of this Com- monwealth, or by a measurer lawfully appointed for the purpose in some other of the United States ; and whoever sells such upper leather, not measured and sealed as afore- said, shall forfeit one dollar for each side of leather so sold, and such forfeiture may be recovered by an action at law in favor of any person injured by such sale. The buyer and manufacturer of leather may, by agreement, waive measurement and sealing of leather, as before provided." ^ § 337. Sales of Milk. — In all cities and in all towns in which there is an inspector of milk, no person may, without first obtaining a proper license, convey milk in carriages or otherwise for the purpose of selling the same in such cities or towns, nor may anj'- person sell milk or offer it for sale in stores in such cities or towns, unless he register in the books of the milk inspector ; nor may any person sell adulterated milk, or milk to which water or any foreign substance has been added, or milk produced from cows fed on the refuse of distilleries, or from sick or diseased cows : nor may he sell as pure any milk from which any part of the cream has been removed, but if such is sold it must be as " skimmed milk," which words must be upon the package from or in which such milk is sold, and be in uncondensed Gothic letters not less than one 1 Pub. St. ch. 56, §§ 69, 70 (prior references, Gen. St. ch. 49, § 108 ; St. 1866, ch. 236, §§ 1, 4 ; St. 1851, ch. 217 ; Rev. St. ch. 28, § 123 ; St. 1830, ch. 99, § 2). « Pub. St. ch. 62, §§ 4, 5 (prior reference, St. 1866, ch. 236, §§ 3, 4). 206 SALES OP PERSONAL PROPERTY. inch in length. Milk is conclusively deemed adulterated if it contain more than eighty-seven per cent of watery fluid or less than thirteen per cent of milk solids, or less than nine and three tenths per cent of milk solids, exclusive of fat. Even " skimmed milk " must contain at least nine and three tenths per cent of milk solids, exclusive of fat.^ In the cases cited it has heen held that these statutory provisions are constitutional, belonging to the class of police regulations designed to prevent frauds and to protect the health of the people, and that a person may be convicted of selling adulterated milk without allegation or proof that he knew it to be adulterated. § 338. Sales of Oil. — " All descriptions of oils sold under the names of sperm, spermaceti, lamp, summer, fall, winter, and second winter oils, shall be deemed pure winter- pressed or summer-strained spermaceti oil. Oil sold under the names aforesaid which are adulterated with whale, tight-pressed, or any other oil of less value than pure sper- maceti oil, shall be deemed whale oil ; and if the propor- tions of the respective oils of which the mixture consists are not disclosed to the purchaser in writing at the time of sale, the vendor shall be liable to the purchaser for double the amount of the difference in value between pure spermaceti oil and whale oil, when the quantity sold ex- ceeds five gallons, and four times the difference when said quantity is less than five gallons ; and when the quantity sold is less than five gallons, the vendor shall attach to the 1 St. 1885, ch. 145, and ch. 353, 5§ 6-8 ; Pub. St. ch. 57, §§ 3-12 (prior references, St. 1880, ch. 209, §§ 1-7; St. 1873, ch. 180, § 2). See Commou-wealth v. Farren (1864), 9 Allen, 489 ; Commonwealth V. Nichols (1865), 10 AUen, 199 ; Commonwealth v. Waite (1865), 11 AUen, 264; Commonwealth v. Haynes (1871), 107 Mass.' 194; Com- monwealth V. Luscomb (1880), 130 Mass. 42 ; Commonwealth v. Evans (1882), 132 Mass. 11 ; Commonwealth «. Carter (1882), 132 Mass. 12; Commonwealth v. Keenan (1885), 139 Mass. 193. ILLEGALITY BY STATUTE LAW. 207 vessel in which it is delivered a label upon which shall be legibly written the names and proportions of the respective oils composing such mixture. Whoever sells any oil or oils, commonly known under the names of sperm, sperma- ceti, lamp, summer, fall, winter, and second winter oils, which have been adulterated from pure spermaceti oil by a mixture of whale, tight-pressed, or other inferior oil, and does not, in the manner prescribed above, disclose to the purchaser the proportions of the oils of which it consists, shall for each offence forfeit fifty dollars, to be recovered in an action of tort by the person suing for the same and to his use. "Oils sold under any of the names mentioned above which have been mixed with tight-pressed oil shall be deemed tight-pressed oil, and the vendor thereof or of tight-pressed oil under any of the names aforesaid shall be liable to the purchaser for double the amount of the difference in value between the first quality of sperma- ceti oil and tight-pressed oil and to the penalties provided above, unless at the time of sale the vendor discloses in writing the mixture aforesaid, or, if the oil is not mixed, its quality. The test of pure spermaceti oil shall be Harris's oleometer."^ " N"o person shall sell or keep for sale at retail, for illuminating purposes, any kerosene, refined petroleum, or any product of petroleum, unless the same has been in- spected and approved by an inspector, duly authorized by some city or town in this Commonwealth." ^ § 339. Sale of Commercial Fertilizers. — " Every lot or parcel of commercial fertilizers, sold or offered or exposed for sale within this Commonwealth, shall be accompanied 1 Pub. St. ch. 59, ^ 1-5 (prior references, Gen. St. oh. 49, §§ 157- 161; Rev. St. ch. 28, §§ 169-173; St. 1833, ch. 215, §§ 1-4). 2 St. 1885, oh. 122. 208 SALES OF PERSONAL PROPERTY. by a printed label which shall state clearly the composi- tioa of the same, as follows ; to wit, in the case of all fertilizers which are sold at more than twelve dollars per ton, and which contain nitrogen, potassium, or phospho- rus, the said label shall give the percentage of anhydrous potassium oxide or its equivalent of potassium, and of phosphoric oxide or anhydrous phosphoric acid in any form or combination soluble in distilled water, and the percentage of nitrogen in the fertilizer which it accom- panies. In the case of those fertilizers which consist of other and cheaper materials, the said label shall give a correct general statement of the composition and ingredi- ents of the fertilizer it accompanies. Every manufacturer or importer of commercial fertilizers as specified above shall, before offering the same for sale in this Common- wealth, procure from the secretary of the Commonwealth a license as a manufacturer or importer of the same, and shall pay into the treasury of the Commonwealth fifty dollars annually as a license fee ; and shall at the same time file with the secretary of the state board of agricul- ture a paper, giving the names of his principal agents, and also the name and composition of the fertilizer or fertilizers manufactured or imported by him. Such license shall entitle the person to whom it is issued to sell and offer for sale only one distinct kind of fertilizer; but such person may sell any other kind of fertilizer, upon the payment into the treasury of the Commonwealth of an additional license fee of fifteen dollars for each additional kind. Whoever sells or offers or exposes for sale a commercial fertilizer, without the label required above, or with a label stating that said fertilizer contains a larger percentage of any one or more of the constituents mentioned above than it actually contains, or respecting the sale of which all the above provisions have not been fully complied with, shall ILLEGALITY BY STATUTE LAW. 209 forfeit fifty dollars for the first offence, and one hundred dollars for each subsequent offence." ^ § 340. Sale of Fruits, Nuts, and Vegetables. — " The dry measure shall be the sole authorized public standard for measuring all fruits, vegetables, and nuts, when the same are sold by measure. Whoever sells such articles by any other than dry measure shall forfeit a sum not exceeding ten dollars for every such offence. Chestnuts, walnuts, cranberries, and all other berries shall, when sold, be meas- ured by the strike or level measure in the same manner as flaxseed and other similar articles are measured. The legal and standard measure of a barrel of cranberries shall be one hundred quarts, and of a crate of cranberries thirty- two quarts, level measure ; and every manufacturer of barrels or crates for cranberries shall brand or mark plainly his name and the words ' Massachusetts Standard Measure ' upon such barrels or crates." ^ § 341. Sale of Grain and Meal. — " In all contracts for the sale and delivery of wheat, corn, rye, oats, barley, buckwheat, cracked corn, ground corn or corn meal,, ground rye or rye meal, or feed, or any other meal except oatmeal, the same shall, except the metric system be used, be bargained for and sold either by the bushel or by the cental." " A bushel of wheat shall be sixty pounds avoirdupois ; a bushel of corn or rye, fifty-six pounds; a bushel of oats, thirty-two pounds ; a bushel of barley or buckwheat, forty-eight pounds ; a bushel of cracked corn, corn meal, rye meal, or feed, or any other meal except oatmeal, 1 Pub. St. ch. 60, §§ 13-15 (prior reference, St. 1878, ch. 258,. §§ 1-3). ^ St. 1884, ch. 161; Pub, St. ch. 60, §§ 18-20 (prior references, St. 1875, ch. 62; Gen. St. ch. 49, §§ 61, 63; St. 1858, ch. 68; St. 1851, ch. 238 ; St. 1850, ch. 361). 11 210 SALES OF PEESONAL PEOPEETY. fifty pounds; and a cental one bundled pounds. Who- ever sells or delivers by the bushel any quantity exceed- ing one bushel of either of the articles aforesaid, when the same has not been weighed by one of the measurers of grain, shall forfeit two dollars for every measured bushel so delivered which does not contain the required number of pounds, said sum to be recovered by the purchaser in an action of tort. When said articles are sold by the cen- tal, the measurers and their deputies, upon application as before provided, shall give a certificate of the number of centals of the same ; and if any person sells and delivers a quantity of the same exceeding one cental, when it has not been weighed by said measurers, he shall forfeit ten dollars for every lot purporting to be a cental which con- tains less than one hundred pounds, said sum to be recov- ered by the purchaser in an action of tort." ^ § 342. Sales of Hay and Straw. — "Whoever, in a place where an inspector is appointed, sells pressed or bundled hay or straw which has not been inspected and weighed as by statute provided, shall forfeit for each bale or bundle so sold two dollars ; but no inspection need be made where the vendor and vendee agree to waive an inspection." ^ § 343; Sales of Bread. — The Statute provisions relative to sales of bread ^ are as follows : — " A loaf of bread for sale shall be two pounds in weight. Bread, except that composed in chief part of rye or maize, shall be sold in whole, half^ three-quarter, and quarter loaves, but not otherwise. In every shop or place where bread is 1 Pub. St. ch. 60, §§ 21, 32, 25, 26 (prior references, St. 1880, ch. 158, §§ 1-3; Gen. St. ch. 49, §§ 63, 64, 66; St. 1855, ch. 232; St. 1840, ch. 82). 2 Pub. St. ch. 60, §§ 37, 40 (prior references, St. 1861, ch. 67; Gen. St. ch. 49, §§ 80, 83 ; St. 1847, ch. 246, §§ 4, 7). » Pub. St. ch. 60, §§ 3-7 (prior references, St. 1870, ch. 395 ; Gen. St. ch. 49, §§5-9; St. 1859, ch. 174, §§ 1-5). ILLEGALITY BY STATUTE LAW. 211 sold by retail, and iu each front window thereof, there shall be conspicuously placed a card on which shall be legibly printed a list of the different kinds and qualities of loaves sold there, with the price of each by the loaf and by the half, three-quarter, and quarter loaf. Bread when sold shall be weighed in the presence of the buyer, and if found deficient in weight bread shall be added to make up the- legal weight. Whoever violates any of these provi- sions shall forfeit ten dollars for each offence, to be recov- ered on complaint or indictment to the use of the party suing therefor. These sections shall not apply to rolls or to fancy bread weighing less than one quarter of a pound." § 343 a. Sales of Chocolate. — The statute provisions relative to sales of chocolate ^ are as follows : — "No manufacturer of chocolate shall make any cake of chocolate except in pans in which are stamped the first letter of his Christian name, the whole of his surname, the name of the town where he resides, and the quality of the chocolate in figures. No. 1, No. 2, No. 3, as the case may be, and the letters, Mass. Number one shall be made of cocoa of the first quality, and number two of cocoa of the second quality, and both shall be free from adulteration ; number three may be made of the inferior kinds and quali- ties of cocoa. Each box containing chocolate shall be branded on the end thereof with the word ' chocolate,' the name of the manufacturer, the name of the town where it was manufactured, and the quality as described and directed for the pans. If chocolate manufactured in this Commonwealth is offered for sale or found within the same, not being of one of the qualities described and marked as above directed, the same may be seized and libelled." 1 Pub. St. ch. 60, §§ 8-10 (prior references, Gen. St. oh. 49, §§ 2*- 26; Eev. St. ch. 28, §§ 60-62; St. 1803, ch. 54). 212 SALES OF PEKSONAL PROPERTY. § 343 I. Sales of Vinegar. — The statute provisions rela- tive to sales of vinegar are as follows : — " Every person who manufactures for sale, or offers or ex- poses for sale as cider vinegar, any vinegar not the legiti- mate product of pure apple juice, known as apple cider or vinegar, not made exclusively of said apple cider or vine- gar, into which foreign substances, ingredients, drugs, or acids have been introduced, as may appear by proper tests, shall be punished by fine of not less than fifty nor more than one hundred dollars. " Every person who manufactures for sale, or offers or ex- poses for sale, any vinegar found upon proper tests to contain any preparation of lead, copper, sulphuric acid, or other ingredient injurious to health, shall for each such offence be punished by fine of not less than one hundred dollars." i "No person shall by himself, his servant, or agent, or as the servant or agent of any other person, sell, exchange, deliver, or have in his custody or possession with intent to sell, or exchange or expose or offer for sale or exchange, any adulter- ated vinegar, or label, brand, or sell as cider vinegar or as apple vinegar any vinegar not the legitimate product of pure apple juice or not made exclusively from apple cider." ^ " All vinegars shall be without artificial coloring matter, and shall have an acidity equivalent to the presence of not less than four and one half per cent by weight of absolute acetic acid, and in the case of cider vinegar shall contain in addition not less than two per cent by weight of cider vinegar solids upon full evaporation over boiling water; and if any vinegar contains any artificial coloring matter or less than the above amount of acidity, or, in the case of 1 Pub. St. ch. 60, §§ 69, 70, as amended by St. 1883, ch. 257, § 1 (prior reference, St. 1880, ch. 113). " St. 1884, ch. 307, § 1. ILLEGALITY BY STATUTE LAW. 213 cider vinegar, if it contains less than the above amount of acidity or of cider vinegar solids, it shall be deemed to be adulterated." ^ § 343 c. Sale of 'Wood and Bark. — The statute provi- sions relative to sales of wood and bark are as follows : — " Cord-wood exposed for sale shall be either four, three, or two feet long, including half the kerf; and the wood, being well and closely laid together, shall measure in quantity equal to a cord of eight feet in length, four in width, and four in height." ^ Referring to this section, Hoar, J., said,^ that " it was ex- tremely difficult to give an interpretation to this statute. Regarded as a matter of positive regulation, and construed as a prohibition of all sales of wood not within its terms, the latter clause would seem to prohibit the sale of any quantity of wood less or greater than an exact cord. The section was substantially copied from St. 1796, c. G7, § 1 > but by a change of phraseology not felicitous, it provides that the ' wood ' instead of the ' cord ' shall be of certain specified dimensions. There is no express prohibition of the sale of wood of a different length, nor any penalty declared for a violation of the statute, except in a subse- quent section for ' exposing to sale in any market, or upon any cart or other vehicle,' and for ' conveying from any wharf or landing-place ' firewood that has not been meas- ured by a sworn measurer according to the requirements of the statute. Whether this section was intended by the legislature as anything more than a definition of what dimensions should constitute a cord, giving rights to the 1 St. 1885, cL 150. 2 Pub. St. ch. 60, § 73 (prior references, Geu. St. cb. 49, § 181 ; Rev. St. oh. 28, § 200 ; St. 1827, ch. 19. See also St. 1796, ch. 67, §1). 8 Colton V. King (1861), 2 Allen, 318. 214 SALES OF PERSONAL PEOPERTT. buyer corresponding to its provisions, and governing the public measurer in his official duty, requiring him to measure as three feet long wood which is not four feet in length, and as two feet that which is less than three, and not allowing wood less than two feet in length to be measured as cord-wood, is a question which may deserve further consideration. But for the decision of the prin- cipal question in this case it is sufficient to say that we do not think the sale of a quantity of wood, piled upon and by the side of the land where it grew, is prohibited by law, although not of the length which the statute requires for cord-wood. If it were the intention of the legislature to forbid the sale of any firewood by the cord which should not be four feet, three feet, or two feet long, we cannot understand the meaning of the section which regulates the measurement of wood brought by water, when it says that ' for that purpose the wood shall be corded and piled by itself in ranges, making up in height what shall be wanting in length.' The sections which provide for the measure- ment, and which fix the penalty for selling or conveying wood without the measurer's certificate, are all of them made applicable only to cases in which the wood has been removed from the place where it grew." " If firewood or bark exposed for sale in a market, or upon a cart or other vehicle, is offered for sale before it has been measured by a public measurer of wood and bark, and before a ticket thereof signed by him has been delivered to the driver, certifying the quantity which the load contains, the name of the driver, and the place in which he resides, the driver and owner shall for each load thereof severally forfeit five dollars." ^ It has been decided that this section does not require that bark lying on the 1 Pub. St. ch. 60, § 74 (prior references, Gen. St. oh. 49, § 182 ; St. 1839, ch. 135 ; Rev. St. ch. 28, § 201 ; St. 1796, ch. 67, § 3). ILLEGALITY BY STATUTE LAW. 215 owner's land in the country should he measured by a pub- lic measurer before it is offered for sale.^ " Cord-wood brought by water into a place for sale, and landed, shall be measured by a public measurer; and for that purpose the wood shall be corded and piled by itself in ranges, making up in height what shall be wanting in length ; and, being so measured, a ticket shall be given to the purchaser, who shall pay the stated fees for such ser- vice. All cities and towns ^ may establish ordinances and by-laws with suitable penalties for the inspection, survey, measurement, and sale of wood, coal, and bark for fuel, brought into such places for sale, and may also provide for the appointment of inspectors, surveyors, and other officers, and establish their fees of office." ^ " Each wharfinger, carter, or driver who conveys firewood or bark from a wharf or landing-place shall be furnished by the owner or seller with a ticket certifying the quantity which the load contains and the name of the driver ; and if firewood or bark is thus conveyed without such ticket accompanying the same, or if a driver refuses to produce and show such ticket on demand to any sworn measurer or to give his consent to have the same measured, or if such ticket certifies a greater quantity of wood or bark than the load contains in the opinion of the measurer after measuring the same, the driver and owner shall for each load thereof forfeit five dollars. But nothing contained in this chapter shall be construed to extend to a person who transports, carts, or causes to be transported or carted from a wharf or landing-place to his own dwelling-house or 1 Huntington v. Knox (1851), 7 Cush. 371. ^ Until the General Statutes, this provision was limited to the city of Boston. St. 1830, eh. 27, § 3. 8 Pub. St. oh. 60, § 76 (prior references, Gen. St. oh. 49, § 184 ; Rev. St. ch. 28, § 203 ; St. 1799, ch. 26, § 1). 216 SALES OF PERSONAL PROPERTY. store, cord-wood or bark which he has purchased on a ■wharf or landing-place, or which he has landed thereon on his own account." ^ " The city council of a city may establish ordinances with suitable penalties for the inspection, survey, measure- ment, and sale of bark for fuel or manufacturing purposes brought into said city for sale, whether the same is exposed for sale in ranges or upon a cart or other vehicle ; and said city may provide for the appointment of such surveyors, inspectors, and other officers as may be necessary to carry into effect said ordinances, and may establish their fees ; but no penalty for any one violation shall exceed five dollars." 2 § 343 d. Sales of Coal. — The statute provisions relative to sales of coal are as follows : — "All anthracite, bituminous, or mineral coal shall be sold by weight, and except when sold by the cargo two thousand pounds avoirdupois shall be the standard for the ton by which the same shall be weighed and sold." ^ " On or before the delivery of any such coal to a pur- chaser, the seller shall cause the same to be weighed by a sworn weigher of the place in which the same is sold or delivered, who shall keep a record thereof for the use of both parties ; and a certificate of the weight thereof, signed by such weigher, shall, when so requested, be delivered to the purchaser or to his agent at the time of the delivery of the coal." * "When the purchaser of coal in quantities of five 1 Pub. St. ch. 60, § 77 (prior references, Gen. St. eli. 49, § 185 ; St. 1839, eh. 135 ; Rev. St. ch. 28, § 204; St. 1799, ch. 26, § 2 ; St. 1796, ch. 67, § 4). 2 Pub. St. ch. 60, § 78 (prior references. Gen. St. oh. 49, § 186; St. 1854, ch. 361). » Pub. St. ch. 60, § 79 (prior reference, St. 1870, ch. 205, § 1). * Pub. St. ch. 60, § 81 (prior reference, St. 1870, ch. 205, § 3). ILLEGALITY BY STATUTE LAW. 217 hundred pounds or more so requests before the delivery thereof, the seller shall cause such coal to be weighed by a sworn weigher not the seller nor in his employ and not engaged in the business of selling coal ; and a certificate of the weight thereof shall be delivered, signed by such weigher, to the purchaser or to his agent at the time of the delivery of the coal. The fees for such weighing shall be paid by the purchaser." ^ " In the sale by measure of coal in quantities less than five hundred pounds the baskets or measures used in measuring the same shall be of a cylindrical form, of the following dimensions in the inside thereof; to wit, nineteen inches in diameter in every part and nine inches in depth, measured from the highest part of the bottom thereof, each of which shall be deemed to be of the capacity of one bushel; or nineteen inches in diameter in every part and four inches and one half in depth, measured from the highest part of the bottom thereof, each of which shall be deemed to be of the capacity of one half bushel. Such measures in selling shall be filled level full, and every such measure shall be sealed by a sealer of the city or town in which the person using the same usually resides or does business." ^ "The capacity of the baskets or measures" mentioned above " shall be plainly marked or stamped thereon by the sealer of weights and measures. Coal sold as above shall be delivered to the purchasers thereof in the same baskets or measures that are used in measuring such coal." ^ § 343 6. Sales of Charcoal. — " In the sale of charcoal the baskets, tubs, or vessels used in measuring the same, except as hereinafter provided, shall be of a cylindrical 1 Pub. St. ch. 60, § 83 (prior reference, St. 1870, oh. 205, § 4). 2 St. 1883, ch. 218, § 1. 8 St. 1884, cL 70, § 1. 218 SALES OF PERSONAL PEOPEETY. form, and of the following dimensions in the inside thereof; to wit, nineteen inches in diameter in every part, and eighteen inches and one tenth of an inch in depth meas- ured from the highest part of the bottom thereof ; each of which shall be deemed to be of the capacity of two bushels, and shall be filled level full ; and every such vessel shall be sealed by a sealer of the place in which the person using the same usually resides or does business." ^ " Charcoal may be measured in boxes, bins, or cans of the following capacities : to wit, of five, ten, twenty, thirty, forty, or fifty bushels ; such boxes, bins, or cans being first lawfully sealed as aforesaid : and five thousand one hun- dred and thirty-two cubic inches shall be deemed equal to two bushels, or to the level basket, tub, or vessel described above." ^ § 343 /. Sales of Various Articles. — There are also elaborate provisions with regard to the sale of hoops and staves,^ lime and lime casks,* nails,^ potatoes, onions, and salt,^ sewing-thread,^ timothy or herds grass seed,^ marble, 1 Pub. St. cli. 60, § 85 (prior references. Gen. St. ch. 49, § 191; St. 1853, cL 305, § 1). 2 Pub. St. eh. 60, § 86 (prior references, Gen. St. cL 49, § 192; St. 1853, ch. 305, § 3). s Pub. St. ch. 60, §§ 41-45 (prior references, St. 1878, ch. 116, § 1; Gen. St. ch. 49, §§ 84, 85, 87, 88; Eev. St. ch. 28, §§ 99-101, 108; St. 1783, ch. 15, §§ 3,4,8). * Pub. St. ch. 60, §§ 46-32 (prior references, Gen. St. ch. 49, §§ 118-121, 123-125 ; Rev. St. oh. 28, §§ 133-139; St. 1809, ch. 62). 6 Pub. St. ch. 60, §§ 56-60 (prior references. Gen. St. ch. 49, §5 152-156; St. 1837, ch. Ill, § 1; Eev. St. ch. 38, §§ 163-167; St. 1836, ch. 132, § 1 ; St. 1802, ch. 103, §§ 5-8 ; St. 1799, ch. 64, § 1). « Pub. St. ch. 60, §§ 61, 63 (prior references. Gen. St. ch. 49, § 180 ; as to potatoes, St. 1847, ch. 14 ; as to onions, St. 1856, ch. 271 ; and as to salt. Rev. St. ch. 38, § 199, and St. 1817, ch. 130). ' Pub. St. ch. 60, §§ 63-66 (prior references, St. 1880, oh. 119, §1; St. 1878, ch. 169, §§ 2, 5). 8 Pub. St. ch. 60, §§ 67, 68 (prior reference, St. 1862. oh. 134). ILLEGALITY BY STATUTE LAW. 219 soapstone, and freestone,^ lumter, ornamental wood, and ship timber.^ § 344. Weights and Measures. — No one may seR by any other weights, measures, scales, beams, or balances than those which have been legally sealed ; ^ but when a sale is made in disregard of this requirement, the seller may nevertheless recover the fair market value of the goods sold, if the sale is made in good faith and the purchaser is not injured thereby.* § 345. Sale of Fireworks and Petroleum. — No one without proper license may sell any fireworks, called rockets, crackers, squibs, or serpents,^ or any oil or fluid composed wholly or in part of any of the products of petroleum.^ § 346. Sale of Naphtha. — No one may sell any mixture of naphtha and illuminating oils, or sell, except for pur- poses of remanufacture, illuminating oils made from coal or petroleum which will evaporate a gas under one hundred degrees Fahrenheit, or ignite at a temperature of less than one hundred and ten degrees Fahrenheit ; nor may any one sell naphtha under an assumed name. The person selling naphtha or such mixture in violation of the statutes is made liable for any damage suffered by any person from the explosion or ignition of such oil thus unlawfully sold, 1 Pub. St. ch. 60, § 53 (prior references, St. 1862, eh. 70; Gen. St. ch. 49, § 145 ; St. 1851, ch. 100). '^ Pub. St. ch. 63 (prior references, Gen. St. ch. 49, §§ 126-144; St. 1859, ch. 224; St. 1858, ch. 164). 8 Pub. St. ch. 65, § 25 (prior references, Gen. St. ch. 51, § 16 ; St. 1851, ch. 68; St. 1847, ch. 242, §§ 5, 6). * Pub. St. ch. 65, § 26 (prior references, St. 1875, ch. 153 ; St. 1878, ch. 66). 6 Pub. St. ch. 102, § 54 (prior references, Gen. St. ch. 88, § 46 ; St. 1839, ch. 135 ; Rev. St. ch. 58, § 5 ; St. 1826, qb. 3, § 1). « Pub. St. ch. 102, § 73 (prior reference, St. 1869, ch. 152, § 6). 220 SALES OF PEKSONAL PROPERTY. or kept or offered for sale.^ The question whether the de- fendant knew that the article kept by him was naphtha is immaterial. The law throws upon the seller the burden of keeping himself, at his peril, within the terms of the statute. Guilty knowledge is not one of the ingredients of the offence.^ § 347. Sale of Explosives. — Power to regulate and control the sale of camphene, inflammable liquids, and explosive compounds is vested in the city and town au- thorities.^ There are also provisions concerning the sale of gunpowder.* § 348. Sale of Unwholesome or Adulterated Food or Drugs. — The statute provides a heavy penalty for who- ever knowingly sells any kind of diseased, corrupted, or unwholesome provisions, whether for meat or drink, with- out making the same fully known to the buyer ; ^ for who- ever knowingly sells the meat of any calf killed when less than four weeks old ; ® for whoever fraudulently adulterates for the purpose of sale, or knowingly barters, gives away, 1 Pub. St. ch. 102, §§ 69-71 (prior reference, St. 1869, ch. 153, §§ 2-5). See Welliagtou v. Downer Kerosene Oil Co. (1870), 104 Mass. 64, and also St. 1885, cli. 98, as to such mixtures used for fuel. '^ Hourigan v. Newell (1872), 110 Mass. 470 ; Commonwealth v. Wentworth (1875), 118 Mass. 441. 8 Pub. St. ch. 102, §§ 58, 60, 61, 75 (prior references, St. 1877, ch. 216, §§ 2, 3; St. 1869, ch. 153, § 9; Gen. St. ch. 88, § 51). « Pub. St. ch. 60, §§ 39-31 (prior references. Gen. St. ch. 49, §§ 69- 71; Rev. St. ch. 28, §§ 92-94; St. 1823, ch. 121), and Pub. St. ch. 102, §§ 56, 57 (prior references. Gen. St. ch. 88, §§ 48, 50 ; St. 1847, ch. 51; St. 1839, ch. 185 ; Eev. St. ch. 58, §§ 7, 9; St. 1828, ch. 62). 6 Pub. St. ch. 208, § 1 (prior references. Gen. St. ch. 166, § 1 ; Rev- St. oh. 131, § 1 ; St. 1784, ch. 50). See Common-wealth v. Boynton (1853), 12 Gush. 499. « Pub. St. ch. 208, § 2 (prior references, St. 1866, ch. 253, § 1. See also Gen. St. ch. 166, § 3 ; St. 1855, ch. 239) ; Commonwealth v. Raymond (1867), 97 Mass. 567. ILLEGALITY BY STATUTE LAW. 221 sells, or has in possession with intent to sell, any substance intended for food, which has been adulterated with any substance injurious to health ; ^ for whoever adulterates for the purpose of sale any liquor used or intended for drink, with Indian cockle, vitriol, grains of paradise, opium, alum, capsicum, copperas, laurel water, logwood, Brazil wood, cochineal, sugar of lead, or any other substance which is poisonous or injurious to health, and whoever knowingly sells any such liquor so adulterated ; ^ for whoever fraudu- lently adulterates for the purpose of sale any drug or medicine, or sells any fraudulently adulterated drug or medicine, knowing the same to be adulterated ; ^ for who- ever sells arsenic, strychnine, corrosive sublimate, or prussic acid, without the written prescription of a physician, with- out keeping a record of the date of such sale, the name of the article, the amount thereof sold, and the name of the person or persons to whom delivered; and for whoever purchases deadly poisons as aforesaid and gives a false or fictitious name to the vendor.* § 349. By a recent statute,^ it is further provided that "no person shall manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated." "The term 'drug' shall include all medicines for inter- nal or external use, antiseptics, disinfectants, and cos- metics. The term 'food' shall include all articles used for food or drink by man." 1 Pub. St. ch. 208, § 3 (prior references, St. 1878, ch. 76 ; Gen. St. ch. 166, § 3 ; Eev. St. ch. 131, § 2). 2 Pub. St. ch. 208, § i (prior references. Gen. St. ch. 166, § 4; St. 1855, ch. 356). 8 Pub. St. ch. 208, § 5 (prior references. Gen. St. ch. 166, § 5 ; St. 1853, ch. 394, § 1). * Pub. St. ch. 208, § 6 (prior references. Gen. St. ch. 166, § 7 ; St. 1857, ch. 280, §§ 1, 2). » St. 1882, ch. 263, §§ 1-4, as amended by St. 1884, ch. 289, §§ 5, 7). 222 SALES or PERSONAL PROPERTY. " An article shall be deemed to be adulterated, (A) in the case of drugs, — (1) if, when sold under or by a name recognized in the United States pharmacopoeia, it differs from the standard of strength, quality, or purity laid down therein, unless the order calls for an article inferior to such standard, or unless such difference is made known or so appears to the purchaser at the time of such sale ; (2) if, when sold under or by a name not recognized ia the United States pharmacopoeia, but which is found in some other pharmacopoeia, or other standard work on materia medica, it differs materially from the standard of strength, quality, or purity laid down in such work ; (3) if its strength or purity falls below the professed standard under which it is sold : (B) in the case of food, — (1) if any sub- stance or substances have been mixed with it, so as to reduce or lower or injuriously affect its quality or strength; (2) if any inferior or cheaper substance or substances have been substituted wholly or in part for it ; (3) if any valu- able constituent has been wholly or in part abstracted from it ; (4) if it is an imitation of or is sold under the name of another article ; (5) if it consists wholly or in part of a diseased, decomposed, putrid, or rotten animal or vegetable substance, whether manufactured or not ; or, in the case of milk, if it is the produce of a diseased animal ; (6) if it is colored, coated, polished, or powdered, whereby damage is concealed, or if it is made to appear better or of greater value than it really is ; (7) if it contains any added poi- sonous ingredient, or any ingredient which may render it injurious to the health of a person consuming it." These provisions do not apply to mixtures or compounds recognized as ordinary articles of food or drinks, provided that the same are not injurious to health, and are distinctly labelled as mixtures or compounds. And no prosecution can at any time be maintained concerning any drug the ILLEGALITY BY STATUTE LAW. 223 standard of strength or purity whereof* has been raised since the issue of the last edition of the United States pharmacopcEia, unless and until such change of standard has been published throughout this State. § 350. Sale of Infected Cattle. — No one without the consent of the proper ailthorities may lawfully sell any cattle or horses which have been officially branded because of being infected with any contagious disease, or any such animal known to be so infected or to have been exposed thereto within one year previous to the time of sale.^ § 351. Sale of Trout, Salmon, and Lobsters. — No one may lawfully buy or sell between September 1 and April 1 any trout or land-locked salmon taken in this State ; ^ nor between March 15 and June 1 any smelts which were taken in this State ; ^ nor between December 1 and July 1 any black bass taken in this State ; * nor between August 1 and May 1 any salmon taken in this State, nor at any time a young salmon less than one foot in length ; ^ nor during the month of July any female lobster bearing eggs, if taken in this State ; ® nor at any time a lobster less than ten and one half inches in length.^ § 352. Sale of Game Birds. — The statute in its terms provides that whether it is taken or killed in this State 1 Pub. St. ch. 90, § 7 (prior references, St. 1879, ct. 178 ; St. 1878, oh. 34, §§ 1, 2 ; St. 1860, ch. 219, § 7). " St. 1884, ch. 171, and Pub. St. ch. 91, § 53 (prior references, St. 1880, ch. 86, and St. 1876, ch. 221, § 1). s Pub. St. oh. 91, § 57 (prior reference, St. 1874, ch. 153, §§ 1. 3)- * Pub. St. ch. 91, § 56 (prior references, St. 1878, ch. 224, § 3 ; St. 1871, ch. 113 ; St. 1869, ch. 384, § 30). 6 Pub. St. ch. 91, § 47 (prior reference, St. 1869, ch. 384, § 27). « St. 1882, ch. 98, § 2, amending Pub. St. ch. 91, § 82 (prior refer- ence, St. 1881, ch. 270, § 2). ' Pub. St. ch. 91, § 84 (prior references, St. 1877, ch. 75, and St. 1874, ch. 110, § 1). See St. 1884, ch. 212. 224 SALES OF PERSONAL PROPERTr. or elsewhere, no bne shall buy or sell a woodcock between January 1 and August 1, or a rufifed grouse, commonly called a partridge, between January 1 and September 1, or a quail between January 1 and October 15, except that from January 1 to May 1, one may buy or sell quail and pinnated grouse, commonly called prairie chicken, if not taken or killed contrary to the laws of this State.^ Nor if they are taken or killed in this State may one lawfully buy or sell between April 1 and September 1 any wood or summer duck, black duck, or teal ; ^ nor between April 1 and July 15 any plover, snipe, sandpiper, rail, or with a few exceptions any marsh, beach, or shore birds.^ § 353. Sale of Shares of Stock by One not the Owner. — By statute it is provided that " every contract, written or oral, for the sale or transfer of a certificate or other evidence of debt due from the United States or from an individual State, or of stock, or a share or interest in the stock of a bank, company, city, or vUlage, incorporated under a law of the United States or of an individual State, shall be void, unless the party contracting to sell or transfer the same is at the time of making the contract the owner or assignee thereof, or authorized by the owner or assignee or his agent to sell or transfer the certificate or other evi- dence of debt, share, or interest so contracted for." * 1 Pub. St. ch. 93, § 2 (prior references, St. 1881, ch. 297, § 1 ; St. 1879, ch. 209, § 1; St. 1877, oh. 95; Gen. St. ch. 82, § 1; St. 1855, ch. 197, § 1). 2 Pub. St. ch. 92, § 3 (prior reference, St. 1881, ch. 297, § 2.) See Commonwealth v. Hall (1880), 138 Mass. 410. 8 Pub. St. ch. 92, § 4 (prior reference, St. 1879, ch. 209, § 3). 4 Pub. St ch. 78, § 6 (prior references. Gen. St. ch. 105, § 6 ; St. 1836, ch. 279) ; Stebbins v. Leowolf (1849), 3 Gush. 137, 144 ; Barrett V. Hyde (1856), 7 Gray, 160; Wyman v. Mske (1861), 3 Allen, 238 ; Brigham v. Mead (1865), 10 Allen, 246 ; Barrett v. Mead (1865), 10 Allen, 337 ; Durant v. Burt (1867), 98 Mass. 161 ; Brown v. Phelps ILLEGALITY BY STATUTE LAW. 225 § 354. City Ordinance as to Sale of Lumber construed. — Where a city ordinance forbade, under forfeiture and penalty, the sale of lumber not surveyed, marked, and numbered, and contained this clause : " Provided that lum- ber may be sold to or purchased by any person for his own actual use, not intended to be again sold by him, without being surveyed, marked, and numbered as afore- said, and that in such case, if the purchaser so request, the surveyor shall not be required to number and mark such lumber, but only to survey the same,'' it was held that a sale of lumber to one who for his own actual use pur- chased it without being surveyed, was not in violation of the ordinance, and that the seller might recover the price from the purchaser. The ordinance allows the purchaser to assume the risk of buying without any survey.-' § 355. Champerty and Maintenance. — With regard to champerty and maintenance it is especially provided by statute, under penalty of not less than twenty nor more than five hundred dollars forfeit for each offence, that " coun- sellors, attorneys, justices of the peace, sheriffs, deputy sheriffs, or constables shall not directly or indirectly buy or be interested in buying, or directly or indirectly lend or advance, or agree to lend or advance, any money or other goods, or give or promise any valuable consideration what- ever to any person, as an inducement to place, or in con- sideration of having placed, in the hands of any person any bond, note, book-debt, or right of action for collection, with intent to make themselves any gain from the fees arising from such collection by a suit at law." ^ (1869), 103 Mass. 313 ; Jones v. Ames (1883), 135 Mass. 431 ; Mann V. Bishop (1884), 136 Mass. 495. 1 Howe V. Norris (1866), 12 Allen, 82. * Pub. St. ch. 160, §§ 6, 7 (prior references. Gen. St. oh. 122, §§ 6, 7 ; Rev. St. eh. 89, §§ 5-7 ; St. 1811, eh. 62). See AUen v. H^wkes (1832), 13 Pick. 79 ; Soott v. Harmon (1872), 109 Mass. 237. 15 226 SALES OF PERSONAL PROPERTY. § 356. Sales by Way of Lottery. — The statute provides a penalty for whoever by way of lottery disposes of any property of value, real or personal, or under the pretext of a sale, gift, or delivery of any other property, or of any right, privilege, or thing whatever, disposes of, or offers or attempts to dispose of, any real or personal property, with an intent to make the disposal thereof dependent upon or connected with any chance by lot, dice, numbers, game, hazard, or other gambling device, whereby such chance or device is made an additional inducement to the disposal or sale of said property j^ for whoever sells, either for himself or another person, or offers for sale, or has in his possession with intent to sell or offer for sale, or to ex- change or negotiate, or in any wise aids or assists in the selling, negotiating, or disposing of a ticket in any such lottery, or a share of a ticket, or any such writing, certifi- cate, bill, token, or other device, or any share or right in such disposal or offer as is mentioned above ; ^ or for who- ever sells a false or fictitious lottery ticket, or any ticket or share in a fictitious or pretended lottery, knowing the same to be false or fictitious.^ It is also provided that the ticket shall be " deemed to 1 Pub. St. ch. 309, § 1 (prior references, Gen. St. ch. 167, § 1 ; St. 1856, ch. 121, § 1. See also Rev. St. ch. 132, § 1 ; St. 1833, ch. 148, § 1 ; St. 1825, ch. 184; St. 1817. ch. 191 ; St. 1815, ch. 7) ; WiUiams ». Woodman (1829), 8 Pick. 78; Commonwealth v. Dana (1841), 2 Mete. 329 ; Commonwealth v. Horton (1854), 2 Gray, 69; Common- wealth V. Harris (1866), 13 Allen, 534 ; Commonwealth v. Thaoher (1867), 97 Mass. 583. 2 Pub. St. ch. 209, §§ 3, 10 (prior references, St. 1869, ch. 113, § 2; Gen. St. ch. 167, § 1; St. 1856, ch. 121, § 1) ; Commonwealth V. Eaton (1834), 15 Pick. 273 ; Commonwealth v. Dana (1841), 2 Mete. 329. 8 Pub. St. ch. 209, § 6 (prior references. Gen. St. ch. 167, § 6; Rev. St. ch. 132, § 5 ; St. 1833, oh. 148, § 3) ; Commonwealth v. Harris. (1866), 13 Allen, 534; Commonwealth v. Thaoher (1867), 97 Mass. 583, ILLEGALITY BY STATUTE LAW. 227 be false, spurious, or fictitious, unless such defendant proves that the same was true and genuine, duly issued by the authority of some legislature within the United States, that such lottery was existing and undrawn, and that such ticket or share thereof, or other writing or thing before mentioned, was issued by lawful authority, and binding upon the persons who issued the same." ^ A recent statute provides that "no person shall sell, exchange, or dispose of any property, or offer or attempt to do so, upon any representation, advertisement, notice, or inducement that anything other than what is specifically stated to be the subject of the sale or exchange is or is to be delivered or received, or in any way connected with, or a part of the transaction." '■' § 356 a. Sale of Government Contracts forbidden. — With regard to government contracts in general, it is pro- vided by statute that "no contract or order, or any in- terest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are con- cerned." All rights of action, however, for any breach of such contract by the contracting parties are reserved to the United States. ^ It is also specially provided by statute that " no con- tractor for transporting the mail within or between the United States and any foreign country shall assign or transfer his contract, and all such assignments or transfers shall be null and void." * 1 Pub. St. ch. 209, § 7 (prior references, Gen. St. ch. 167, § 7; Rev. St. ch. 133, § 6 ; St. 1833, ch. 148, § 3) ; Commonwealth v. Harris (1866), 13 Allen, 534. 2 St. 1884, ch. 277. 8 U. S. Rev. St. § 3737. * U. S. Rev. St. § 3963. 228 SALES OF PERSONAL PKOPERTY. § 356 b. Sale of Pension forbidden. — It is provided by Statute that "any pledge, mortgage, sale, assignment, or transfer of any right, claim, or interest in any pension which has been, or may hereafter be, granted shall be void and of no effect; and any person acting as attorney to receive and receipt for money for and in behalf of any person entitled to a pension shall, before receiving such money, take and subscribe an oath, to be filed with the pension agent, and by him to be transmitted with the vouchers now required by law to the proper accounting officer of the Treasury, that he has no interest in such money by any pledge, mortgage, sale, assignment, or trans- fer, and that he does not know or believe that the same has been so disposed of to any person." ^ § 356 c. Sale of Pre-emption Sights, &o. — It is pro- vided by statute that all assignments and transfers of any pre-emption right to government land, prior to the issuing of the patent therefor, shall be null and void.^ The statutes also declare null and void all transfers of the title or claim to any military bounty-land warrant prior to the issue of such warrant.^ § 356 d. Assignment of Wages by Seamen and Soldiers. — The statute provides that every payment of wages to a seaman or apprentice shall be valid in law, notwithstand- ing any previous sale or assignment of wages; and no assignment or sale of wages or of salvage made prior to the . accruing thereof shall bind the party making the same, except such advance securities as are authorized to be made to the seaman himself, or to his wife or mother.* It is also provided that "no assignment of pay by a 1 U. S. Rev. St. § 4745. » U. S. Rev. St. § 2263. « U. S. Rev. St. § 2436. * U. S. Rev. St. § 4536 ; and see § 4532. ILLEGALITY BY STATUTE LAW. 229 non-commissioned officer or private previous to his dis- charge shall be valid." ^ § 356 e. Sale of Obscene Publications. — A recent stat- ute ^ provides that whoever sells, lends, gives away, or has in his possession with intent to sell or distribute, or other- wise offers for loan, gift, sale, or distribution to any minor child any book, pamphlet, magazine, newspaper, or other printed paper devoted to the publication or principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures and stories of lust or crime, or exhibits upon any street or highway, or in any other place within the view, or which may be within the view, of any minor child, or in any manner hires or employs any minor child to sell or give away or in any way to distribute, or who, having the custody or control of any minor chUd,. permits such child to sell, give away, or in any other way to distribute any such book, pamphlet, magazine, newspaper, or printed paper, shall be punished by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars nor less than one hundred dollars. § 356 /. Sale of Opium. — It is also provided ^ that any person who opens or maintains, to be resorted to by other persons, any place where opium or any of its preparations is sold or given away to be smoked at such place, and any person who at such place sells or gives away any opium or any of its preparations to be there smoked or otherwise used, shall be liable to a fine not exceeding five hundred dollars or imprisonment in the house of correction not exceeding six months, or both. 1 U. S. Rev. St. § 1291. « St. 1885, ch. 305. 8 St. 1885, ch. 73. BOOK IV. PEEFOEMANCE OF THE CONTEACT. CHAPTEE I. CONDITIONS. § 357. Distinction between Matter of Representation and Matter of Condition. — The first question as to any statement or assertion made by one party to the other before or at the time of the contract, even though it be contained in a written instrument, is whether it is any- thing more than a mere representation, or whether it be a substantial part of the contract. If it be merely a repre- sentation, it is not a part of the contract ; and hence it follows that even if it be untrue the contract, in general, is not broken, nor is the untruth any cause of action unless made fraudulently. The same statement may under cer- tain circumstances be merely a description or representa- tion, and under others the most substantial stipulation in the contract ; as, for instance, if a vessel were described in a charter-party as a " French vessel," these words would be merely a description in time of peace, but if England were at war and France at peace with the United States, it might form a condition precedent of the most vital importance.-' 1 See Higgins v. Livermore (1817), 14 Mass. 106. C0NDITI01?S. 231 § 358. Conditions Precedent. — Wheuever it is deter- mined that the statement is a substantial part of the contract, the question then arises whether it is a condition precedent, or whether it is an independent agreement a breach of which will not justify a repudiation of the con- tract but only a cross-action for damages. The question whether covenants are dependent or independent is gov- erned, not by technical and artificial rules, but by the true intention of the parties and the nature of the acts to be performed. It does not depend on any particular form of words or upon any collocation of the different stipula- tions, but the whole instrument is to be taken together, and a careful consideration had of the various things to be done to decide correctly the order in which they are to be done. When in the order of events the act to be done by the one party must necessarily be done before the act by the other can be done, it is necessarily a condition precedent, although there be a stipulation for liquidated damages for the breach on each side, and although there be a fixed future time for payment sufficiently distant to have the work done in the mean time. Some of the stipulations of an entire contract may be dependent and others independent, according to their nature and the order of performance.^ § 359. Thus A sold to B certain machinery and fixtures then at A's paper-mill, and agreed that B should have the right which A had to make certain paper by a process then secret, but for which A was at the time seeking to secure a patent, and also agreed to instruct B fuUy in the art and mystery of making such paper. B agreed to pay 1 Per Shaw, C. J., in Knight v. N. E. Worsted Co. (1848), 2 Cush. 286, 287, and in Cadwell v. Blake (1856), 6 Gray, 407, 409. See also Hopkins v. Young (1814), 11 Mass. 305 ; Tilestou v. Newell (1816), 13 Mass. 406, 410 ; Howlaud v. Leach (1881), 11 Pick. 154. 232 SALES OF PERSONAL PROPERTY. for the machinery and fixtures four thousand dollars, in four annual instalments, in paper made according to this process and at the market price thereof. It was also stipu- lated that if A should upon request refuse to teach B the art of making such paper, he should forfeit as liquidated damages distinct from all other liabilities under the con- tract the sum of four thousand dollars. It was held that A could not maintain an action for any part of the price without, when requested, giving the proper instruction to B as to the process, and also securing to him the right to make paper by it. The machinery and fixtures had been delivered and accepted, and the action was brought for the first annual instalment of the price.^ § 360. A agreed to make for B before a certain date a certain number of a specified article. B agreed to furnish all necessary materials as soon and as often as required, and to also furnish all necessary water-power to run the machinery, and to advance to A such sums of money as would enable him to pay his workmen. It was held that B's furnishing materials was a condition precedent to any obligation on the part of A to perform his agreement; that if B had furnished a quantity of materials which A had accepted and commenced working on, he was bound to go on and finish the work on those materials ; that B's subsequent neglect or refusal to furnish further materials would not excuse A from performance so far as to finish what he had begun, though it would be a breach of con- tract for which he would have his remedy by action, and it would excuse his non-performance so far as occasioaed by such neglect or refusal ; that mere delay by B to furnish further materials would not be a breach of condition, unless continued so long as to warrant the jury in inferring that 1 CadweU v. Blake (1856), 6 Gray, 402. CONDITIONS. 233 he did not intend to furnisli them ; that the furnishing of power was a condition precedent, because without it no essential part of the work could be done; that if the power was destroyed for the time being, A had no right to treat it as a breach of the condition and absolve himself from further performance, if the power could be restored within a reasonable time ; that, in such case, if it were so restored there was no breach ; that to constitute a breach it must be such a substantial refusal or neglect to furnish power as would put it out of A's power to proceed ; that a breach could only excuse A from performance of such part of the contract requiring the use of power as remained to be performed when the breach happened ; that although there was an interruption of the power which might be construed as a breach of the condition precedent author- izing A to break off from further performance, yet if he continued in the performance until the power was again established, this would amount to a waiver, and he would no longer be excused from further performance, although if he had suffered loss by the delay he would have his action for damages ; that the stipulation as to advancing money to pay workmen was not a condition precedent.^ In this case it was said by Shaw, C. J., that, " in order to construe a stipulation on one side to be a condition precedent to an obligation to perform on the other side, it must in gen- eral appear either (a) that the undertaking on one side is in terms a condition to the stipulation on the other; as where one stipulates that he will perform the thing to be done if the other shall have first performed some stipula- tion on his part; and even when words are used which might be construed to be a condition in their ordinary sense, they shall not be so considered if such construction ' MiU-Dam Poundery v. Hovey (1839), 21 Pick. 417. 234 SALES OF PERSONAL PKOPEKTY. is not consistent with the intent of the parties. It depends on the reason and sense of the thing as it must have been understood by the parties, and it is to be collected from the whole contract. Where a stipulation is made in gen- eral terms, it is to be construed with such implied excep- tions and qualifications as necessarily grow out of the subject-matter, and therefore must be presumed to have been in the contemplation of the parties. Or (6) it must result from the nature of the acts to be done, and the order in which they must necessarily precede and follow each other in the progress of performance. When the act of the one party must necessarily precede any act of the other, it will constitute a condition precedent without ex- press words ; but when not necessary, although convenient, useful, or beneficial, yet as the want of it does not prevent performance, and the loss and inconvenience can be com- pensated in damages, it is not a condition. Or (c) the non- performance on one side must go to the entire substance of the contract and to the whole consideration, so that it may be safely inferred as the intent and just construction of the contract that if the act to be performed on the one side is not done there is no consideration for the stipu- lation on the other side. " ^ § 361. Time given for Performance. — Where time is given for the performance on one side, and payments are to be made by the other within such time, it is certain that the making of the payments cannot depend on a full and complete performance.^ Thus where A sells to B cer- tain land to be paid for in several instalments, the deed to be executed at the completing of the last payment, the agrjeement to pay all the instalments except the last is independent; but the agreement for the last payment 1 At pages 438, 439, 442. " Per Shaw, C. J., in Lord v. Belknap (1848), 1 Cush. 284. CONDITIONS. 235 is conditional upon the execution and delivery of the deed} § 362. Concurrent Conditions. — In executory agree- ments for the sale of goods, the general rule is that the obligation of the seller to deliver, and that of the buyer to pay, are concurrent conditions, in the nature of mutual conditions precedent, and that neither can enforce the contract against the other, without showing performance or offer to perform, or averring readiness and willingness to perform his own promise.^ § 363. Condition must be strictly performed. — The rule is general and uniform that the condition precedent must be fully and strictly performed before the party on whom its fulfilment is incumbent can call on the other to comply with his promise. Thus where the agreement was to fur- nish a certain article which should be satisfactory to the defendant, the fact that it was satisfactory to or accepted by him must be shown. It is of no avail to show that the article was such as should have been found satisfactory, and that the defendant is utterly unreasonable.^ An agreement was made between A and B, where- by A was, on or before a certain day far distant, to pay to B the full sum which B should recover of C in an action then pending ; and B agreed to let A have all the advantage of the demands he was by law entitled to. B within the time got judgment and execution, but held it in his hands for certain purposes till the benefit of an 1 Gardiner v. Corson (1819), 15 Mass. 500, 503, 504 ; Kane v. Hood (1832), 13 Pick. 281. 2 Gardiner v. Corson (1819), 15 Mass. 500 ; Dana v. King (1824), 2 Pick. 155 ; Hapgood v. Shaw (1870), 105 Mass. 276-279 ; Collins V. Delaporte (1874), 115 Mass. 159, 161 ; Steplienson v. Cady (1875), 117 Mass. 9. 8 MoCarren v. McNnlty (1856), 7 Gray, 139 ; Aiken v. Hyde (1868), 99 Mass. 183 ; Brown v. Foster (1873), 113 Mass. 136. 236 SALES OF PERSONAL PROPERTY. attachment on the original writ was lost, and the judgment had probably become of no value. He then made tender of it to A. The court held that the promises were depend- ent on each other, construing the agreement according to the true intent and meaniug of it as entertained by the parties ; that B had disabled himself from performing his part of it, which performance was a condition precedent to any recovery by him from A.^ § 364. Waiver of the Condition. — The necessity for performing the condition precedent may be waived by the party in whose favor it is stipulated, either expressly or by implication, resulting from his acts or conduct. This waiver is implied in all cases in which the party entitled to exact performance either hinders or impedes the other party in fulfilling the condition ; ^ or incapacitates himself from performing his own promise ;^ or distinctly, absolutely, and unequivocally refuses performance of his own part at a time and under conditions in which he is bound to per- formance, so as to render it idle and useless for the other to fulfil the condition.* But a mere assertion by a party, before the time fixed for performance, that he will be una- ble or will refuse to perform his contract, is not sufficient to constitute a waiver.^ An action for the breach of an agreement to purchase property, brought before the expira- 1 Johnson v. Reed (1812), 9 Mass. 78. " Borden v. Borden (1809), 5 Mass. 67, 74 ; Tasker v. Bartlett (1850), 5 Cnsh. 359, 363. 3 Hopkins v. Young (1814), 11 Mass. 302, 306 ; Seymour v. Bennet (1817), 14 Mass. 266 ; Newcomb v. Brackett (1819), 16 Mass. 161 ; Buttrick V. Holden (1851), 8 Cush. 235. * Prazier v. Cushman (1815), 12 Mass. 279 ; Howland v. Leach (1831), 11 Pick. 155 ; Heard v. Lodge (1838), 20 Pick. 60, 61 ; Car- penter V. Holcomb (1870), 105 Mass. 280, 285 ; Daniels v. Newton (1874), 114 Mass. 533 ; Nason v. Holt (1874), 114 Mass. 542 ; Collins V. Delaporte (1874), 115 Mass. 159. 6 Pomroy v. Gold (1841), 2 Mete. 600, 503. CONDITIONS. 237 tioa of the time fixed and allowed for the purchase, cannot be maintained by proof even of an absolute refusal on the part of the defendant ever to purchase, the English cases to the contrary being disapproved.^ § 365. Impossibility of Performance as an Excuse. — It is no excuse for the non-performance of a condition that it is impossible for the obligor to fulfil it, if the perform- ance be in its nature possible. The act of God will excuse the failure to do a thing where the law had created the duty, but never where it is created by the positive and absolute contract of the party not subject to any condition, express or implied. If the thing to be done is neither im- possible nor unlawful at the time of the promise, it is binding, unless before the time of performance it becomes unlawful.^ Thus where a person contracted to build a house, and before completion it was destroyed by fire without his fault, he was held not to be discharged thereby from his obligation to fulfil his contract.^ But where from the nature of the contract it appears that the parties must from the beginning have contemplated the continuing ex- istence of some particular specified thing, as the founda- tion of what was to be done, then, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused, in case before breach performance becomes impossible from the accidental perishing of the thing, 1 Daniels v. Newton (1874), 114 Mass. 530, 539 ; Nason v. Holt (1874), 114 Mass. 541. 2 Phillips V. Stevens (1819) , 16 Mass. 338 ; Mill-Dam Poundery Co. 17. Hovey (1839), 21 Pick. 441 ; Wareham Bank v. Burt (1862), 5 Allen, 116 ; Knowles v. Dabney (1870), 105 Mass. 437, 443 ; Wells V. Calnan (1871), 107 Mass. 514, 516. ' Adams v. Nichols (1837), 19 Pick. 375, 279; Lord v. Wheeler (1854), 1 Gray, 283. 238 SALES OF PERSONAL PROPERTY. without the fault of either party .^ Thus where one agrees to repair another's house, already built, the destruction of the house by fire puts an end to the contract.^ § 366. Sale with Right of Buyer, to return Goods. — A sale on condition that the purchaser may return the article within a specified time becomes absolute if the purchaser so misuse the property during that time as ma- terially to impair its value. Being a sale upon a condi- tion subsequent, the title vested at once in the purchaser, defeasible only on the performance of the condition. The purchaser becoming unable to perform the condition, his obligation to pay the price becomes unconditional, and the seller may sue for goods sold, without setting out the con- ditional contract.^ § 366 a. Sale of Building to be removed. — A sold to B a building, with the stipulation that it should be removed within five days from the day of sale. B paid the price at the time of the sale. Upon B's failure to remove it within the time, A resold it to C, by whom it was taken down and removed. It was held that the stipulation constituted a con- dition which had been broken, and that B could maintain no action against A for a conversion, or for damages for a breach of the contract. Even if the sale had been made by a city, no stipulation could be implied that the city officials, who by law have charge of the streets, would grant to B a permit to remove the building as a whole. B takes the risk of being able to remove it without tearing it down.* 1 Wells V. Caliian (1871), 107 Mass. 514, 517. See Willington r. West Boylston (1826), 4 Pick. 101 ; Stewart v. Loring (1862), 5 Allen, 306 ; Thomas v. Knowles (1879), 128 Mass. 22. 2 Lord V. Wheeler (1854), 1 Gray, 282. 8 Ray V. Thompson (1853), 12 Gush. 281. See Martin v. Adams (1870), 104 Mass. 262; Mafflyn v. Hathaway (1871), 106 Mass. 414; McKinney v. Bradlee (1875), 117 Mass. 321. « Woodward v. Boston (1874), 115 Mass. 81. CONDITIONS. 239 § 367. Right of One bound to do Anything on happen- ing of a Certain Event to have Notice of its happening. — As a general rule, a man who binds himself to do any- thing on the happening of a particular event is bound to take notice at his own peril, and to comply with his promise when the event happens. But there are cases in which from the very nature of the transaction the party bound is entitled to notice from the other of the happening of the event, as where the fact lies peculiarly within the knowledge and privity of such other party. Where the matter lies as much within the cognizance of one party as of the other no notice is necessary.^ § 368. Agreement to buy Article if it stands Certain Test, and Refusal afterwards to make the Test. — A ma- chine was ordered by A on an agreement that he would try the same within a specified time according to certain directions, and would pay for it unless it should fail to work as represented by the seller. It was held that if it had been ascertained by actual trial that machines exactly similar were necessarily incapable from their construction of doing what was promised for them, A was not bound to put the particular one furnished him to the test of actual experiment.^ 1 Lent V. Padelford (1813), 10 Mass. 238 ; Spooner v. Baxter (1835), \6 Pick. 411. 2 Waters' Patent Heater Co. v. Smith (1876), 120 Mass. Hi. 240 SALES or PERSONAL PROPEETY. CHAPTER II. EXPKESS WAEEANTT. § 369. "Warranty defined. — A warranty is an agree- ment, express or implied, that a certain fact regarding the subject of the contract of sale is or shall be as it is ex- pressly or impliedly declared or promised to be. It is a collateral undertaking, forming part of the contract. An antecedent representation made by the seller as an induce- ment to the buyer, but not forming part of the contract when concluded, is not a warranty. It is not indeed neces- sary that the representation should be simultaneous with the conclusion of the bargain, but only that it should be made during the course of the dealing which leads to the bargain, and should finally enter into it as an essential part of it. § 370. Thus certain goods were ordered by A of B, by whom they were accordingly sent. A received and stored them in his cellar, opening some of the packages to test the quality. B afterwards came and brought a bill of par- cels or bill of sale showing the number and gauge of the packages, and asked for a settlement, whereupon the price was agreed upon, and A gave his note for it. At this interview the warranty was made, and it was held com- petent for the jury to find that it was part of the contract of sale.^ § 371. A sold and delivered to B certain goods on his written order. Disagreeing about the price, they subse- 1 Vincent v. Leland (1868), 100 Mass. 432. EXPRESS WAKEANTT. 241 quently met, and both signed a writing certifying that B agreed to accept the bill of goods as delivered, with certain changes, which A thereupon made. It was held that this second writing merged all antecedent negotiations and stipulations, whether oral or written, and that oral evi- dence was inadmissible to prove that on the day of the original order A warranted the goods to he of the best material and workmanship, and that B would not have bought them without such warranty. The final writing must be taken to be the complete expression of their entire bargain with each other, by which alone their rights and liabilities are to be determined.^ § 372. A ordered of B four tons of paper-stock, with regard to which there was no warranty. B delivered seven tons. A objecting to pay for the surplus three tons, B finally warranted them to be of a certain quality, and at a reduced price A took them and paid for them. It was held competent for the jury to find a new contract between the parties as to the surplus and a warranty of such surplus. The court said that the new contract was valid, that the warranty formed an essential part of it and was made on a sufficient consideration, and that the seller waived any rights he might have had growing out of previous dealings.^ § 373. Warranty made after Sale is concluded. — A warranty given after a sale has been made is void, unless based on some new consideration given for it. The con- sideration already given is exhausted by the transfer of the property ifl the goods without a warranty, and there is nothing to support the subsequent agreement to warrant, unless a new consideration be given.^ 1 Frost V. Blancliard (1867), 97 Mass. 155. 2 Dunham v. Barnes (1864), 9 Allen, 353. " Hogins V. Plymptou (1831), 11 Pick. 99 ; "Williams v. Hathaway (1837), 19 Pick. 387. 16 242 SALES OF PERSONAL PROPERTY. § 374. "Warranty inserted in Heoeipted Bill. — The seller who has inserted a warranty in a receipted bill of the goods sold cannot, when sued on the warranty, give evi- dence of a prior bargain for a sale of the goods at the same price without warranty, for the purpose of showing that the warranty was without consideration. He is bound by the contract in writing executed at the time the money was paid.^ § 375. What constitutes an Szpress Warranty. — To constitute an express warranty, no special form of words is necessary. If the seller makes any assertion or affirma- tion which is not a mere expression of judgment or opinion respecting the kind, qualitj^ 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, it is an express warranty.^ In all oral contracts this question of intention and reliance is for the jury, if on the evidence there is any doubt ; ^ and so, too, where the af&rmation is in writing, but is not incorporated into or made a part of the contract of sale.* But when the contract is in writing, and the affirmation is incorporated into or makes a part of it, the court is to declare its legal effect, the exposition of it involving a mere question of law.® Thus, where a purchaser of a cow said to the seller after the sale, " You said the cow was all right," to which the seller replied, " Well, she is all right," it was 1 Davis V. Ball (1850), 6 Cush. 505. ^ Coolidge V. Brigham (1840), 1 Mete. 552; Henshawc. Kobins (1845), 9 Mete. 88; Edwards v. Marcy (1861), 2 Allen, 489; Stroud V. Pierce (1863), 6 Allen, 416 ; Harrington v. Smith (1884), 138 Mass. 98. ' Edwards v. Marcy (1861), 2 Allen, 490. * Edwards v. Marcy, ut supra. « Eice V. Codman (1861), 1 AUen, 380 ; Edwards v. Marcy (1861), 2 Allen, 490. EXPRESS WARRANTY. 243 held that this was competent evidence of a warranty at the time of the sale, and that whether these words were meant as a warranty of the soundness of the cow was a question for the jury to decide from the whole conversa- tion and under all the circiimstances of the case.^ § 376. Breach of a 'Warranty of the Soundness of a Horse. — Where a horse was sold with warranty of sound- ness, there was held to be a breach of the warranty, it being proved that, at the time of the sale, he had the seeds of that disease known as the glanders. Gushing, J., said : " The moment that symptoms of glanders appear in a horse, — indications of the incipiency of the disease, — that is, if he really have the seeds of it in him, he is unsound, al- though it may be some time before the disease becomes fully developed in its most offensive conditions. It is the future history of the case which is to show whether it was the glanders or not." ^ § 377. Defects in Horses constituting Unsoundness. — Defects which have been held to constitute a breach of a warranty as to the soundness of a horse are glanders ; ^ crib-biting, if it affect the health and condition of the horse so as to render him less able to perform service and of less value ; * lameness, if it be chronic and permanent, arising from causes which are beyond the reach of immediate remedies ; and this is so although the purchaser knew that the horse was lame a week before the sale, at which time the subject was talked of and the seller then refused to give a warranty, — the reasonable inference being that the warranty of soundness, when given afterwards, was in- 1 Tuttle V. Brown (1855), 4 Gray, 457. 2 Woodbury v. Uobbins (1852), 10 Ciish. 520. » Woodbury v. Robbins (1852), 10 Cush. 520. * Washburu v. Cuddihy (1857), 8 Gray, 430 ; Miller v. Smith (1873), 112 Mass. 470. 244 SALES OF PERSONAL PROPERTY. tended to protect against the danger of a loss if the lame- ness should prove to be serious and permanent, its nature and the probability of its continuance being then unknown to the purchaser.! On the question of the purchaser's knowledge of the lameness and the claim that it was an open defect, the court also said : " A general warranty does not cover or include patent and obvious defects which are plainly visible to a purchaser, as where a horse is sold having a palpable defect constituting unsoundness, such as the loss of an eye, which could not have escaped the observation of the purchaser. The doctrine rests on the reasonable 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 appearance of the horse did not disclose actual unsoundness. Lameness may or may not make a horse unsound. If it were only acciden- tal and temporary, it would not be a breach of warranty." § 378. Purchaser's Knowledge of Pacts which consti- tute the Breach of Warranty. — As to the effect of the purchaser's knowledge of the matter which constitutes the breach of warranty, it has been held that it could not oper- ate to protect the seller from the consequences of his own voluntary contract. The fact that a vessel at the time of sale was liable to condemnation for a breach of the em- bargo laws of the United States was held to be within the usual covenants of warranty in the bill of sale, notwith- standing the purchaser knew of the fact at the time he purchased.^ In an earlier case, where a pew in a meeting- house was sold, warranted free from all incumbrances, it was held that the legal liability of the pew for the ex- penses already incurred at the time of sale in building the 1 Brown v. Bigelow (1865), 10 Allen, 242, 24.5. ^ Ingersoll v. Jactson (1813), 9 Mass. 495. EXPRESS WARRANTY. 245 meeting-house, which were afterwards assessed and levied, was not such an incumbrance as to render the seller liable, for the court said the facts must have been equally known to each of the parties.^ In a still earlier case, however, it was held not competent for the seller, when sued on a gen- eral warranty, to show that the purchaser knew the facts at the time of the sale, and agreed not to hold the seller to the warranty. The court said it was an attempt to control the effect of a written instrument by parol evi- dence. Suppose this incumbrance was known, it was still competent to the seller to covenant with the purchaser to hold him harmless from its effects ; and if such were not his intention, he should have excepted it out of his general covenants.^ § 379. Cannot by Parol introduce Warranty into Bill of Sale not containing it in Terms. — Where the bill of sale or written evidence of the contract contains no warranty, or expresses the warranty that is given by the seller, parol evidence is inadmissible to prove the existence of a war- ranty in the former case, or to extend it in the latter by inference or implication.^ But where the written paper is merely in the nature of an informal receipt or bill of parcels, parol evidence of a warranty is admissible.* § 380. Where, however, an oral agreement was made 1 Spring V. Tongue (1812), 9 Mass. 28. 2 Townsend v. Weld (1811), 8 Mass. 146. See Batchelder v. Queen Ins. Co. (1883), 135 Mass. 449. 3 Warren u. Wheeler (1844), 8 Mete. 99 ; Howe v. Walker (1855), 4 Gray, 819 ; Whitmore v. Soath Boston Iron Co. (1861), 2 Allen, 58 ; Boardman v. Spooner (1866), 13 Allen, 361 ; frost v. Blanchard (1867), 97 Mass. 155. ^ Bradford v. Manly (1816), 13 Mass. 142 ; Hogins v. Plympton (1831), 11 Pick. 100 ; Hazard v. Loring (1852), 10 Gush. 268 ; Dun- ham V. Barnes (1864), 9 Allen, 352 ; Hildreth v. O'Brien (1865), 10 Allen, 104; Atwater v. Clancy (1871), 107 Mass. 369. 246 SALES OF PERSONAL PROPERTY. by A to furnish B with a certain quantity of tallow of good quality and color, and the specified quantity was afterwards delivered and the price paid, bills of parcel being made and signed by A, in which the article was called " tallow/' without other description or designation, it was held that the agreement was within the Statute of Frauds, and that B could not recover for a breach of the warranty as to good quality and color, made at the time of the agreement ; and also that if the delivery, acceptance, and payment constituted one entire contract of sale, yet there was no contract of warranty, because the bill of parcels, which was the only written memorandum signed by A, specified none, and contained no description from which a warranty could be inferred.^ § 381. 'Warranty given by Agent. — Warranties are sometimes given by agents, without express authority to that effect. In such cases, if in the sale of the sort of goods confided to him it is usual in the course of trade to give a warranty, the principal is bound. The usage of the business in which the general agent is employed fur- nishes the rule by which his authority is measured. Hence he may give a warranty only when such is the usage.^ Where an auctioneer acts as agent for an administrator in selling the goods of his intestate, the nature of the sale and the representative capacity in which the seller acts in em- ploying the auctioneer preclude any implied right or authority in the latter to make a warranty, binding on the administrator personally, of the soundness of the articles 1 Lamb v. Crafts (1847), 12 Metq. 353. * Upton ». Suffolk County Mills (1858), 11 Cush. 586, 589 ; Blood V. Frencli (1857), 9 Gray, 199. See Goodenov v. Taylor (1810), 7 Mass. 36; DwigM v. Whitney (1834), 15 Pick. 179; Shaw v. Stone (1848), 1 Cush. 228 ; Goldsmith v. Manheim (1872), 109 Mass. 187. EXPRESS WARRANTY. 247 sold.^ A merchandise broker can have no implied author- ity from the usage of trade to warrant goods sold by him to be of merchantable quality, and evidence to prove such usage is inadmissible.^ § 382. 'When it Binds Agent personally. — An express •warranty, made by the agent of the seller, will bind the agent personally, if it appears that such was the intention ; and the agent might possibly so conduct the sale as to make himself liable upon an implied warranty, even with knowl- edge on the part of the buyer that he was merely agent.^ § 383. Where Principal adopts Agent's Contract, he can- not repudiate the Agent's 'Warranty. — An agreement for the purchase of certain goods was made by C with A, who represented himself to be an agent of B. By the terms of the agreement the goods were warranted to be equal to a sample. Before closing the contract, C called on B, who said that the dealing was directly with him, and that the bill would come directly from him. No price or other terms were agreed on or mentioned between C and B. B afterwards received the price agi-eed on by A and delivered the goods ; but instead of giving a bill direct to C, gave a biU to a firm of which A had been a member, but which had ceased to exist, and a former clerk of this firm made out a bill from this firm to C, who was told by B that this would make no difference. It was held com- petent for the jury to find that B adopted the contract made by the agent, and could not repudiate the warranty, which was an essential part of it ; and that the manner in which the bills were made out was open to explanation, and did not conclusively show that C bought of the agent. A* 1 Blood V. Prenoh (1857), 9 Gray, 197. 2 Dodd u. Farlow (1865), 11 Allen, 426. 8 Wilder v. Cowles (1868), 100 Mass. 487, 491. * ChvLrchm V. Palmer (1874), 115 Mass. 310. 248 SALES OF PERSONAL PROPERTY. § 384. Warranty against Future Defects. — A warranty ordinarily applies only to defects existing at the time of sale. It is, however, competent for the seller to warrant or insure against future accidents, as that flour shall keep sweet during a sea voyage, during which it must twice cross the equator. The intention to constitute such a warranty must be very plain.^ § 385. Warranty construed. — An agreement between A and B stated that A had sold to B the hull of a new ship he was then building; that A agreed to finish the ship in a faithful and workmanlike manner ; that all the materials used on the hull should be good, and fitting a first-rate ship of the kind ; and that every part of the hull should be complete. It was contended by A that the warranty extended only to the work to be done in finish- ing the ship, while B contended that the agreements amounted to a warranty of the whole vessel, being retro- spective as well as prospective. It was held that the warranty did not refer back to the quality of the matei rials and workmanship already used in and upon the hull before the sale, but applied only to what remained to be furnished and done in completing the ship.^ § 386. Burden of Proof. — Where an article is sold with a warranty as to its quality, or with a representation amounting to a warranty, and action is brought by the seller for the price, the burden of proof is on the pur- chaser, if he relies on a breach of the warranty, to show that the goods are not as waranted ;^ and where the goods are sold by sample the same rule applies, and the pur- 1 Upton V. Suffolk County Mills (1853), 11 Gush. 586; Davis r. Ball (1850), 6 Gush. 505. 2 Stedmau v. Lane (1837), 19 Pick. 547. » Dorr V. Mslier (1848), 1 Gush. 271. See Taylor v. Cole (1873), 111 Mass. 365. EXPRESS WARRANTY. 249 chaser is held to show that the goods are not equal to the sample, if he relies on such fact.^ § 387. 'Warranted Equal to any in America. — Proof that certain goods were warranted " equal to any in America," will not support a declaration alleging that they were warranted . to be good and merchantable.^ * Lothi'op V. Otis (1863), 7 Allen, 435. See Merriman v. Chapman (1864), 32 Conn. 146. " Goulding V. Skinner (1823), 1 Pick. 162. 250 SALES OF PERSONAL PEOPERTY. CHAPTER III. IMPLIED WAEEANTY OF TITLE. § 388. Implied by Mere Act of Sale. — In a sale of per- sonal property which is actually or constructively in the possession of the seller, he is held to affirm by the mere act of sale that he is the owner, and has the legal right to sell ; and this is equivalent to a warranty of title. This responsibility the seller incurs, although the sale may be made in good faith and in ignorance of the defect in his title.-' The word " possession " here must be taken in its broadest sense, and as including possession by a bailee of the seller. The excepted cases must be substantially cases of sales of the mere naked interest of persons having no possession', actual or constructive, in which cases no war- ranty of title is implied.^ § 389. 'What constitutes a Breach. — As to what con- stitutes a breach of this warranty of title so as to permit action to be brought therefor, it has been held in one case that there was no breach until disturbance of the pur- chaser's possession. In this case the purchaser resold the goods, and the party really having title sued him in trover in 1841, and in 1844 secured judgment. Meanwhile the original seller had been, in 1842, adjudged a bankrupt, and 1 Stedman v. Lane (1837), 19 Pick. 551; CooKdge v. Brigham (1840), 1 Mete. 551 ; Dorr v. Ksher (1848), 1 Gush. 273 ; Cabot Bank V. Morton (1855), 4 Gray, 156 ; Grose v. Hennessey (1866), 13 Allen, 390; Brown v. Pierce. (1867), 97 Mass. 46 ; Trench v. Vining (1869), 102 Mass. 135. " Whitney v. Heywood (1850), 6 Gush. 86 ; Shattuck v. Green (1870), 104 Mass. 45. IMPLIED WARRANTY OF TITLE. 251 in 1843 had received his discharge. In 1847 action was brought by the purchaser for breach of the implied war- ranty of title. The court said that " the plaintiff had no claim which could have been proved in bankruptcy against the defendant at any time before the date of his discharge. While the plaintiff was in the actual possession and enjoy- ment of the money which he received for the goods, he could prove no claim, and had no claim against the defend- ant. If the plaintiff, before he was deprived of the money, had brought a suit against the defendant for a breach of his warranty of title, it must have been a good defence that the plaintiff had sold the goods and actually had the money, and so far as could then be known might always hold it. While he held it he had no claim, contingent or otherwise, which he could have proved against the defendant. When the plaintiff was deprived of the money, when it was taken from him by law, then, and not till then, he had a claim on the defendant. As the cause of action thus accrued since the discharge in bankruptcy, that could not be pleaded in bar.^ § 390. But in a later case the sale was of a building as a chattel, and at the same time the seller assigned to the buyer a lease of the lot on which the building stood. Under this lease the buyer had possession of the building, but by the sale of it as a chattel no title passed. The purchaser's action was sustained, it being declared imma- terial that he had not been deprived of possession. Hoar, J., said that " the rules which belong to the covenants of seisin and warranty in conveyances of real property have no application." "^ In a still later case ^ it was held that the breach occurs 1 Bennett v. Bartlett (1850), 6 Cash. 225, 227. 2 Grose v. Hennessey (1866), 13 Allen, 389. 8 Perkins v. Whelan (1875), 116 Mass. 542. 252 SALES OF PERSONAL PROPEETY. at the time of sale, and. that the Statute of Limitations runs from that time. In this case the facts were that the sale occurred in 1865. The seller died in 1870, and notice was then duly given by his executor of his appointment as such. Shortly thereafter suit was begun by the real owner against the purchaser, and judgment was finally obtained and satisfied in 1873. Thereupon an action was brought by the purchaser for breach of the warranty of title. Bennett v. Bartlett was not cited or referred to, and the court even said it was not aware of any previous decision by it of the precise point. Some reliance was placed on the case of Grose v. Hennessey, in which, how- ever, Bennett v. Bartlett was not cited or referred to. The law elsewhere would seem to be altogether in accordance with the earlier of the decisions in this State.^ § 391. Where Seller assigns Bill of Sale constituting his Title. — The fact that the seller by parol of a chattel as- signs and delivers to the buyer, whether as a muniment of title or a symbolical delivery of the chattel, or a mere incident of the transaction, the bill of sale under which he himself acquired it does not prevent his liability upon an implied warranty of title.^ § 392. Sale merely of Seller's Interest. — Where the sale is simply of all the seller's right or interest in the property, no warranty of title can be implied.^ ' Vibbard v. Johnson (1821), 19 Johns. 77 ; Case v. Hall (1840), 24 Wend. 102 ; Randon v. Toby (1850), 11 How. 493, 520 ; Wansler v. Messier (1861), 29 N. J. L. 256; Linton v. Porter (1863), 31 111. 107; Burt V. Dewey (1869), 40 N. Y. 283; Sargent w. Currier (1870), 49 N. H. 310; Gross v. Kierski (1871), 41 Cal. Ill ; Krumbhaar v. Birch (1877), 83 Penn. 426, 428. But see Word v. Cavin (1858), 1 Head, 506. 2 Shattuck V. Green (1870), 104 Mass. 42. ^ Jones V. Huggeford (1842), 3 Mete. 519 ; Northampton Bank v. Mass. Loan & Trust Co. (1877), 123 Mass. 330. IMPLIED WARRANTY OF QUALITY. 253 CHAPTEE IV. IMPLIED WARRANTY OF QUALITY. § 393. Warranty implied on Sale of Goods as of a Cer- tain Description. — The old rule was well settled, that upon a sale of goods, if there be no express warranty of the quality of the goods sold, and no actual fraud, the maxim caveat emptor applies. In this State the law has undergone some, modification, and it is now held that, without express warranty or actual fraud, every person who sells goods as of a certain denom- ination or description undertakes, as part of his contract, that the thing delivered corresponds to the description, and is in fact an article of the species, kind, and quality thus expressed in the contract of sale, unless the goods are entirely open to inspection, and are actually inspected by the purchaser, at or before the time of purchase, in which case it seems that the old rule still applies.^ § 394. The words of description are held to imply and constitute a warranty that the goods are of the species and quality so described, and also that they are salable or merchantable; and this rule applies although the goods are examined by the purchaser at or before the sale, if they are so prepared and present such an appearance as to de- ceive skilful dealers.^ Thus where goods were advertised 1 Per Shaw, C. J., in Winsor v. Lombard (1836), 18 Pick. 60 ; Stedman v. Lane (1837), 19 Pick. 551. " Williams v. Spofford (1829), 8 Pick. 250 ; Henshaw v. Robins (184,5), 9 Mete. 88; Lake v. Clark (1867), 97 Mass. 348. 254 SALES OF PERSONAL PROPERTY. for sale as Manilla indigo, and the bill of parcels so de- scribed them, it was held to constitute a warranty.'^ Thus a person who procures notes to be discounted by a bank impliedly warrants the genuineness of the signatures of the makers and iudorsers; that is, he warrants that the article is in fact what it is described and purports to be.^ This rule extends even to cases where bank-bills are used in making a payment, and are afterwards found to be coun- terfeit. There is an implied warranty of their genuineness.^ Where the contract is for " Manilla sugar," it is enough to satisfy this description if the goods are what is commonly called in commerce by that name, although they contain more impurities than sugar known under that name usu- ally does.* Where in a sale-note and bill of parcels the goods were described as " prime quality winter oil," it was held to amount to a warranty that the article sold agreed with the description.^ So, too, in a contract for " German cylinder glass," the seller must furnish such an article as would be known in the market and among those conver- sant with the trade as glass of that description ; but evi- dence to show merely that the specific glass tendered was not merchantable was inadmissible, and so also evidence that it was not as good or valuable as that usually sold for the price, for no warranty of quality is implied from payment of a full price.^ 1 Bradford v. Manly (1816), 13 Mass. 145 ; Henshaw v. Robins (1845), 9 Mete. 83. " Cabot Bank v. Morton (1855), 4 Gray, 156; Merriam v. Wolcott (1861), 3 Allen, 258 ; Worthington ». Cowles (1873), 112 Mass. 30. See Coolidge v. Brigham (1840), 1 Mete. 647 ; Lobdell v. Baker (1840), 1 Mete. 193, and (1842), 3 Mete. 469. 8 Young V. Adams (1810), 6 Mass. 182. * Gossler v. Eagle Sugar Refinery (1869), 103 Mass. 331. 6 Hastings v. Lovering (1824), 2 Pick. 214, 219. 8 Mixer V. Coburn (1846), 11 Mete. 559, 562. IMPLIED WARRANTY OF QUALITY. 255 So in a policy of insurance the description " Swedish brig Sophia " was held to imply a warranty that the vessel was Swedish property, or at least that she was furnished with regular documents in that character.^ A bill of sale of gunny cloth, specifying the invoice weight, is not a warranty that the actual weight is substantially the same with such invoice weight ; and evidence that such is the understanding among dealers in that article at the place of sale is inadmis- sible.2 Where the seller agreed to deliver a certain quantity of " good fine wine," it was held that these words were too uncertain and indefinite to amount to a warranty that the wine was of any particular description or quality .^ § 395. Sale of Article with all Faults. — On the sale of an article " with all faults," the meaning of the phrase is, such faults or defects as the article sold might have, retain- ing still its character and identity as the article described. There is still an implied warranty as to its having this character and identity. Thus in the sale of a "copper- fastened vessel with all faults," the term meant such faults as a copper-fastened vessel might have, but it would not cover the sale of a vessel not copper-fastened.* § 396. Warranty construed. — Where the bill of par- cels described the goods as No. 1 and 'No. 2 mackerel, and the sale occurred in the spring of the year, it was held that such description was not a warranty that the mackerel were free from rust at the time of the sale, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2. 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 1 Higgins V. Livermore (1817), 14 Mass. 106. " Kice V. Codman (1861), 1 Allen, 377. » Hogiiis 1). Plyinpton (1831), 11 Pick. 99. * Whitney v. Boardman (1875), 118 Mass. 242. 247. 256 SALES OF PERSONAL PROPEETY. the season of the year when this species of fish is caught, packed, and branded, and the species of damage and dete- rioration 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 circumstances mutually understood, we have no doubt that when these fish were sold as No. 1 and No. 2 the under- standing of the parties was that they were fish packed, inspected, and branded as of those numbers respectively. It was in evidence that fish infected with rust — a damage contracted by the leaking out of the pickle after the fish have passed under the brand of the inspector -— may be packed and inspected as No. 3, but that however good in other respects they cannot be considered or marked as No. 1 or No. 2. Upon this ground it was contended that the effect of the contract was that the mackerel were at the time of the sale fish of the quality known as No. 1 and No. 2, and that as they could not be of those qualities if they were rusty, it was describing them by a quality which they did not then possess, and that this was a breach of warranty. But we are all of the opinion that this would be a forced and erroneous construction. Construed with reference to the subject-matter, we think they must have understood that the fish were inspected and branded as No. 1 and No. 2. In this respect the parties referred to the brand, and to this extent they acted upon the faith of it. Then as there was no express warranty of their actual condition, 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 particulars, it must be presumed that both parties relied upon the faith of the inspection and brands." ^ 1 Winsor v. Lombard (1836), 18 Pick. 57, 60, 61. Ijvlplied -waeeantt of quality. 257 § 397. Article supplied for Special Use. — Where a chattel is supplied to the order of the purchaser, even by one not the manufacturer, there is an implied warranty that it is reasonably fit for the special purpose intended by the buyer, if that purpose be communicated to the seller when the order is given. This qualification is important, for it is only when a party undertakes to supply an article for a particular use that he is held to warrant that it shall be fit and proper for that purpose.^ § 398. Where the purchaser inspects for himself the specific goods sold, and the seller is guilty of no fraud, and is not himself the manufacturer of the goods sold, there is no ifaiplied warranty that the article is even reasonably fit for the purpose to which it is to be applied, although the seller supposes that the purchaser intends to use it for the purpose for which he in fact buys it. The particular use which is to be made of the article must be made known to the seller at the time of the sale, in such a way as to indicate a purpose to put upon the seller the responsibility of furnishing an article reasonably fit for the purpose tt) which it was to be applied.^ § 399. If an article be ordered of a manufacturer for an especial purpose or a particular use, and he agrees to fur- nish it, and nothing is said by the parties as to the materials of which or the manner in which it shall be made, there is an implied warranty that it shall be fit for that purpose or use ; and this warranty extends to latent as well as open defects. But if such purchaser judges solely for himself, and elects in what manner or of what materials it shall be 1 Stedman v. Lane (1837), 19 Pick. 650, 551; Button v. Gerrish (1851), 9 Cush. 89 ; Whitmore v. So. Boston Iron Co. (1861), 2 AEen, 58 ; French v. Vining (1869), 102 Mass. 135. 2 HigM V. Bacon (1878), 126 Mass. 10. See MoLautUin v. Wilder (1885), 138 Mass. 393. 17 258 SALES OF PERSONAL PROPERTY. made there can be no such implication. To the extent that the purchaser interferes, and relies on his own judg- ment to direct and control the manufacturer, the latter is relieved of responsibility under the warranty.^ § 400. A person for whom a large iron kettle had been made to order examined it, and knew that it leaked some- what, but directed it to be delivered without objection. It continued to leak, but, notwithstanding, he gave his promis- sory note for the price. It was held that these facts were not, as a matter of law, conclusive evidence of his waiver of aU claim to damages for its being leaky.^ § 401. Sale by Sample. — In a sale by sample the seller warrants the quality of the bulk to be equal to that of the sample. The exhibition of the sample must in all fair dealing stand in lieu of a warranty or afBr- mation. It is a silent, symbolical warranty, perfectly un- derstood by the parties, and adopted and used for the convenience of trade.^ In an action for breach of a written agreement to receive " white willow cuttings " and pay for them, parol evidence was admitted to show that the sale was by sample, and that the cuttings tendered did not correspond with the sample, and were not identical in kind with those described by the seller and which he under- took to deliver. Wells, J., said that " such evidence was admissible only when the writing did not distinctly define the article to be delivered so as to enable its identity to be seen upon the face of the transaction, and that it did not appear that 'white willow cuttings' were such an 1 Cunningham v. HaU (1863), 4 Allen, 268, 273, 274. 2 Taylor v. Cole (1873), 111 Mass. 363. 8 Bradford v. Manly (1816), 13 Mass. 139, 144 ; Williams v. Spot ford (1839), 8 Pick. 250; Henshaw v. Robins (1845), 9 Mete. 86; Dickinson v. Gay (1863), 7 Allen, 31 ; Atwater v. Clancy (1871), 107 Mass. 369. IMPLIED WARRANTY OF QUALITY. 259 article as would be known and recognized by that descrip- tion merely, so as to enable the jury to determine what would be a sufficient and proper fulfilment of the contract without further evidence." ^ If there be a defect in the bulk, and in the sample itself as a part thereof, and this defect is unknown and cannot be discovered by examination, there is no implied warranty against it, and evidence is not admissible to show that by the usage of merchants the seller is responsible therefor.^ Under a contract to furnish " a six ton scale " equal in every respect to another scale, which is referred to, it is sufficient to furnish a scale equal in all material respects for the purpose of weighing six tons to the one referred to ; and it is not necessary to furnish a scale equal to the sam- ple, if the latter has greater strength than is necessary for that purpose.' Upon a sale of Persian berries in bags by sample, evidence is admissible to prove a custom that the sample represents the average quality of the entire lot, and not the average quality of the amount in each bag taken separately.* § 402. Sale of Provisions for Domestic Use. — In the sale of provisions for domestic use there is an implied warranty of their wholesomeness, but this does not extend beyond the case of a dealer who sells directly to the con- sumer. It does not apply to the case of one dealer selling to another dealer, nor to the case of provisions packed, in- spected, and prepared for exportation in large quantities as merchandise.^ 1 Pike V. Pay (1869), 101 Mass. 134, 137. See Stoops o. Smith (1868), 100 Mass. 63, 67; Swett v. Shuraway (1869), 102 Mass. 368. 2 Dickinson v. Gay (1863), 7 Allen, 29. See Bradford v. Manly (1816), 13 Mass. 145. 8 Lothrop V. Otis (1863), 17 Allen, 435. * Sohnitzer v. Oriental Print Works (1873), 114 Mass. 133. ^ Winsor v. Lombard (1836), 18 Mass. 62; Howard v. Emerson 260 SALES OF PERSONAL PROPERTY. § 403. Cannot invoke Usage to show 'Warranty. — A usage cannot be invoked to show that a warranty is im- plied when by law it is not;^ nor to show that when the law implies a warranty the seller by the usage was held not to warrant.^ There is held to be no necessity for such usages ; for if the parties desire to assume obligations which the law does not impose, or release obligations which it does impose, it should be done by express contract. § 404. Agent's Personal Liability on his Warranty. — To relieve an agent from personal liability upon an iniplied warranty of the genuineness of a promissory note sold by him, which afterwards proves to be forged, the transaction must have been such that the purchaser understood, or ought, as a reasonable man, to have understood, that he was dealing with the principal.* § 405. Sale of Note, Maker being Insolvent. — If a per- son sells a promissory note, the maker of which is at the time insolvent but has not stopped payment or been ad- judged bankrupt or insolvent, and the seller does not know of the maker's actual insolvency, he is held under such cir- cumstances not to warrant the solvency of the maker. The purchaser takes the risk of it.* § 406. Cotton fraudulently packed without Knowledge of Seller. — The buyer of cotton in bales brought an action (1873), 110 Mass. 320. See Emerson v. Brigham (1813), 10 Mass. 201, 202; Peckham v. Holman (1831), 11 Pick. 484; Prench v. Vining (1869), 102 Mass. 135, 136 ; Mattoon v. Eice (1869), 102 Mass. 236 ; Zoller v. Morse (1881), 130 Mass. 267. I Dickmson v. Gay (1863), 7 Allen, 29, 37; Dodd «. Parlow (1866), 11 Allen, 436, 480 ; Boardman v. Spooner (1866), 13 Allen, 353, 859, 360. * Whitmore v. So. Boston Iron Co. (1861), 2 Allen, 52. 8 Merriam v. Wolcott (1861), 3 Allen, 258 ; Worthington v. Cowles (1873), 113 Mass. 30. * Day V. Kinney (1881), 131 Mass. 37. IMPLIED WARRANTY OF QUALITY. 261 against the seller for a breach of the implied warranty of quality resulting from false and fraudulent packing thereof, without the knowledge, however, of the seller. The defend- ant was allowed to show a general usage in the cotton trade relative to the seller's liability in such cases. By this usage it was incumbent on the buyer to give notice to the seller, as soon as circumstances would permit after dis- covery of the false packing, to afford the seller an oppor- tunity to examine the goods and to furnish him with evidence of the identity of the bags alleged to be so packed, and of the marks and numbers thereon, so that the seller might have recourse to the party from whom he purchased. The failure of the buyer to comply with these conditions prevented any recovery on his part. The deci- sion was based on the nature of the transaction and of the commodity, considering the place and manner of its growth, production, and packing for market, its transportation, and the ordinary circumstances of its sale, which allowed such conditions to be reasonably implied as necessary for the security of the seller.^ § 407. Warranty may be limited as to Time within which Claim may be made for Breach. — A warranty of quality may be limited as to the time within which any claim may be made for a breach thereof. Thus A con- signed certain goods to B, an auctioneer, for sale, and they were sold by him to C on the condition of sale, stated at the time, that no allowance should be made for damage unless applied for within three days from the sale, when the bills were to be settled. The damage was not discov- ered tiU several weeks after the sale. C brought his action against A, and contended that the limitation did not apply to A but only to B, and offered to prove a custom of trade 1 Casco Manuf. Co. v. Dixon (1849), 3 Cush. m. 262 SALES OF PERSONAL PROPERTY. in the city by which goods were returned by purchasers at auction and received by the owners and an allowance made after the expiration of three days, if within a reasonable time after the sale. It was held that the condition limited the liability of A as well as of B, that evidence of the trade custom was inadmissible, and that C was precluded from objecting that the time limited in the condition of sale was unreasonably short.^ § 407 a. Warranty implied by Statute from Stamp upon Articles Manufactured, — By statute it is provided that " every manufacturer of leather or of- boots, half boots, shoes, pumps, sandals, slippers, or overshoes shall have the ex- clusive right of stamping the articles manufactured by him with the first letter of his Christian name, the whole of his surname, and the name of the place of his abode ; and such stamping shall be considered as a warranty that the article stamped is merchantable, made of good materials, and well manufactured ; and such article shall not be considered merchantable unless so stamped." ^ This statute is construed as merely leaving it optional with the manufacturer to stamp the articles or not, as he may see fit. If he does stamp them, it is a warranty ; but the statute imposes no duty or obligation on him which is violated by a sale of articles which are not stamped.* 1 Atkins V. Howe (1836), 18 Pick. 16. s Pub. St. Gil. 76, § 4 (prior references. Gen. St. oh. 49, § 116 ; Rev. St. cli. 28, § 131; St. 1799, cL 68, §§ 1, 2). » Clark V. Oliver (1862), 3 Allen, 336. DELIVEBT. 263 CHAPTEK V. DELIVEEY. § 408. Different Uses of Term "Delivery," and Scope of this Chapter. — Delivery in the sense of what is neces- sary for a transfer of title has been previously considered,^ as has also delivery of possession as required under the Statute of Frauds, as the correlative of the buyer's actual receipt, in order to prove the formation of the contract.^ Delivery into the buyer's possession, sufficient to destroy the seller's lien, or even his right of stoppage in transitu, will be considered in later chapters.^ It must be remem- bered that a delivery may be sufficient to pass title, while it may not be sufficient to destroy the seller's Ken ; * and that a delivery which will defeat the lien may not amount to an acceptance under the Statute of Frauds.^ This present chapter is confined to the consideration of the seller's duty of delivering the goods in performance of his contract, so as to enable him to sue for the price or de- fend an action brought by the buyer for non-delivery. § 409. Cases vrheu Seller may refuse to deliver. — Where nothing has been said as to -payment, the buyer cannot demand delivery of the goods without being ready and willing to pay the price, for in such cases the law pre- sumes that the parties intended to make the payment of 1 See ante, Book 11. ch. 2. " See anie, Book I. ch. 11. ' See post, Book V. ch. 3 and 5. « Morse v. Sherman (1871), 106 Mass. 433. 6 See Boardman v. Spooner (1866), 13 Allen, 357. 264 SALES OF PBESONAL PKOPEHTY. the price and the delivery of the possession concurrent conditions, as has been previously explained.^ Payment of the price is, then, the condition upon which alone the buyer can require the seller to complete the sale by deliv- ery of the property.^ Where the goods are sold on credit and the buyer has thus acquired the right of possession, not to be questioned for any legal purpose by any one save the seller, the latter may still refuse to part with the goods, choosing to rely up- on his lien to secure payment, if the purchaser has become insolvent before actual possession is secured by him.^ § 410. In Absence of Agreement Seller not bound to forward Goods. — Where no legal grounds exist for refus- ing to deliver, what is the seller bound to do ? In the absence of an express a,greement to the contrary, the seller is not bound to send or carry the goods to the purchaser. He does all that he is bound to do by leaving or placing the goods at the buyer's disposal, so that the latter may remove them without lawful obstruction. Proof that the goods sold were set apart, and that the purchaser had never been refused permission to take them away, is amply suf&cient to show performance of the contract by the seller, without other proof of delivery or offer to deliver.* Where the purchaser is by the terms of the contract to designate 1 See ante, § 362. 2 Barnes v. Bartlett (1833), 15 Pick. 77; Hapgoods. Shaw (1870), 105 Mass. 276, 279; Morse v. Sherman (1871), 106 Mass. 430; Goodwin v. Boston & Lowell B,. K. (1873), 111 Mass. 489 ; Haskins «. Warren (1874), 115 Mass. 533. 8 Bee, post, §§ 477-480. * Damon v. Osbom (1823), 1 Pick. 481 ; Middlesex Co. v. Osgood (1855), 4 Gray, 447, 449; Lucas v. Nichols (1855), 5 Gray, 311; Morse ». Sherman (1871), 106 Mass. 430 ; Turner v. Langdon (1873), 112 Mass. 265; Goddard v. Binney (1874), 115 Mass. 450, 456; Haskins v. Warren (1874), 115 Mass. 514, 533. See Stern v. Filene (1867), 14 Allen, 9, 12. DELIVERY. 265 a place of delivery, and he omits to do this, it is enough to constitute performance on the seller's part if the articles are ready for delivery at the time fixed by the contract.^ § 411. Effect of Delivery to Carrier. — Where the seller is bound to send the goods to the purchaser, the rule is well established that delivery to a common carrier is a delivery to the purchaser himself, the carrier being in contemplation of law in such cases the bailee of the per- son to whom, not by whom, the goods are sent, — the latter when employing the carrier beiog regarded as the agent of the former for that purpose, and being, of course, bound to follow any special direction given by the purchaser.^ The seller is, however, bound, when delivering to a car- rier, to take all usual and necessary precautions for insur- ing the safe delivery to the buyer.^ § 412. On a similar principle, delivery of the goods to a warehouseman designated by the purchaser is of the same legal effect as a delivery to the purchaser himself, though the warehouseman has had no communication whatever with the purchaser.* § 413. Duty of Seller to take out Internal BUI of Lad- ing. — In the absence of custom, there is no rule of law which obliges the seller who delivers the goods to a rail- road company, to be first transported on their road and thence forwarded by them on a steamboat to the purchaser, to take out an internal bill of lading and send it to the 1 Lucas V. Nichols (1855), 5 Gray, 311. See Weld v. Came (1867), 98 Mass. 152. 2 Stanton v. Eager (1835), 16 Pick. 467, 474 ; Putnam v. TiHotson (1847), 13 Meto. 520; Orcutt v. Nelson (1854), 1 Gray, 542; Mer- chant V. Chapman (1862), 4 Allen, 864 ; Prince v. Boston & LoweU R. K. Co. (1869), 101 Mass. 546. 8 Pinn V. Clark (1865), 10 AHen, 479, and (1866), 12 Alien, 522. * Hunter v. Wright (1866), 12 Allen, 548. 266 SALES OF PERSONAL PROPERTY. purchaser at or about the time of despatching the goods.^ The court said : " We know no rule of the common law and no provision of statute which requires a railroad com- pany to give hills of lading. When such companies trans- port goods in connection with carriers by sea, it may be a convenient and proper arrangement ; but it can only be made essential by contract or custom." § 414. When Goods must be sent, if no Time is speci- fied. — Where the contract imposes on the seUer the obli- gation of sending the goods, if nothing is said as to time he must send within a reasonable time ; and although the contract is in writing, parol evidence is admissible of the facts and circumstances attending the sale in order to de- termine what is a reasonable time.^ § 415. When no Acceptance by Buyer need be shown. — Where the sale is of certain goods to be delivered at a specified place, if the seller proves the delivery of the goods at that place, and that they were actually in all respects the goods required by the terms of the contract, he need not show an acceptance by the purchaser. He may show either an acceptance of the goods under the contract, or that they were of the required quality and were delivered at the place agreed on, but need not prove both.^ § 416. Responsibility for Injuries during Transportation. — If the maker of a chattel, after it is made, agrees to de- liver- it at the place of business of the purchaser, he is liable for any injury to it from carelessness in the trans- portation, although at the time of the contract for making 1 Johnson v. Stoddard (1868), 100 Mass. 306. 2 Atwood V. Cobb (1834), 16 Pick. 227, 231. See Warren v. Wheeler (1844), 8 Mete. 99, 100. 8 Nichols V. Morse (1868), 100 Mass. 523 ; Brewer v. Housatonic R.R. Co. (1870), 104 Mass. 594, and (1871), 107 Mass. 277; Hod- man V. Guilford (1873), 112 Mass. 405, 407. See Kobbins v. Luce (1808), 4 Mass. 474. DELIVERY. 267 it nothing was said about delivery and there was no usage as to it.i § 417. Days, how counted. — Meaning of Month, etc. — Where a certain number of days is to be allowed for the delivery, they are to be counted as consecutive days and include Sundays, unless the contrary be expressed ; and the days must be counted exclusively of the day of the con- tract.2 Where the word " month " is used, it is construed as meaning a calendar month.^ Thus a promise to deliver goods in two months from June 20 is fulfilled by deliv- ery at any time on the whole day of August 20, so that an action against the seller would be premature if brought before the 21st. If goods were to be shipped "between" two certain days, the phrase would exclude the two days named.* § 418. Delivery of more or less than is called for. — The seller does not comply with his contract by the tender or delivery of more than the exact quantity contracted for. As a general rule, the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed.^ On the same principle, if 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 in 1 Taylor v. Cole (1873), 111 Mass. 363. 2 See Henry v. Joues (1812), 8 Mass. 453; Bigelow v. Willson (1833), 1 Pick. 485, 494-496; Wiggins. Peters (1840), 1 Mete. 127; Atkins V. Boylston Ins. Co. (1843), 5 Mete. 440; FarweU v. Rogers (1849), 4 Cush. 460; Buttrick v. Holden (1851), 8 Cush. 233; See- konk V. Eehoboth (1851), 8 Cush. 374; Millett v. Lemon (1873), 113 Mass. 361; Bemis v. Leonard (1875), 118 Mass. 502. 3 Hunt V. Holden (1806), 2 Mass. 170, note ; Avery v. Pixley (1808), 4 Mass. 460; Churcliill v. Merchants' Bank (1837), 19 Pick. 535. See, too. Pub. St. ch. 3, § 3, clause 13 (Gen. St. ch. 3, § 7 ; Rev. St. ch. 3, § 6). * Atkins V. Boylston Lis. Co. (1843), 5 Mete. 439, 441. 6 Rommel v. Wingate (1869), 103 Mass. 337. 268 SALES OF PERSONAL PROPERTY. instalments from time to time, the purchaser may return the instalments first received if the subsequent deliveries he not made. But the buyer is bound to pay for any part that he accepts, and after the time for delivery has elapsed he must either return or pay for the part received, and can- not insist on retaining it without payment until the seller makes delivery of the rest.^ § 419. Where a contract called for two hundred bales of a certain kind of goods, to average 440 pounds gross per bale or no sale, and the bales tendered in performance of the contract averaged 450 pounds and all were over 440 pounds, and the payment was to be at a certain price per pound, it was held that the provision as to average weight was a warranty only against deficiency in weight, and that the contract was not voidable on account of the excess. The excess was not so great as to constitute a substantial difference or want of identity in the article that was the subject of the sale.^ § 420. A ordered B to buy for him' one hundred and fifty bales of cotton, " best you can," within a certain limit as to the price. Three months afterwards, at the first opportunity to buy within the limited price, B bought seventy-eight bales and forwarded them to A, who at once repudiated the purchase, on the ground that there had been unreasonable delay and the purchase was made on a fall- ing market. B resold the bales at a loss, and sued to recover this deficiency. The action was sustained. A contended that B had only partially fulfilled his commis- sion, that the order was specific and entire for the purchase 1 Bowker v. Hoyt (1836), 18 Piok. 555 ; Bee Printing Co. u. Hich- bom (1862), 4 Allen, 63 ; Star Glass Co. v. Morey (1871), 108 Mass. 570 ; Collins v. Delaporte (1874), 115 Mass. 159 ; Nat. Kubber Co. v. Sweet (1880), 129 Mass. 36 ; Hedden v. Roberts (1883), 134 Mass. 40. 2 Whitney v. Thacher (1875), 117 Mass. 523. DELIVERY. 269 of one hundred and fifty bales, and that he was not bound to accept and pay for a less quantity. The court said that A was in no position to urge this defence, for there was nothing in the case to show that B was to buy the whole quantity at the same time or of the same person, or to for- ward the whole in the same vessel, nor was the refusal to accept placed on this ground. The refusal, for the reasons assigned, was enough to prevent B from buying the remain- ing seventy-two bales on A's account.^ § 421. Whether a contract to furnish "about four hun- dred" castings is substantially complied with by the delivery of three hundred and thirty-one castings, is held to be a question for the jury, as is also the question whether a contract to furnish frames weighing ten pounds a pair is substantially complied with by furnishing frames weighing twelve pounds a pair.^ But in an earlier case an agreement to sell a cargo of iron, about three hundred or three hundred and fifty tons, to be forwarded by a cer- tain ship designated and named, was held as matter of law by the court to be complied with by a delivery of as much as that vessel, if sea-worthy and in good order, can carry, though only two hundred and twenty-seven tons.^ § 422. Thus, again, a contract for the delivery of five hundred bundles of gunny bags, more or less, was held by the court to be substantially complied with although there was a deficiency of five per cent in the number delivered. These words " more or less " do not authorize the intro- duction of parol evidence by the purchaser to show an understanding between the parties that he was to have either more or less than the number specified, as might be reasonably found necessary to fill a certain ship. These ' Marland v. Stanwood (1869), 101 Mass. 470, 478. 2 Clapp V. Thayer (1873), 112 Mass. 296. 3 Pembroke Iron Co. v. Parsons (1856), 5 Gray^ 589. 270 SALES OF PERSONAL PROPERTY. words create no latent ambiguity, but have a plain, ordi- nary, and popular signification. The written contract can- not be varied by parol evidence. What is a reasonable limit and a substantial compliance, if the facts are not in dispute, was here said to be a question for the court.^ § 423. Seller's Duty to separate G-ood from Bad. — Where the purchaser of a cargo of goods, such as corn in bulk, represented to be of a certain quality, is bound to take only so much of it as is of that quality, and any con- siderable quantity of the cargo is damaged, it is the duty of the seller to separate the merchantable corn from that which is not so and offer it to the purchaser. The refusal of the purchaser, before such separation, to receive the corn at all will not excuse the seller from this duty of sepa- rating and offering the merchantable corn, if he would entitle himself to carry the contract into effect and require the purchaser to take such part as corresponds to the representation.^ § 424. Delivery and Acceptance shown by Resale by Buyer to Seller. — A made a contract with B for the sale to B of certain goods, to be delivered during the month of November at buyer's option on ten days' notice within the month. The market price fell, and on the 20th of Novem- ber B employed a broker to seU the goods for him at a fixed price. The broker sold the goods to A, who then sued B for the price under the original contract, giving him credit for the amount for which the goods had been repurchased. B objected that the original contract had never been performed, that no goods were ever delivered under it, but it M'as held that the resale to A implied an acceptance of the goods from A as B's property. No more effectual acceptance of the goods from A could be devised 1 Cabot V. Winsor (1861), 1 Allen, 546, 550, 551. 2 Clark V. Baker (1846), 11 Meto. 186, 190. DELIVERY. 271 than in assuming, with his consent, the ownership, so far as to make a resale to him. The delivery and redelivery would have been an idle ceremony, which the law does not require.^ § 425. Failure to make Delivery at Specified Place im- material, when. ■ — "Where the seller agreed to deliver the goods at the common warehouse of the purchasers, who were partners, but they afterwards dissolved their part- nership, and ceased to have any common warehouse, and the seller delivered the goods at the private warehouse of one of them, who there accepted them, it was held that, under such circumstances, the place of delivery was immaterial.^ § 426. Duty of Seller to notify Buyer of Readiness to deliver in Certain Case. — A entered into a contract with B for the purchase of a vessel then being built by B, by which it was agreed that the vessel should be completed and delivered as soon as possible at one of certain places at the option of A. It was held that it was the duty of B to give notice to A when the vessel was finished, so that he might make his election as to the place of deliv- ery, and that by disposing of her to a stranger without giving such notice B made himself liable to A for a breach of the contract.^ § 427. Abandonment of Contract by Buyer, as Bxcuse for Failure to deliver. — Where executory contracts are made on different days for the sale of goods, the price of which is to be payable on delivery, and the deliveries under the second contract are by its terms to commence when the full quantity required by the first has been shipped, the purchaser cannot, after refusing to pay for 1 Warden v. Marshall (1868), 99 Mass. 305. 2 Cady V. Sliepherd (1831), 11 Pick. 4.00. 8 Spooner v. Baxter (1835), 16 Pick. 409. 272 SALES OF PERSONAL PROPERTY. goods delivered under the first contract, unless tte seller will give security for the entire fulfilment of the con- tracts, maintain an action for non-delivery under the second contract. The seller was justified in treating the contract as abandoned by the purchaser, and as ended in its unfulfilled obligations upon him.^ § 428. Contract construed as to Duty to deliver in given Case. — A agreed to sell to B, who did business in Boston, a certain quantity of coal, to be delivered free on board vessels at Philadelphia, and to be shipped at B's option between the date of the contract and September 1. On August 24 B notified A that he was ready to have the whole amount delivered, but gave no directions as to where to ship it. It was held that the option was well exercised, and that A was bound to ship the coal within a reasonable time, although it was impossible to do so before September 1. Evidence of a usage to interpret similar contracts as requiring the option to be exercised in such season as to allow the coal to be shipped between the dates named in the contract was held inadmissible. The stipulation "to be delivered free on board vessels" means that A was to find a vessel for that purpose, to de- posit the coal on board of her, and forward the customary bills of lading to B, who was not bound to tender or fur- nish any vessels to receive the coal. It is immaterial that B did not specially designate the destination of the ves- sels to be loaded. In the absence of any directions as to where it was to be shipped, as it was well known to A that B lived and did business in Boston, he was bound to ship the coal for that destination.* § 429. A, the owner of certain coal-mines, contracted to ship to B in instalments from time to time, during nine 1 Stephenson v. Cady (1875), 117 Mass. 6, 9. ^ SnelUng v. HaU (1871), 107 Mass. 134. DELIVERY. 273 months, a certain large quantity of coal, under an agree- ment that if obstructed by breaches on the railroad no claim for damages was to be allowed. Breaches occurred on the railroad, so that only a portion of the quantity was delivered. B sued for non-delivery of the rest. It was held that the obstructions did not relieve A wholly from his obligation to deliver, but only did so to the extent to which such failure was caused solely by the obstructions ; that A was bound to make every exertion to deliver the coal, and that in determining whether he had done so it was proper to take into consideration his entire business ; that he was not bound to deliver to B the whole amount of his order to the exclusion of other customers, but that his obligation to B would be satisfied by delivery to him of such a proportion of the reduced means of supply as the amount of B's order bore to the whole amount of A's sales ; and that in estimating the whole amount of A's sales, the ordinary and usual amount of his home trade might be included.^ § 430. A had agreed to deliver from a certain vessel certain goods " at the Essex Eaikoad Wharf" The Essex Eailroad Company owned but one wharf, which was by the side of their road, above two drawbridges. It was held that, for the purpose of showing that a wharf called Phillip's Wharf below the bridges was the wharf intended by the parties, evidence was admissible that that wharf was generally known as the Essex Eailroad Wharf, and was used by the railroad for receiving merchandise ; that a higher rate of freight than that paid was charged at the port of shipment for vessels that had to pass drawbridges, than for those that had not; that the same vessel had previously delivered goods to the same consignee at the 1 Oakman v. Boyce (1868), 100 Mass. 477. 18 274 SALES OF PEBSONAL PROPEETY. lower wharf on similar biUs of lading ; and that the upper wharf was more difficult and dangerous of access, and could not he safely approached hy vessels of this size.^ § 431. A agreed to deliver to B a quantity of timber within a specified time, for a price to be paid in six months after delivery, and by a subsequent agreement the time for a delivery of a portion thereof was extended. A delivered that portion respecting which no extension of time was granted, but B refused to pay within the six months, upon the ground that nothing was due until six months after the delivery of all the timber mentioned in the contract. It was held that this did not authorize A to rescind the con- tract as to the residue, or to refuse to deliver it, and B was allowed to recover damages for A's failure to deliver.^ § 432. A sold to B certain shares of stock, and agreed to send him the proper certificates. B gave in payment a draft on C, which A presented and surrendered to 0, taking his check on a bank for the amount thereof. The bank refused to pay the check. Whereupon A refused to trans- fer the stock to B, who sued for failure to make delivery according to agreement. At the trial A tendered the check to B. It was held that B could recover.^ 1 Sutton V. Bovker (1855), 5 Gray, 416. 2 Winchester v. Newton (1861), 2 Allen, 492. 8 Sears v. Ames (1875), 117 Mass. 413. PAYMENT AND TENDER. 275 CHAPTER VI. PAYMENT AND TENDER. § 433. Duty of Buyer as to Payment. — The terms of the sale may require either an absolute payment in cash, and this is always implied when nothing is said ; or a pay- ment in promissory notes or acceptances, which may be in its effect either an absolute or conditional payment, accord- ing to the intention of the parties ; or it may be agreed that credit shall be given for a stipulated time. In the first two cases the buyer is bound to pay as soon as the contract is made, if the seller is ready to deliver the goods ; but in the last case he has a right to demand possession of the goods without payment. Where in a written contract no time is expressed for payment of the price, the legal construc- tion of the contract is that payment shall be made on demand, and evidence is inadmissible of a simultaneous oral agreement that a certain credit should be given.^ § 434."" Goods destroyed in Seller's Possession. — In cases where the title has passed, the buyer must pay the price according to the terms agreed on, even if the goods are afterwards destroyed in the seller's possession. The goods are at the buyer's risk from the moment the title passes, and the price is due the seller, who in such cases merely holds the goods as bailee for the buyer.^ 1 Warreu v. Wheeler (1844), 8 Mete. 97 ; Ryan v. Hall (1847), 13 Mete. 523. See Dow v. Tuttle (1808), 4 Mass. 414. 2 Townsend v. Hargraves (1875), 118 Mass. 325. See ante, §§ 111, 134, 137, 138. 276 SALES OF PERSONAL PROPERTY. § 435. Risk, when Money ia sent by Mail in Payment, is on whom. — The buyer will be discharged of further liability if he makes payment in a manner that the seller directs, even if the money never reach the seller's hands, as if it be transmitted by post in compliance with the seller's directions, and be lost or stolen ; but if the money be sent by post without the seller's previous directions or assent, either expressly given or to be implied from his conduct, the usual course of business, or particular facts and circum- stances found, it remains until it reaches its destination, and is actually received entirely at the risk of the sender.^ § 436. Payment by Promissory Note, &o., Turhether Absolute or Conditional. — The payment may be made by giving a promissory note or bill of exchange. The ques- tion whether it is taken in absolute discharge and as a complete merger or in conditional payment, or merely as collateral security, is determined and controlled by the intention of the parties, shown either by an express agree- ment or by clear implication, and this question of intention is for the jury upon all the evidence.^ § 437. The fact that the creditor held a guaranty or col- lateral security for the original debt is a strong, and perhaps conclusive, reason for inferring that the parties did not in- tend that in taking the individual note of the debtor he 1 Wakefield v. Lithgow (1807), 3 Mass. 349; Gurney v. Howe (1857), 9 Gray, 404; Crane v. Pratt (1859), 13 Gray, 348; Morgan v. Richardson (1866), 13 Allen, 410. 2 Maneely v. McGee (1809), 6 Mass. 143, 146 ; Watkins v. Hill (1829), 8 Pick. 522; Reed v. Upton (1830), 10 Pick. 525; Wood v. Bodwell (1831), 12 Pick. 268; Butts v. Dean (1840), 2 Mete. 76; Ilsley V. Jewett (1840), 2 Mete. 173 ; Marston v. Boynton (1843), 6 Mete. 130; Melledge v. Bostoji Iron Co. (1849), 5 Cash. 158, 170; Alcock V. Hopkins (1850), 6 Cush. 484; Appleton v. Parker (1860), 15 Gray, 174 ; Taft v. Boyd (1866), 18 Allen, 86 ; Goodnow v. Hill (1878), 135 Mass. 587, 589 ; Dodge v. Emerson (1881), 131 Mass. 467. See Connecticut Trust Co. v. Melendy (1876), 119 Mass. 449. PAYMENT AND TENDER. 277 should extinguish the debt thus secured, as he would there- by be deprived of a substantial benefit. It controls the usual presumption of payment.^ In a case brought here, but governed by the law of another State, which required it to be shown positively that the note was intended by the parties as an absolute payment in complete exonera- tion of the original debtor from liability, it was held that the fact that the debtor lived in a country foreign to that in which the creditor and a third party whose bill or note was given lived, was not even prima facie evidence of such intention. It was held to give rise to no presumption whatever.^ § 438. Presumptions iwhich sometimes control. — In the absence of any controlling evidence, and as affecting the obligation to introduce evidence, every case is governed by certain presumptions. Thus where the debtor draws or accepts a bill, or gives his negotiable note,^ or gives a note made or a bill drawn by other parties, whether his own name appears as indorser thereon or not,* and whether the debt in question be pre-existing or contemporaneously created, it is presumed to be in full payment and discharge 1 Pomroy v. Rice (1834), 16 Pick. 22 ; Powler v. Bush (1838). 21 Pick. 230; Butts v. Dean (1840), 2 Mete. 76, 79; Curtis v. Hub- bard (1845), 9 Mete. 322, 328 ; Appleton v. Parker (1860), 15 Gray, 173; Tucker v. Drake (1865), 11 Allen, 147; Taft v. Boyd (1866), 13 Allen, 86 ; Parham Machine Co. u. Brock (1873), 113 Mass. 194 ; LovelliJ. Williams (1878), 125 Mass. 441; Dodge w. Emerson (1881), 131 Mass. 468. 2 Alcock V. Hopkins (1850), 6 Cush. 484, 490. 8 Thacher v. Dinsmore (1809), 5 Mass. 299, 302; Maneely v. McGee (1809), 6 Mass. 143; Goodenow v. Tyler (1810), 7 Mass. 39, 41, 45 ; Whitcomb v. WilKaras (1826), 4 Pick. 231 ; Cornwall v. Gould (1827), 4 Pick. 444; Huse v. Alexander (1840), 2 Mete. 162; Ilsley v. Jewett (1840), 2 Meto. 173 ; Amos v. Bennett (1878), 125 Mass. 123. * Wiseman «. Lyman (1811), 7 Mass. 286, 290 ; Ely v. James (1877), 123 Mass. 36, 44. See French v. Price (1833), 24 Pick. 13, 21 ; Butts V. Dean (1840), 2 Mete. 76. 278 SALES OF PERSONAL PROPERTY. of the debt. Parsons, C. J., said that this rule could be traced back to 1750, in the decisions of this State.^ It will be noticed that it does not apply to non-negotiable notes which are not in law considered as a payment.^ The same rule is applied in Maine, Vermont, and Indiana ; but in the other States, as well as in England and the Federal Supreme Court, a different rule prevails. § 439. Conflict of Laws. — Where a contract of sale is made and performed in another State, the question of what amounts to a payment is governed by the laws of that State ; and so where the seller took the purchaser's nego- tiable note, which was afterwards lost, he was held entitled to sue here as for goods sold and delivered, because by the law of that State the giving of the note was not a payment.^ § 440. Taking Agent's Note or Note of one Partner. — If the seller deals with an agent, or with one of several partners or persons, who are jointly liable, and, knowing all the facts, takes the note of the agent or the note of one or more of the partners or persons jointly liable, it is prima facie an absolute payment, and discharges all the parties who would otherwise have been liable ; but if the seller did not know the fact that others were interested in the pur- chase, but supposed that the promisor only was holden for the price, and that in taking the note he was not changing the parties, but simply taking new security from the same party, the original contract is not so far extinguished as to prevent a resort to it when the new parties are discovered. But if the seller knew the fact of agency, or that others were also liable, it is immaterial that he did not know the » Goodenow v. Tyler (1810), 7 Mass. 45. 2 Greenwood v. Curtis (1808), 4 Mass. 93 ; Amosr. Bennett (1878), 125 Mass. 123. » Vancleef v. Therasson (1835), 3 Pick. 12. PAYMENT AND TENDER. 279 name of the principal or of the other parties. It is his own fault that he did not ascertain, or that he discharged them without knowing.^ The rule does not, of course, apply, if on all the facts it appears that the parties did not so intend and understand it.^ § 441. But a party who, having a legal claim against a corporation, takes the personal note of its general agents therefor may, notwithstanding, recover of the corporation, if he can prove either that the note was in fact the note of the corporation which had adopted the signature of its agents as its form of signature, or that he took the note under a misapprehension caused by the acts of the corpo- ration and its agents as to the identity of the corporation with the concern designated by their agent's signature. If there was any deception or fraud in the giving of the note, or if it was accepted under an ignorance of the facts or a misapprehension of the rights of the parties, the seller is not bound by its acceptance, but may repudiate the note and rely upon the original contract of sale.^ § 442. 'When received in Conditional Payment. — Where the bill or note is merely received in conditional payment, the creditor cannot recover on the original debt if the bill or note, though dishonored, is still outstanding so that the parties to it are still liable. It must have been taken up, and must be produced to be cancelled.* § 443. Payment by Check. — Where the buyer gives the checli or draft of himself or of a third person on a firm 1 Chapman v. Dnrant (1813), 10 Mass. 47 ; French v. Price (1833), 24 Pick. 13, 20-24; Paige ». Stone (1845), 10 Mete. 160, 169; Lovell V. Williams (1878), 125 Mass. 439, 442. See Perkins v. Cady (1873), 111 Mass. 318. 2 Maneely v. McGee (1809), 6 Mass. 143. = Melledge v. Boston Iron Co. (1849), 5 Gush. 158 ; Tozier v. Crafts (1878), 123 Mass. 483. < Aloock V. Hopkins (1850), 6 Cush. 493. 280 SALES OF PERSONAL PROPERTY. of private bankers, and the seller thereupon gives his re- ceipt in settlement of the bill rendered for the goods, it is merely a conditional payment ; and though at the time of giving it the buyer supposed it to be good, if when the seller, within a reasonable time, presents it for payment it is dishonored, he may return it to the buyer and sue upon the original debt.^ Whether the check shall operate as payment or not depends on two facts : first, that the drawer has funds to his credit in the bank on which it is drawn ; and, second, that the bank is solvent and pays on demand the checks duly drawn on it. The receipt of a check, therefore, before presentment, if there is no laches on the part of the holder, is not payment of the debt for which it is delivered. But if the party receiving it is guilty of laches in presenting it, or in giving notice of non-payment after presentment, and the bank in the mean time suspends payment, he thereby makes the check his own, and it oper- ates as payment of the debt, the drawer having funds in the bank at the time of drawing the check and not having withdrawn them.^ § 444. The buyer A sent to the seller B a draft drawn by C on D. B, on its acceptance, informed A that it would be credited to him when paid. At its maturity B sur- rendered it to D on receiving D's check drawn on a bank for its amount. The check was seasonably presented but was dishonored. No steps were taken to hold the drawer C, and D refused to give up the draft. B presented the check against D's estate in insolvency. It was held that he could not sue A for the. price of the goods ; that as be- ^ Taylor v. Wilson (1846), 11 Mete, ii ; Small v. Franklin Mining Co. (1868),99Mass.^277,380; Weddigen w. Elastic Fabrie Co. (1868), 100 Mass. 422. 2 Per Hubbard, J., in Taylor v. Wilsou (1846), 11 Mete. 51. See Comins v. Coe (1875), 117 Mass. 45, 49. PAYMENT AND TENDER. 281 tween A and B the check was a payment of the draft ; and that a usage of agents in collecting drafts for absent par- ties to surrender them to the drawees at maturity, and upon mere confidence in the credit of the drawees to take checks on banks in exchange, is not a reasonable usage.-* § 445. Appropriation of Payments. — Where the debtor owes more than one debt to the same creditor and makes a payment not sufficient to cover all, it is his right to apply, or, in technical language, appropriate, the payment to whichever debt he pleases.^ Such application may be shown either by direct evidence or may be implied from circumstances, and is a matter to be found by the jury.^ When he does not expressly or by implication appropriate it, he thereby yields to the creditor the right of election in his turn.* The creditor may apply it to a de'bt on which the Statute of Frauds does not allow an action to be main- tained.* He may apply it to a debt barred by the Statute of Limitations ; but such an appropriation will not have the effect to take the remainder of the debt, if there be any, out of the operation of the statute.^ Where, however, there are several admitted debts, none of which are barred by the statute at the time of the payment, the creditor may subsequently make an application of it to one of them after it is barred, and it will take effect from the time of » Whitney v. Esson (1868), 99 Mass. 308; Sears v. Ames (1875), 117 Mass. 413. 2 Keed r. Boardiiran (1888), 20 Pick. 441, 446 ; Farnum ». Boutelle (1847), 13 Mete. 162 ; Ricliardson v. Woodbury (1853), 12 Cusli. 280; Crompton v. Pratt (1870), 105 Mass. 257. a Haynes v. Nice (1868), 100 Mass. 827. 4 Upham V. Lefavour (1846), 11 Mete. 174-184, 185; Famum v. Boutelle (1847), 13 Mete. 159, 163. 6 Rohan v. Hanson (1853), 11 Cush. 48 ; Haynes v. Nice (1868), 100 Mass. 329. « Pond V. Williams (1854), 1 Gray, 630 ; Haynes v. Nice (1868), 100 Mass. 329. 282 SALES OF PERSONAL PEOPERTY. payment and not from the date of tlie application. It will then have all the effect upon the debt to which it is ap- plied that it would have if, at the time of payment, it had been made by the debtor expressly on account of it, even if the application does not appear to have been made until the suit was brought.^ Where the creditor holds two claims or demands, one lawful and the other positively unlawful, he cannot apply a general payment by the debtor to the illegal demand ; but the debtor himself may thus apply it, if he elects so to do.^ The right of the cred- itor to elect the debt to which he will appropriate the pay- ment exists only as to payments made by the debtor voluntarily. It does not exist when the payment is com- pelled by legal process. Thus where a creditor recovered one judgment on several notes, some of which were made by the judgment debtor alone while others were signed also by a surety, and took out an execution which was satisfied in part by a levy, it was held that he could not appropriate this payment solely to the notes not signed by the surety, but that all the notes were paid proportionably.* § 446. Where neither party elects, the law will appro- priate the payment according to equitable principles, having regard to the probable intention of the parties. Therefore it will ordinarily favor the debt least secured, or which bears no interest, or which is in danger of being barred by the statute. It will prefer a legal debt to an equitable one, and will not recognize a claim tainted with illegality. But where an account current is kept between 1 Eamsay v. Warner (1867), 97 Mass. 8, 13, 14. 2 Rohan v. Hanson (1853), 11 Gush. 44; Richardson v. Woodbury (1853), 12 Gush. 379; HnbbeU v. Flint (1860), 15 Gray, 550; War- ren 0. Chapman (1870), 105 Mass. 89. See Rundlett v. Weeber (1855), 3 Gray, 263. s Blackstone Bank v. Hill (1830), 10 Pick. 129, 133. PAYMENT AND TENDER. 283 the parties, the law will apply the payment to the liabili- ties of earliest date, unless some controlling ec^uity requires a different disposition.^ The fact that the creditor has a lien for the earlier items and none for the later ones is held not to constitute such an equity.^ So, too, where the earlier items were for goods sold on condition that they should not become the property of the buyer till paid for, and the later items were not sold subject to any such con- dition, the usual rule was held to apply, the buyer having in the mean time mortgaged the goods to a third party. The interest of the buyer to perfect his title to the prop- erty he had mortgaged weighed against the interest of the seller to obtain payment of his unsecured rather than of his secured claims.'' § 447. Tender of Payment. — A tender of payment by the buyer is as much a performance and discharge of his duty as an actual payment. A tender is only valid when the buyer produces and offers to the seller an amount of money equal to the price of the goods. The party must have the money about him wherewith to make the tender ; * but the production and actual offer of it to the seller is dispensed with if the buyer is ready and willing to pay it, and is about to produce it, but is prevented from doing so by the seller's declaration that he will not or cannot receive it.^ So if he be prevented from making a tender by any act, contrivance, or evasion of the seller, it will 1 Richardson v. Woodbury (1853), 12 Cush. 280 ; Crompton v. Pratt (1870), 105 Mass. 255 ; Worthley v. Emerson (1874), 116 Mass. 374; Swett V. Bryce (1883), 134 Mass. 381, 387. See Upham v. Lefavour (1846), 11 Mete. 174, 184. 2 "Worthley v. Emerson (1874), 116 Mass, 374. ' Crompton v. Pratt (1870), 105 Mass. 255. * Breed v. Hurd (1828), 6 Pick. 356. 6 Parker o. Perkins (1851), 8 Cash. 318; Hazard v. Loring(1852), 10 Cush. 267, 269. 284 SALES OF PERSONAL PROPEKTY. be equivalent to a tender, or a sufficient excuse for not making it.^ § 448. Tender must be kept Good. — It is necessary that a person making a tender should hold himself in readiness at all reasonable times and places to meet a de- mand for the money tendered ; and if he fails to pay it on request he loses the benefit of the tender. This is held so strictly that when, after a tender and refusal, the debtor, in the presence of the creditor and with his full knowledge, deposits the money with a third person, to be paid to the creditor upon his calling for it, the creditor is under no obligation to apply to the depositary; and if the debtor upon a subsequent demand does not within a time which is reasonable, under all the circumstances, pay or tender the sum due, he loses the benefit of his previous tender.* § 449. Tender must be Unconditional. — The tender must be au unconditional offer of the money. Any quali- fying words, or a demand that anything be done by the seller beyond the mere receipt of money tendered, will avoid the tender.^ Thus the party making the tender may not insist on a receipt in full of all demands,* or upon his written discharge,® or upon a written release of the claim, unless by statute it is the duty of the seller to give such release.® If the money is tendered conditionally, the 1 Borden v. Borden (1809), 5 Mass. 67, 74 ; Gilmore v. Holt (1826), 4 Pick. 258; Tasker v. Bartlett (1830), 5 Cush. 359; Southwortli ». Smith (1851), 7 Cush. 391. See Mason v. Briggs (1820), 16 Mass. 453. 2 Town V. Trow (1833), 24 Pick. 168. * Per Dewey, J., in Richardson v. Chemical Laboratory (1845), 9 Mete. 52. * Thayer v. Brackett (1815), 12 Mass. 450. ^ Richardson v. Chemical Laboratory (1845), 9 Mete. 43, 52. 6 Loring v. Cooke (1825), 3 Pick. 48 ; Saunders v. Frost (1827), 5 Pick. 259, 270. PAYMENT AND TENDER. 285 creditor should not accept it unless he assents to the con- ditions; for if he receives it and is silent, he may be pre- sumed to have acquiesced in the conditions.^ § 450. "What Currency is a Legal Tender. — Under the Constitution of the United States prohibiting the issuing of bills of credit by a State and intrusting coinage to the general government, the only money available for a legal tender is the federal specie currency or federal paper cur- rency expressly made legal tender by act of Congress.^ Bank-bills issued by a State bank could not be tendered as cash even to the bank which issued them,^ but they would have been considered a good tender unless objection were made to them on that account.* Thus, too, a plea of tender is not supported by proving an offer of a promis- sory note due from the seller to the buyer.® Where bank- bills which the creditor was not obliged to take were tendered as money, and the creditor protested that he would not receive them unless the difference between their value and specie were allowed to him, but did actually receive and take them, although the debtor refused to 1 Hall V. Holden (1874), 116 Mass. 172, 176. 2 Bush V. Baldray (1865), 11 Allen, 367 ; Davis v. Parker (1867), 14 AUen, 94, 106 ; Essex Company v. Pacific Mills (1867), 14 Allen, 389, 397 ; Howe v. Nickerson (1867), 14 Allen, 400 ; Sears v. Dewing (1867), 14 Allen, 413, wbicli was reversed by Dewing v. Sears (1870), 11 Wall. 379 ; Stark v. Coffin (1870), 105 Mass. 328 ; Legal Tender Cases (1870), 12 Wall. 457-680, overruling Hepburn v. Griswold (1869), 8 Wall. 603 ; Dooley v. Smith (1871), 13 Wall. 604 ; Mary- land V. B,. R. Co. (1874), 32 Wall. 105 ; Urann v. Coates (1875), 117 Mass. 41, 45 ; Juilliard v. Greenman (1884), 110 U. S, 421. See U. S. Rev. St. §§ 3585-3590. 3 Hallowell and Augusta Bank v. Howard (1816), 13 Mass. 235. « Snow V. Perry (1830), 9 Pick. 542 ; Phillips v. Blake (1840), 1 Meto. 159 ; Gushee v. Eddy (1858), 11 Gray, 504. But see Ward v. Smith (1868), 7 Wall. 447, 451. « Gary v. Bancroft (1833), 14 Pick. 315. 286 SALES OF PERSONAL PROPERTY. make or to promise to make such allowance, it was held in law a payment in money, and the creditor could main- tain no action for any such difference in value. He must be deemed to have taken the bills upon the terms offered as money. The act in such case was conclusive of his assent, and his protest was unavailing.^ No foreign gold or silver coins are a legal tender in this country.^ Nor are the trade silver dollars a legal tender.^ By recent statute silver dollars are made legal tender for all debts, except where otherwise expressly stipulated in the contract.* National bank-notes are a legal tender for the payment of all debts due the United States except duties on im- ports, and also for all debts due from the United States ex- cept interest on the public debt and in redemption of the national currency.^ They are also a legal tender for any debt due to any of the national banks, each bank being thus obliged to accept the notes of other national banks.® § 451. Statutory Provisions as to making Tender. — The statutory provisions as to making tender are as follows : '' — " The payment or tender of payment of the whole sum due on a contract for the payment of money, although made after the money has become due and payable, may be alleged in an answer to an action subsequently brought, in like manner and with the like effect as if such payment 1 Phillips V. Blake (1840), 1 Mete. 159. 2 U. S. Rev. St. § 3584. « U. S. St. 1876, ch. 17, § 2. * U. S. St. 1878, oh. 20. 6 U. S. Eev. St. § 5182. « U. S. Eev. St. § 5196. ' Pub. St. ch. 168, §§ 23-26 (prior references. Gen. St. ch. 130, §§ 23-26; Rev. St. cli. 100, §§ 14-17; St. 1830, ch. 85 and ch. 128). PAYMENT AND TENDER. 287 or tender had been made at the time prescribed in the contract." ^ , , " A tender may also be made, after an action is brought on such contract, of the whole sum due thereon, with the legal costs of suit incurred up to that time, if it is made four days ^ at least before the return-day of the original writ." 3 " The tender last mentioned may be made either to the plaintiff or to his attorney in the suit, and if not accepted the defendant may avail himself of the tender in defence in like manner as if it had been made before the commence- ment of the action, bringing into court the amount so tendered for costs as well as for the debt or damages." " If such tender is accepted, the plaintiff or his attorney shall, at the request of the defendant, sign a certificate or notice thereof to the officer who has the writ, and deliver it to the defendant ; and if any further costs are incurred for a service made by the officer after the tender, and be- fore he receives notice thereof, the defendant shall pay the same to the officer, or the tender shall be invalid." § 452. Costs must be added if the writ has been sent to the sheriff, although it may not have been served, and even may not have actually reached him.* 1 Altering common-law rule, for which see Dewey v. Humphrey (1837), 5 Pick. 187. " Sunday is probably not counted. See Thayer v. Pelt (1826), 4 Pick. 354"; Robbins v. Holman (1853), 11 Gush. 26, 39. ' Altering common-law rule, for which see Suffolk Bauk v. Wor- cester Bank (1827), 5 Pick. 108. * JEmerson v. White (1858), 10 Gray, 351. BOOK V. BEEACH OF THE CONTEACT. CHAPTEE I. PERSONAL ACTIONS BY THE SELLEE. § 453. When the Title has not passed and Buyer refuses to accept. — When the title to the goods has not passed to the purchaser, the only remedy the seller has for the buyer's refusal to accept the goods, and pay the price, is an action for damages. He can in general recover only the damage that he has sustained, and not the full price of the goods. The general measure of damages is the differ- ence between the contract price and the market price of such goods, at the time when the contract is broken ; and this is considered to be the date at which the goods were to have been delivered under the terms of the contract.^ § 454. Refusal by Buyer before the Day when he is bound to take the Goods. — Where the purchaser agrees to purchase and take the goods within a certain number of days, not being bound to do so till the end of the period, an action cannot be maintained for breach of the agree- ment before the expiration of the time given for the purchase, even by proof of an absolute refusal on the de- 1 Per Dewey J. in Thompson v. Alger (1847), 12 Mete. 443. See Collins V. Delaporte (1874), 115 Mass. 162. PERSONAL ACTIONS BY THE SELLER. 289 fendant's part ever to purchase.^ The court said " We are unable to see how the refusal can of itself constitute a present violation of any legal rights of the seller, or con- fer upon him a present right of action. An executory contract ordinarily confers no title or interest in the sub- ject-matter. Until the time arrives when by the terms of the agreement the seller is or might be entitled to its performance, he can suffer no injury or deprivation which can form a ground of damages. There is neither violation of right nor loss upon which to found an action. The true rule seems to be that in order to charge one in damages, for breach of an executory personal contract, the other party must show a refusal or neglect to perform, at a time when, and under conditions such that he is or might be entitled to require performance."^ § 455. When the Title has passed. — When the title to the goods has passed, the seller may recover the contract price, to which may be added interest ; and to do this he may sue on either of the common counts for goods bar- gained and sold, or goods sold and delivered, to which the facts of the case may apply, or he may sue upon an ac- count annexed.^ § 456. When after delivery the buyer refuses to accept the goods, and the seller takes them away solely in con- sequence of that refusal, and brings his action to recover 1 Daniels v. Newton (1874), 114 Mass. 530. 2 See Trazier v. Cushman (1815), 13 Mass. 277 ; Pomroy v. Gold (1841), 2 Meto. 500 ; Hapgood v. Shaw (1870), 105 Mass. 276 ; Car- penter V. Holcomb (1870), 105 Mass. 280. 8 Tliompson v. Alger (1847), 12 Mete. 428, 443, 444 ; Stearns v. Washburn (1856), 7 Gray, 187; Thorndike v. Locke (1867), 98 Mass. 340; Warden v. Marshall (1868), 99 Mass. 307; Nichols v. Morse (1868), 100 Mass. 523; Morse v. Sherman (1871), 106 Mass. 430; Turner v. Langdon (1873), 112 Mass. 265 ; Rodman v. Guilford (1873), 113 Mass. 405 ; Pearson v. Mason (1876), 120 Mass. 53. 19 290 SALES OF PERSONAL PROPERTY. damages for such refusal to accept, the buyer oannot main- tain the position that the title passed to him by delivery, and that therefore the only action against him must be for the price. The proper and only remedy for the seller is an action for the damages sustained.^ § 457. 'When Purchase is effected by fraudulent Kepre- sentations of Buyer. — If the purchase of goods is effected by means of fraudulent representations of the buyer, the seller may at once maintain an action of trover against him without any previous demand for the goods, and if the fraudulent purchaser has given his own negotiable note for the price, the action may be maintained without any previous tender of the note, provided it has not been negotiated, but remains in the hands of the seller, and is produced at the trial to be surrendered to the defendant.^ Or in such a case the seller may take the goods by writ of replevin, and he may do this even though they have been attached as the property of the fraudulent buyer, and are then in the hands of the attaching officer.^ So too, if the fraudulent purchaser has resold the goods to a third person who has knowledge of the fraud, the original seller may sue such third person in trover, without a previous de- mand, and without restoring to the original purchaser the consideration received from him.* § 458. Seller induced by Fraud to take 'worthless Note of third Party. — If the seller was induced by the fraudu- lent representations of the buyer to take the note of a third party in payment, and this note proves to be worth- 1 McLean v. Ricliardson (1879), 127 Mass. 345. 2 Thurston v. Blanchard (1839), 22 Pick. 18. See Browning v. Bancroft (1844), 8 Mete. 278. ' Buffington v. Gerrish (1818), 15 Mass. 156 ; Browning v. Bancroft (1844), 8 Mete. 278. * Stevens v. Austin (1840), 1 Mete. 557; Manning v. Albee(1866), 11 Allen, 520, and (1867), 14 AUen, 7- PEKSONAL ACTIONS BY THE SELLER. 291 less, the seller may return the note to the buyer and sue him for the price of the goods.^ § 459. But unless it is proved that the note of the third party is absolutely worthless, the seller cannot main- tain an action upon the original contract, until he has re- turned or offered to return the note to the buyer.^ §460. Actions abated by Death of Defendant. — rAn action for fraudulently recommending a trader as of good credit, whereby the plaintiff was induced to sell him goods oh credit, and thereby sustained damage, is abated by the death of the defendant. It is not within the intent of the statute providing for the survival of actions for damage done to personal estate. A mere fraud or cheat by which one sustains a pecuniary loss cannot be regarded as such a damage.* § 461. Agreement by Buyer to return Goods or pay for them. — A declaration alleging that A agreed to send to B certain articles, and did do so ; that B agreed to return the same, or pay therefor ; and that B did not return the same, and owes A therefor a specified sum for each, is bad on demurrer. The declaration omits to state any time within which the articles were to be returned or paid for, and non constat that it was to be before the commencement of the action. By the contract as declared on, it appears they were to be returned either in a reasonable time or upon request. A must therefore allege and prove that a reasonable time had elapsed, or that a request for a return was made. In the proof it appeared that in case 1 Martin v. Roberts (1849), 5 Cush. 126. 2 Estabrook v. Swett (1874), 116 Mass. 303. » Eead v. Hatch (1837), 19 Pick. 47; Leggate v. Moulton (1874), 115 Mass. 552. Pub. St. ch. 165, § 1 (prior references, Gen. St. ch. 127, § 1 ; Rev. St. ch. 93, § 7; St. 1834, ch. 2 ; St. 1828, ch. 112, and St. 1822, ch. 110). 292 SALES OF PERSONAL PROPERTY. of a failure to return, a price was agreed on. This was a material variance, for the declaration left it as a quan- tum valebant. The allegation that B owed A a certain sum for each article was not an allegation that this sum was the price agreed on. On these facts A could well have declared on a general count for goods sold and delivered.^ § 462. Breach of Agreement to pay by giving up Seller's Note. — A bought of B certain goods for a sum to be paid by giving up a promissory note of B which he held, and paying in cash the balance of the 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.2 § 463. Liquidated Damages and Stipulation by way of Penalty. — A and B made an agreement in writing by which A agreed, on or before a certain time, to seU and deliver up all his stock in trade and tools used in manu- facturing tin ware, at specified rates which B agreed to pay therefor. The agreement further contained this clause : " It is also agreed that in case either party shall fail to comply with the terms of this agreement, the party so fail- ing shall forfeit to the other party the sum of three hun- dred dollars, which shall be paid in full on or before the forfeiture as above." It was held that, on a failure by B to comply with the contract, he was liable for the fuU sum as liquidated damages. The court said that this transac- tion differed essentially from an ordinary agreement for the sale of goods, in which case this clause would have been merely a stipulation by way of penalty. It is in this case impossible to estimate with accuracy the extent of 1 Read v. Smith (1861), 1 Allen, 519. 2 Gray v. White (1871), 108 Mass. 228. See Worthy v. Jones (1858), 11 Gray, 168. PERSONAL ACTIONS BY THE SELLER. 293 damage which either party might sustain by reason of the breach, and this leads to the reasonable inference that the parties intended to fix the amount of compensation in the event of a breach by inserting a sum to be taken as liquidated damages in the literal sense of that term.^ § 464. Parol Evidence to explain Entries in Seller's Books of Account. — When the seller sued for the price of goods sold and delivered, which were charged on his books of account as due to himself and a third party as partners, it was held competent for him to prove that he was sole owner of the goods at the time of their sale, and explain the form of the entry by parol evidence that the books were opened at a time when he was under a condi- tional agreement to admit the third person as a partner, and that the condition was not fulfilled.^ So, too, where A sued B for goods sold to him, but at his request deliv- ered to C, it appearing that in A's books of account the goods were charged to C, parol evidence was admitted to show that the goods were in fact sold to B, and were charged in this manner at his request.^ § 465. Where A made a written contract with B for the sale of goods to B, knowing him to be buying them for a firm of which he was a member, it was held that the writ- ing was not conclusive evidence of A's intention to give credit to B individually, and that oral evidence was ad- missible to bind the firm on the contract.* 1 Lynde v. Thompson (1861), 2 Allen, 456, 460. 2 Langdon v. Hughes (1871), 107 Mass. 272. s James v. Spaulding (1855), 4 Gray, 451; Lee v. Wheeler (1858), 11 Gray, 239; Commonwealth v. Jeffries (1863), 7 AUen, 548, 564; Banfleld v. Whipple (1865), 10 AUen, 27, 31; Allen v. PuUer (1875), 118 Mass. 402 ; Holmes v. Hunt (1877), 122 Mass. 505, 521; BaiTett V. MoHugh (1880), 128 Mass. 165 ; Bugbee v. Kendi-ioken (1882), 132 Mass. 349. * Getchell v. Poster (1870), 106 Mass. 42. 294 SALES OF PERSONAL PKOPERTY. § 466. Purchase by Agent of an Undisclosed Principal. — Remedy of Seller. — Where a purchase is made by an agent of an undisclosed principal, the seller, on discovery of the facts, may resort to such principal to recover the price of the goods,! unless before such discovery and demand made upon the principal the latter has lo7ia fide paid the agent for the goods, in which case he is probably relieved of further liability to the seller as a principal in the trausac- tion.2 The seller in such cases may, of course, always sue the agent, who is personally responsible for the price.^ But where the seller, at the time of the sale, knows the principal and understands that the buyer is merely his agent, and elects to give credit to the agent, making him the debtor, he cannot afterwards resort to the principal.* So if, after ascertaining all the facts, the seller sues the agent and recovers judgment against him, it is a bar to a subsequent action against the principal.^ § 467. Seller may sue in his own Name for Price of Goods sold by his Agent. — The owner may sue in his own name for the price of goods sold by his agent, although no agency was disclosed at the time of the sale ; and this is true, al- though the principal reside in another State or foreign 1 French v. Price (1833), 24 Pick. 20 ; Raymond v. Crown and Eagle Mflls (1841), 2 Mete. 324; SartweU v. Frost (1877), 122 Mass. 188 ; Lovell V. Williams (1878), 125 Mass. 439. ^ See James v. Bixby (1814), 11 Mass. 34; Emerson v. Patch (1878), 123 Mass. 541 ; McCuUough v. Thompson (1879), 45 N. Y. Super. Ct. Rep. 449 ; Armstrong v. Stokes (1872), L. R. 7 Q. B. 599 ; Irwine v. Watson (1879), L. R. 5 Q. B. Div. 102. ' Arfridson v. Ladd (1815), 12 Mass. 173 ; Hastings v. Levering (1824), 2 Pick. 221 ; Raymond ». Crown and Eagle Mills (1841), 2 Mete. 324; Winsor v. Griggs (1849), 5 Cush. 210. * Raymond v. Crown and Eagle Mills (1841), 2 Mete. 824 ; Silver V. Jordan (1884), 136 Mass. 319. 5 Kingsley ». Davis (1870), 104 Mass. 178. PERSONAL ACTIONS BY THE SELLER. 295 country.^ When the agent is permitted to act as apparent principal, the purchaser, if sued by the real principal in his own name, is entitled to all the equities, set-offs, and other defences he would have been entitled to if the action had been brought iu the name of the agent.^ But the right of the purchaser to set up a discharge in insolvency under the laws of this State, which he would have if the suit was brought in the name of the agent, is held not to be such an equity ; and so, if the foreign principal sues in his own name, it cannot be successfully pleaded against him ; and this is so although the purchaser made the contract with the seller's agent, who was a citizen of this State, supposing him to be the principal, and the fact that he was merely an agent was not in any way disclosed.^ If the foreign seller has recovered judgment in this State, he may sue on the judgment notwithstanding a discharge in insolvency granted here on proceedings begun after the judgment was rendered. The merger of the debt in such judgment does not affect his rights.* § 468. Sale by Factor of Goods, some of which are his own. — If a factor, under an entire contract for a gross sum, sells goods some of which belong to himself and some to his principal, the latter cannot maintain an action against the purchaser for the value of his goods.^ 1 Ilsley V. Merriam (1851), 7 Cush. 242; Huntington v. Knox (1851), 7 Cusli. 371 ; Barry v. Page (1858), 10 Gray, 398 ; Wadswortli V. Gay (1875), 118 Mass. 53. 2 KeRy v. Munson (1811), 7 Mass. 319, 324; Barry v. Page (1858), 10 Gray, 399 ; Locke v. Lewis (1878), 124 Mass. 7 ; Roosevelt v. Doherty (1880), 129 Mass. 304; Dean v. Plnnkett (1884), 136 Mass. 195. 3 Ilsley V. Merriam (1851), 7 Cush. 242 ; Guernsey v. Wood (1881), 130 Mass. 503. * Murphy v. Manning (18S3), 134 Mass. 488. 6 Roosevelt v. Doherty (1880), 129 Mass. 301. 296 SALES OF PERSONAL PROPERTY. § 469. Cases where Seller must declare specially. — Where the bargain is for grass growing, or wood standing on the seller's land; which the purchaser omits to cut and remove according to the agreement, the seller cannot frame his declaration upon either of the common counts, but must declare specially on the contract of sale and the breach of it.' A declaration alleging a sale of oak lumber is not sup- ported by proof of a sale of a lot of lumber of different kinds of wood under a contract that it should be delivered and received as oak. The declaration must set forth the special agreement.^ § 470. Action Brought Prematurely. — Where, in an action for goods sold and delivered, it was claimed that the action was prematurely brought because the goods were sold on a six months' credit which had not expired, it was held that evidence that upon several other sales made by the seller to the buyer such a credit had been allowed, was competent to prove that the sale in question was made on that same credit. The court said, " The evidence was competent to prove a usual course of deal- ings between these parties, and from that course of dealing the jury might in the absence of positive evidence infer an intention that the particular sale in question should be on credit. When such a course of dealing is shown to exist, it will be presumed to continue until some new arrange- ment is made, or until one party or the other shall give notice of his intent to change it." ^ § 471. A sold and delivered goods to B on a six months' credit, on condition that B should procure the guaranty of ^ Steams v. Washburn (1856), 7 Gray, 187 ; Eichardson v. Crooter (1856), 7 Gray, 190. 2 Upton V. Winchester (1871), 106 Mass. 330. See Colton v. King (1861), 2 Allen, 317. 8 Tibbettsr. Sumner (1837), 19 Pick. 166. PERSONAL ACTIONS BY THE SELLER. 297 C. B failed to do this, and before the expiration of the credit A sued in assumpsit for goods sold and delivered. It was held that the action could not be sustained. If B had sold and converted the goods into money, A could have sued for money had and received. But if A rescinds the contract, as he has a right to do, B failing to perform the condition of sale, his proper remedy is an action of trover. He cannot waive the tort and recover the value of the goods in an action of assumpsit. A could not avail him- self of B's default or fraud so as to rescind the contract and substitute a new contract of sale on different terms. In assumpsit, the contract is admitted to exist at the time of the action brought, and where there is an express contract the law will not imply one.-'^ § 472. Seller's Right to recover Interest. — Where goods are sold for cash payable on delivery, the seller, in case of non-payment, is entitled to recover interest from the date when the goods are delivered, although at that time he made no special demand for payment. It is, in such a case, the duty of the purchaser to pay without any demand.^ § 473. A by Fraud secures Goods from Various Sellers, and pledges them to B. — The Sellers may unite to bring a Bill in Equity against E. — A obtains certain goods from B, C, and D in separate and distinct transactions. They are induced to sell to him by fraud, which as against him would enable them to avoid the sale and reclaim the goods. A pledges the goods to E for certain advances bona fide made. B, C, and D may unite and bring a bill in equity to recover the goods from E, offering to pay to him what- ever sums he has actually advanced. The bill is not multi- 1 Allen V. Pord (1837), 19 Pick. 217. See Jones v. Hoar (1827), 5 Pick. 285. 2 Eoote V. Blanchard (1863), 6 Alien, 221. See Dodge v. Perkins (1830), 9 Pick. 368, 385. 298 SALES OF PEESONAIi PROPERTY. farious. It is a case where the property of several different persons is subject to a common charge or burden. Neither can reclaim his goods until the whole of it is satisfied and discharged, and yet no one of them ought to pay the whole sum which E is entitled to receive. There is therefore no complete and adequate remedy at law. The only remedy by which the rights of all parties interested can be pro- tected is in equity, where an account can be taken of the sum due to E, the share of this sum which each ought to pay in proportion to the value of his goods in the hands of E may be ascertained, and a decree may be made for the delivery of each owner's property to him on payment of such share: The bUl must aver in clear and distinct terms that goods belonging to each of the plaintiffs are now in the hands of the defendant, subject to his Hen for advances made thereon.^ § 474. Severance of Contract. — The parties to a written contract for the sale of a quantity of standing timber, to be cut and delivered within a certain time at a certain place, and paid for in six months after such delivery, agreed afterwards in writing to postpone the time for cutting and delivering the timber, except a portion already at the place of delivery and an additional portion already cut and to be delivered on request. These portions were afterwards delivered, and at the end of six months the seller sued for the price. The buyer contended that nothing was due until six months after the delivery of all the timber men- tioned in the contract, but it was held that the action could be maintained. By the subsequent agreement the original contract was severed, and a new contract made with regard to a certain portion of the subject-matter. The timber in question remained subject to the original contract.^ 1 Coleman v. Barnes (1862), 5 Allen, 374. 2 Newton f. Winohester (1860), 16 Gray, 208. THE SELLER'S REMEDIES AGAINST THE GOODS. 299 CHAPTEE II. THE seller's remedies AGAINST THE GOODS. § 475. All these Remedies are Dependent on Posses- sion. — Although by the contract of sale the title to the goods may have passed to the huyer, the seller may under some circumstances exercise certain rights on the goods themselves if the buyer makes default in payment. ^ We have to consider then, first, those circumstances under which the seller has a lien for the unpaid price ; second, those under which he has a right to resell the goods ; third, those under which he may exercise what is called the right of stoppage in transitu. These rights are all incident to the possession, and so, whenever the goods have been delivered into the actual possession of the buyer, these rights on or over them are gone. The seller's sole remedy then is by personal action. § 476. Apparent Exception. — To this general statement there seems to be an exception, for in certain cases the seller may have rights over the goods, and may reclaim and retake them although actually delivered into the possession of the buyer. Among these are cases where the goods are delivered in expectation of immediate payment which is not made ; ^ cases where title or a right to retake the goods in case of non-payment is expressly reserved ; ^ and cases 1 See full exposition of this subject by Shav, C. J., in Arnold v. Delano (1849), 4 Cush. 33, 38-41. 2 See ante, § 195, et seg. 8 See ante, Book ii., ch. iii. ani post, § 484. 300 SALES OF PERSONAL PROPERTY. where by mistake ^ or fraud of the buyer ^ the seller has the right to avoid the contract. The general statement seems only to be true where both property and possession have passed and there is no fraud or mistake. ■^ See ante. Book iii. ch. i. ^ See ante, Book iii., cL ui. and v. THE SELLER'S LIEN. 301 CHAPTER III. THE seller's lien. § 477. Agreement for Credit is a Waiver of the Lien. — When goods are sold and there is no stipulation for credit or time allowed for payment, the seller has always, by the common law, a lien for the price ; which means that he is not bound actually to part with the possession of the goods without being paid for them.^ But when a credit is given by agreement, this amounts 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. § 478. But this Waiver is on one Condition. — But the law, in holding that a seller who has thus given credit for goods waives his lien for the price, does so on one implied condition, which is that the purchaser shall keep his credit good. If, therefore, at any time before payment the buyer become bankrupt or insolvent, and the seller still retains the custody of the goods or any part of them, his lien is restored, and he may hold the goods as security for the price.^ Such a seller in possession is regarded as having a higher equity to retain for the price than the assignee of a debtor, who has not paid for the property, has to claim it for the general creditors.^ ' Morse v. Sherman (1871), 106 Mass. 433, 433 ; Haskins v. War- ren (1874), 115 Mass. 533 ; Safford v. McDonough (1876), 120 Mass. 291. 2 Parks V. Hall (1824), 2 Pick. 212 ; Arnold v. Delano (1849), 4 Gush. 38, 39 ; Ware River R. R. v. Vibbard (1874), 114 Mass, 447, 454. « Arnold v. Delano (1849), 4 Cusb. 41. 302 SALES OF PERSONAL PROl^ERTY. § 479. Rights not varied by taking Purchaser's Note. — The right of the seller ia this respect is not varied by the fact that he received in payment the buyer's promissory note for the price, payable in six months, before the expir- ation of which time the buyer became insolvent, provided the note remained in the hands of the seller, not negoti- ated, but ready to be delivered to the buyer or his assignee on the discharge of the lien.^ § 480. Right depends on Seller's actual or constructive Possession. — The right of lien depends on the possession, and to maintain it a seller must have the actual or con- structive possession of the goods. In other words, he must have the custody, control, or disposition of the goods. After they come into the possession of the buyer according to the terms of the contract, the lien is extinguished, and the goods cannot be reclaimed on the buyer's becoming insolvent. It has been doubted whether a constructive delivery is sufficient to take away the seller's right of lien, and perhaps it would be going too far to say that in every possible case a constructive delivery would have this operation. But generally it is immaterial whether the delivery is actual or constructive.^ § 481. What is a sufficient Change of Possession to divest the Lien. — The practical difficulty lies in deter- mining what is such a change of possession from the seller to the buyer as shall be deemed to put an end to the former's lien. Shaw, C. J., said :^ " Some cases seem to be clear and to illustrate the rule. If the goods are delivered to the purchaser's own servant, agent, wagoner, or shipmaster, that 1 Arnold v. Delano (1849), 4 Cush. 41. See Thurston v. Blanchard (1839), 22 Pick. 20, 21. 2 Per Wilde, J. in Parks v. Hall (1824), 2 Pick. 206, 212 ; Hall v. Jackson (1838), 20 Pick. 197. 8 Arnold v. Delano (1849), 4 Cush. 38-41. THE SELLER'S LIEN. 303 is in law a delivery to the purchaser himself. So, if goods are stored in a common warehouse, as the dock warehouses at the London docks, and entered in the books the prop- erty of A B and deliverable to him, and a dock warrant issued, and afterwards, upon the proper order of A B on the warrant, the goods in whole or a part are transferred to C D and entered in like manner in his name, this is an actual change of custody, control, and possession, though the goods are not moved from their position. So if the seller sustain different characters, as if a person who is a livery-stable keeper, having a horse to sell, makes a sale to C D, and then transfers the horse to his livery stable to be kept for C D at a stipulated weekly hire, this may be regarded as an actual change of custody and possession." § 482. Resale of Goods by the Buyer. — The right of the seller to his lien is not affected by the fact that the pur- chaser has resold the goods to a third person, unless the seller has, by his conduct, estopped himself from asserting his own rights, as where he has expressly or impliedly as- sented to the resale. Thus A sold to B timber which was upon the land of A, where it was cut. B resold to C, who removed it to land adjoining, also belonging to A, meas- ured it, and carried away a part of it. B becoming insol- vent, A forbade C to carry away the rest of the timber, unless he would promise to pay for it, which he did. It was held that A, as between himself and C, could make a valid sale of the timber, and could sue C for the price of what was thus taken. The court said, with reference to the lien of A, that " it would seem that while the timber was upon the land of A, without hire and without special license for so remaining, the lien continued." ^ This last ^ Haskell v. Rice (1858), 11 Gray, 240. 304 SALES OF PERSONAL PKOPEETY. point had, indeed, been expressly decided in an earlier case.^ § 483. Delivery Order whioli is countermanded before Bailee attorns to Buyer. — The seller's remedy is not im- paired by his giving a delivery order for the goods, if it be countermanded before his bailee attorns to the buyer. Thus A sold B a certain quantity of grain lying on storage in a warehouse, and gave him an order on C, the ware- houseman, therefor. B did not pay for the grain, but for value indorsed, and delivered the order to D, who did not know that B had not paid for the grain. Before this order was presented to C, B had become insolvent, and A had countermanded the order and afterwards removed the grain. It was held that D could not sue A for conversion of the grain, although there was a usage in the grain trade to consider an order on a warehouse a delivery.'^ With re- gard to public warehouses, it is now provided by statute that the warehouseman shall give a negotiable receipt for goods stored, and that the title to the goods shall pass by indorsement and delivery of this receipt.^ § 484. Delivery of Part. — Generally, a delivery of part of the goods sold is not equivalent to a delivery of the whole, so as to destroy the seller's lien. He may, if he choose, give up part and retain the rest, and then his lien will remain on the part retained in his possession for the price of the whole.* The seller's lien may of course exist by special contract after actual possession taken by the buyer.^ 1 Arnold v. Delano (1849), 4 Gush. 41. 2 Keeler v. Goodwin (1873), 111 Mass. 490. ' See ante, § 157, where statute is set forth. * Parks V. Hall (1824), 2 Pick. 213, 214 ; Ware Eiver E. E. v. Vibbard (1874), 114 Mass. 458. 6 Barrett v. Pritchard (1824), 2 Pick. 515. See Hall i>. Jackson (1838), 20 Pick. 198. THE SELLER'S LIEN. 305 § 485. Sale of Standing Wood with Authority to cut. — No Lien on it after it is cut. — When the owner of land sells wood standing thereon, with authority to the pur- chaser to cut it within a certain time, he has no lien on the wood for the price in case of the purchaser's insolvency after the wood is cut and before it is removed. The court said : " The contract contemplated that the buyer should expend labor and money in felling the trees and preparing the wood for market, and the case finds that the wood has been cut by him, and a portion thereof sold and hauled off the land. We think these facts are inconsistent with an existing right of lien in the seller for the purchase-money. We know of no case where such a right has been recog- nized after the buyer has at his own expense in pursuance of the contract of sale changed the character of the property, and by his own labor and money added to its value. By these acts the seller must be deemed to have parted with his possession and control of the property. The buyer, by himself and his agents, had taken it into his actual posses- sion, and incorporated with it the labor bestowed by him in preparing it for sale. There was, therefore, such a change of possession as to defeat any right of lien."^ 1 Douglas V. Shumway (1859), 13 Gray, 498, SOS. 306 SALES OS PERSONAL PROPERTY. CHAPTEE IV. THE EIGHT OF RESALE. § 486. Nature of the Right. — The unpaid seller with the goods still in his possession has more than a mere lien on them. He seems to have a special property analogous to that of a pawnee with power of sale. If the purchaser refuse to accept and pay for the goods, which are such as the contract calls for, the seller may resell them and recover of the first purchaser the difference between the contract price and the proceeds of such second sale. His remedy is upon the original contract, which is not rescinded by the resale, unless the jury find that such was actually the intention of the parties. § 487. Thus in an action by the seller against the pur- chaser for refusing to accept the goods, it appeared that after such refusal the seller notified the purchaser that the goods would be sold by auction on a certain day, and they were so sold for a price less than the contract price. The court said that the plaintiff could recover the contract price less the net proceeds of the auction sale; that he was not obliged to keep the goods on hand ; and that if he sold them the expenses of. the sale constituted a charge upon them caused by the non-compliance of the defendant with his contract. The court seemed to rely on the fact that it did not appear that sale by auction was an unusual mode of disposing of such goods, and that the defendant had notice of the sale.-^ 1 WMtney v. Boardman (1875), 118 Mass. 242, 248. THE RIGHT OF RESALE. 307 § 488. Thus A agreed to sell and B to buy certain goods, which thereupon were delivered to B, who received them and paid the freight on them, and then refused to accept them, on the ground that they were not of the quality agreed upon. In fact, the goods were of the proper quality called for by the agreement. A, solely on account of B's refusal to accept, received back from him the goods, repaid him the freight money, and resold the goods at a loss. A then brought his action for the refusal to accept, and recovered the difference between the contract price and the price received on the resale. The court held that the contract had not been rescinded by mutual consent. Soule, J. said : " There is nothing in the correspondence which indicates any purpose of the plaintiff to waive his rights. His agents took the utmost care to have the correspon- dence show that the plaintiff removed the goods only in consequence of the refusal of the defendants to accept them under the contract."^ § 489. Thus A agreed to buy of B certain goods at a fixed price, which was to be paid within a stated time. The goods were deposited in the hands of C, to be delivered to A upon his compliance with the terms of payment. A, after making part-payment, and failing to pay the balance within the specified time, told B that he might take the goods from C. Thereupon B did so, and without notice to A sold the goods at private sale to D for their full market price at that time, being, however, a sum much less than the balance of the contract price. B then sued A for the balance of the contract price, after deduct- ing the sum already paid by A and the amount received from D. It was held that this evidence would not war- rant the court in directing a verdict for defendant A, on 1 McLean v. Richardson (1879), 127 Mass. 339, 345. 308 SALES OF PERSONAL PROPERTY. the ground that it amounted in law to a rescission or abandonment of the contract. If so intended, it might so operate ; but whether 'it was so intended was a question of fact for the jury.^ 1 Priest V. Wheeler (1869), 101 Mass. 479. THE RIGHT OF STOPPAGE IN TRANSITU. 309 CHAPTER V. THE EIGHT OF STOPPAGE IN TRANSITU. § 490. How it arises. — Where goods are ordered by letter to be sent on credit from one place to another and are accordingly forwarded by a common carrier, though they have left the actual possession of the seller, yet if they have not reached the actual custody of the buyer or the ultimate place of destination ordered by him, they may be stopped in transitu by the seller, and if he can thus stop them he regains his lien and may hold the goods as secu- rity for the price.i Delivery to the carrier is sufficient to pass the title, and authorize the carrier to complete the delivery and make it absolute. But until so made abso- lute, the seller may revoke the authority and thus intercept the transmission, restore himself to possession, and retain his lien. Insolvency of the purchaser is a sufficient justi- fication for so doing.2 § 491. Its Nature. — This right is but an equitable extension or enlargement of the seller's common-law lien for the price, and not an independent and distinct right. It presupposes not only that the title to the property has passed to the purchaser, but that the possession is in a third person in transit to the purchaser. It does not rescind the contract, but only restores the seller's lien.^ 1 Per Shaw, C. J. in Arnold v. Delano (1849) 4 Cush. 39, 40. See Stubbs V. Limd (1811), 7 Mass. 453. 2 Per Wells, J. in Keeler ». Goodwin (1873), 111 Mass. 492. » Eowley v. Bigelow (1832), 12 Pick. 313; Stanton v. Eager (1835), 16 Pick. 475 ; Gront v. Hill (1855), 4 Gray, 366 ; Potts v. N. Y. & N. E. K R. Co. (1881), 131 Mass. 457. 310 SALES OF PERSONAL PROPERTY. § 492. By whom it may be exercised. — This right may be exercised by any person who stands substantially in the position of a seller, as by a factor who has purchased goods on account of another, and so has a hen upon them for all his charges and commissions. He was held entitled to stop the goods in transit and enforce his lien, although he already held a draft drawn by him upon the consignee for the amount, which draft had been duly accepted. Before the arrival of the goods the draft was protested, the consignee becoming insolvent.^ This right may of course be exercised by the authorized agent of the.seller. Where it was contended that the agent was not duly authorized, the court said : " It is not neces- sary to discuss this question, because the subsequent ratifi- cation of his acts by a vote of the directors cured any defect in his original authority, if there was any. It is to be observed that such ratification was before the buyer or his assignee had obtained possession of or made any demand for the goods." ^ § 493. Exercised only on Buyer's Insolvency. — This right can only be exercised against an insolvent or bank- rupt buyer. The term "insolvency" means his inability to pay his debts in the usual course of business. It is not necessary that he should have been adjudicated a bankrupt or insolvent debtor.^ The right does not depend upon a declared insolvency or open bankruptcy before the arrival of the goods. It is enough that the affairs of the consignee are so involved that he would be unable to pay for the goods, if he were to pay on delivery, or that he has become actually ^ Seymour v. Newton (1870), 105 Mass. 272, 275. 2 Durgy Cement Co. v. O'Brien (1877), 123 Mass. 14. ' Thompson v. Thompson (1849), 4 Cush. 127, 134 ; Lee v. Kilbnm (1854), 3 Gray, 599, 600; Durgy Cement Co v. O'Brien (1877), 123 Mass. 18. THE EIGHT OF STOPPAGE IN TRANSITU. 311 insolvent tefore he shall have taken possession. It was therefore, held enough that the insolvency of the con- signee was public before the goods came to his possession, and before the seller claimed them.^ § 494. Time during ■which it may be exercised. — A& to the time during which this right may be exercised, it is held that it continues until the goods have reached their idtimate destination as fixed by the agreement of the parties, and come into the actual possession of the purchaser.* § 495. Thus A sold to B in Boston, whiskey then in a government bonded warehouse in Indiana, and B gave his acceptances for the price. The government storekeeper gave his certificate for the whiskey as the property of B, and this certificate was sent by A to B. It was part of the terms of sale that A should, from time to time as B should request, ship the whiskey to Boston and pay the storehouse charges, taxes, and insurance, drawing on B for the amounts. A, having shipped most of the whiskey to B in this manner, and having received an order to ship the remaining barrels,, the warehouseman by A's direction, as had been the prac- tice with the previous shipments, caused the whiskey to be regauged in order to ascertain the taxes due, paid the taxes, and drew on A for the amount so paid and the warehouse charges. The whiskey could not be taken out of the ware- house until it was thus regauged and the taxes paid. A together with the bill of lading sent the bni of the ware- houseman to B, drawing on him for the amount thereof. The barrels were delivered to a railroad company for trans- portation to B at Boston. While they were in the hands of the company, B became insolvent. Held that A's right of stoppage in transitu was not lost.^ 1 Naylor v. Dennie (1829), 8 Pick. 205. 2 Brooke Iron Co. v. O'Brien (1883), 135 Mass. 443, 446. 8 Molir V. Boston & Albany E. R. Co. (1870), 106 Mass. 67. 312 SALES OF PERSONAL PROPEKTY. The court said: "Somethiag remained to be done by the sellers before the goods would come into the possession of the purchaser 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 sellers until they forwarded them on the pur- chaser's order, their right of stoppage in transitu would have been unquestionable. The result is the same though they remained stored in a government warehouse, unless the transfer upon the records is to be treated as the termi- nation of the transit. But the terms of the sale provided that the seller should forward the goods to Boston as their place of destination, and the storage in the ware- house was preliminary to their transit and not the termi- nation of it. It is no answer to this view to say that there was a constructive delivery to the buyer which vested the goods in him, and that he had a right to take possession of them, and withdraw them from the warehouse. He did not do so, but left them to be forwarded under the contract. The goods while in the warehouse must be deemed to be in the hands of an intermediate agent on their way to the purchaser." § 496. Goods shipped on a Vessel. — Goods shipped on a vessel are still in transitu after the arrival of the vessel, until they are taken possession of on behalf of the con- signee.^ As to whether there is any difference in regard to transit in the ease of goods shipped on board a general ship and the case of goods shipped on a vessel owned or hired by the consignee, Parsons, C. J., said, in an early case, "The other objection is that the consignees, being either the owners or the hirers of the ship, as soon as the goods were received on board that ship and bills of lading 1 Naylor v. Dennie (1829), 8 Pick. 198, 303 ; Stanton ». Eager (1835), 16 Pick. 474. THE RIGHT OF STOPPAGE IN TRANSITU. 313 signed by the master, there was no further transit, the goods being in the possession and custody of the con- signees. And to support this objection, it was urged by the defendant's counsel that the right to stop in, transitu extends only to goods shipped on board a general ship. We think this objection cannot prevail. The right of stopping all goods shipped on the credit and risk of the consignee remains until they come into his actual posses- sion at the termination of the voyage, unless he shall have previously sold them hona fide, and indorsed over the bills of lading to the purchaser. And in our opinion the true distinction is, whether any actual possession of the con- signee or his assigns after the termination of the voyage be or be not provided for in the bills of lading. When such actual possession after the termination of the voyage is so provided for, then the right of stopping m transitu remains after the shipment. Thus, if goods are consigned on credit and delivered on board a ship chartered by the consignee, to be imported by him, the right of stopping in transitu continues after the shipment ; but if the goods are not to be imported by the consignee, but to be transported from the place of shipment to a foreign market, the right of stopping in transitu ceases on the shipment, the transit being then completed ; because no other actual possession of the goods by the consignee is provided for in the bills of lading, which express the terms of the shipment. The same rule must govern, if the consignee be the ship-owner. If the goods are delivered on board his ship, to be carried to him, an actual possession by him after the delivery is provided for by the terms of the shipment ; but if the goods are put on board his ship to be transported to a for- eign market, he has, on the shipment, all the possession contemplated in the bills of lading. In the former case the transit continues until the termination of the voyage, 314 SALES OF PERSONAL' PROPERTY. but in the latter case the transit ends on the shipment. We think, also, that the same distinction must exist in the case of a general ship. If a ship sail from this country to Great Britain, with the intention of taking on board goods for divers persons on freight, to be transported to a foreign market as the mercantile adventures of different shippers, if the goods are so shipped by the several consignors, there is no transit tp the consignees after the shipment, and no right of stopping remains with the consignors. But it is otherwise when several persons import goods in a general ship on their own credit and risk, for a future actual pos- session by them is provided for in the bills of lading." ^ § 497. Thus it was afterwards held, that where goods sold, to be paid for on delivery, were put on board a vessel appointed by the buyer to receive them, not for the pur- pose of transportation to him or to be delivered for his use at a place designated by him, but to be shipped by such vessel in his name from his place of residence and business to a third person, it was held that the right to stop in transitu was at an end when the goods were put on board the vessel.^ § 498. Cannot be exercised under Title derived from Consignee. — It is sometimes said that this right is adverse to that of the consignee and must be exercised adversely. This means no more, however, than that the right cannot be exercised under a title derived from the consignee, not that it shall be exercised in hostility to him and against his will. The reason is, that when the seller claims title under the buyer, who for some motive desires to protect him against loss, as by indorsement of the bill of lading or 1 Stubbs V. Lund (1811), 7 Mass. 457, 458. See, as confirmatory of this passage, Ilsley v. Stubbs (1812), 9 Mass. 64, 72 ; Rowley v. Bige- low (1832), 12 Pick. 307 ; Stanton v. Eager (1835), 16 Pick. 467. " Rowley v. Bigelow (1832), 12 Pick., at page 314. THE EIGHT OP STOPPAGE IN TRANSITU. 315 by any other act of transfer, lie does not rely upon his own right of stopping in transitu, but, on the contrary, he af- firms and establishes the sale in a manner inconsistent with that right. Notwithstanding, then, such assignment or transfer by the buyer to the seller, the goods are still liable to be taken by the other creditors of the buyer, it being then regarded as a transfer by way of preference.^ § 499. Where Buyer desires to favor the Seller. — It appears by these cases last cited that if the buyer desires to favor the seller and to facilitate his exercise of this right, his proper course is to refuse the consignment. The seller ought, then, to depend on his original title, and not upon any transfer or conveyance from the buyer. In the earliest case. Parsons, C. J., said : " It is our opinion that an insolvent consignee may, before he receive the goods, disagree to the consignment, and that the assent of the consignor shall be presumed unless in a reasonable time he declare his dissent or neglect to give notice of his as- sent. That he may avail himself of this disagreement, the consignee ought to give seasonable notice thereof, and he must within a reasonable time declare his intention. For if, after notice, he is silent, his assent shall no longer be presumed. If the goods arrive here before the consignor can have notice that the consignee has disagreed to the shipment, any person, at the request of the consignee, may receive and take care of them until the consignor has no- tice ; and an intermediate attachment shall not defeat his right. For the insolvent consignee having refused to re- ceive them, the goods are in transitu, and may be seized by the consignor while they continue in transitu. And on his giving notice of his assent within a reasonable time to 1 Lane v. Jackson (1809), 5 Mass. 157, 163 ; Naylor v. Dennie (1829), 8 Pick. 198, 204, 205. See Sctolfield v. Bell (1817), 14 Mass. 40 ; Grout V. Hill (1855), 4 Gray, 361, 367. 316 SALES OF PERSONAL PEOPEETT. the disagreement of the consignee, the contract is rescinded ab initio, and nothing ever passed by it to the consignee." ^ § 500. Seller's Right is subject to Carrier's Lien. — The seller's right of stoppage in transitu is, of course, subject to the carrier's lien for freight charges. In a late case,^ Gray, C. J., said : " A carrier of goods consigned to one person under one contract has a lien upon the whole for the law- ful freight and charges on every part, and a delivery of part of the goods to the consignee does not discharge or waive that lien upon the rest without proof of an intention so to do.2 § 501. "When the consignor delivers goods to one car- rier to be carried over his route, and thence over the route of another carrier, he makes the first carrier his forwarding agent, and the second carrier has a lien not only for the freight over his own part of the route, but also for any freight on the goods paid by him to the first carrier.* The right of stoppage is indeed paramount to any lien created by usage, or by agreement between the carrier and the consignee for a general balance of account.^ But the com- mon-law lien of a carrier upon a particular consignment of goods arises from the act of the consignor himself in de- livering the goods to be carried. No authority has been cited, and no reason offered, to support the position that this lien of the carrier is not as valid against the consignor as against the consignee." § 502. How the Sight is lost. — When the goods are represented by a bill of lading, the right of stoppage in transitu is lost if the buyer, being with the seller's assent ' Lane v. Jackson (1809), 5 Mass. 157. " Potts V. N. T. & N. E. E. R. Co. (1881), 131 Mass. 455. 8 Lane v. Old Colony R. B,. (1859), 14 Gray, 143 ; New Haven and Northampton Co. v. Campbell (1880); 128 Mass. 104. * Briggs V. Boston & Lowell R. B. (1863), 6 Allen, 246, 250. 6 See Sears v. WiEs (1863), 4 Allen, 212, 216. THE EIGHT OF STOPPAGE IN TRANSITU. 317 in possession of it, transfers it to a third person hoiia fide, without notice of the existing right of stoppage, and for value.^ But if the buyer sell the goods without such pos- session of the bill of lading, giving bill of sale or any other writing or agreement, such second sale is subject to the original seller's right of stoppage.^ The same rule would apply, of course, to a sale where there was no bill of lading to represent the goods.^ § 503. The right of stoppage in transitu is not defeated by an attachment of the goods by a creditor of the buyer before the transit is at an end.* § 504. Buyer's Right to intercept the Goods. — It is said by Morton, J., that the purchaser acting in good faith has the right to intercept the goods in the hands of the carrier before they reach their destination, and by taking actual possession of them defeat the seller's right.^ 1 Rowley v. Bigelow (1832), 12 Pick. 307, 313 ; Stanton v. Eager (1835), 16 Pick. 467, 476, 477. 2 Ilsley V. Stubbs (1812), 9 Mass. 65, 73 ; Stanton v. Eager (1835), 16 Pick. 467. s Per Chapman, C. J., in Seymonr «. Newton (1870), 105 Mass. 275. ^ Naylor v. Dennie (1829), 8 Pick. 198, 204 ; Seymour ». Newton (1870), 105 Mass. 275 ; Durgy Cement Co. ». O'Brien (1877), 123 Mass. 12, 14. 6 In Moiif V. Boston & Albany R. R. (1870), 106 Mass. 72. 318 SALES OF PERSONAL PROPERTY. CHAPTEE VI. EIGHTS AND REMEDIES OF THE BOYEE. § 505. 'When Seller refuses to go on with Executory Contract. — Where the contract is executory, and the seller refuses to go on with the performance, the buyer's remedy is that which exists in all other cases of breach of contract. The ordinary measure of damages is the market value of the goods at the time when, and the place where, they ought to have been delivered with interest from such time, deducting whatever may not have been paid of the contract price.^ To determine the question of market value, evidence of the price at which the goods in question, or similar goods, have been sold at auction, is admissible.* § 506. Claim for Special Damages. — To support any further claim for damages it must appear that some other element of damage was included in the nature or terms of the contract. Such special damages may be recovered if set forth in the declaration with sufScient particularity to enable the defendant to prepare himself with evidence to meet the demand at the trial. These damages are such as are a natural and proximate consequence of the breach, although not in general following as its immediate effect. The rule was stated by Colt, J., as follows : " The plain- tiffs are entitled to recover for such losses as were the direct and natural consequence of the defendant's failure 1 Gray v. Portland Bank (1807), 3 Mass. 364, 382 ; Shaw v. Nudd (1829), 8 Pick. 9, 13; Quarks v. George (1839), 23 Pick. 400; Bart- lett V. Blanchard (1859), 13 Gray, 430 ; Essex Go. v. Pacific Mills (1867), 14 Allen, 389, 397. 2 Kent V. Whitney (1864), 9 Allen, 63. EIGHTS AND REMEDIES OF THE BUYEE. 319 to perform, and also for such as were foreseen, or may rea- sonably be supposed to have been foreseen, at the time of making the contract. To ascertain what these were, resort must be had to the terms of the contract for its meaning as applied to the subject-matter, and as interpreted by the general and known usages of the business to which it re- fers. The understanding of the parties must be ascertained by the nature of the traffic to which the contract refers." ^ § 507. Loss of Profits as Element of Damage. — As to whether the plaintiff can claim a loss of profits as a part of his damages, the rule was stated by Bigelow, J., as fol- lows : " If the profits are such as would have accrued and grown out of the contract itself as the direct and imme- diate result of its fulfilment, then they would form a just and proper item of damages, to be recovered against the delinquent party upon a breach of the agreement. These are part and parcel of the contract itself, and must have been in contemplation of the parties when the agreement was entered into. But if they are such as would have been realized by the party from other independent and collateral undertakings, although entered into in conse- quence of, and on the faith of the principal contract, then they are too uncertain and remote to be taken into consid- eration as a part of the damages occasioned by the breach of the contract in suit." ^ § 508; Goods to be furnished for Special Purpose. — The ordinary rule will prevail unless the particular pur- pose for which the goods were to be furnished appeared by the contract, and constituted a part of the intention of the 1 Merrimack Manuf. Co. v. Quinfcard (1871), 107 Mass. 133. See Cutter V. Grand Trunk K. B,. (1866), 13 AJlen, 385 ; City of Lowell v. Allen (1867), 14 Allen, 130. 2 Pox V. Harding (1851), 7 Cush. 522 ; Somers v. Wright (1874), 115 Mass. 292, 298. 320 SALES OF PERSONAL PROPERTY. parties in making it. Thus A agreed to supply B with certain timber in the autumn, but failed to do so. B. had intended to use the timber in building a vessel, and offered to show that he had employed a number of men for that purpose, and that by reason of A's default they were obliged to remain idle for a considerable time, and after- ward to work at a more expensive rate, and that in various other similar ways he had been damaged by such default. This was held not to affect the case, which came under the ordinary rule, because it did not appear that the use to which the timber was to be put was known to A. He did not contract to sell for any specific purpose.^ § 509. In an earlier case, it was said by Fletcher, J. : " It does not appear that the plaintiff, at the time of the purchase, made known to the defendant that he was mak- ing the purchase with a view to sell again, or that the defendant had any knowledge that the plaintiff was pur- chasing for any particular purpose. Under these circum- stances it was erroneous to allow the plaintiff to go into evidence as to the motives by which he was actuated, and as to the objects which he had in view in making the pur- chase, in order to enhance the damages, when no notice was given to the defendant of such motives and objects. The defendant surely ought not to be affected by secret pur- poses and plans of the plaintiff, which were not made known to him. There are cases where purchases are made expressly for particular purposes, and where the party may be liable for extrinsic damages on account of the loss of the particular purpose or object."^ § 510. "When the Title has passed to the Buyer. — Where the contract which has been broken by the seller is one in which the title to the goods has passed to the 1 Bartlett v. Blanciard (1859), 13 Gray, 429. ' Batchelder v. Sturgis (1849), 3 Gush. 304. EIGHTS AND EEMEDIES OF THE BUYER. 321 buyer, who is himself not in any default, he has then the rights of an owner, among which, of course, is the right of possession. He may sue then for breach of the contract in the manner previously indicated in this chapter, for this is a right common to aU parties to contracts of every kind. He may, if he choose, not being himself in default, main- tain an action in trover for damages for the conversion of the goods, on the seller's refusal to deliver them. The meas- ure of damages is the market value of the goods at the time of the conversion, with interest from that date. This rule is applied very strictly. Thus A bought certain goods of B on February 22, paid for them on March 22, and then at once demanded that they should be delivered to him ; but B refused to do so. A sued in trover. Before the trial, B sold on November 11, the goods at a very great advance in price. A contended that he should have the advantage of this rise in the value of the goods, but the court held otherwise, and the damages were determined to be merely the value of the goods on March 22, with interest from that date.^ § 511. May have Writ of Replevin. — If the buyer desire to obtain the specific goods he has purchased, then if he be in no default himself, and the title to the goods has passed to him carrying the right of immediate possession, he may take them by writ of replevin if they are so situated as to be within the sheriff's power, and if they exceed in value the sum of twenty dol- lars.2 Actions of replevin are authorized, and the 1 Kennedy v. WMtwell (1827), 4 Pick. 466 ; Sargent v. Eranklin, Ins. Co. (1829), 8 Pick. 100 ; Parks v. Boston (1834), 15 Pick. 206; 207 ; Greenfield Bank v. Leavitt (1835), 17 Pick. 3. 2 Esson V. Tarbell (1852), 9 Gush. 407 ; King ». Dewey (1853), 11 Gush. 218 ; Dugan v. Nichols (1878), 125 Mass. 576 ; f reelove v. Preelove (1880), 128 Mass. 190. 21 322 SALES OF PERSONAL PROPERTY. whole course of proceeding regulated and prescribed by statute.^ § 512. Specific Performance in Equity. — If the goods are so withheld, or of such a nature that they cannot be got at to be replevied, it is provided by statute that a bill in equity may be brought for specific performance, or to compel the delivery if the parties have not a plain, ade- quate, and complete remedy at common law.^ Even oral contracts for the transfer of interests in personal property will be specifically enforced where the case is not within the statute of frauds, and no complete and adequate remedy can be had by an action at law.^ § 513. Equity rarely resorted to. — In contracts for the sale of personal property jurisdiction in equity is rarely en- tertained, although the only remedy at law may be the recov- ery of damages. The reason is that in regard to most articles of personal property the commodity and its market value are supposed to be substantially equivalent each to the other, so that they may be readily interchanged. The seller may con- vert his rejected goods into money, or the purchaser with his money may obtain similar goods, and each presumably at the market price, the difference between this and the contract price recoverable at law being full indemnity.* It has been held, however, that a remedy by an action for dam- ages against a person actually insolvent is not such a rem- edy at law as to deprive the court of jurisdiction in equity.^ 1 Pub. St. ch. 181, §§ 10-27 (prior references, Gen. St. oh. 143, §§ 10-23 ; Eev. St. ch. 113, §§ 27-40; St. 1789, ch. 26). ^ Pub. St. ch. 151, § 2, clause 3 and 4 (prior references, Gen. St. cti. 113, § 2 ; Kfiv. St. ch. 81, § 8 ; St. 1823, ch. 140, § 1 ; St. 1817, ch. 87); Glappw. Shepard (1840), 2 Mete. 127 ; Travis v. Tyler (1856), 7 Gray, 146 ; Maxham v. Day (1860), 16 Gray, 213, 219. 8 Glass V. Hulbert (1869), 102 Mass. 24, 33 ; Somerby v. Buntin (1875), 118 Mass. 379, 287. * Per Wells, J. in Jones v. Newhall, (1874), 115 Mass. 248. * Clark V. FKnt (1839), 22 Pick. 281, 238, 239. RIGHTS AND REMEDIES OE THE BUYER. 323 § 514. Assignment of Patent compelled by Equity- Process. — The inventor of a machine agreed with a me- chanic that the latter should perfect it, procure a patent for it, and assign the patent to him. The mechanic secured the patent, but refused to assign it. A bill in eq^uity brought to compel an assignment was sustained.^ § 515. Shares of Stock. — Equity ordinarily •will not decree Specific Performance. — Ordinarily the purchaser of shares in a corporation has no right to a decree for specific performance upon refusal of the seller to carry out the agreement.^ Nor if the corporation refuses to transfer the shares to him on the books and issue a new certificate, can he maintain a petition for mandamus to compel a transfer by the corporation, if he can be indemnified for the refusal by the recovery of damages in an action-at-law.^ The meas- ure of damages in such a case is the value of the shares at the time of the refusal, with interest from that time.* § 516. But -will under Peculiar Circumstances. — Eut there may be peculiar circumstances surrounding the transaction which would probably entitle him to such a decree. Bigelow, J., said : " The more recent English au- thorities are quite decisive as to the authority of a court of chancery to decree the specific performance of a contract for the transfer of shares in joint stock companies or cor- porations, in cases in which it appears that the capital stock is fixed at a certain amount, and the number of shares is limited. But without deciding whether a suit in equity can be supported for the sole purpose of enforcing ^ Binney v. Aiman (1871), 107 Mass. 94; Somerby v. Buntin (1875), 118 Mass. 279, 287. « Gray v. Portland Bank (1807), 3 Mass. 364, 381, 382 ; Murray v. Stevens (1872), 110 Mass. 95. " Stackpole v. Seymour (1879), 127 Mass. 104. * Sargent v. Eranklin Ins. Co. (1829), 8 Pick. 90 ; Hussey v. Manut. and Mech. Bank (1830), 10 Pick. 415. 324 SALES OF PERSONAL PROPERTY. a^contract for the sale of shares in a corporation, we are of opinion that such an agreement may be enforced in equity, when it forms part of a contract for the sale and transfer of real estate, and the suit is brought for the conveyance of the land as well as for the transfer of the shaTes." ^ § 517. Buyer's Right to reject Goods under some Cir- cumstances. — His Various Remedies. — After the title to the goods has passed to the purchaser, and even after he has taken them into his possession, if he discover them to be different in kind or quality from that which he had a right to expect according to the agreement, whether the defect be one in the performance of a condition or of a warranty, he may refuse to accept them and reject the contract, or if he has already taken them he may return them.^ If he elect to receive the goods notwithstanding the breach of warranty, he may sue for his damages by reason thereof,^ and if he has not paid the price, he may plead the breach of warranty in reduction of the damages in the action brought by the seller for the price.* So, too, he may plead in reduction of damages any such deceit or false represen- tations as would be sufficient in law to sustain a cross action, and to do this he need not return the goods.^ 1 Leach v. Pobes (1858), 11 Gray, 510. See Todd v. Taft (1863), 7 Allen, 371. 2 See ante, § 249 ; Bryant v. Isburgh (1859), 13 Gray, 607, 611 ; Remick v. Sandford (1876), 120 Mass. 315, 316 ; Eobinson v. Talbot (1877), 121 Mass. 514. » Dorr V. Msher (1848), 1 Cusb. 274; Douglas Axe Maniif. Co. v. Gardner (1852), 10 Gush. 89 ; Vincent v. Leland (1868), 100 Mass. 432. * Goodwin v. Morse (1845), 9 Meto. 278 ; Mixer v. Coburn (1846), 11 Mete. 561 ; Dorr y. Eisher (1848), 1 Cusb. 271, 275 ; Westoott v. Nims (1849), 4 Cush. 215; Douglas Axe Manuf. Co. v. Gardner (1852), 10 Cusb. 89 ; Tuttle v. Brown (1855), 4 Gray, 457 ; Aldrich V. Stockwell (1864), 9 Allen, 45 ; Cooper v. Landon (1869), 102 Mass. 58. 6 Harrington v. Stratton (1839), 22 Pick. 510; Parley v. Balch RIGHTS AND REMEDIES OF THE BUYER. 325 § 518. In two cross actions tried together, one for the price of goods sold and the other for fraud in the seller, the jury, if they find the fraud, and that the damages equalled or exceeded the purchase-money, may render a verdict for the defendant in the' first action, and for the plaintiff in the second action, for the excess of such damages, if any, over the purchase-money. If the damage is less than the price sued for it should go in reduction of the price in the first action, and the verdict should be for the defendant in the second action.^ § 519. Where the purchaser does plead the breach of warranty or deceit, or false representations, and reduces the amount which the seller recovers, he is barred of any further action for the matter so pleaded.^ He cannot use the same defence first as a shield and then as a sword. Therefore if he intends to claim by way of damages more than the amount for which he is sued, he must bring a cross-action, and apply to the court to have the cases con- tinued so that the executions may be set off.^ Where in the court below the defendant pleaded such matters, and thereby reduced the judgment rendered for the plaintiff, who thereupon appealed, and so vacated that judgment, and in the upper court the defendant withdrew his defence, and was defaulted and judgment was rendered against him for the full amount, it was held that the defendant was left at liberty to prosecute his cross-action.* (1839), 23 Pick. 386, 287; Mixer v. Coburn (1846), 11 Meto. 561; Briggs V. Humphrey (1862), 5 Allen, 314 ; King v. Eagle Mills (1865), 10 Allen, 551 ; Cooper v. Landon (1869), 103 Mass. 58 ; Brown v. Leach (1871), 107 Mass. 364, 368 ; Harris v. Thayer (1878), 135 Mass. 443. See Everett v. Gray (1804), 1 Mass. 101 contra. 1 Cook V. Castner (1852), 9 Cush. 266, 277 ; Star Glass Co. v. Morey (1871), 108 Mass. 573. 2 Burnett v. Smith (1855), 4 Gray, 50. 3 O'Connor v. Vamey (1857), lOGray, 331. * Bodurtha v. Phelon (1859), 13 Gray, 413. 326 SALES OF PERSONAL PROPERTY. § 520. Where A sold B a milk route, for the price of which B gave his note and A sued on the note, B was al- lowed to show by way of recoupment that A had violated his agreement by continuing his business on the route, to the serious injury of B, thus depriving him of a part of the consideration for which the note was given.^ § 521. The court has even gone so far as to hold that, in an action of tort for false and fraudulent representations of the defendant in exchanging horses with the plaintiff concerning the horse which he delivered to the plaintiff in the exchange, the defendant may recoup damages for like representations made to him by the plaintiff concerning the other horse.^ § 522. Defence must be specially set up by Way of Eecoupment. — To entitle the defendant, however, to such a defence, the breach of warranty or fraud must be spe- cially set up in the answer by way of recoupment ; ^ but unless on notice it is ordered by the court, it is not neces- sary that the answer should show what constituted, or what were the circumstances of the alleged fraudulent representations.* § 523. When Right to sue accrues on Failure of War- ranty. — The buyer's right to sue upon the seller's special warranty of quality accriies immediately on the failure of the warranty, without returning the goods or giving any notice to the seller.^ Nor is his right in any way affected by the fact that the written warranty of quality contained the proviso that if the goods were not as stated they were to be returned at the expense of the seller.® 1 Stacy 0. Kemp (1867), 97 Mass. 166. 2 Carey v. Guillow (1870), 105 Mass. 18. 8 Haycock v. Rand (1849), 5 Gush. 26 ; Wentworth v. Dows (1875), 117 Mass. 14. * Goodsell V. TrumbuU (1883), 135 Mass. 99. 6 Vincent v. Leland (1868), 100 Mass. 432. « Douglas Axe Manuf. Co. v. Gardner (1852), 10 Gush. 88. RIGHTS AND REMEDIES OF THE BUYER. 327 § 524. Measure of Damages in Action for Deceit or Breach of Warranty. — The measure of damages ia an action for deceit in a sale, or for breach of a warranty, is the difference between the value of the article sold, and the value of such an article as it was represented or war- ranted to be.^ This rule is not affected by proof that the purchaser sold the goods for the same, or even a greater price than he paid for them, even if such resale was made without any warranty, so that no loss or liability whatever could be incurred by him.^ § 525. A sold certain goods to B with a warranty as to quality. B sold them to C with a like warranty. C sued B for breach of this warranty, and recovered judgment for a certain sum. B then sued A. It was held that the amount of this judgment was prima facie evidence of the amount B could recover of A ; that if B gave notice to A of the commencement of C's action he might recover of A his taxable costs therein, but that in no case could he recover counsel fees paid for the defence thereof.^ § 526. If certain animals in a drove are sold under a warranty that all the animals in the drove are free from contagious or infectious diseases, the purchaser may recoup in damages, in an action for the price, the whole loss occa- sioned to him by the presence of the disease in the drove at that time, although some of the animals purchased by him did not take the infection tiU afterwards. The right is not confined to the diminished value of those which are 1 Stiles ». White (1846), 11 Mete, 356; Tuttle v. Brown (1855), 4 Gray, 460; Whitmore v. So. Boston Iron Co. (1861), 2 Allen, 52, 60 ; Morse u. HutcWns (1869), 102 Mass. 440. 2 Medhury v. Watson (1843), 6 Meto. 257; Brown v. Bigelow (1865), 10 Allen, 242, 244. 8 Ooolidge V. Brigham (1842), 5 Mete. 68, 72 ; Reggio v. Braggiotti (1851), 7 Gush. 166. See Lefflngwell v. Elliott (1830), 10 Pick. 204; Bucknan v. Goddard (1839), 21 Pick. 71. 328 SALES OF PERSONAL PROPERTY. proved to have the disease at the time of the sale, but ex- tends to all the losses sustained by reason of the breach of warranty, even, it would seem, if it caused the death of other animals of the purchaser which were infected by being placed with those so purchased.^ It would seem that the application of this rule must rest on evidence sufficient to show that the breach of warranty is substan- tially equivalent to a fraudulent misrepresentation. § 527. Where a horse was sold warranted not to be afraid of the cars and perfectly safe for a woman to drive on any occasion, the seller knowing that the horse was bought for the plaintiff's own personal use, and this war- ranty was given falsely and fraudulently^ it was held that the purchaser, who was a woman and was injured by reason of the horse being frightened by the cars, could, in an action of deceit, recover of the seller for all the injuries sustained.^ But where the seller falsely and fraudulently warranted that a certain horse was sound and kind, the, purchaser, it was held, could not in an action of deceit recover damages for breaking his wagon and harness in consequence of the unkindness of the horse. The court said it was not a case of a warranty of fitness for particular uses contemplated by the parties, and on this ground distinguished it from the case last cited and stated. In this case the only damages contemplated by the parties in case of a breach of the war- ranty would be the diminution in value of the horse.^ § 528. Where the seller of a vessel fraudulently repre- sented her as eighteen instead of twenty-eight years old, and the buyer sent her to sea before he had knowledge that the representation was false, and the vessel was condemned in a foreign port, it was held that the buyer could recover » Bradley v. Eea (1867), 14 AUen, 20, 33, 24. 2 AUen V. Truesdell (1883), 135 Mass. 75. 8 Case V. Stevens (1884), 137 Mass. 551. EIGHTS AND KEMEDIES OF THE BUYEE. 329 to the amount of her whole value if he had sustained dam- age to that amount ; but that if he had sent her to sea after he knew the representation was false, the usual rule would prevail, and he could only recover the difference in value between a vessel such as she was represented to be and such as she actually was.-' § 529. The assignment for value of a chose in action implies a covenant that the assignor has done and will do nothing to prevent the assignee from collecting it ; and so where it happened without fraud that the assignor had previously assigned the claim to a third party who had collected it, the second assignee recovered of the assignor the amount of the consideration which he had paid for the assignment, with interest from the date when he presented the claim for payment. If the assignor were guilty of fraud the measure of damages might be different.^ § 530. A bought of a member of a firm certain shares of stock, and received a power of attorney signed in the firm name authorizing him to procure a transfer of the shares on the books of the corporation. The firm at the time had a large number of shares standing to its credit on the books of the corporation. A delayed for several months to present his power of attorney, and in the mean time the firm sold all of its shares to other persons, who obtained cer- tificates from the corporation. It was held that A was not entitled in equity, as against a partner who had no knowl- edge of the transactions, to a decree for the delivery to him of a certificate of the shares of stock, which had risen in value, but was entitled to a decree for the money which he had paid, with interest.^ § 531. Where A sued B for knowingly selling to him a 1 Tuckwell V. Lambert (1849), 5 Cush. 33. 2 Eaton V. Melius (1856), 7 Gray, 566, 572-574. 3 Wonson ». Femio (1880), 129 Mass. 405. 330 SALES OF PERSONAL PROPEKTY. quantity of unwholesome meat as and for good and whole- some meat, the declaration was held to be sufficient, although it did not allege that A had paid for the meat, and did not allege any special damage.^ The court said : " It is objected that this declaration is insufficient, because it does not show that the plaintiff has sustained any dam- age by the wrongful act of the defendant; but we think enough is averred to show that the plaintiff must have suffered damage, for it is averred that the meat was un- wholesome, and therefore it was worthless. It has been argued that as the beef was not paid for, and as on the facts averred the plaintiff could not be compelled to make payment, he has not suffered any damage. This, however, is an unfounded inference. When provisions or any other articles are purchased it must be presumed that the pur- chaser expected to derive some benefit from the purchase, and if he is wrongfully and fraudulently deprived of the expected benefit he suffers damage. It can make no differ- ence whether the meat was paid for or sold on credit. If cash was paid, still it might have been recovered back on proving the fraud, and although the beef was sold on credit and the plaintiff may resist payment, yet he has a right to affirm the contract and claim damages for the fraud. The plaintiff has therefore lost the benefit and accommodation expected from the purchase, and also the provisions pur- chased. It is not necessary to aver special damages. Prob- able damages are sufficient. In actions for torts damages are frequently presumed. Thus in actions of slander, the slanderous words being proved, the law presumes damages. The plaintiff is in any event entitled to nominal damages." § 532. Failure of Seller to comply with entire Contract. — Damages. — If under an entire contract the seller delivers only a part of the goods called for by its terms, refuses to 1 Peckham v. Holman (1831), 11 Pick. 484, 486. EIGHTS AND REMEDIES OF THE BUYER. 331 deliver the balance, and sues for the price of that part de- livered, which is retained by the buyer, the latter is entitled to set off by way of recoupment any damages sustained by the failure of the seller to perform his entire contract.^ § 533. Certain Action abated by Death of Buyer. — An action for deceit in the sale of poisoned grain, whereby the purchaser's horses are killed, does not, upon his death, sur- vive to his administrator. Such a case is not within the statute.^ § 534. A person who has been induced to purchase by fraudulent representations of the seller, may, in suing therefor, join a count in tort for deceit with a count in contract to recover back the price paid.^ 1 Bowter V. Hoyt (1836), 18 Pick. 555 ; Bee Printing Co. v. Hich- bom (1863), 4 Allen, 63; Nat. Rubber Co. u. Sweet (1880), 129 Mass. 36 ; Hedden v. Roberts (1883), 134 Mass. 40. = Cutting V. Tower (1859), 14 Gray, 183. ' Teague v. Irwin (1883), 134 Mass. 303 ; Grant v. Mellen (1883), 134 Mass. 335. BIBLIOGRAPHIC NOTE SALES OF PERSONAL PROPERTY. Sec. 1. General Treatises, English and Scotch. The Eng- lish and Scotch treatises and Ainerican editions of them are as follows, viz. : — 1. By George Eoss. London, 1811. Second ed., 1826. Am. ed. by S. B. Harrison. Philadelphia, 1836. 2. By George Long. London, 1821. Am. ed., Exeter, K H., 1823. Am. ed. by Benjamin Band. Boston, 1839. 3. By M. P. Brown. Edinburgh, 1821. ■ 4. By T. G. Morton. London, 1837. 5. By George J. Bell. Edinburgh, 1844. Am. ed., Phila- delphia, 1845. 6. By C. Blackburn. London, 1845. Second ed., 1885. Am. ed., Philadelphia, 1847. Am. ed., Harrisburg, 1847. 7. By Solomon Atkinson. London, 1853. 8. By J. P. Benjamin. London, 1868. 2d ed., 1873. 3d ed., 1883. Am. ed., by J. C. Perkins, 1877. Am. ed., by E. H. Bennett in 1881, and another in 1883. Am. ed., in two vols., by C. L. Corbin in 1883. 9. By Robert Campbell. London, 1881. Sec. 2. General Treatises, American. The American trea- tises are as follows, viz. : — 1. By Francis Hilliard. New York, 1841. 2d ed., 1860. 3d ed., 1869. 334 SALES OF PERSONAL PROPERTY. 2. By W. W. Story. Boston, 1847. 2d ed., 1853. 3d ed., 1862. 4tli ed., 1871. 3. By C. C. Langdell. Leading Cases. 1872. 4. By L. S. Landreth. Brief Analysis of Law of Sales. Philadelphia, 1880. 6. By James Kent. Commentaries on American Law. Lecture XXXIX., in vol. ii. *450. 6. By James Schouler. Part VI. of his Treatise on Per- sonal Property. Boston, 1873-76. 2d ed., 1884. Sec. 3. General Treatises, Civil Law. The leading trea- tises by Civilians are as follows: — 1. By J. Voet. Pandects translated into English. Part I. Contract of Sale, by Sir K. K. Wilson. London, 1881. 2. By R. J. Pothier. Paris, 1762. DelaVente. Am. ed., translated by L. S. Gushing. Boston, 1839. 3. By J. Domat. (Euvres Completes. Paris, 1822. See in vol. i. 307-431, Du Contrat de Vente. 4. By M. Merlin. Eepertoire de Jurisprudence. Paris, 1828. See in vol. xviii. 439-529, Droit de Vente. 5. By M. Dalloz. Jurisprudence G^n&ale. Paris, 1830. See in vol. xii. 841-936, Vente. 6. By M. Duranton. Cours de Droit Fran9ais. Paris, 1833. See in vol. vi. 1-562, De la Vente. 7. By M. Troplong. De la Vente. 2 vols. Paris, 1834. 8. By J. B^darrede. Achats et Ventes. Paris, 1862. 9. See also. Las Siete Partidas. Translated from the Span- ish Code by Moreau and Carleton. New Orleans, 1820. See vol. ii. 654-709 on Sales; and Code Napoleon. 1804. §§ 1582-1701. Translated eds., London, 1827 ; New York, 1841. Sec. 4. Special Treatises. Sales at Anction. 1. By S. Livermore. Baltimore, 1818. 2. By R. Babington. London, 1826, Am. ed., Philadel- phia, 1838. BIBLIOGRAPHIC NOTE. 335 3. By T. Williams. London, 1829. 4. By J. 'Batemau. London, Ist ed., 1838; 3d ed., 1846; 4th ed., 1863; 5tli ed., 1874 ; 6th ed., 1882. Am. ed., by H. K Sheldon, 1883. 5. By E. Squibbs. London, 1879. Bills of Lading. 1. By Eugene Leggett. London, 1881. 2. By H. M. MacKenzie. London, 1881. Bills of Sale. 1. By F. 0. J. Millar and J. R. Collier. London, 1858. 2d ed., 1860 ; 3d ed., 1871 ; 4th ed., 1877. 2. By J. Beaumont. Philadelphia, 1860. 3. By J. P. Byrne. Dublin, 2d ed., 1870. 4. By A. J. Hunt. London, 1872. 5. By G. E. Lyons. London, 1873. 2d ed., by G. E. Lyons and J. H. Redman, 1877; 3d ed., 1881. 6. By H. M. R. Pope. Bills of Sales Acts. London, 1878. 7. By G. Egan. London, 3d ed., 1879 ; 4th ed., 1882. 8. By Herbert Eeed. London, 3d ed., 1880; 5th ed., 1883. 9. By D. R. Macalpin. London, 1880. 10. By B. D. Wilson. Law and Practice under Bills of Sale Acts of 1854, 1866, and 1878. London, 2d ed., 1881. 11. By M. G. Guiry. Bills of Sale Acts with Notes. London, 1882. 12. By H. Newsom. London, 1882. 13. By E. R. Pearce. Bills of Sale Acts. London, 1882. 14. By E. W. Fithian. Bills of Sale Acts of 1878 and 1882. London, 2d ed., 1884. 15. By S. Macaskie. London, 1882. 16. By J. Indermaur. London, 1882. 17. By J. A. Barron. Toronto, 1880. Brokers, Factors, and Agents, Sales hy. 1. By J. A. Russell. On Brokers and Factors. London, 1844. Mercantile Agency. London, 1873. 336 SALES OF PERSONAL PEOPEETY. 2. By F. 0. Crump. English law of Sale and Pledge by Factors and Agents. London, 1868. 2d ed., 1875. 3. By Isaac Edwards. On Brokers and Factors. Albany, 1870. 4. By E. Campbell. Commercial Agency. London, 1881. 5. By H. F. Boyd and A. B. Pearson. The Factor's Acts. London, 1884. 6. By L. H. Bisbee and J. C. Simonds. Law of the Produce Exchange. Chicago, 1884. Choses in Action, Sale of. By J. J. Kehoe. Toronto, 1881. Fraud. 1. By J. E. Hovenden. London, 1825. Am. ed.. New York, 1832. 2. By W. W. Kerr. Law of Fraud and Mistake. London, 1868. Am. ed., New York, 1872. 3. By "W. F. Finlason. A Report of the case of the Queen V. Gurney and others, with an Introduction, containing a his- tory of the case and an examination of the cases at law and equity applicable to it or illustrating the doctrine of commer- cial fraud. It involved the question where innocent misrepre- sentation ends and where fraudulent misrepresentation begins. London, 1870. 4. By M. M. Bigelow. Boston, 1876. Fraudulent Conveyances. Statute of Elizabeth. 1. By W. Roberts. London, 1800. Am. ed., Philadelphia, 1807. 2d Am. ed., Hartford, 1825. 3d Am. ed., Burhngton, 1845. 2. By H. W. May. London, 1871. 3. By A. J. Hunt. London, 1872. 4. By O. F. Bump. Baltimore, 1882. 5. By F. S. Wait. New York, 1884. BIBLIOGRAPHIC NOTE. 337 Statute of Fravda. 1. By W. Eoberts. London, 1805. Am. ed., New York, 1807. 2d Am. ed., 1823. 3d Am. ed., 1833. 2. By Causten Browne. Boston, 1857. 2d ed., 1863. 3d ed., 1870. 4th. ed., 1880. 3. By M. H. Throop. Albany, 1870. 4. By W. F. Agnew. London, 1876. 5. By Henry Eeed. 3 vols. Philadelphia, 1884. 6. By H. G. Wood. New York, 1884. Sale of Horses. 1. By G. H. H. Oliphant. London, 1847. 2d ed., 1853. 3d ed., 1865. 4th ed., 1882. 2. By M. D. Hanover. Cincinnati, 1872. 2d ed., 1875. 3. By F. H. Lascelles. London, 1877. 2d ed., 1880. Judicial Sales. 1. By David Eorer. Chicago, 1873. 2d ed., 1878. 2. By A. C. Freeman. Void Judicial Sales. St. Louis, 1877. Life Insurance Policies, Assignment of. By Hines and Nichols. New York, 1881. Stock, Sales of Shares of. 1. By H. Keyser. Law relating to the Stock Exchange. London, 1850. 2. By K. E. Digby. Sale and Transfer of Shares in Com- panies. London, 1868. '- 3. By N. H. Paterson. Law affecting the Stock Exchange. London, 1870. 4. By Royle. Laws relating to English and Foreign Funds, Shares, and Securities. The Stock Exchange : its Usages and the rights of Vendors and Purchasers. London, 1875. 5. By F. A. Lewis, Jr. Law of Stocks, Bonds, and other Securities in the United States. Philadelphia, 1881. 22 338 SALES OF PERSONAL PEOPEETY. 6. By Arthur and George Biddle. Law of Stookbrokers. Philadelphia, 1882. 7. By J. R. Dos Passes. Stockbrokers and Stock Exchange. New York, 1882. 8. By A." L. and F. C. Lowell. Transfer of Stock in Private Corporations. Boston, 1884. Stoppage in Transitu. 1. By R. Whitaker. London, 1812. Am. ed., New York, 1816. 2. By Edward Lawes. ' London, 1813. 3. By J. Cross. London, 1840. Am. ed., Philadelphia, 1841. 4. By T. S. Baton. Edinburgh, 1859. 5. By J. Houston. London, 1866. 6. By Joseph Kay. Part VL of his Law of Shipmasters and Seamen. London, 1875, Tenants in Common, Sales hy. By R. Ralston. Sales of undivided parts of Perspnalty. Philadelphia, 1885. Warranty in Sale of Chattels. 1. By T. W. Saunders. London, 1874. 2. By Arthur Biddle. Philadelphia, 1884. Sec. 5. Essays or Monograpbs, In general. 1. The Contract of Sale — German Law. Am. Law Reo. x. i. 2. Contracts of Sale. Am. Law Reg. n. s. iii. 321. 3. Nature of the Contract of Sale. Civil Law. Am. Jurist, xi. 271, xiii. 249, xiv. 43. Agents, Sales hy. 1. Sale of Goods. Authority of Agent. Am. Law Ree. v. 765. 2. Sales by Commission Agent. Central Law J. xi. 461. BIBLIOGRAPHIC NOTE. 339 ■Auction, Sales at. 1. Auction Sales. Am. Law Eeg. n. s. xxii. 1. 2. Authority of Auctioneers. Central Law J. xvi. 167. 3. Statute of Frauds as affecting Sales at Auction. Cen- tral Law J. xix. 247. Irish Law Times, viii. 357. 4. Auction Puffers. Irish Law Times, xi. 643. Bills of Lading. 1. Bills of Lading. Central Law J. xiv. 22. Solicitor's J. xiv. 934. Note on case Lickbarrow v. Mason, 1 Smith's L. C. (8th Am. ed.) 1159. 2. State Laws regulating Bills of Lading. Central Law J. xi. 181. 3. Conditions in Bills of Lading. Am. Law Eev. xiv. 431. 4. Effect of Indorsement of a Bill of Lading. Solicitor's J. xxvii. 479 ; xxviii. 719 ; xxix. 350. 5. Effect of taking Bills of Lading deliverable to order of the Vendor. Solicitor's J. xx. 133. 6. Bills of Lading as Eeceipts and as Contracts. Central Law J. ix. 201. Bills of Sale. 1. BiUs of Sale. Solicitor's J. xvi. 281, 302. 2. Bills of Sale Act. Solicitor's J. xxiii. 2, 22 ; xxvi. 309, 770; xxvii. 3. 3. Eegistration of Bills of Sale. Irish Law T. xiii. 103. 4. Affidavit of Execution of Bill of Sale. Solicitor's J. xxiv. 231. 6. Schedules to Bills of Sale. Irish Law T. xiv. 481. 6. Solicitor's Attestation of Bills of Sale. Irish Law T. xiv. 117, 129. 7. Bills of Sale not in accordance with Statutory Forms. Solicitor's J. xxvii. 463. 8. Effect of absence of due Attestation of Bills of Sale. Solicitor's J. xxiv. 246. 340 SALES OF PERSONAL PROPERTY. 9. Consideration for Bill of Sale. Solicitor's J. xxv. 313. 10. Setting forth Consideration in Bills of Sale. Solicitor's J. xxiv. 845 ; xxv. 557, 581. Chose in Action, Assignment of. Solicitor's J. viii. 721 ; xxviii. 509. Conditions and Conditional Sales. 1 . Doctrine of Conditions Precedent as applied to Contracts for Successive Deliveries. Solicitor's J. xxv. 715. 2. Conditional Sale of Chattels. Title of Subsequent Pur- chaser. Albany Law J. xxiv. 185, 226, 264, 280. 3. Sales on Instalment Plan — Using Form of Lease — Deferred Payment System. Southern Law Eev. N. s. viii. 228. Irish Law T. xii. 221, 235, 249 ; xv. 601, 609. 4. Contracts to furnish Articles to the Satisfaction of the Buyer. Albany Law J. xxi. 465. 6. Impossibility of Performance as a Defence. Central Law J. xii. 4 ; Irish Law T. xvi. 625, 635 ; Am. Jurist, x. 250 ; Solicitor's J. xviii. 794. 6. Contract of Sale conditioned on the Existence of the Specific Thing. Solicitor's J. xviii. 886. Coupons. Central Law J. iv. 315. , Damages, Measure of. 1. 1^0 Immediate Market for Rejected Goods. Central Law J. X. 223. 2. Failure of Seller to deliver Goods to Buyer who had contracted to Sell again. Solicitor's J. xix. 807. Delivery. 1. Delivery. Am. Law Eev. i. 413. 2. Sales without Delivery of Possession. Am. Law Reg. N. s. xviii. 137. BIBLIOGRAPHIC NOTE. 341 3. Sales without Delivery and Separation void as to Credi- tors. Central Law J. xi. 132. 4. Loss of Profits as Damages for Non-delivery. Central Law J. xi. 61. 5. Contract for Delivery by Instalments. Effect of Insol- vency of Buyer. Solicitor's J. xix. 530. Distinction between Sale, Bailment, Pledge, and Exchange. 1. Sale or Bailment. Central Law J. xix. 268. 2. Contract of Bailment and of Sale and Exchange. Am. Law Reg. n. s. iii. 321. 3. Law of Sale and Pledges. Solicitor's J. i. 265. Execution, Sales on. 1. Sheriff's Liability in Sales on Execution. Irish Law T. ix. 595. 2. Has the Purchaser at Sale on Execution any Remedy, if he gets no Title ? Albany Law J. xxi. 386. 3. Execution Sales. Central Law J. v. 203. Factors. 1. Sales by Factors. Note on case George v. Clachet, ii. Smith's L. C. (8 Am. ed.) 1118. 2. The Law of Foreign Factors. Am. Law Rev. xiii. 663. 3. Pledge of Goods by Factors and Agents. Am. Jurist, iv. 262. Father, liability of, for necessaries furnished child. 1. Albany Law J. xv. 464. 2. Central Law J. ii. 762. 3. Solicitor's J. xii. 336 ; xiii. 113 ; xxix. 42. Fraud and Misrepresentation. 1. Meaning of the term " Fraud." Solicitor's J. xxviii. 648. 2. The term " Legal Fraud." Solicitor's J. xxvii. 632. 3. Caveat Emptor. Am. Jurist, xii. 94. 342 SALES OF PERSONAL PROPERTY. 4. Constructive Fraud. Albany Law J. xvii. 480. 5. Possession by Seller as Evidence of Fraud. Central Law J. xi. 21 ; Am. Jurist, vii. 19. 6. Suppressio Veri. Albany Law J. xvii. 501. 7. Misrepresentation as affected by Intent. Central Law J. XV. 327. 8. Defrauded Vendors of Chattels. Central Law J. xiv. 442. 9; Voidable Sales — Fraud of Vendee. Central Law J. xviii. 405. 10. Title from Fraudulent Vendees of Chattels. Southern Law Eev. n. s. vii. 549. 11. Title under Fraudulent Sale. Adverse Judicial Pro- ceedings. Central Law J. v. 183. 12. Misrepresentations. Solicitor's J. xxvi. 277; Am. Law Eev. iii. 430; Irish Law T. vi. 637, xii. 611 ; Am. Law Rec. v. 129 ; note on case Chandelor v. Lopus, Smith's L. C. (8 Am. ed.) i. 294; note on case Pasley v. Freeman, Smith's L. C. (8 Am. ed.) ii. 75. 13. Fraudulent Misrepresentations of Agents. Am. Law Eev. viii. 631. 14. Liability of Vendor for Fraud of his Servants or Agents. Solicitor's J. xviii. 663 ; Am. Law Rec. v. 209. 15. Misrepresentations as to Value. Albany Law J. xiii. 160. 16. Fraudulent Statements as to Value. Albany Law J. xii. 341. 17. Fraudulent Mortgage of Merchandise. Southern Law Rev. N. 8. V. 617 ; vi. 96 ; vii. 95, 205. 18. Implied false Representations. Solicitor's J. xxi. 706. Fraud, Statute of. 1. Statute of Frauds. Am. Law Reg. n. s. xiii. 593, 721 ; XV. 321 ; xvi. 577, 641. 2. Effect of Section 17' of the English Statute of Frauds. Am. Law Rev. ix. 434. 3. Section 17 of English Statute redrawn and illustrated. Law Quarterly Rev. i. L BIBLIOGRAPHIC NOTE. 343 4. Effect of Statute of Frauds on Sales at Auction. Central Law J. xix. 247 ; Irish Law T. viii. 357. 5. Acceptance to satisfy Statute of Frauds. Solicitors' J. xxix. 678. 6. Part Acceptance of Goods. Irish Law T. xii. 141. Fraudulent Conveyances. Southern Law Eev. n. s. ii. 731 ; Am. Law Reg. n. s. xviii. 137 ; Note on Twyne's Case, Smith's L. C. (8 Am. ed.) i. 1 ; Central Law J. vii. 463 ; Am. Law Magazine, yi. 308. Future Acquisitions, Assignment of. Am. Law Reg. n. s. ii. 527 ; Central Law J. iii. 711 ; South- em Law Rev. n. s. vi. 221. Good-mU of Business, Sales of. 1. Rights of Vendor after Sale of Business. Solicitor's J. xvi. 322. 2. Sales of Good-will of a Business. Central Law J. xix. 362 ; Am. Law Rec. x. 65 ; Am. Law Reg. n. s. ix. 65 ; xiv. 1, 329, 649, 713 J Am. Jurist, xvi. 87; Solicitor's J. xxiii. 598, xxix. 230. Heirlooms. Sale of Chattel settled as. Solicitor's J. xxi. 42. Husband. 1. Liability of, for his Wife's Contract. Irish Law T. xiii. 407, 417, 425, 433. 2. Liability of, when separated from Wife. Irish Law T. XV. 423, 437, 451 ; Albany Law J. xxiii. 284. 3. Wife's authority to Pledge her Husband's Credit. Irish, Law T. XV. Ill ; Central Law J. x. 341. Illegality. 1. Illegal Contracts. Central Law J. xvi. 302; Western Jurist, xvii. 441. 344 SALES OF PERSONAL PROPEETY. 2. Sunday Contracts. Central Law J. ii. 607, xv. 45 ; Am. Law Eev. ii. 226 ; Am. Law Eeg. N. s. xvii. 281, xix. 137, 209, 273 ; Am. Law Reo. xi. 257 ; Am. Jurist, liii. 378. 3. Sale of Goods for Unlawful Uses. Albany Law J. xxii. 405. 4. Conflict of Laws where Sale is lawfully made of Goods to be removed for Eesale where Unlawful. Southern Law Eev. iii. 493. 5. Liability of Sellers of Infected Animals. Irish Law T. xi. 225. 6. Maintenance and Champerty. Central Law J. xiii. 368 ; Western Jurist, xvi. 569. 7. Adulteration of Food and Drugs. Irish Law T. xv. 135, 149 ; Central Law J. xii. 343 ; Solicitor's J. xxii. 126. 8. Validity of Contracts in Restraint of Trade. Am. Law Eeg. N. 8. xxiv. 217, 281 ; Solicitor's J. xxiv. 587 ; Note on case Mitchel v. Eeynolds, Smith's L. C. (8 Am. ed.) i. 756. 9. Contracts unlawful by Statute. Am. Jurist, xxiii. 1. Insolvents, Purchases hy. Southern Law Eev. n. s. vi. 481. Legislative Sales. Central Law J. vi. 11. Letter, Contract of Sale made hy. Am. Law Eev. vii. 433, viii. 182 ; Western Jurist, xvi. 337 ; Albany Law J. xxii. 424 ; Central Law J. x. 63. Life Insurance Policy, Assignment of. Am. Law Rec. xii. 385 ; Central Law J. xviii. 346 ; Albany Law J. xviii. 44, xxviii. 404 ; Am. Law Eeg. n. s. xxiv. 753. Manure, Sale of. Eight of Farm Tenant to sell Manure made on the Farm. Monthly Law Eep. n. s. vi. 481. BIBLIOGRAPHIC NOTE. 345 Market Overt, Sales in. Solicitor's J. vi. 644. Market Stalls, Property in. Am. Law Reg. n. s. xix. 1, 65. Offer to Sell, Withdrawal of. Albany Law J. xxvii. 245. Option Sales. Central Law J. x. 221, 241. Part Performance of Contract of Sale, Recovery for. Albany Law J. xi. 312. Partners. Right of one Partner to make a general Assignment of all the Firm Assets. Monthly Law Rep. n. s. vi. 301. Patents. Contract to supply Municipal Corporation" w^ili^ Patented Articles. Am. Law Reg. n. s. viii. 625. Payment. 1. The present Law of Payment for Goods. Central Law J. XX. 304. 2. Payment for corporate Shares in Property instead of Money. Am. Law Rev. xviii. 256 ; Solicitor's J. xv. 306. 3. Difference between Receipt and Release under Seal. Solici- tor's J. XV. 631. 4. Appropriation of Payments. Am. Law Reg. w. s. v. 193, 257 ; o. s. iii. 705 ; Am. Law Magazine, i. 31. Remedies. 1. Of Vendor on Breach of executory Contract of Sale. Albany Law J. x. 385. 346 SALES OF PERSONAL PROPERTY. 2. For defective Quality on executory Contract of Sale or Manufacture. Albany Law J. xxx. 286. Rescission of Contract. 1. When warranted by Act of God or Accident. Albany Law J. XXV. 384. 2. Destruction of Building, effect of, on Contract of Sale. Central Law J. xii. 77. Bisk of Goods Sold, on whom. Solicitor's J. xvi. 749 ; Am. Jurist, xx. 286. Sale or Return. Am. Law Reg. n. s. xs. 240. Stock, Sales of. 1. Transfer of Title of Stock. Am. Law Reo. x. 276. 2. Specific Performance of Contract to Transfer Stock. Am. Law Reg. n. s. xvi. 606, xxii. 489 ; Note on case Cuddee v. Rut- ter, in White & Tudor's L. C. in Eq. (4th Am. ed.) i. 1063. 3. Contr^t to take Shares. Solicitor's J. xvii. 362, 383, 422. Stoppage in Transitu. Central Law J. xiv. 242, xvi. 82 ; Law Mag. & Rev. (Eng.) (4th Series), x. 144; Am. Law Reg. vii. 577, 640 ; Solicitor's J. viii. 820, xii. 1036 ; Note on case Lickbarrow v. Mason, Smith's L. C. (8th Am. ed.) i. 1159. Telegraph, Contracts of Sale made- hy. Central Law J. xii. 365 ; Am. Law Reg. n. s. iv. 193, xivi 401. Tender. 1. What constitutes a Sufficient Tender? Central Law J. xx. 244 ; Am. Law Reg. N. s. xvii. 745. 2. What is Legal Tender? Solicitor's J. vi. 593. 3. Legal Tender Cases. Am. Law Reg. n, s. x. 73, xii. 601. BIBLIOGRAPHIC NOTE. 347 4. Legal Tender Acts : their Constitutionality and Effect. Am. Law Rev. ii. 403. Title. L To Grain in Public Warehouses. Am. Law Rev. vi. 450. 2. Sales by Parties Lacking. Central Law J. xiv. 146. Trees and Crops. Sales of Growing. Albany Law J. xiii. 70. Trustee under Trust for a Sale. 1. Sales by. Solicitor's J. xxviii. 321. 2. Power of, to buy the Trust Property. Note on case Fox V. Maoreth in White & Tudor's L. C. in Eq. (4th Am. ed.) i. 188. Warehouse Receipts. Central Law J. x. 421. Warranties. 1. Express Warranties. Am. Law Eeg„ n. s. xxii. 553; Am. Law Rec. iii. 449 ; Central Law J. vi. 53. 2. Implied Warra,nty of Title. Am. Law Rec. iii. 513; Law Reporter, xi. 272. 3. Warranty and Fraud. Am. Law Rev. ii. 636 ; Note on case Chandelor v. Lopus, Smith's L. C. (8th Am. ed.) i. 294. 4. Implied Warranty. Solicitor's J. xxvi. 136 ; Albany Law J. xi. 41, xviii. 324 ; Am. Law Rev. xv. 656 ; Am. Law Reg. N. s. xxii. 85, 153, 225 ; Am. Jurist, xii. 311. 6. Implied Warranty that Article sold is fit for Purpose for which it is intended. Am. Law Rec. iii. 577. 6. Implied Warranty of Fitness of a Chattel. Am. Law Rev. xvii. 423. 7. Implied Warranty of Articles to be manufactured for a Specific Purpose. Am. Law Rec. iii. 641. 8. Implied Warranty that the Articles contracted to be Sold shall be such as the Vendor contracts to Sell. Am. Law Rec. iii. 705. 348 SALES OF PERSONAL PKOPEKTY. 9. Implied Warranty on sale of Provisions. Am. Law Rec. iv. 129. 10. Warranties implied from Trade Marks. Am. Law Reo. V. 22. 11. Implied Warranty where sale is by Sample. Albany Law J. xviii. 244 ; Am. Law Rec. iv. 65. 12. Implied Contract that Goods sold shall be of the Ven- dor's own Manufacture. Solicitor's J. xxvi. 19 ; Am. Law Rec. X. 641. 13. Warranty on Sale of Horses and other Animals. Am. Law Reo. v. 65. 14. Warranties by Agents in Sales. Central Law J. xviii. 223. 15. Duty of Purchaser upon discovering a Breach of War- ranty of Animals. Am. Law Rec. v. 321. 16. Remedy upon a Breach of Warranty. Am. Law Reo. V. 270. 17. Latent Defects in Goods Sold. Central Law J. xiii. 201. INDEX. INDEX. A. ABANDONMENT, sectios of contract by buyer as excuse for seller's failure to de- liver 427 ABATEMENT, of action by death of a party 460, 533 ACCEPTANCE, when none by buyer need be shown 415 implied by resale 107, 424 distinguished from receipt 106 to satisfy statute of frauds 101-103 question of, is for jury 104 may be by agent ' . 105 of a sample 108 where goods are represented by bill of lading .... 109 of goods in warehouse 110 must be made within what time Ill where goods remain in hands of seller 112 (^See Offek.) ACTIONS, personal, brought by the seller 453 et seq. when title has not passed 453 refusal by buyer before day when he is bouud to accept does not give immediate right of 454 when title has passed 455 when purchase is effected by fraudulent devices of buyer 457 seller induced by fraud to take note of third party which proves worthless 458, 459 cases where seller must declare specially 469 abated in certain cases by death of defendant .... 460 or by death of plaintiff 583 where buyer agrees to return goods or pay for them . . 461 352 INDEX. ACTIONS (continued). section breach of agreement to pay by giving up seller's note . 462 liquidated damages and stipulation by way of penalty . 463 parol evidence to explain entries in seller's books of ac- count 464, 465 against undisclosed principal 466, 467 in whose name then brought 467 buyer entitled to what equities 467 same rule although seller resides in foreign state . . . 467 where factor sells goods of his own mingled with those of his principal 468 brought prematurely 470 seller's right to recover interest 472 remedy in equity where A secures goods from various sellers by fraud, and pledges them to B 473 where contract is severed 474 brought by the buyer when seller refuses to go on with executory contract 505 ordinary measure of damage 505 claim for special damages 506 loss of profits as an element of damage ...... 507 goods to be furnished for special purpose . . . 508, 509 when title has passed to buyer 510 of trover 510 of replevin 511 specific performance in equity 512-516 equity rarely resorted to 513 in equity to compel assignment of patent 514 equity ordinarily will not give specific performance of sale of shares of stock 515 but will under peculiar circumstances 516 when right to sue accrues on failure of warranty . . . 523 where no special damage is alleged 531 joining count in tort with count in contract 534 ADMINISTRATORS, sales by 28-32 do not need special license 31 foreign, when must secure probate papers here .... 32 ADULTERATED FOOD AND DRUGS, statute as to sale of 348, 349 INDEX. ' 353 AGENT, BECTIOS remedy of principal for wrongful sale by 2 sales by medium of 16 purchases by medium of 73 may he buy goods entrusted to him for sale 68 ratification of purchase by one assuming to act as . . . 73 of sales made by one assuming to act as 16 how show his authority to sign memorandum to satisfy statute of frauds 129 must be a third party 129 auctioneer is, to sign for both parties 130 broker's authority to sign for both parties 131 power of, to give warranty 381 when personally bound by the warranty .... 382, 404 warranty made by agent cannot be rejected by principal who adopts his contract 383 sales and purchases by, for undisclosed principal . 466, 467 ALIEN ENEMY, sales to 315 APPROPRIATION, of goods to complete executory contract 223 how it may be made 224 in case of shares of stock 225 must be in conformity with contract 226 of different article by mistake 227 of payments 445, 446 ASSENT. {See Mutual Assent.) ASSIGNEES IN INSOLVENCY, sales by 26, 27 purchases by, of the goods of the insolvent 68 ATTACHMENT, does not prevent sale by owner 6, 7 does not defeat right of stoppage in transitu 503 ATTACHING OFFICER, may buy the goods of the debtor 72 ATTORNEYS, may they buy goods held by them for sale 68 AUCTION, ■ sales at, are within statute of frauds 93 23 354 INDEX. AUCTION {continued). section stifling bids at, when a fraud on seller 275 employment of puffers as a fraud on buyer 286 AUCTIONEERS, statute concerning sales by 23 title of purchaser from unlicensed 24 may not delegate powers 25 agent of both parties to sign memorandum 130 remedy of bidder for refusal of auctioneer to sign memo- randum to satisfy the statute 133 power of, to give warranty 381 purchase by, at their own sales 68' AVOIDANCE OF THE SALE, because of mistake (see Mistake.) 235 et seq. because of failure of consideration. (See Failure of Consid- eration.) because of breach of warranty. (See Warranty.) because of fraud. (See Fraud.) because of illegality. (See Illegality). B. BAILMENT, distinguished from sale 2 BANK, power of, to sell shares on which it has a lien .... 13 BARK, statute as to sales of 343 c BARTER, distinguished from sale 1 BERRIES, statute as to sales of 340 BILL OF EXCHANGE, effect of payment by. (See Promissory Note.) BILL OF LADING, represents the goods 109 title how transferred when goods represented by . . . 177 effect of taking it to order of seller 230, 231 effect of taking it in name of buyer 232, 233 BILL OF PARCELS, as a memorandum under the statute 132 INDEX. 355 BILL OF SALE, seotiok effect of, as distinguished from bill of parcels .... 3 when may it be shown by parol to be a mere pledge . . 3 BIRDS, statute as to sale of game 352 BONA FIDE PURCHASER, who buys of one not the owner 4, 18, 198 of goods already sold to another 8, 140 of goods which the seller obtained by fraud .... 9, 2t)5 from one tenant in common 10 from one who obtained the goods by process of replevin . 15 from unlicensed auctioneer 24 of negotiable paper from finder or thief 38 from one who bought on a condition which has failed 196, 197 BOUNTY MONEY, sale or assignment of 190 c BREAD, statute as to sales of 343 BROKER, sale by, on customer's failure to keep margin good . . 42 authority to sign memorandum to satisfy statutes . . . 131 power of, to give warranty 381 purchase by, of stock he is employed to sell 69 BUILDINGS, sale of, as personal property 98-100 BUTTER, statute as to sales of 334 BUYER, actions by. {See Actions.) remedies of. {See Remedies.) entitled to what equities when sued by undisclosed princi- pal 467 who may be. (See Pdrchases.) c. CARRIERS, delivery of receipt of, as means of passing title, . . . 150 effect of delivery to 411, 412 sale of unclaimed goods by 49, 50 356 INDEX. CATTLE, SECTION statute as to sale of infected 350 CAVEAT EMPTOR, rule of 282 et seg. CHAMPERTY AND MAINTENANCE, render sale illegal 313, 355 CHARCOAL, statute as to sales of 343 e CHECK, effect of payment by 443, 444 CHEESE, statute as to sales of 334 CHOCOLATE, statute as to sales of 343 a CHURCH COMMITTEE, sale by 17 COAL, statute as to sales of 343 d COLLECTOR OF CUSTOMS, sales by, of goods in bonded warehouse 53 a COLLECTOR OF TAXES, power of, to seize and sell goods in certain cases ... 48 purchase by, of goods seized and sold by him .... 68 COLORABLE SALE, passes no title 74 COMMERCIAL FERTILIZERS, statute as to sale of 339 COMMON CARRIERS. (5ee Carriers.) CONDITIONS, distinction between representations and 357 different kinds of 858 rule for determining the nature of 358-361 precedent 358-361, 363 concurrent 362 •waiver of the 364 impossibility of performance as excuse for failure to com- ply with 365 sale with right to return 366 INDEX. 357 CONDITIONS {continued). sectioh right of one bound to do anything on happening of a cer- tain event to have notice of its happening .... 367 agreement to buy if article stands test and refusal to make test 368 subsequent, sales on 217 must be strictly performed 363 CONDITIONAL SALES, rule where seller is to do something to the goods before delivery 191 rule where goods are to be weighed, measured or tested . 192 application of these rules, how limited 193 question of intention is for jury 193 rule where buyer is bound to do anything as a condition 194 et seq. seller may reclaim goods on failure of condition 196, 197, 202 rights of one who buys on condition 198 risk of the goods is on the seller, when 199 right of seller to enter and retake 200 partial payments forfeited on default 201 goods to be paid for on delivery which is made, but pay- ment is evaded, etc 202, 203 waiver of the performance of the condition 204 parol evidence of the condition in certain cases . . . 206 where transaction is in form of lease 207 construction of contract where there are several succes- sive conditional sales 208 of chattels which the buyer annexes to the realty . 209, 210 of leather which is made into boots by the buyer . . . 211 question whether sale, if made, was absolute or condi- tional is fact for jury, no presumption 212 statutory right of buyer to redeem in certain cases . . 213 statute as to conditional sales of furniture 214 contract to build ship or house is conditional on fulfil- ment of the entire contract 215 where payments are to be made by instalments . . . 216 of gas fixtures 210 CONFLICT OF LAWS, as affecting' validity of the contract ... 85, 86, 310, 319 as to whether contract is within statute of frauds ... 94 358 INDEX. CONFLICT OF LAWS (continued). section as affecting question of fraud on the seller 277 as affecting question of payment 439 CONSIDERATION, failure of. (See Failure op Consideration.) CONSIGNEE, ■when entitled to sell helow the price fixed 21 does not lose power to sell by pledging goods for his pri- vate debt 22 CONSIGNMENT, distinguished from sale 2 CONSIGNOR, remedy of, if consignee refuse to pay or account for goods 2 CONTRACT, distinction between executed and executory - . . 134, 135 COPYRIGHTS, sale or assignment of 184, 186 CORPORATIONS, power to make sale 11 to sell shares for failure to pay assessments 12 of bank to sell shares on which it has a lien 13 insurance companies to buy or sell 14 CRANBERRIES, statute as to sales of 340 CREDITORS, sales in fraud of. (Se^ Fkaud.) CROPS, to be gi-own, sale of 80, 164 growing, sales of are within statutes of frauds .... 96 distinction between fructus naturcUes a,nd fructus industriales 96 D. DAMAGES, measure of, in action for deceit or breach of wareanty 524-532 measure where seller refuses to go on with executory contract 505 claim for special 506 INDEX. 359 DAMAGES (continued). > sectios loss of profits as an element of 507 where goods were to be furnished for special purpose 508, 509 where buyer sues seller in trover 510 where no allegation of special 532 liquidated 46H where seller sues for buyer's refusal to accept .... 453 where seller sues after title has passed to buyer . . . 455 DAYS, how counted . 417 DELIVERY, of goods on trial 2 to be sold 2 to be manufactured and returned for sale .... 2 how far necessary to pass title as against seller . 137, 138 when seller agrees to deliver at specified place . . 139 as against subsequent purchasers and attaching creditors 140 in such cases what is a sufficient 141 et seq. of part in token of whole 144 buyer's obtaining possession dispenses with need of a formal 145 what is a sufficient taking of possession to dispense with need of 146 to warehouseman for buyer ... 147 symbolical, when sufficient 6, 148 what is equivalent to, in case of ponderous goods . . . 149 of common carrier's receipt 150 of bill of sale enough in case of vessel at sea .... 151 what necessary on sale of logs lying in river .... 158 goods held by sheriff under attachment 154 goods held by third person on storage 155 of private warehouseman's receipt, when enough . . . 156 of licensed public warehouseman's receipt, statute as to . 157 none needed where buyer already has possession . . . 159 where partners or tenants in common sell to each other . 160 of bill of sale, buyer giving lease to seller is not sufficient 161 on sale of half-grown grass 162 of crops not grown 164 effect of knowledge of sale by attaching creditor, on necessity of 166 360 INDEX. DELIVERY (continued). section buyer's failm-e to take possession due to wrongful act of attaching creditor 167 to buyer and redelivery by him to seller 168 of entire mass for buyer to take out portion sold to him . 222 different uses of term 408 cases when seller may refuse to make 409 in absence of agreement seller not bound to forward goods 410 effect of delivery to carrier 411 duty of seller in such case 412 when seller bound to take out internal bill of lading . . 413 goods must be sent within reasonable time 414 when no acceptance by buyer need be shown .... 415 responsibility for injuries during transportation . . . 416 days, how counted, meaning of month, etc 417 between two certain days, meaning of phrase .... 417 of more or less than contract calls for 418-422 " more or less," meaning of 422 seller's duty to separate good from bad before buyer is bound to accept 423 shown by resale of goods by buyer to seller 424 failure to deliver at specified place, when immaterial . . 425 duty of seller to notify buyer of readiness to deliver in certain cases 426 abandonment of contract by buyer as excuse for failure to deliver 427 construction of certain contracts as to duty of making delivery 428-432 DISCLOSURE OF FACTS, duty of certain purchasers as to 70, 71 tenants in common not held to make, in buying of each other 71 DISTILLED SPIRITS. (See Spirits.) DRUGS, statute as to sales of 348, 349 DURESS, sale obtained by, cannot be avoided by seller's creditors . 305 INDEX. 361 E. EARNEST, SECTION meaning of term 113 ELEVATORS, sale of grain in 220 ELIZABETH, statute of 287-290 ENTIRETY OF CONTRACT, what it is 250 EQUITY, relieves against misrepresentations made by mistake of parties 2iO remedy in, where A secures goods from various sellers by fraud and pledges them to B 473 specific performance in 512-516 rarely resorted to 513 to compel assignment of patent 514 ordinarily wiU not give specific performance of sale of shares of stock 515 but will under peculiar circumstances 516 gives no remedy to bidder for refusal of auctioneer to sign memorandum to satisfy statute of frauds . . . 133 remedy in, of other partners where sale is made by one partner in fraud of them 20 / remedy where person in fiduciary relation buys trust property 68, 69 EVIDENCE. {See Parol Evidence.) EXECUTORS, sales by 28-32 do not need special license 31 when foreign executor must secure probate papers here . 32 may he buy the goods belonging to his testator's estate . 68 EXPLOSIVES, statute as to sales of 347 F. FACTORS, statute concerning sales by 19 sale by, of his own goods mingled with those of his prin- cipal 468 362 INDEX. FAILURE OF CONSIDERATION, section as ground for avoidance 242 on sale of patents which are worthless 243 seller's failure to comply with his entire contract . . . 244 where the goods are of uniform character 245 failure merely as to quality 246 FATHER, when liable for son's purchases 61 FERTILIZERS, statute as to sales of 339 FIREWORKS, statute as to sales of 345 FISH, statute as to sale of certain kinds of 335, 351 FOOD, statute as to sales of adulterated or unwholesome . . 348, 349 FORFEITED GOODS, statute as to sale of 50 FRANCHISE, power of corporation to sell 11 FRAUD, In general, renders sale voidable 251 means used must deceive . 252 must be material in its nature 253 necessity of dishonest intention to constitute . . . 254-256 must cause damage to party deceived 257 may consist of silence 258 by making false r'epresentations as to credit . . . 259, 260 by agent within scope of his authority 261 false statements made innocently by agent but known to be false by principal 262 Injuring the seller, whether title passes on sale induced by ... . 263, 266 makes sale voidable at option of seller 264 where rights of JonaTiiie purchaser intervene .... 265 rights of creditors of the fraudulent purchaser .... 265 case of mere delivery into his possession induced by fraud 266 INDEX. 363 FRAUD (continued^ section none but seller may avoid sale on ground of .... 267 seller must rescind in toio if at all 268 rescission, how effected 269 adoption of one remedy is waiver of others 270 except when 271, 273 where buyer does not intend to pay 274 stifling bids at auction sale 275 fraud complained of must form part of the sale . . . 276 contract made in another State is governed by law of that State 277 Injuring the buyer, right of buyer to rescind 278 must restore goods 279 unreasonable delay 280 silence of seller as to defects 281 rule of caveat emptor 282 same statements if made by third persons 284 misrepresentations by seller of particular facts touching value 285 employment of puffers at auction sales 286 Injuring creditors, statute of Elizabeth 287-290 in force here 288 applies to what conveyances 290 question of hona fides for jury 291 buideu of proof 291 continuance of seller in possession 292 sale good as between parties 293 merely voidable as to creditors 293 creditors may affirm and enforce it if it is executoi-y . . 293 attachment of the goods as the property of the seller . . 294 if shei-iff's action is irregular at any stage he is trespasser ah initio 295 existing and subsequent creditors 296 if not fraudulent as to existing creditors what must be shown to avoid it 297 where buyer participates in fraudulent purpose . . . 298 sales in fraud of insolvency laws 299-300 restoration of goods by fraudulent buyer 302 364 INDEX. FRAUD (continued). section where merely one of the minor purposes is to defraud cred- itors 303 where one buys goods fraudulently and aids seller to ab- scond 304 sales obtained by duress cannot be avoided by creditors . 305 cannot be avoided by creditor the consideration of whose claim is illegal 306 FRAUDS, STATUTE OF, provisions of 87 the meaning and purpose of 88 must be pleaded if relied on 89 may disregard it in applying payments 90 embraces executory contracts 91 contracts within the 91, 92 auction sales are within the 93 what are " goods, wares, or merchandise " in meaning of the 95 covers sale of note or shares of stock 95 rules touching sale of things attached to the soil under the 96 distinction between fructus naturales and fructus indus- triales 96 acceptance and receipt 101 et seq. (See Acceptance.) earnest or part payment 113, 114 within what time must be made 115 payment by agreement to set ofE debt due buyer . . . 115 the nature of the memorandum required 116 (See Memorandum.) FREESTONE, statute provisions as to sale of 343/ FRUITS, statutes as to sales of 340 FURNITURE, statute as to condtiional sales of 214 G. GAME-BIRDS, statute as to sales of 352 INDEX. 365 GAS FIXTURES, sectios conditional sale of 210 do not lose character as chattels by being annexed to realty for use 210 GIFT, distinguished from sale 1 GOOD-WILL, sale of 83 GOVERNMENT, claims, transfer of 188 contracts, sale of 356 • • 43-47 purchases by, at their own sales 68 SHINGLES, former statute as to sales of 316 SHIP, sale at common law of 182 how affected by statute 183 at sea, sale of, what delivery necessary 151 SIGNATURE, of memorandum under statute of frauds 126-133 parol evidence to ezplain 120, 127 whose is needed and how it may be made .... 126, 128 by agent authority how shown 129 by auctioneer as agent 130 by broker as agent 131 SILENCE AS FRAUD 258,281 SOAPSTONE, statute provisions as to sale of 343 SOLDIERS, assignment of pay by 356 d SPENDTHRIFTS, statute as to sales by 36 SPIRITS, statute as to sale of distilled spirits when forfeited . . 83 a STATUTE OF ELIZABETH 287-290 in force here 288 applies to what conveyances 290 STATUTE OF FRAUDS. {See Frauds, Statute of.) STOCK, SHARES OF, sale of, is within statute of frauds 95 transfer of, necessity of recording it 169-172 sale of, deliverable at buyer's option 174 statute as to sale of, by one not the owner 353 specific performance in equity of sale of ... . 515, 516 380 INDEX. STOPPAGE IN TRANSITU, section when it arises 490 its nature 491 by whom it may be exercised 492 exercised only on buyer's insolvency 493 time during which it may be exercised 494-497 in ease of goods shipped on a vessel 496 in case of goods shipped on vessel owned or hired by the buyer 496, 497 cannot be exercised under title derived from consignee . 498 course for buyer to pursue who desires to favor seller . 499 seller's right is subject to carrier's lien .... 500, 501 how the right is lost 502 not defeated by an attachment 503 buyer's right to intercept the goods 504 STRAW, statute as to sales of 342 SUNDAY LAWS, sales in violation of 323-327 SYMBOLICAL DELIVERY, when sufficient 6, 148 T. TENANTS IN COMMON, sale by, to each other, need of delivery 160 may deal with each other as strangers 71 sale of entire property as his own by one of several . . 10 TENDER OF PAYMENT, what it is 447 must be kept good 448 sufficient excuse for not making 447 must be unconditional 449 what currency is a legal tender 450 statutoiy provisions as to making 451 THREAD, statute as to sales of sewing 343/ TIMBER, statute as to sales of 343/ INDEX 381 TIMOTHY-GEASS SEED, section statute as to sales of 843/ TITLE, effect of contract in passing 134, 234 distinction as to contracts executed and executory 134, 185 on sale of specific goods unconditionally .... 136 et seq. when are the goods specific 136 when title passes 137 where seller is to deliver at specified place 139 delivery necessary as against subsequent purchasers and attaching creditors 140 (See Delivery.) where seller becomes bailee of buyer 158 goods in hands of carrier at the time 163 in whom, on purchase by A on B's order 176 when goods are represented by bill of lading .... 177 where buyer agrees to pay on a day certain or return the goods 181 on sale of specific goods conditionally 191 (See Conditional Sales.) on sale of goods not specific 218 where entire mass is delivered to buyer for him to take out portion sold to him 222 where wrong articles are delivered by mistake . '. . . 237 where sale is obtained by fraud 263 implied warranty of 388-392 of goods imported to remain in consignee until when . 189 TOBACCO, statute as to sales of 881 TRADE, sales in restraint of 311, 312 TRADE MARKS, sale of 83, 184, 187 TRADE SECRETS, sale of 83 TROUT, statute as to sale of 351 TRUSTEES, may they buy the goods held in trust ? 68 382 INDEX. u. UNITED STATES, section transfer of claims against 188 sale of contracts made with 356 a USAGE, cannot invoke it to show warranty 403 V. VALIDITY, how affected by place where sale is made .... 85, 319 VEGETABLES, statute as to sales of 340 VINEGAR, statute as to sales of 348 b w. WAGES, assignment, of, by persons in naval service .... 190 c by seamen and soldiers 356 d WAIVER, of performance of condition in case of conditional sale . 204 of other remedies by adoption of one 270-273 of conditions generally 364 WAREHOUSEMAN, delivery of receipt of, when enough to pass title . 156, 157 effect of delivery to, for buyer 147 WARRANTY, what is a 869-872, 875 made after sale is concluded 373 inserted in receipted bill 874 when question for the jury and when for the court . . 375 as to soundness of horse 876-377 purchaser's knowledge of facts which constitute the breach of 878 cannot be introduced by parol into written bill of sale not containing it 879 but may be where the writing is mere bill of parcels, etc. 879 INDEX. 383 WARRANTY (continued). section unless statute of frauds prevent 880 givenby agents 881 power of auctioneers and brokers to give 881 when it binds agent personally 382^ 404 against future defects 884 where principal adopts agent's contract he cannot repu- diate his warranty 383 burden of proof as to 386 equal to any in America 387 of title implied, when 888 what constitutes breach of warranty of title . . . 389, 390 where seller assigns bill of sale constituting his title . . 391 sale merely of seller's interest 392 when implied as to quality 893 effect of words of description 394 sale of article with all faults 395 article supplied for special use 397-400 sale by sample 401 sale of provisions for domestic use 402 cannot invoke usage to show warranty 403 cotton fraudulently packed without knowledge of seller . 406 sale of note, maker being insolvent 405 may be limited as to time within which claim may be brought for breach 407 remedy of buyer on breach of 249 when right to sue accrues on failure of 523 measure of damages for breach of 524^532 implied by statute from stamp on certain goods . . 407 a WEIGHTS AND MEASURES, statute as to 344 WIFE, liability of husband for purchases by 68-67 WOOD, statute as to sales of 843 c, 343/ WRIT OF REPLEVIN, as a source of title 15 buyer may bring, when 511