OinrnpU ICam i^rlynnl ICibraty Cornell University Library KF 915.H65 1869 The law of sales of personal property / 3 1924 018 845 069 ^7 /Sj^ ■t.A^'N-x^ -|-^2A i<^'i?/^ The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018845069 THE LAW OF SALES PERSONAL PEOPERTY. FRANCIS BILLIARD, ADTBOB OP "THE LAW OP TORTS, IHJON0TI0N3," ETC. ETC. THIED EDITION, GEEATLY ENLAEGED. PHILADELPHIA: T. & J. W. JOHJ^SON & CO., LAW BOOKSELLEES AND PUBLISHEES, No. 535 Chestnut Street. 1869. B ?7/3^ Entered according to Act of Congress, in the year 1860, BT FRAKCIS HILLIARD, In the Clerk's Office of the District Court for the District of Massachusetts. Entered according to Act of CongresB, in the year 1869, * BT FRANCIS HILLIARD, In the Clerk's Office of the District Court for the District of Massachusetts. CAXTON PRESS OP SHERMAN 4 CO., PHILADA. PREFACE TO THE THIRD EDITION. The subject of the present work, it hardly need be said, is second in importance to none in the law ; inasmuch as the buying and selling of personal property, more than any other transaction, creates or constitutes the activity of human society. Other mutual dealings are compara- tively local and occasional, but this is universal and per- petual ; and it is proportionally desirable, that the profes- sion should have access to a compact text-book, in which the authorities, upon the various questions so continually arising in and out of court, may be found concisely and systematically stated. The Author trusts, that this re- quisition will be found in some good degree fulfilled in the following pages. To the present edition, the English and American cases, decided since the preceding one, have been copiously added ; being incorporated, without special notice, into the text or notes. F. H. 1869. CONTENTS. CHAPTER I. PAGE General Principles Relating to Sales of Per- sonal Property, 1-21 1. What constitutes a sale — payment, delivery, gift, exchange, etc. 10. Sale of several articles together, whether one contract. 11. After sale, vendor not liable for loss, etc. 12. Order for goods passes the property. 13. Exchange. 14. Law implies a sale, when. 15. Manufacture of goods to order, or exchange of securities ; no sale. 16. Deviation from the contract — no action lies. 17. Transfer by act of law. 18. Sale of a thing not in existence at the time. 21. Payment of earnest. CHAPTER II. "Whether a Contract is a Sale or a Bail- ment, 22-30 CHAPTER III. Conditional Sale, 31-43 1. Various forms of condition in connection with sale. 2. Payment of price as a condition — whether a title vests before pay- ment — rights of purchasers, creditors, etc., — conditional or unconditional delivery. 6. Miscellaneous points. 8. Sale of materials to be manufactured. 10. Condition in favor of the vendee. 11. In favor of a surety. 12. Sale upon trial. 15. Questions of time in reference to conditions — arrival of goods. VI CONTENTS. CHAPTER IV. FAQE Effect of a Sale by one not owning the Prop- erty Sold, 44-52 CHAPTER V. Construction of Sales, 53-70 1. Distinction between a sale and a contract to sell. 5. Contracts to manufacture and sell ; manufacture and sale of ships, etc. 7. Effect of delivery. 8. Want of identification or separation of the articles sold. 9. Entire contract for sale and delivery. 10. Alternative or conditional sale ; construction, whether in favor of the seller ; time, etc. 13. Risk of loss, as affecting the construction. 14. Construction by the ability of the seller to perform. 15. By notice and usage. CHAPTER VI. Parties to a Sale, 71-118 1. General capacity. 2. Husband and wife. 13. Infants. 20. Idiots, lunatics, etc. 21. Duress. 22. Alien enemies. 23. Agents, factors, and brokers. 59. Executors, etc. 61. Judicial sales. 71. Partners. CHAPTER VII. Delivery, 119-175 1. Necessity of delivery ; Statute of Frauds ; fraudulent conveyance. 2. A question for the jury. 2. li. Auction sale. 2. b. Execution sale. CONTENTS. VU 3. Possession of the buyer ; constructive delivery ; setting apart after the sale ; sale of ponderous articles. 6. Marking of the articles sold. 7. Sale by a tenant in common. 8. Sale of property subject to a lien for duties, or attached ; or attach- ment after sale. 10. Drawing of an order for goods. 12. Written instrument of sale ; deed, bill of sale, invoice, etc. 14. Delivery of key. 15. Lease of building. 16. Previous possession of the purchaser, or his agent. 18. Sale between tenants in common. 19. Bill of lading. 25. Property in possession of a third person ; sale with notice. 27. Agreement, for future possession. 29. Part-delivery. 36. Delivery of a sample. 37. Conditional delivery. 42. Delivery to a carrier. CHAPTER Vin. PAGE Delivery in Relation to Creditoks, etc., . 176-188 1. General principle ; whether want of delivery is conclusive, or only prima facie evidence of fraud | distinction between absolute and condi- tional sales. 15. Sale of property in possession of a third person. 16. Change of possession must be substantial. 17. Execution sale. 18. Purchase, with the goods as security. 19. Successive sales to creditors. 20. Creditor having notice of a sale. 21. Sale of property not easily susceptible of delivery. 22. Successive sales ; delivery to one purchaser. CHAPTER IX. Incomplete Sale ; Acts to be done by the Seller before Delivery, .... 189-210 1. General doctrine. 2. Its various applications ; sale of an unseparated portion of a larger quantity. viii CONTENTS. 4. Sale of the whole of certain property, without weighing, etc. 5. Sale of a single article. 7. Distinction between actual and constructive delivery ; and effect of payment of the ^rice. 8. Exceptions to the general rule ; question of intention ; substantial completion of the sale. CHAPTER X. Delivery — Sale of Ships, etc., at Sea, . 211-214 PAQS CHAPTER XI. Time and Place of Delivery, . . . 215-221 CHAPTER XII. Acceptance, 222-229 1. statute of Frauds requires an acceptance ; constructive acceptance. 4. "What is not an acceptance. 5. Part-delivery. 7. Sale by sample. 8. Suit for non-acceptance. 9. Question is for the jury. CHAPTER XIII. Price and Payment, 230-241 1. Necessity and certainty of a price. 2. Keasonable price, when implied ; parol evidence, etc. 4. Payment, when it must be in cash. 5, 11. Payment by bills, etc. ; effect upon the seller's right of action. 9. Payment by other securities. 10. Sale, in payment of a debt. CHAPTER XIV. Sale on Credit, 242-248 1. Sale presumed to be for cash. 3. Contract of sale and return. CONTENTS. IX 4. Expiration of credit. 5. Payment by bill, etc. ; action for the price, time of. 6. Election as to credit. 8. Commencement of suit. CHAPTER XV. PAOE Sales at Auction, 249-264 1. What constitutes an auction. 3. "What is a bidding ; nature and effect of bidding at auction. 6. Eights and liabilities of an auctioneer; deposits; right of action, etc. 23. What avoids an auction sale ; misrepresentation ; puffing, combi- nation among bidders, etc. CHAPTER XVI. Lien, 265-278 1. Lien of a seller for the price; founded on possession. 4. Distinction between a lien and a condition. 6. How lost or forfeited. 8. Against whom it may be enforced. 10. Effect of part-delivery. 11. Sale on credit ; security for the price. 13. Whether affected by suit against the purchaser. 14. Between part-owners. CHAPTER XVII. Stoppage in Transitu, 279-321 1. General nature of the right ; distinction between, and lien. 2. Not a rescinding. 3. How exercised. 4. At what time. 5. How affected by delivery; nature of the delivery; constructive delivery. 8. Paramount to a lien against the purchaser. 9. Where an act remains to be performed by the seller. 11. Knowledge of insolvency; waiver of the right. 12. Arrival of the goods at their destination ; arrival at aa interme- diate point ; possession taken by the purchaser. : CONTENTS. 16. Delivery to carrier, wharfinger, etc. 23. Principal and agent. 30. Bill of lading, and other evidences of title. ■10. Part-payment. 41. Goods sent to a creditor. CHAPTER XVIII. PAGE Warranty, 822-394 1. General principle ; the civil and the common law ; caveat emptor ; fraud, concealment, patent defects, a, sound price, etc. 4. Sale of articles manufactured and sold for a certain use. 6. Apparent value of thing sold may be recovered. 6. Words necessary to a warranty — representation, whether sufficient; intention of parties ; a question for the jury. 10. Parol warranty in case of a written sale; warranty before or after the sale. 11. Words of description, warranty by. 14. Sale by sample. 22. Sale of provisions. 25. Breach of warranty. 29. Eemedy in case of warranty ; action, defence, rescinding, declara- tion, evidence, damages, etc. 38. Warranty of title. CHAPTER XIX. Rescinding of Sales, 395-430 1. By mutual consent; distinction between rescinding and stoppage in transitu; resale, etc. 8. Eescinding by the vendor for non-payment, insolvency, fraud, etc. 20. Eescinding by the vendee ; for fraud, breach of warranty, under an express condition, etc. 36. Legal effect of the rescinding of a sale. CHAPTER XX. Fraudulent Sale, 431-451 Fraud between the parties. Fraud of the seller and of the buyer. Eights of purchasers from, or creditors of, the first purchaser. CONTENTS. XI CHAPTER XXI. PAOE Fraud on Creditors, etc., .... 452-478 Fraud against creditors, etc. Want of consideration. Collusion. Preference. Subsequent purchasers. Assignment for creditors. Bankruptcy and insolvency. CHAPTEE XXII. Void and Voidable Sales ; Illeoalitt, Immo- rality, Public Policy, etc., .... 479-502 1. Illegal sales ; eflFeot of a statutory prohibition and penalty ; revenue regulations, etc. 17. Sales void for immorality, etc. 18. Against public policy. 19. Of property not in existence, or not owned by the vendor. 20. In restraint of trade. 21. In case of adverse possession. 22. Sales made on Sunday. CHAPTER XXIII. Remedies in Case of Sale ; Forms of Action, Defences, Evidence, Damages, etc., . . 503-555 1. Demand or tender — when necessary to an action. 5. Action for goods sold and delivered ; what evidence of sale and delivery is sufficient and necessary to maintain the action; bailment, special contract, security for the price, etc. 15. Delivery and part-delivery. 17. Goods taken wrongfully ; waiver of tort. 19. Order for inspection of goods. 20. Action for goods bargained and sold. 26. For money had and received. 28. Pleadings — declaration, etc. SU CONTENTS. 35. Variance. 43. Defences ; fraud, breach of warranty, etc. 47. Damages. CHAPTER XXIV. PAGE Assignment of Chosbs in Action, . . . 556-612 1. Assignment of choses in action in equity ; what are assignable ; wrongs, accounts, policies of insurance, shares, judgments, etc.; statutes making choses in action legally assignable. 15. Porm or mode of assignment ; whether it must be in writing ; order upon a third person, etc. ■ 20. Effect of assignment ; liability of the debtor ; notice, set-off, etc. 26. Remedy in case of assignment ; proceedings in law and equity ; liability of the assignor to the assignee, etc. CHAPTER XXV. Statute of Frauds, 613-647 1. General application and construction of the statute. 3. Executed and executory contracts. 4. Contracts of sale and manufacture. 7. Sale of shares, stock, etc. ; choses in action. 10. Eorm of execution, signature, etc. ; written acknowledgment ; sep- arate papers, etc. 17. Agents. 19. Brokers. 20. Auctioneers ; whether auctions are within the statute ; effect of the auctioneer's memorandum, etc. 26. Acceptance. 51. Payment. INDEX TO CASES CITED. A. PAGE PASK Allen V. Edgerton, 184 405 413 Abbott V. Bayley, 76 V. Gripper, 301 v. Gilchrist, 618 V. Hammond, 495 V. Goodwin, 490 V. Holden, 562 V. Marshall, 432 442 V. Hooker, 381 V. Kogers, 488 V. Jarvis, 551 618 Abbotts V. Barry, 536 V. Miller, 563 Aberorombie v. Eiddle, 16 V. Ogden, 266 Acebal v. Levy, V. Boundtree, 392 222, 224, 228, 231 ,232 532 V. Smith, 139 Acton V. Bell, 325 V. Waldegrave, 93 Adams v. Beaman, 466 V. Wheeler, 470 V. Cowherd, 593 v. Woodward, 530 V. Gay, 501 502 Allison v. Noble, 546 V. Johnson, 341 Alvord V. Baker, 9 V. Lindsell, 19 V. Smith, 568 V. Eobinson, 588 Amherst v. Cowles, 572 V. Steamboat, 509 Anderson v. Doer, 588 V. "Wadhams, 594 V. Duffield, 387 V. Wheeler, 456 459 V. Hill, 333 Adamson v. Jarvis, 390 391 V. Hodgdon, 171 175 Addjngton v. Etheridge, 470 V. Miller, 574 595 Addis V. Baker, 213 V. Nicholas, 49 444 Adler v. Penton, 448 V. Scot, 128 Aguirre v. Allen, 642 V. Tydings, 466 468 470 Y. Parraelee, 290 299 V. Van Alen, 597 Aickles's case. 439 Andrews v. Boughey, 342 Ainslie v. Boynton, 600 V. Dietrich, 210 443 Akerman v. Humphrey, 317 V. Kneeland, 357 Alderson v. Temple, 461 464 V. Ludlow, 404 Alderton v. Buchoz, 643 V. Whitehead, 541 Aldrich v. Jackson, 606 Angel V. McLellan, 510 Aldridge v. Johnson, 197 Ansley v. Carlos, 263 Alewyn v. Pryor, 43 Anspach v. Heft, 210 Alexander v. Comber, 615 Anstedt v. Sutter, 243 V. Gardner, Anstey v. Manners, 76 143 223 531 Anthony v. Wheatons, 112 V. Gusman, 45 Appleby v. Myers, 17 325 Alford V. Eglisfield, 94 Archdale v. Moore, 340 Alger V. Thatcher, 500 Arden v. Patterson, 604 Allen V. Aguirre, 622 Archer v. Marsh, 499 V. Aldrich, 74 Arendale v. Morgan, 445 V. Anderson, 419 Armfield v. Tate, 493 V. Benner, 625 Armstrong v. Gushing, 565 XIV INDEX TO CASES CITED. PAGE Armstrong v. Huffstutler, 328, 330 V. Toler, 493 Arnold v. Brown, 118 V. Delano, 265, 281 Ashbrook v. Hite, 407 Ashby V. Steere, 473, 475, 476 Ashcroft V. Morrin, 629 Ashmea(J. v. Hean, 466 Atkey v. Olive, 326 Atkins V. Barwick, 395, 399 v. Colby, 280, 295 V. Garwood, 72 Atkinson v. Barnes, 149 V. Bell, 531, 533 V. Brindall, 462 v. Phillips, 469 Atlee y. Backhouse, 83 Atterbury v. Fairmaner, 329 Atwell T. Miller, 122, 125, 626 Atwood V. Lockhart, 511 V. Small, 96 Audenreid v. Eandall, 141 Austen v. Craven, 63, 192, 290 Aver V. Bartlett, 40, 167 Ayres v. Campbell, 571 V. Western, 560 Azamar v. Casella, 357 B. Babcoek v. Trice, Backentoss v. Speicher, 37, Backman v. Wright, Bacon v. Sondley, v. Warner, Badger v. Phinney, Badlam v. Tucker, 124, Baglehole v. Walters, Bagueley v. Hanley, Bailey v. Adams, V. Culverwell, v. Epperly, V. Gouldsmith, V. Hicks, V. Johnson, V. Moore, V. Nichols, V. Ogden, V. Quint, V. Smith, Bainbridge v. Pickering Baines v. Jevous, Baker v. Barney, V. Hall, V. Keen, V. Lloyd, 365 238, 440 492 398 600 81 212, 213 349 391 274, 270 2 622 244 92 10 2, 83 366 151, 629 147 198 78 229 75 32 78 186 PAGE Baker v. Page, 500 V. Bobbins, 523 V. Seaborn, 434 V. Woodruff, 23 Baldey v. Parker, 8 222 226 Baldwin v. Ely, 575 V. Parns worth. 215 V.' Williams, 10 621 Bales V. Weddle, 432 Ballew V. Sudderth, 33 Banchor v. Cilley, 492 V. Warren, 192 Bancroft v. Dumas, 481 Bank v. Caldwell, 593 V. Hastings, 561 V. King, 100 v. Parsons, 481 Bank of Northern Liberties v. Jones, 101 102 103 Banks v. Werts, 502 Bannerman v. White, 359 Barber v. Lyon, 38, 70 Barden v. Keverberg, 76 Barger v. Collins, 610 Barker v. Cory, 514 Baring v. Currie, 97 Barnard v. Mosely, 470 v. Yeates, 325 Barnes v. Bartlett, 3 191 V. Billington, 186 472 V. Blackiston, 510 T. Blair, 326 V. Preeland, 400 Barnett v. Union, &c., 609 Barney v. Brown, 146 V. Dewey, 508 Barr v. Logan, 3, 406 422 Barrett v. Gillard, 567 V. Goddard, 276 V. Pritchard, 40 268 Barron v. Alexander, 436 Barrows v. Harrison, 133 Bartholomew v. Bushnell, 382 384 Bartlett v. Blake, 470 V. Blanchard, 553 V. Pearson, 595 600 V. Williams, 183 456 Barton v. Bryant, 458 V. Hanson, 113 T. Hughes, 485 V. Kanes, 526 527 V. Simmons, 449 V. Williams, 111 112 Bartram v. Parebrother, 282, 300, 399 429 Bassett v. Collis, 372 V. Percival, 500 INDEX TO CASES CITED. XV Basten v. Butter, Batchelder v. Carter, Bateman v. Phillips, Bates V. Conkling, Baxter v. Conolly, Bayley v. Ballard, Baylies v. Fettyplaoe, Baylis v. Dineleyj Baynard v. Farmers, &c., Bayntun v. Cattle, Bayse v. Briscoe, Beach v. Boynton, Beall V. Pearre, Beals V.Lee, V. Olmstead, Bean v. Morgan, Beard v. Dennis, Beatly v. Scrivener, Beattie v. Eobbins, Beaumont v. Crane, Beckwith v. Parnum, Becton v. Perguson, Beech v. Keep, Beecker v. Vrooman, Beed v. Blandford, Beers v. Crowell, V. Dawson, V. Williams, Beirne v. Dord, Belcher v. Prittie, Belknap v. Belknap, Bell V. Caflferty, 237, 431, V. London, &e., Beller v. Block, Bellows V. Wells, Bement v. Smith, Bench v. Sheldon, Bender v. Promberger, Benedict v. Pield, Benford v. Schell, V. Tanner, Benger v. Corwin, Bennet v. MoPall, Bennett v. Pail, V. Hamill, V. Henderson, V. Piatt, Bentley v. Griffin, Benton v. Thornhill, Berkshire, &c., v. Wolcott, Berndston v. Strang, Berney v. Davison, Berolles v. Kamsay, Berst V. Spelman, Best V. Osborne, Betton V. Valentine, Betts V. Gibbins, PAOE 259 PAOB 881 Bexwell v. Christie, 260 184 Bickham v. Irwin, 510 92 Bicknall v. Waterman, 409 508 125 Bidault V. Wales, 439, 440 444 499 Biddis V. James, 485 468 Biddle v. Levy, 79 487 516 Bigelow V. Jones, 535 77 V. Willson, 14 49 Biggers v. Pace, 507 485 Biggs V. Barry, 293 440 894 V. Lawrence, 483 465 V. Parkinson, 339 375 Bird V. Boutler, 636 534 V. Jones, 74 336 841 V. Mayer, 888 76 Birdseye v. Prost, 326 500 Bischof V. Coffelt, 446 231 V. Lucas, 547 181 Bishop V. Holcomb, 597 141 V. Williamson, 485 608 Bissel V. Balcom, 647 570 Bissell V. Hopkins, 186 584 Bittleston v. Cooke, 473 545 546 Black V. Everett, 562 420 421 V. Webb, 55 620 V. Zacharie, 493 470 Blackburn v. Mackey, 78 836 Blackford v. Preston, 494 823 864 Blackman v. Johnson, 438 462 V. Pierce, 290 295 594 Blacks V. Catlett, 483 442 445 Blades v. Pree, 74 562 591 Blagden v. Bradbear, 634 122 190 Blakeman v. Mackey, 341 ,842 ,348 847 Blake v. Buchanan, 562 548 Blanchard v. Child, 35 434 435 Blasdale v. Babcock, 388 892 398 607 Blasdell v. Souther, 58 42 Bligh V. James, 491 138 Blin V. Pierce, 595 58 Bliss V. Cottle, 442 448 328 330 V. Negus, 451 606 Blivins v. Buck, 612 398 Blodgett V. Hildreth, 477 107 V. Webster, 524 512 Blood V. Palmer, 29 426 Bloom V. Richards, 501 72 Bloss V. Bloomer, 494 182 V. Kittridge, 350 ) 513 Blossom V. Champion, 35 852 309 Blot V. Boiceau, 91 461 Blount V. Davis, 572 78 Bloxsome v. Williams, 502 467 Bluett V. Osborn, 341 372 Blydenburg v. Welsh, 42 217 ,553 478' Blythe v. Speake, 326 421 438 286 Boardman v. Sill, 877 XVI INDEX TO CASES CITED. Boardman v. Spooner, 623, 628, Boghtlingk v. Inglis, Bogg V. Khodes, Boinest v. Leigner, Bolden v. Brogden, Bolin V. Huffnagle, 289, Bolles V. Stearns, Bolton V. Killersden, V. Lancashire, V. Prentice, Bond V. Clark, V. Gribson, V. Seymour, Bonested v. Fluck, Bonner v. Marsh, Bonsey v. Amie, Bonton v. Reed, Booth V. Bierce, Boreman v. Jenkins, 362, Borrekins v. Bevan, Boswell V. Green, Bothick V. Purdy, Botton V. Railway, Boulter v. Arnott, Bours V. Webster, Boutwell V. Poster, Bowdell V. Parsons, Bowen v. Bramidge, V. Burk, Bowman v. Herring, Boyd V. Brown, 3, V. Eaton, v. Mosely, T. Whitfield, Boylen v. Leonard, Boynton v. Page, Bradford v. Bush, V. Manly, 352, 355, V. Marbury, V. Tappan, Bradley v. Harndon, V. Holdswortb, V. Michael, Bradshaw v. Bennett, Brady t. Haines, Bragg V. Cole, Brainard v. Burton, Bramley v. Alt, Brandt v. Bowlby, Branson v. Gales, V. Gleason, Brantley v. Thomas, 335, Branwell v. Pennock, Breneman v. Crabbe, Brent v. Richards, PAGE PAOB Brettel v. Williams, 624 633, 645 Brewer v. Franklin Mills , 677 288, 309 V. Smith, 196 208 Brewster v. Lathrop, 669 326 V. Leith, 127 371 Bridge v. Wain, 352 299, 309 Briggs V. Dorr, 576 30 V. Light Boat, 490 87 Brigham v. Palmer, 515 298 Brindley v. Tibbetts, 420 73 Brinley v. Spring, 212 348 Bristol V. Tracy, 418 110,118 V. Wilsmore, 236 468 Bristow V. Waddington, 539 29 Britt V. Aylett, 468 27 Broennenburgh v. Haycock, 372 188 Bromer v. Lewis, 859 338 Bronson v. Wiman, 432 607 , 616 91, 231 Brooke v. Evans, 118 376, 377 V. White, 245 841, 351 Brooks V. Carneal, 432 206 V. Powers, 182 559 V. Thomas, 476, 477 279 Brower v. Peabody, 445 272, 618 Brown v. Bellows, 230 623 V. Brooks, 54 486 V. Duncan, 488 508 V. Edgington, 337 338 458 V. Poster, 591 121 V. Godsey, 458 467 V. Holbrook, 513 129, 459 V. Jones, 372 480 V. Marine Bank, 562 570 168, 299 V. McGran, 91 888 V. Pierce, 121 387 593 V. Ray, 505 501 v. Rees, 662 85 V. Sones, 385 V. Stadton, 252 857, 359 V. Wilmerding, 470 171 Browne v. Hare, 170 3 Browning v. Magill, 46 575 V. Stallard, 7 621 Broughton v. Badgett, 565 6, 505 V. Broughton, 468 257 Broyles v. Lowrey, 506 466 Bruce v. Pearson, 12 619 Bryan v. Jackson, 79 271 V. Lewis, 16 495 259, 262 Bryant v. Crosby, 166, 173 22, 25, 342, 345 350 482 518 V. Dana, 671 217 V. Young, 470 857, 421 Buchanan v. Painshaw, 371 108 Buck V. Albee, 481 486 473 V. Hatfield, 311 551 V. Sherman, 465 INDEX TO CASES CITED. XVU 142, Buckingham v. McLean, 474 Buckley v. Artcher, 439 V. Purness, 284, 290, 292, 296, 298, 299 Bucklin v. "Ward, 610 Buokmaster v. Smith, 38 Buckman v. Haney, 341, 385 Bucknan v. Nash, 123, 157, Budd V. Pairmaner, BuflSngton v. Curtis, V. Gerrish, V. Quantin, Bufleld V. Duchess de Pienne, Buford V. Gould, Bulkley v. BufSngton, Bull V. Robinson, Bullard v. Eaynor, Bullis V. Borden, Bullitt V. Meth. Epis. Ch., V. "Worthington, Bunnell v. Magee, Bunney v. Poyntz, Burbank v. Crocker, Burdit V. Burdit, Burge V. Cone, Burgess v. Chapin, Burghart v. Angerstein, Burke v. Harrison, Burleson v. Burleson, Burlingame v. Bell, Burnby v. BoUett, Burnell v. Robertson, Burns v. Fletcher, Burrall v. Jacot, Burrough v. Skinner, Burrows v. Stebbins, V. Stoddard, Burton v. Curyea, v. Young, Bush V. Barfield, V. Bradford, 135, 386, 447, 508. Davis, Jackson, Spence, Buss V. Putney, Bustin V. Rogers, Butler V. Collins, V. Haight, 355 212 442 406 76 372 467, 471 337 595 179 612 467 571 276 35 346 136 608 78 232 487 466 369 186 336 10 253 470 186 139 350, 371 204 C. 446, V. V. V. 218, 550 291 385 220 512 500 431 521 T. New York, &c., 559, 565 Butterfield v. Baker, V. Burroughs, Butterworth v. McKinly, Butts V. Collins, Buxton V. Hamblen, Bywater v. Richardson, Byxbie v. Wood, 14 371 59 627 660 Caddington v. Bay, 442 Cadogan v. Kennet, 181, 453, 456 Caggill V. Hartford, 32 Calais, &c. v. Van Pelt, 50 Caldwell v. Bartlett, 448, 444 V. Dawson, 527 V. Garner, 124, 136 Calkins v. Lockwood, 641 Callow V. Thompson, 186 Calvert v. Sesseen, 201 Calvin v. Williams, 621 Camac v. Warriner, 336 Camp V. Norton, 190 204 Campbell v. Ayres, 521 V. Fleming, 377 V. Sewall, 246 Campbell's case, 439 Canaan v. Greenwood, 12 Oandlish v. Newman, 14 Canfield v. Monger, 563 Cannaday v. Shepard, 576 Cardigan v. Page, 494 Cardwell v. McClelland, 435 Carleton v. Sumner, 161 V. Whitcher, 480 494 v. Woods, 480 Carlisle v. Burley, 12 Carley v. Wilkins, 342 Carman v. Page, 547 v. Susick, 615 Carmichael v. Buck, 46 Carnes v. Apperson, 57 Carnoohan v. Gould, 325 Carruthers v. Payne, 7 Carroll v. Bleneon, 76 V. Boston M. Ins. Co., 567 Carsan v. Rambert, 489 Carson v. Baillie, 355 Carter v. Crick, 356 V. Jarvis, 7 V. Stanfield, 470 V. Toussaint, 223 ,614 V. Walker, 417, 419 428 , 435 Cartwright v. Phcenix, 125 Carville v. Reynolds, 574 Caryl v. Russell, 474 Case v. Boughton, 239 , 348 V. Hall, 392 V. Jennings, 446 Cash V, Giles, 409 ,417 Cason V. Cheely, 617 V. Murray, 465 ,466 , 467 Castle V. Swarder, 637 Caston V. Cunningham, 469 Caswell V. Caswell) 458 XVUl INDEX TO CASES CITED. PAOI P4GB Caulfield v. Sanders, 579 Clarke v. Carter, 233 Cave V. Green, 628 V. Hutchins, 219 Cecil V. Spurger, 436 V. Leslie, 78 V. Tutt, 436 v. Thompson, 609 610 Chadsey v. Greene, 328 Clasm V. Bailey, 631 ChaflSn v. Doub, 217 Clay V. Yates, 618 Chamberlain v. Gorham, 600 Clayton v. Andrews, 615 619 v. Smith, 30, 34 V. Brown, 466 469 Chambers v. Griffith, 479 T. Fawcett, 588 V. Lewis, 527 V. O'Conner, 415 Champion v. Plummer, 629 Clemens v. Davis, 59 V. Short, 8 Clement v. Mattison, 74 Chandler v. Fulton, Clements v. Moore, 453 280, 281, 313 314 V. Smith, 422 Chanter v. Hopkins, 336, 356 V. "Williams, 79 Chaplin v. Rogers, 125, 228 615 Clemson v. Davidson, 266 Chapman v. Brooks, 593 Clen v. McPherson, 335 V. Campbell, 394 Cleveland v. Clap, 567 V. Certe, 320 Clifford V. Laton, 73 V. Cole, 47, 99 437 Clinton v. Fly, 573 V. Haley, 599 Cloud V. Mooreman, 122 204 V. Kent, 172, 202 Clough V. Ray, 15 V. Lathrop, Clugas V. Penaluna, 483 157 193 195 Clute V. Barron, 104 V. Murch, 341 342 Coales V. Railton, 292 309 V. Searle, 139, 151 396 Coates V. Muse, 571 Chappel V. Marvin, 138 V. "Wilson, 78 Charnley v. Dulles, 607 Cobb V. Norwood, 468 Charters v. Bayntun, 77 V. Thompson, 570 Chase v. Washburn, 23 Cobhold V. Easton, 620 V. Wetmore, 266 Coburn v. Odell, 486 Child v. Hardyman, 75 V. Pickering, 456 Chism V. "Woods, 388 Cochran v. Tollins, 560 Chissom v. Hawkins, 445 Cocke V. Chapman, 146 Choteau v. Jones, 468 V. Hardin, 432 Chrian v. Corke, 635 Cockrell v. "Warner, 204 Christie v. Cummins, 420 Cockerell v. Smith, 393 Chumar v. "Wood, 186 Coffman v. Allen, 433 Churchill v. Wilkins, 545 Coggill v. Hartford, 164 167 443 Cincinnati v. Kice, 501 Coghill V. Boring, 449 Claflin v. Boston, &c., 131 Coil V. "Willis, 3 Clap V. Shephard, 621 Colelough V. Sterum, 207 Clark V. Baker, 505 Cole V. Albers, 476 V. Burnham, 620 V. Champlain, &e.. 417 V. Depew, 465 466 V. Kerr, 191 V. Draper, 149 V. Swanston, 504 525 v. Edney, 575 Coleman v. Bank, &c.. 470 V. Imlay, 510 V. Gibson, 416 V. Manstone, 544 Colgate V. Baeheler, 5U0 V. Mauran, 143 320 Colley V. Merrill, 89 V. Noel, 283 Collins V. Brush, 186 V. Oliver, 322 487 V. Hood, 474 V. Pinney, 76 Colman v. Price, 513 V. Rogers, 576 Colquit V. Bonner, 571 V. Rush, 149 Com. V. Fuqua, 559 570 V. Smith, 520 V. Lang, 114 V. "Westrope, 550 V. Nax, 509 INDEX TO CASES CITED. XIX PAOE FAQK Com. V. Packard, 4 Courtright v. Stewart, 618 V. ■Williams, 1 Cousin V. Paddon, 386 549 Comts V. Bateman, 622 Couturier v. Hastie, 14, 68 Commercial, &c. v. Cost, 594 Covanhoven v. Hart, 467 Compton V. Bedford, 461 Covas V. Bingham, 240 Compty V. Aiken, 601 Coventry v. Gladstone, Comstock V. Hutchinson, 386 292, 308 312 Comyna v. Bayer, 45, 482 501 Covin V. Hill, 46 Condon v. Walker, 483 Cowan v. Adams, 267 Connelly v. Harrison, 579 Cower V. Van Dadelszan, 874 Congar v. Chamberlain, 350 Cowles V. Eidder, 574 V. Galena, &c., 219,233 Cowper V. Andrews, 120 Conner v. Comstock, 56 Cox V. Burns, 283 V. Henderson, 382 V. Cripps, 246 Connersville v. Wadleigh 371 547 V. Jackson, 3 ConoUy v. Parson, 261 V. Kitchin, 76 Converse v. Hill, 280 v. Sprigg, 565 V. McKee, 470 V. Todd, 220 Conway v. Bush, 6 Coxe V. Harden, 281 301 Conyers v. Ennis, 282 Crabtree v. Kile, 380 Cook V. Arthur, 565 Cragin v. Coe, 159 V. Castner, 546 Craig V. Godfrey, 687 V. Deaton, 78 Cram v. Union, 14 V. Logan, 190 Cramer v. Bradshaw, 343 V. Ludlow, 517 Crane v. Gough, 576 V. Mosely, 842 376 V. Pearson, 5 V. Kogers, 462 V. Koberts, 67 Cooke V. Chapman, 135 Crantz v. Gill, 78 V. Oxley, 250 Craven v. Kyder, 818 Coolidge V. Bingham, 388 Crawshay v. Eades, 802 V. Euggles, 559 ,610 Creed v. Lancaster, &o.. 469 ,472 Coombs V. Emery, 489 Crispin v. Williamson, 543 Coon T. Eeed, 405 Critchfield v. Critchfleld, 586 Coope V. Eyre, 118 Crocker v. Crocker, 49 Cooper V. Douglass, 590 V. GuUifer, 30 T. Elston, 615 V. Whitney, 17 562 610 V. Smith, 627 Crofoot V. Bennett, 198 Cope V. Rowland, 488 Crooks V. Moore, 235, 406 550 Copeland v. Lewis, 171 Crookshank v. Burrell, 616 Copland v. Bosquet, 41 , 163 Croom V. Shaw, 85 Coppin V. Walker, 256 Cropper v. Cook, 94 Coquillard v. French, 660 Crosby v. De Graffenreid, 468 Corlies v. Gardner, 519 V. Loop, 591 Corning v. Colt, 228 Cross V. Eglin, 67 Corprew v. Arthur, 469 V. Pearson, 875 Corser v. Craig, 588 , 600 V. Peters, 405 Corwin v. Benham, 326 V. Williams, 548 Cory V. Scott, 614 Crosse v. Gardiner, 394 V. Thames, 553 Crouch V. Culbreath, 372 Coslake v. Till, 215 ,499 Crowder v. Austin, 258 Costar V. Davies, 3 Crumbaugh v. Kugler, 466 Cothay v. Eennell, 92 Cruss V. Crisp, 250 V. Tute, 69 Cuff V. Penn, 403 ,615 Cothera v. Keever, 886 Cuming v. Brown, 316 Cott V. Netterville, 621 Cummings v. Dennett, 617 Cottle V. Wilson, 507 Cundell v. Dawson, 488 Courtright v. Leonard, 196 Cunningham v. Ashbrook , 204, 330 XX INDEX TO CASES CITED. PAOE Cunningham v. Hall, 339 347 384 V. Herm on, 562 V. Sheer 384 Currie v. Hart, 575 Currier v. Hodgdon, 610 V. Howard, 562 576 Curtis T. Auber, 14 V. Brooks, 608 V. Cisna, 602 V. Greated, 254 Cusack V. Kobinson, 642 Cashing v. Wyman, 409 445 Cushman v. Hall, 521 Cushwa V. Cushwa, 468 Cutchen v. McGahay, 75 Cutler V. Pope, 274 Cutts v. Perkins, 17, 561, 576, 588, 602 D. Daggett V. Adams, 109 Dame v. Baldwin, 46 Daman v. Oshorn, 165, 156 Dana v. Mason, 244 Danforth v. Dart, 444 V. Dewey, 426 Daniel v. Adams, 89 Daniels v. Street, 893 Dannefelser v. Weigel, 32 Dardenne v. Hardwick, 471 Dater v. Earl, 491 Daubigny v. Duval, 266 Davenport v. Wheeler, 215 237 V. Gentry, 575 V. Woodbridge, 597 Davis V. Adams, 504 V. Ball, 343 351 V. Bradley, 32,70 V. Coburn, 573 V. Dickey, 418 V. Pish, 553 V. Hill, 193 196 V. Mason, 500 V. Maynard, 108 V. Messer, 334 V. Moore, 153 V. Murphy, 368 V. Reynolds, 320 V. Eowell, 633 V. Shields, 629 V. Turner, 467 Dawes v. Cope, 186 456 V. Boylston, 602 Dawson v. Coles, 576 606 V. Wood, 185 195 Dawzey v. Smith, 468 Day V. Griffith, 136 V. Whitney, 562 Dean v. Mason, 326, 328, 331, 333,388, 533 T. Pitts, V. Eichmond, Deane v. Annis, Do Barry v. Withers, De Begnis v. Armistead, Deean v. Shipper, Decker v. Adams, Dee V. Shee, Deerly v. Mazarine, De Pondear v. Shottenkirk, De France v. Davis, De Freeze v. Trumper, De Gaillon v. L'Aigle, De Groft' V. American, De Groot v. Darby, Delaware v. Ensign, Dell V. Taylor, Deming v. Foster, Demmon v. Locke, Denn v. Diamond, Dennett v. Short, Dennis v. Ashleys, V. Sargeant, Dennison v. CarmAhan, V. Goehring, Denny v. Dana, V. Williams, Dent V. Portwood, Depeu V. Keyser, V. Kobards, De Pothomer v. De Mattos, Derfendortf v. Gage, De Eickson v. Whitney, De Eidder v. McKnight, Derry v. Mazarine, Deshon v. Bigelow, 159 De Symons v. Minchwick, 243 De Tastet v. Carrol, 464 Dewey v. Bayntun, 179 V. Eric, 418 V. Long, 472 De Wolf V. Gardner, 316 Dexter v. Bevins, 206 Dick v. Lindsay, 24 Dickenson v. Fallett, 372 V. Phillips, 567, 569 Dickerson v. Sparks, 550 Dickinson v. Gay, 360 V. Naul, 105 V. Valpy, 91 Dickson v. Zizinia, '385 Dietas v. Fuss, 466 77 76 79 562 482 442 594 485 76 3 603 826, 388 76 494 551 466 531 339, 342 412 1, 10 69 86 76 642 584 477 643 280 25 72 599 330 235 11, 126 76 475 INDEX TO CASES CITED. XXI PAGE PAOE Dill V. Camp, 422 Duncanson v. McLure, 484 Dillard v. Moore, 327 Dunoklee v. Greenfield, 562 Dingeldien v. Third, 594 Duncuft V. Albrecht, 021 Dinninny v. Pay, 572 Dunham v. Pete, 504 Disborough v. Neilson, 16 Dunkley v. Farris, 96 Ditchburn v. Spracklin, 541 Dunlap V. Bournonville, 466 Ditson v. Bandall, 443 V. Gleasou, 34 Divine v. MoCormick, 366 V. Lambert, 171 Dix V. Cobb, 603 v. Waugh, 348 Dixon V. Baldwin, 285 297 Dunlop V. Silver, 559 V. Buck, 147 Dunn V. Dunn, 577 v. Deveridge, 550 V. Snell, 562, 570 576 V. Myers, 203 Dunning v. Sayward, 604 V. Tates, 2, 135, 137, 190, Dural V. Mowry, 450 272 274 318 Durand v. Huth, 389 Doak V. Brubaker, 149 Durell V. Haley, 437 ,442 Dobell V. Hutchinson, 257 625 Durkee v. Leland, 27 Dobyns v. McGovern, 563 Durst V. Swift, 577 Dodsley v. Varley, 268 Duton V. Bodes, 494 Dodson V. Harris, 501 Dutton V. Solomonson, Dodworth v. Jones, 504 171, 245 509 Doe V. trillett, 462 Dwight V. Blackman, 104 V. Stannion, 388 Dyer v. Bean, 186 Dole V. Stimpson, 190 193 201 v. Lewis, 434 Dolin V. Gardiner, 469 V. Pearson, 98 Donald v. Pierson, 29 Dykes v. Blake, 237 Donaldson v. McEay, 260 Dykers v. Townsend, 496 Doolin V. Ward, 263 Doolittle V. Lyrnan, 493 Dorath v. Broomhead, 294 B. Dorr V. Pisher, 381 Dougherty v. Holloway, 391 Eagan v. Call, 323 546 547 Dous V. Dennistoun, 232 Eagle "Works v. Churchill } 417 Dow V. Sanborn, 405 ,440 Eadgill V. McLaughlin, 497 V. Sargent, 475 Earl V. Bull, 547 Downer v. Smith, 449 V. Thomas, 470 V. Marsh, 526 &o. V. Wilsmore, 436 440 Downie v. Hoover, 569 Eastman v. Brown, 431 Downs V. Koss, 617 Easton v. "Worthington, 47 Dows V. Greene, 312 Eastwood V. Brown, 184 V. Morewood, 125 Eaton V. Cook, 317 319 V. Kush, 442 Eden v. Parkison, 371 Dox V. Dey, 506 Ediek v. Crim, 388 Drake v. Bains, 322 Edwards v. Grand, &e.. 643 Draper v. Jones, 36,37 V. Harben, 179 456 Drayton v. Thompson, 605 V. Hodding, 253 Dresser v. Ainsworth, 388 V. Marcy, 345 V. Waterston, 167 Egerton v. Matthews, 630 Druin v. Painter, 465 ,468 E. I. Co. v. Hensley, 89 Drury v. De Fontaine, 482 ,488 Eland v. Karr, 239 Duckworth v. Johnson, 506 Eldridge v. Benson, 27,28 Dudley v. Sawyer, 4 Eliason v. Henshaw, 19 Duffy V. Duffy, 78 EUah V. Leigh, 75 Dugas V. Lawrence, 574 Elliott V. Pybus, 223 Dukes V. Nelson, 375 Ellis V. Hamlin, 409 Dule V. Eoosevelt, 433 v. Higgins, 468 Duncan v. Lewis, 275 V. Hunt, 282, 289 300 303 xxu INDEX TO CASES CITED. PAGE 232, 629 150, 223 381 869 269 323 568 73 574 251 672 603 468 27 575 459 74 452 442 191 473 474 208 77 73, 75 1 470 23 505 Elmore v. Kingscote, V. Stone, Emanuel v. Dane, Emerson v. Brigham, V. Eisk, Emerton v. Matthews, Emery v. Emery, V. Lawrence, Emmerson v. Hulls, Ensign v. Kellogg, Epperson v. Young, Erwin v. Clark, Estes V. Hariston, Estwiek v. Caillaud, Etherington v. Parrot, Evans v. Herring, V. Smith, Everett v. Clements, V. Stone, V. Tindall, Everson v. Carpenter, Ewers v. Hutton, Ewing V. Cargill, v. Erenoh, P. Eagan v. Faulkner, 190 Eair v. Mclver, 239 Fairbanks v. Blackington, 460 V. Phelps, 32, 168 Falconer v. Clark, 476 V. Griflfith, 476 Fales V. Mayberry, 604 V. Mciieon, 29 Falls V. Garther, 233 Fancher v. Goodman, 408, 409 Farebrother v. Simmons, 636 Farmer v. Davis, 94 Farmers' &c., v. Douglas, 466, 470 Farnsworth v. Shepard, 186 Farrer v. Glanard, 76 Farringer v. Ramsay, 476 Parwell v. Smith, 516 Faulk V. Hough, 436 Faulkner v. Hebard, 30 FauU V. Tinsman, 594 Faucett v. Whitehouse, 115 Fawcett v. Osborn, 47, 388 Feagan v. Cureton, 465 Feighley v. Feighley, 465 Feimester v. McKorie, 471 Feise v. Wray, 473 Felker v. Emerson, 73 Felthouse v. Bindley, 20 Felton v. Dickinson, 537 PAGE Felton V. Fuller, 124 Fenn v. Harrison, 89 Pennell v. Eidler, 500 Fenton v. Pearson, 820, 821 Ferguson v. Carrington, 243 V. Clifford, 4 Y. Oliver, 417 Ferrier v. Wood, 32 Fawber v. Stoneum, 468 Fidgeon v. Sharpe, 462 Fidler v. Day, 467 Field v. The Mayor, &c., 573 V. Moore, 191 v. Eunk, 218 V. Simco, 146 V. "Weir, 677 Fielder v. Starkin, 607 Finch v. Finch, 79 Finley v. Quirk, 872, 386 Fiquet v. Allison, 529 Fischell v. Scott, 42 Fish V. Koseberry, 866 Fisher v. Fredenhall, 409 V. Mowbray, 77 V. Pollard, 826 v. Samuda, 374, 895, 416, 446 Fisk V. Hicks, 386 V. Tank, 339, 341 Fitch V. Beach, 193, 199 V. Carpenter, 237 Pitzsimmons v. Joslin, 96 Plagg V. Dryden, 215, 216 V. Mann, 230 Flarty v. Odium, 494 Fleming v. Hammond, 170 V. Slocum, 332, 432 V. Toler, 385 V. Townsend, 453, 470 Plemj-ng v. Hector, 87 Fletcher v. Cole, 217 V. Howard, 187 V. Piatt, 564 v. Willard, 199 Flight V. Booth, 351 Flint V. Woodin, 264 Pluck V. Tollemache, 78 Foley V. Mason, 87 Fonville v. Casey, 15 Poote v. Cobb, 465, 466 Ford V. Aikin, 467 V. Angelrodt, 580 V. Pothergill, 78 V. Garner, 579 V. Stuart, 576 Pores V. Johnes, 493 Porestur v. Bordman, 242 INDEX TO CASES CITED. XXlll Forkner v. Stuart, 470 Forrest v. Camp, 465 Porster v. Taylor, 482 Forsyth v. Dickson, 62 Fortune v. Lingham, 381, 424 Fortier v. Dorst, 594 Foss V. Harbottle, 116 Foster v. Bates, 106 V. Caldwell, 341 V. Cockerell, 212 V. Frampton, 293 V. Fox, 298, 300, 593 V. Lowell, 580 V. Pettibone, 11, 23, 24 V. Kodgers, 552 V. Smith, 843 V. "Woodfin, 470 Foues V. Eice, 467 Fowler v. Kymer, 288 V. Stoneum, 469 V. Waldrip, 469 Fox V. Hanbury, 113 V. Willis, 465 Fragano v. Long, 43, 168 Fraley v. Bispham, 354, 363 Frankenfield v. Freyman, 397 Franklin v. Ewell, 85 V. Long, 832, 375, 377 Fraschieris v. Henriques, 450 Frazer v. Hilliard, 10, 16, 120, 131 Frazier v. Erie City Bank, 101, 102 v. Fredericks, 122 Fredh v. Eves, 74 Freise v. Wray, 805, 306 French v. Griffin, 348 Freshney v. Currick, 473 Frost V. Clarkson, 498 V. Goddard, 121 V. Hill, 110 V. Lowry, 524 Frostburg v. New England, 646 Fry V. Hill, 234 Fuentes v. (^abellero, 386 Fuller V. Abrahams, 263 V. Duren, 530 Fulton V. Thompson, 408, 450 Furniss v. Ferguson, 572 G. Gaby v. Driver, 254 Gadsden v. Eaysor, 372 Gainsford v. Carroil, 553 Gale V. Leckie, 493 Gallagher v. Waring, 357 Gallatin v. Cunningham, 104, 432 Gallop V. Newman, 64 Gaminage v. Alexander, 38 Gannard V. Eslava, 467 Ganson v. Madigan, 197 Gansen v. Morton, 91 Garbutt v. Watson, 616 Gardner v. Adams, 559 V. Howland, 137, 211, 214 V. Joy, 617 Gardiner v. Gray, 361 V. Suydam, 190 Garland v. Chambers, 470 V. Eakeson, 562 v. Eives, 458 V. Spencer, 448 Garnett v. Ehame, 470 Garnsey v. Gardner, 679 Garr v. Hill, 466 Garrett v. Crooks, 55 V. Noble, 104 Garrison v. Brioe, 466 Gassett V. Moore, 474 Gatewood v. Lyle, 603 Geary v. Page, 581 Geraldes v. Denison, 234 Gerard v. Prouty, 55 Germaine v. Burton, 858 Gerrish v. Sweetser, 582 Getty V. Eoundtree, 334, 386, 377, 381, 426 Gibbs V. Thayer, 478 Gibson v. Boults, 461, 462 V. Colt, 85 V. Finley, 690 V. Jayne, 445 V. Love, 465, 470 V. Stevens, 185 Gidley v. Lord Palmerston, 93 Gihon V. Levy, 326 Gill V. Bicknell, 636, 689 V. Clagett, 598 V. Pavonstadt, 121, 154 Gilbert v. Hudson, 410 Gilchrist v. Pollock, 498 Giles V. Edwards, 421 Gillet V. Fairohild, 558 Gilliam v. Towles, 525 Gilmore v. Wilbur, 535 Gilmour v. Supple, 194, 205 Girard v. Taggart, 84, 256, 550 Gladstone v. Birley, 266 V. Neale, 542 Gleason v. Drew, 404 Glenn v. McNeal, ' 465, 466 v. Eandall, 466 Glover v. Austin, 14, 17, 62 V. Hunnewell, 62 XXIV INDEX TO CASES CITED. PAGE Gocldard v. Demerritt, 640 Godding v. Brackett, 472 Golder v. Ogden, 196 Goldrich v. Ryan, 369 Goldthwaite v. Kempton, 528 Gompertz v. Bartlett, 605 V. Denton, 381 Gomery v. Bond, 412 Gomperton v. Dentz, 415 Gooch V. Holmes, 622 Goodall V. Skelton, 272, 518 Goodenough v. Snow, 537 Goodhart v. Lowe, 282 Goodhue v. Butman, 374 Goodloe V. McLanathan, 433 Goodrich v. LaflBin,' 516 Goodwin v. Holbrook, 217 V. Kelly, 146 V. May, 32 Goodyer v. June, 108 Goom V. Aflalo, 632 Gordon v. Downey, 566 Gorham v. Herrick, 456, 457 Gorrison v. Perrin, 324, 329 Gosney v. Frost, 394 Gough V. Dennins, 435 Gould V. Gould, 558 V. Newman, 562 Gourdon v. Ins. Co., &c., 567 Gouthwaite v. Duckworth, 113, 118 Governor v. GriflSn, 570 Govier v. Hancock, 75 Gracie v. Sandford, 522 Gradwohl v. Harris, 595 Graham v. Chapman, 475 V. Dyster, 92 V. Furber, 473 V. Gracie, 602 V. Jackson, 387 Grand Gulf, &c. v. Wood, 578 Grant v. Button, 546 V. Boulby, 185 V. Fletcher, 632 V. Levan, 585 V. MoLacklin, 52 Grantham v. Hawley, 14 Gratz V. Cohen, 467 Graves v. Brown, 662 Gray v. Davis, 32 V. Gutteridge, 253 V. Payne, 639 Greamer v. Mullen, 401 Greaves v. Ashlin, 405 v. Hepke, 134 Green v. Haythorne, 271 V. Merrian, 641 V. Trieber, 466 PiOE Greene v. Bateman, 479 551 Greenby v. Wilcocks, 559 Greenough v. Walker 600 Gregory v. McDowell 653 v. Pane, 76 V. Striker, 27,69 Griffin v. Chubb, 432 V. Keith, 28 V. Langfield, 77 Grimaldi v. White, 361 Griswold v. Scott, 415 Grocers', &c. v. Clark 660 Groningv. Mendham, 146, 374 ,375 Gross v. La Page, 483 Grove v. Nevill, 82 V. Hub}', 560 Groves v. Bryan, 165 V. Buck, 619 V. Groves, 466 478 Gudger v. Fletcher, 622 Guerry v. Perryman, 594 Guerreiro v. Peile, 88 Guier v. Page, 240 Guilford v. Smith, 296 Gunnis v. Erhart, 258 Gunther v. Atwell, 336, 367 363 Gurney v. Behrend, 309 Guthrie v. Murphy, 78 V. Wood, 184 H. Hackley v. Cooksey, 239 Hadley v. Clarke, 487 V. Clinton, 436 Hadwen v. Mendisabal, 235 Hagedorn v. Laing, 532 Haggerty v. Allaire, 611 Hague V. Eolleston. 113 Hahn v. Doolittle, ' 609 Haille v. Smith, 307 Hale V. Allnut, 473 Hall V. Gardner, 573 V. Hinks, 159 V. Hunter, 322 V. Huntley, 203 V. Jackson, 266, 307 V. Meriweather, 41 V. Richardson, 126, 170 V. Robinson, 558, 559 Halleck v. Mixer, 528 Halvert v. Deering, 559 Hamilton v. Brown, 611 V. Ganyard, 331, 366 V. Russell, 453 Hammond v. Anderson, 203, 316 INDEX TO GASES CITED. XXV PAGE Hancock v. Tucker, 420 Hands v. Slaney, Hankey v. Smith, Hanson v. Armitage, V. Meyer, 190, 198 222 192, , 287 78 531 225 193, 290 V. Eoberdeau, 264 Hapgood V. Fisher, Haralson v. Dickens, 466 494 Harban v. Bidwell, 122 Hardacre v. Stewart, 252 334 Hardell v. McClure, 620 Harding v. James, 184 Hardman v. Booth, 111 Hardy v. Metzgar, V. Porter, 47 147 V. Skinner, 470 Hargous v. Ablon, V. Stone, 552 363 Harman v. Fisher, 464 V. Eeeve, 611 ,617 Harmer v. Killing, 77 Harper v. Butler, V. Scott, 603 467 Harrington v. Fay, v. Eieh, 25 588 Harris v. Lunell, 447 V. Mercer, 442 T. Morris, 75 V. Rowland, 393 412 V. Eunnels, 482 V. Smith, 36 168 Harrison v. Allen, 532 v. Sterry, V. Wilson, 472 343 Hart T. Hammett, 329 V. Prater, 80 V. Sattley, V. Tyler, V. "Wright, 148 171 543 331 Kartell v. Durrance, 13 Hartley v. Hitchcock, 270 V. Tapley, Hartshorn v. Eames, 573 467 V. Stodden, 464 Haselinton v. Gill, 456 Haskell v. Bakewell, 468 V. Greely, Hassells v. Simpson, 129 461 Hastie v. Arthur, 182 Hastings v. Baldwin, V. Blue, &c.. 460 5 V. Levering, Hatch V. Bayley, 353 385 169 V. Taylor, Hathaway v. Bennett, Hathorne v. Hodges, 98 561 449 286 157 157 266 425 424 123 599 466 281, 293 617 16. P*QE Havemeyer v. Cunningham, 42 Haven v. Emery, 34 V. Low, 186 Hawes v. Foster, 98, 99 V. Humble, 42 V. Lawrence, 347 V. Tillinghast, 141 V. Watson, 305, 318 Hawkes v. Dunn, 306 Hawse v. Crow, Haxall V. Barbour, v. Willis, Hayden v. Delay, V. Hayward, Haynes v. Flanders, V. Hunsicker, Hayes v. Pike, Hays V. Hollis, V. Moville, 280, Hayward v. Leonard, V. Scougall, Hazard v. Hamlin, V. Treadwell, Head v. Goodwin, Heald v. Cooper, V. Warren, Hedgley v. Holt, Heermance v. Vernoy, Heinecky v. Earle, Heine v. Anderson, Helfrioh v. Stem, Helps V. Winterbottom, Helyear v. Hawke, Hemming v. Perry, Henbest v. Brown, Henckley v. Hendrickson, Henderson v. Barnnavall, Y. Lanck, V. Seevy, V. Ward, Hendrickson v. Beers, Hennequin v. Naylor, Henning v. Powell, Hensley v. Baker, Henson v. King, Henshaw v. Robins, Hern v. Nichols, Heron v. Granger, Herring v. Hoppock, V. Marvin, v. Wlllard, Hershfeld v. Dexel, Hesseltine v. Siggers, Hetherington v. Hayden, Hewlet V. Flint, Heyman v. Neale, Heyward v. Young, 404 87 644 67 512 77 284 145 471 247 86 625 246 419 632 32, 37 382 327 560, 592 440 170 326 342 345, 352 96 245 86 12 32 566 621 571 268 631 499 XXVI INDEX TO CASES CITED. PAGE Heywood r. "Waring, 266 Hevworth v. Hutchinson, 365 Hibbert v. Shee, 361 Hibblewliite v. McMorine t 16 Hickey v. Ryan, 4G6 Hickling v. Hardey, 245 Hicks V. Bailey, 92 V. Cleveland, 398 T. Hankin, 89 T. Whitman, 637 V. Whitmore, 240 Higgins V. Chessman, 3,5 217 High V. Nehus, 467 Hight V. Riply, 519 Hightower v. Christian, 467 Hill V. Davis, 535 V. Freeman, 164 167 V. Gayle, 168 T. Gray, 327 V. McDonald, 148 V. North, 327 V. Perrott, 11 V. Eewee, 533 Hillman v. Wilcox, 341 382 Hinde v. Whitehouse, 157 633 634 Hindley v. Wistraeath, 74 Hiners v. Tweddle, 528 Hinkley v. Bridgham, 124 V. Kersting, 608 Hinton v. Nelms, 574 Hipwell V. Knight, 215 HirdcT V. Whitehouse, 21 Hitchcock V. Coker, 499 V. Giddings, 495 Hitchens v. Congreve, 115 Hitt V. Ormsbee, 467 Hitton V. Eckersley, 500 Hoadly v. Maclaine, 232 403 Hoar V. Wright, 602 Hobart v. Dodge, 246 Hodges v. Harris, 5 V. Temple, 489 Hodgkinson v. Fletcher, 75 Hodgson V. Butts, 271 V. David, 240 V. Davies, 407 V. Hubbard, 451 V. Le Bret, 155 V. Loy, 273, 284 319 V. Temple, 489 Hoe V. Sanborn, 339 382 Hoffman v. Heyman, 68 V. Noble, 422 Hogins V. Plympton, 345, 352 354 Holbird v. Anderson, 458 Holbrook v. Armstrong, 24 V. Burt, 400 PAQE Holbrook v. Vose, 279, 318 Holcomb v. Roberts, 105 Holcombe v. Hewson, 395 Holden v. Dakin, 355 V. Taylor, 607 Holderness v. Shackells, 278 Holl V. GrilBn, 132 Holly V. Huggeford, 129, 260 Holliday v. ilann, 313 V. Morgan, 372 Hollingsworth v. Napier, 131, 317 HoUis V. Claridge, 266 HoUister v. Lord, 47 Holmen v. Dord, 353, 382 V. Johnson, 489 Holmes v. Blogg, 82 Hoist V. Pownal, 298, 299 Honeywood v. Stone, 218 Hooker v. Eagle, 362, 363 Hookham v. Chambers, 76 Hooper v. Smith, 461 V. Tuckerman, 478 Hoover v. Wells, 32 Hope V. Hayley, 16 V. Appleby, 416, 420 Hopkins v. Beebe, 466 V. Grinnell, 389 v. Lee, 553 V. Scott, 471 V. Tanqueray, 351 Hore V. Milner, 592 Hornby v. Fellows, 434 V. Lacy, 85 Horner v. Wood, 561 Horr V. Barker, 132, 172 Hosack V. Weaver, 47 Hoskins v. Duperry, 244, 246 V. Slayton, 94 Hotchkiss V. Gage, 353 V. Hunt, 63, 119, 181 Houghtailing v. Ball, 642 Houghton V. Adams, 382 V. Carpenter, 380 Houlditch V. Desanges, 276 Houston V. Shindler, 640 V. Starnes, 386 Hovey v. Holcomb, 465 How V. Weldon, 458 Howard v. Borden, 223 v. Castle, 259 v. Lincoln, 65, 217 Howe v. Harteweather, 1C8 V. Lawrence, 478 V. Palmer, 150, 614 V. Starkweather, 123 V. Waysman, 469 Howell V. Buckley, 576 INDEX TO CASES CITED. XXVll PiOE PAQE Hoyt V. Hoyt, 576 Ingersoll V. Van Bokkelin , 271 V. Story, 590 Inglebright v. Hammond, 23 Hubbell V. Skiles, 657 Ingram v. Phillips, 467 Hubbs V. Brockwell, 469 Ingraham v. Wheeler, 212 Hubby v. Stokes, 348, 436 Irvine v. Stone, 480 Huckabee v. Albritton, 432, 447 Irving V. Motley, 436, 440 Hudgins v. Perry, 327 V. Thomas, 327 Hudson V. Weir, 621 Ive V. Chester, 78 Hughes V. Klingender, 16 V. Kobertson, 334 Hugus V. Kobinson, 470 J. Huhn V. Long, 38 Hull V. Kichardson, 513 Jacaud v. French, 110 Hutbmaoher v. Harris, 1, 13, 58 Jackson v. Anderson, 208 Humphrey v. Dale, 69 V. Bank, 102, 103 V. Haskell, 347 v. Covert, 615 Humphreys v. Oomline, 336, 342 V. Duchaire, 448 Humphries v. McCraw, 470 V. Hills, 438 Hundt V. Courtney, 493 V. Lowe, 227, 624 Hungate v. Kunkin, 3 V. Robins, 108 Hunn V. Bowne, 133 317, 319 T. Wetherill, 346 Hunneman v. Grafton, 322 Jacobs V. Latour, 276 Hunt V. Blodgett, 458 Jaggers v. Estes, 135 v. De Blaquier, 75 James v. Griffin, 299, 400 V. Ennis, 91 . v. Patten, 629 V. Knickerbacker, 185 V. Shore, 251 V. Mortimer, 462 Jameson v. Gregory, 28, 491 V. Silk, 421 Jarvis v. Davis, 478 V. Thompson, 79 Jee V. Thurlow, 76 Hunter v. Hudson, 451 Jeffrey v. Bigelow, 96 V. Hutchinson, 195 Jeffries v. Evans, 571 T. Jameson, 85 Jemison v. Woodruff, 374 ,420,470 V. Parker, 95 Jenkins v. Brewster, 600 V. Warner, 38, 304 V. Hogg, 262 Huntington v. Hall, 388 V. Long, 433 V. Lowe, 325 V. Place, 468 V. Potter, 596 V. Kichardson, 509 Hurd V. West, 28 Jendwine v. Slade, 354 Hurlong v. Hewson, 73 Jennings v. Carter, 181 Hussey v. Thornton, 160 V. Gage, ?3, 54, 96 Hutchins v. Gilchrist, 370 v. Gcatz, 356 V. Olcutt, 276 Jessup V. Johnston, 467 V. Watts, 578 Jewell V. Porter, 468 Hutchinson v. Morley, 499 Jewett V. Dockray, 562 579, 598 V. Phillips, 529 T. Lincoln, 186 Hyatt V. Boyle, 324 332, 377 V. Warren, 124, 127 Hyde t. Ellery, 444 Johnson v. Barney, 418, 609 Hyland v. Sherman, 369 V. Boyles, 467 Hylton T. Symes, 367 V. Hudson, 488 v. McLane, 409, 504 V. Peck, 444 I. V. Eeed, 528 V. Sullivan, 466 Icely V. Green, 262 V. Thweatt, 465, 470 Idle V. Thornton, 414 V. Watson, 614, 637 Illinois V. Cassell, 121 Joliffv. Bendell, 872 Ingersoll v. Kendall, 120 Jones V. Baldwin, 270 XXVIU INDEX TO C PAOE Jones V. Bowden, 329 V. Bradner, 131 V. Bright, 338, 382 V. Caswell, 263, 363 V. Com., 570 V. Drake, 581 V. Gibbons, 506 V. Gregg, V. Hoar, 528 535 V. Just, 351 V. Kennedy, V. ilarsh, 549 504 V. Murray, V. Nanney, 330, 369 250, 251 V. Seriven, 546 V. Spear, V. Steamboat, 467 45 V. "VVitter, 576, 606, 610 V. Yates, 110 Jordan v. Foster, 333 V. Gillen, 558, 575 V. James, 284 285, 298, 319 Joseph V. Ingram, Joslin V. Caughlin, 184 323 Joy V. Sears, 212, 213 Joyce V. Adams, 202, 241 K. Kearsly v. Duncan, Kee V. Judd, Keevil v. Roldani, Keiler v. Tutt, Kellogg V. Krauser, V. Moore, Kelly V. Upton, Kemp V. McPherson, Kendall v. Andrews, V. Felts, Kendig v. Giles, Kennedy v. Eoss, V. Ware, Kennaird v. Jones, Kent V. Huskinson, V. Porter, Kenworth v. Schofleld, Kepper v. Harbeck, Ketchum v. Durkee, V. Stevens, Kettletas v. Fleet, Key V. Coltesworth, Keyes v. Stone, Keyser v. Harbeck, V. School, Kidd V. Eawlinson, Kiernan v. Eocheleau, 326 558 13 208, 231 597 489 53, 58 600 86 470 557 186 583 514 222, 225 113 635 443 118 609 415 165 538 46, 443 509 184 380 625. Kimball v. Cunningham, 378 V. Keyes, 74 V. Spicer, 569 V. Thompson, 466 Kimberly v. Patchin, 208 Kimbro v. Hamilton, 500 Kinder v. Howarth, 91 V. Shaw, 537 King V. Dilliston, 78 V. Fowler, 600 V. Paddock, 548 V. Phillips, 441 V. Price, 428 V. Watson, 458 Kinloch v. Craig, 308 V. Savage, 629 Kingsford v. Merry, 120 443 Kingsley v. Wallace, 423 Kinnemon v. Miller, 468 Kintring v. McElrath, 434 435 Kipp V. Miles, 554 Kirby v. Ingersoll, 118 V. Johnson, 643 Kirk V. Nice, 330 337 Kirtland v. Snow, 466 Kitchen v. Spear, 305 Kittredge v. Sumner, 141 Klinitz V. Surry, 156 Knapp V. Harden, 243 Knight V. New England, &c., 520 Knighton v. Tufli, 564 Knox V. Hunt, 469 V. Payne, 31 Kornegay v. White, 371 387 Koantz v. Hart, 33 Kupfer v. Inbts., 510 Kurtzman v. Weaver, 385 Kusenberg v. Brown, 48 Kuykendall v. McDonald, 465 ,466 470 Kymer v. Suwercropp, 284 L. Lackey v. Stouder, 388 La Crosse v. Seiger, 468 Laidlaw v. Organ, 117, 433 Laing v. Pidgeon, 335 Lake v. Morris, 139 Lamb v. Clark, 154 V. Crafts, 386 V. Durant, 111, 187 V. Pegg, 243 Lambert's case. 111 Lamme v. Gregg, 343 Lamson v. Patch, 154 INDEX TO CASES CITED. XXIX Lanata v. O'Brien, 367 Land v. Jeffries, 186 Lane v. Borland, 32 V. Kingsberry, 466 V. Penniman, 271 V. Neale, 54 Laney v. Laney, 468 La Neuville v. Nouse, 334 Lanfear v. Sumner, 120, 187 Langfort v. Tiler, 20, 217 Langton v. Horton, 14 V. Wiggins, 208 Lansing v. Turner, 9 Lanyon v. Toogood, 217 Larabee v. Ovit, 402 Larrabee v. Talbott, 478 Latimer v. Batson, 184 Lea v. Yard, 84 Leadman v. Harris, 186 Leake v. Young, 473 Lean v. Schultz, 76 Leber v. Kauffett, 106, 166 Le Breton v. Pearce, 46 Lecky v. MeDermott, 47 Lee V. Greer, 473 V. Kilburn, 152, 477 v. Kimball, 812 V. Munn, 254 T Risdon, 245 V. Kobinson, 45 Leedom v. Phillips, 164 Leeds v. Wright, 288, 294 Leeper v. Shawman, 382 .Leger V. Bonnaffe, 6 Legg V. Willard, 276 Leigh V. Bunner, 5 Lelar v. Brown, . 86 Lenox v. Notrebe, 468 Leonard v. Davis, 127, 330 Lernard v. Winslow, 54, 120 Leslie v. Guthrie, 14 Lester v. McDowell, 129, 193 Levy V. Greer, 9 V. Levy, 363 V. Grider, 406 V. Hancock, 271 Lewis V. Caperton, 467 V. Cosgrove, 875, 432 V. Lee, 76 V. Palmer, 37 V. Peake, 829 Liokbarrow v. Mason, 311, 317 Liddard v. Kain, 327, 371 Lidlow V. Wilmot, 73 Lindsey v. Lindsey, 326 Linnen v. Conger, 48 Lindsay v. Davis, 348, 349, 370 PASE Linton v. Batz, 146 Lintz V. Bartlett, 463 V. Porter, 388 Litt V. Cowley, 285 Little V. Eddy, 467 Livermore v. Bagley, 472 Livingston v. Koosevelt, 111 Locke V. Winning, 461, 464, 472 Loeschman v. Williams, 159 Loftus's case, 107 Long v. Hiokingbottom, 330, 388 V. Knapp, 127 V. Wright, 465 Longmeid v. Holliday, 383 Loomis V. Green, 13 V. Wainwright, 2 Lord V. Grow, 335 V. Kenny, 429 Lorimer v. Smith, 362 Loring v. Gurney, 246 Lorymer v. Smith, 16 Lothrop V. Wightman, 123 Lott V. Booth, 451 Lovat V. Parsons, 402 Love V. Oldham, 421 Lovelace v. Stewart, 54, 155 Low V. Preeman, 54 Lowe V. Crook, 56 V. Forbes, 413 Lucas V. Dorrien, 317 Luddington v. Peck, 108 Ludlow V. Hurd, 140, 177 Lunt V. Whitaker, 179 Lupin V. Marie, 266, 273 M. Mabbett v. White, 467 Maberly v. Sheppard, 226 Mackbeath v. Haldimand, 93 Macdonald v. Longbottom, 348 Makarell v. Bachelor, 77 Mackinley v. McGregor, 409, 442, 446 V. Scott, 74 Maclean v. Dunn, 406, 631, 632 Maoomber v. Doane, 578 V. Parker, 139, 203 Mactier v. Prith, 19 Madden v. Kempster, 266 Madden v. White, 78 V. Williamson, 606 Madison v. Whitesel, 168 Magnair v. Thompson, 458 Main v. King, 506 Mainwaring v. Leslie, 74 XXX INDEX TO CASES CITED. PAGE Mair v. Glennie, 183, 212 Malay v. Barrett, 471 Mallory v. Wells, 27 Malone v. Plato, 643 Maltby v. Christie, 252 Manly v. Culver, 445 V. Scott, 73, 74, 80, 81, 82 Maiideville v. Welch, 588 Mangles v. Dixon, 570, 596, 600 Muiin V. Stowell, 528 Manny v. Glendinning, 395 Munton v. Moore, 139 March v. Ludlum, 107 Marcy v. Clark, 455 Margetson v. Wright, 327, 371, 372 Marine, &c. v. Jauncey, 589 Markwald v. Creditors, 295 Marlow v. Pitfeild, 78 Marsh v. Hutchinson, 76 V. Hyde, 642 V. Lawrence, 460 V. Pier, 88 V. Wickham, 25 Marshall v. Craig, 570 V. Drawhorn, 326 T. Ferguson, 640 T. trautt, 387 V. Means, 575 V. Poole, 245 V. Pvutton, 76 V. Wood, 381, 387 Marston v. Baldwin, 157, 160, 164 Martin v. Hawks, 570 V. Hurlbut, 189, 190 V. Maner, 578 V. Oliver, 467, 469 V. Koberts, 523 V. Terrell, 610 Martindale v. Booth, 178 Martrick v. Linfield, 183 Marvin v. Wallace, 641 Mason v. Barber, 22 V. Chappell, 325, 340, 348, 433, 547 V. Lickbarrow, 157 V. Sprague, 127 v. Thompson, 39 V. Wright, 78 Matheson v. Grain, 610 Matlock v. Todd, 433 Matthews v. Bliss, 115 V. Hobby, 265 Mattison v. Westcott, 618 Maxwell v. Brown, 645 May V. Tallman, 125 Maybin v. Kirby, 594, 597 Mayer v. Clark, 177 Mayer v. Nias, Mayor v. Payne, V. Williams, 465, Mays v. Williams, McArthur v. Wilder, 25, PAGE 239 8 469 487 406 266 McCampbell v. McCampbell, McCandlishv. Newman, 22, 122, 130 ■ 15 451 471 407 492 McCarty v. Blevins, V. Vickers, McClanney v. McClanney, McClure v. Williams, McConihe v. McMann, McCoy V. Artcher, McCrea v. Longstreth, V. Marshall, McCready v. Wright, McGuUoch V. Scott, McCullough V. McCullough, V. Walker, McCuUum V. Coxe, McCurdy v. McFarland, McDermott v. Barnum, McDonald v. Hewett, V. Kneeland, V. McDonald, McDonnell v. Goldsmith McEchron v. Randies, McEntire v. MoEntire, McFarland v. Farmer, V. Newman, McParlane v. Taylor, McFee v. Petrie, McGahay v. Williams, McGehce v. Eump, McGill V. Harman, Mclntyre v. Parks, McKay v. Hamblin, McKee v. Bartley, V. Judd, itcKenny v. Fort, 4, 330, 434 McKenzie v. Stevens, 3IcKernan v. Mayhew, McLaughlin v. McLaughlin, McLean v. Johnson, V. Lafayette, V. Meline, McLellan v. Walker, McLeod V. Drummond, McMahon v. Allen, V. Sloan, McMccher v. Grundy, McMenomy v. Koosevelt, V. Ferrers, McMunn v. Phipps, McNaughter v. Cassally, McNeely v. Hart, McPherson v. Neuffer, 327 375 126 422 527 622 606 327 472 55,57 563, 564 561 466 406 328, 524 159 341 335 25 78 2 458 18 120 540 559 435 79 565 468 473 476 473 590 105 566 45 472 473 473 264 540 575 134 474, 463 INDEX TO CASES CITED. XXXI vaas I McQuinnay v. Hitchcock, 470 McTaggart v. Bose, 4, 462 McWhorter v. Wright, 467 Mead v. Orrery, 105 Means v. Williamson, 123 Meany v. Head, 266 Mechanics' v. Hildreth, 478 Medina v. Stoughton, 3fi8, 391 Meech v. Bennett, 264 Meeker v. Vredenburg, 136 Meghan v. Mills, 597 Mehaffy v. Share, 602 Meggott V. Mills, 185 Melancon v. Kobichaux, 325 Meldrum v. Snow, 28 Mellish V. Motteany, 349 Memphis v. Wilcox, 557 Meny v. Anthony, 458 V. Humphries, 73 Mercantile v. Corcoran, 568 Merchant v. Chapman, 493 Meredith v. Ladd, 494 V. Meigh, 645 Meretone v. Alhawes, 18 Meriweather v. Herran, 575 Merrick v. Bradley, 131 V. Brainard, 560 V. Lawson, 470 Merrill v. Grinnell, 565 V. Hunnewell, 193, 194, 196 V. Merrill, 601 Merritt v. Clason, 631 V. Lyon, 470 Merry v. Bostwick, 467 Mertens v. Adcock, 532 Mesnard v. Aldrich, 380 Messer v. Woodman, 121, 190, 193, 524 Metcalfe v. Shaw, 75 Meyer v. Sharpe, 4 Meyenstein v. Barker, 137, 141, 144 Middlebury v. Osgood, 126 Middlesworth v. Sedgwick, 130 Middleton v. Hoff, 465 Milburn v. Belloni, 90, 347 Milford V. Bellingham, 4 Miller v. Baker, 2, 230 v. Grove, 373 V. Miller, 535 V. Kace, 99 V. Smith, 546 V. Tiffany, 527 ' V. Van Tassel, 391, 394 Milliken v. Loring, 598 Mills V. Ball, 285, 300, 304, 399 V. Graham, 82 Milner v. Tucker, 416 PAGE Milnes v. Grey, 230 Mittenberger v. Parker, 150 Milton V. Kowland, 377, 386 Miner v. Bradley, 153 Minzeskimer v. Heine, 274 Mires v. Solebay, 4, 396 Misner v. Granger, 336, 837, 383 Mitchell V. Commonwealth, 199 V. Gile, 2 V. Hayne, 253 V. McBee, 231 V. McLean, 133 V. Reynolds, 500 V. Winslow, 14 V. Worden, 440, 445 Mixer v. Coburn, 380, 546 V. Howarth, 619 Mockbee v. Gardner, 389 Moncrieflf v. Goldsborough, 260 Monk V. Whittenbury, 99 Monroe v. Comer, 18 V. Hoff, 521, 525 Montague v. Benedict, 73 Montgomery v. Kirksey, 467 Moore v. Burrows, 677 V. Campbell, 624, 639, 641 V. Coughlin, 557 V. Holland, 27 V. Hopping, 571 V. Ireland, 671 V. Kendall, 501 V. McKinlay, 334 V. Peirce, 29 Moorewood v. South, 453 Morberger v. Hackenberg, 172 Morgan v. Brundrett, 462 T. Collins, 547 V. Fencher, 391 V. Perkins, 203 V. Eepublic, 470 Morrison v. Gray, 314 Morley v. Allenborough, 389 V. Hays, 290 Morrill v. Aden, 82 Morris v. Fisher, 563 V. Martin, 74 V. Eenford, 408 Morse v. Godfrey, 477 Mortimer v. McCallan, 16 V. Wrigbt, 79 Morton v. Lamb, 540 Mosely v. Boush, 603 V. Gordon, 86 Moses V. Mead, 356, 369 V. Stevens, 80 Moss V. Stone, 28 V. Sweet, 509 xxxu INDEX TO CASES CITED. PAGE Mott V. Comstock, 74 Mottram v. Heyer, 293 Mount V. Hendricks, 186 V. Williams, 270 Mountjoy V. Adair, 664 Mowry V. Todd, 562, 576, 600, 602, 610 V. "Wood, 566 Mucklow V. Mangles, 11 Mudd V. Turton, 242 Mudge V. Oliver, 239 Mulhall V. Qiiinn, 573 Muller V. Eno, 361 Mulvany v. llosenberger, 327 Mumford v. McPherson, 349, 350 Munn V. Worrall, 436 Munsell v. Temple, 575 Jlunson T. Munson, 16 Murphy v. Grain, 372 V. Hubert, 469 V. Simpson, 500 Mussell V. Cooke, 621 Mussen v. Peirce, 246 Myers v. Carr, 54 V. South, 596 N. Nancy v. Snell, 4 National v. Loomis, 264 V. Lovering, 537 Naylor v. Dennie, 284, 290 Neate V. Ball, 400, 464 Neil V. Cheves, 186 V. Lovelace, 186 Nellis V. Bradley, 524 Nelson v. Aldridge, 252 V. Coming, 85 V. Nelson, 15 V. Powell, 92 Nesbit V. Bury, 202 Nesmith v. Washington, 509 Neuffer v. Pardue, 466 Newark v. Jaralemon, 469 New England V. Chandler, 456,459 Newhall v. Vargas, 285, 287 New Hampshire v. Hunt, 537 Newman v. Morris, 615 V. Ruspam, 469 V. Viekery, 565 Newsom v. Huey, 383 V. Thornton, 141, 308 Nichol V. Godts, ' 363 Nicholle v. Plume, 225 Nicholls v. Le Peuvre, 295 Nichols V. Clent, 266 V. Quibor, 422 PIQI Nichols V. Hart, 292 V. Michael, 450 V. Pinner, 440 Nicholson v. Bower, 647 V. Taylor, 198 Nickson v. Berhan, 87 V. Jepson, 247 Nissen v. Tucker, 5i:0 Nixon V. Carco, 674 V. Jenkins, 461 Nobell V. Adams, 286, 288, 439 Noble V. Ward, 216 Norris v. Douglass, 562 V. Lantz, 595 V. Williams, 270 North V. Forest, 621 Nortthey v. Field, 282, 293, 304 Norton v. Fazan, 74 V. Squire, 22 V. Young, 237, 409, 621 Norwood V. Norwood, 539 Noyes v. Brown, 576, 577 Nugent V. Gifford, 105 Nunn V. Wilmore, 460 Nurse v. Craig, 75 O. Gates v. Hudson, Oatfleld V. Waring, O'Brien v. Morris, Ockington v. Eichey, Odom V. Harrington, Ogden V. Jackson, Ogle V. Atkinson, V. Earl, Ohio V. Koss, O'Keefe v. Kellogg, Okell V. Smith, 381, Olds V. Cummings, Ollivant v. Bayley, Olliver v. King, Olyphant v. Baker, O'Neall V. South, Oneida v. Lawrence, 341, 357, 368, O'Neil V. Garrett, Onion v. Paul, Onslow V. Eames, Oppenheim v. Russell, Grand v. Mason, Orcutt V. Nelson, Ord V. Noel, O'Reer v. Strong, Osborne v. Tunis, Osey V. Gardner, 83 610 280, 291 198 381 472 174 553 595 16, 190 , 4U9, 4-J3 594 337, 419 467 207 559 362, 363 304, 305 576 372 289, 303 480 8 104 629 468 311 INDEX TO CASES CITED. XXXlll Osgood V. Lewis, 341 Otis V. Silk, 470 Otts V. Alderson, 327 330, 341 Ouswater v. Dodge, 200 Overton v. Phelan, 339 Owen V. Gooch, 93 V. White, 79 Owenson v. Morae, 290, 819 Owinga v. Hull, 485 Oxendale v. Wetherell, 155 Oxenham v. Esdaile, 268 P. Pacheco v. Hunsacker, 140 Packard v. Dinsmore, 138 V. Wood, 153 Packer v. Steward, 405 Page V. Ford, 389 V. Thompson, 572 Paget V. Perchard, 184 ,456 Painter's case. 584 Palmer v. Hand, 274 V. Head, 164 V. Merrill, 567 , 610 V. Williams, 242 Pauli V. Simes, 5 Parish v. Murphree, 467 Parker v. Kelly, 562 595 V. Mitchell, 248 V. Palmer, 358 424 V. Pattee, 458 V. Pringle, 375 877 V. TJrie, 584 V. Vose, 114 T. Wallis, 645 Parkhurst v. McG-raw, 458 Parkinson v. Lee, 330 363 Parks V. Hall, 137 189 281 V. Innes, 596 Parlin v. Kundy, 382 Parmeter v. Burrell, 429 Parsons v. Armor, 96 V. Dickinson, 124 V. Webb, 50 Parvis v. Roberts, 32 Pasley v. Freeman, 388, 447 Paterson v. Gandasequi, 91 Patrick v. Meserve, 83, 124 Patten v. Clark, 472 V. Smith, 1, 411 V. Thompson, 308 Patten's case. 408 Patterson v. Atherton, 60 V. Coats, 538 V. Erkland, 436 PAOS Patterson v. Prior, 529 V. Wilkinson, 570 Patton V. McCave, 36 Payne v. Cave, 250 V. Cutler, 546 V. Eodden, 392 V. Shadbolt, 157 V. Whale, 876, 381 Paynter v. James, 238 Pearce v. Blackwell, 327 V. Rogers, 89 Pearl v. Hansborough, 492 Pearson v. Talbot, 570 Pease v. Gibson, 65 Peckham v. Bullows, 477 V. Holman, 870 Pecker v. Hoit, 537 Peers v. Davis, 438 Pellecat v. Angell, 491 Penn v. Stuart, 385 Pennell v. Alexander, 805 V. Deffell, 101, 103 Penniman v. Hartshorn, 55, 57, 623 Penny v. Porter, 544 Pennsylvania v. Hughes, 197 People V. Beebe, 622 V. Haynes, 172, 284, 286 Pepper v. Carter, 469 Pequeno v. Taylor, 37, 441, 450 Percival v. Blake, 417 Perre v. Castro, 596 Perkins v. Lyman, 499 V. Parker, 576 V. Thompson, 109 V. Webster, 475 Perry v. Aaron, 326 V. Calvert, 468 Peshire v. Shepperson, 88 Peters v. Ballister, 586 Peto V. Blades, 390 V. Hague, 90 Pettengill v. Merrill, 61 Pettier v. Collins, 99, 385 Petties V. Soam, 89 Pettis V. Kellogg, 14, 190 Peyton v. Halbett, 588 Phelan v. Crosby, 523 Phelps V. Cutler, 222 V. Willard, 201 Phettiplace v. Sayle, 186 Phillimore v. Barry, 150 Phillips V. Bank, 600 V. Bistolli, 222, 229 V. Hunnewell, 149, 455 Phoenix v. Dey, 472 Picard v. McCormick, 230, 824 Pickering v. Appleby, ,621 XXXI V INDEX TO CASES CITED. Pickering v. Busk, 97 V. Dowsom, 349 Y. Pickering, 73 Picket V. Morris, 602 Pickstock V. Lyster, 458 Pierce v. Brake, 520 V. Gibson, 135, 614 V. Hoffman, 470 Pierson v. Hoag, 5 Piersons v. Hooker, 111, 118 Pike V. Wieting, 440 Pitman v. Staton, 472 Pitts V. Owen, 158 Pleasants v. Pendleton, 131, 134, 208 Plumstead's case, 585 Plymouth \. Norfolk, 147 Poole V. Shergold, 479 Poor V. Woodburn, 413 Porritt V. Baker, 490 Porter v. Ballard, 476, 576 V. Millet, 602 Portland v. Stacy, 187, 212 Post V. Kimberly, 118 Potter V. Mather, 470 Pottinger v. Hecksher, 297, 440 Powell V. Kdmunds, 258 V. Horton, 69, 344 V. Eees, 635 Power V. Basham, 352 Powers V. Green, 470 Powles V. Dilley, 477 Pratt V. Chase, 122, 154 V. Parkman, 5 Prentiss v. Russ, 421 Presbury v. Morris, 323 Prescott V. Holmes, 326 V. Hull, 576 Preston v. Leighton, 476 Prevost V. Gratz, 104 Price V. Filene, 427 V. Lovett, 575 V. Nixon, 246 Pride v. Lea, 227 Prideaux v. Brunnett, 340 Priest V. Watkins, 106 Primer v. McConnell, 485 Prindle v Caruthers, 574 Pringle v. Rhame, 478 Pritchett V. Ins. Co., 497 V. Jones, 59, 60 Proctor V. Jones, 128, 136, 614 Purcell V. Mather, 581 Purrington v. Loring, 109 Pusey V. Potomac, 34 Putnam v. Dutch, 187, 213 V. "Wise, b'n PiOI Queizoz V. Trueman, 88 Quimby v. Dill, 470 Quin V. Moore, 559 Quincy v. Tilton, 11 Quiner v. Marblehead, 568, 576 Quinn v. Stout, 41 Pv. Kailton v. Hodgson, 91 Kainsford v. Penwick, 80 Eamsay v. Morris, 387 Ramsey v. Johnson, 603 Randall v. Parker, 470 V. Rhodes, 351 V Thornton, 342 Ranlett v. Moore, 520 Ranney v. Higby, 168 Rapp V. Latham, 110 Rateau v. Bernard, 442 Eatcliffe v. Sangston, 444 Rawson v. Johnson, 539 Ray V. Thompson, 41 V. Virgin, 547 Raymond v. Loyl, 80 Read v. Bertrand, 513 V. Hutchinson, 514 V. Markle, 108 V. Taft, 492 Reader v. Knatchbull, 407 Redington v. Roberts, 223, 401,439 Reed v. Blades, 179 V. Canady, 131 V. Jewett, 186, 457 V. Moore, 72 V. Nevin?, 596 V. Randall, 347, 416, 423 V. TJpton, 63, 167 V. Wilmot, 180 Rees V. Manners, 515 V. Rees, 6, 111 Reese v. Beck, 30 Reeves v. Sebern, 3 Eeggio V. Braggioti, 386, 387 Relf V. Boro, 580 Renard v. Peck, 380, 548 Rex V. Christie, 252 V. Marsh, 260 V. Taylor, 249 Reynolds v. Stevenson, 501 V. Wilkins, 459 Rhoades v. Selin, 432 Rice V. Andrews, 109, 246 V. Austin, 125, 127 V. Codman, 152, 324 INDEX TO CASES CITED, XXXV PASS Eice V. Cutter, 239 V. Shute, 93 110 V. Stone, 561 Richards v. Alden, 445 V. Carl, 538 V. Ewing, V. Griggs, V. Smith, 469 571 109 V. Swan, 467 Eichardson v. Goss, 293, 294 401 V. Johnson, 325, 327 452 504 V. Kimball, 36 ,502 V. Mead, 604 V. Mellish, 494 Eichmond v. Iron, 208 V. Parker, 592 Eicker v. Cross, 120, 124, 130, 189 211 Eicketts v. Hays, Eiddle v. Varnum, 224 324 193, 204, 205 311 Eider v. Kelly, Eidgway v. Bowman, Eidley v. Gyde, Eidout V. Burton, 70 15 135 462 470 Eiggs V. Magruder, Eitchie v. Summers, 621 607 Eoack V. Quick, 77 Eobarts v. Jenkins, 371 Bobbins v. Bacon, 588 T. Otis, 643 V. Warrison, 243 Eoberts v. Beatty, V. Halferty, V. Havelock, 163 611 18 V. Morgan, Eobertson v. Ewell, 345 186 V. Vaughn, Eobinson v. Maury, V. Martel, 617 619 231 469 V. McDonnell, 161, 183 212 V. Musgrove, V. Nahon, 257 74 V. Eeynolds, 76 V. Eice, 388 V. Eobards, 465 466 T. Skipworth, V. Towns, 47 471 Eochester v. Hughey, Eockafellow v. Baker, 194 324 Eookwell V. Saunders, 106 Eodgers v. Niles, Eodick V. Gandell, 339 591 Eoe V. Martin, 151 Eoffey T. Smith, 549 Eogers v. Ackerman, V. Lindsey, V. Thomas, V. Van Heesen, Eohde V. Thwaites, Eoland v. Gundy, Eolfe V. Abbott, Eoudeau v. Wyatt, Eoot V. French, V. Lord, Eoots V. Dormer, Eosconia v. Thomas, Eose V. Beattie, 250, V. Story, Eosenthal v. Eisley, Boss V. Barker, Eossman v. Townsend, Eoswell V. Vaughan, Eourke v. BuUins, V. Short, Eoutledge v. Grant, Eoman v. Union, Eowe V. Pickford, Eowland v. Shelton, Eowley V. Bigelow, 145, 284, 287 Eucker v. Cammeyer, Euckman v. Cutwater, Eugg V. Minett, 192, 193 Euiz V. Norton, Eumney v. Keyes, Eupp V. Blanchard, Eusby v. Scarlett, Eussell V. Clark, V. Dyer, V. Lee, V V. Petree, Eutter V. Blake . Minor, . Nicholl, 56, 156 342 682 280 220 228, 531 48 78, 79 615 442 38 251 350 326, 362 163 196 376 515 365 149 496 19 32 285, 294 393 281, 282, , 377, 443 635 566 194, 290 626 79 681 87 432 465 77 164 , 441, 623 564 409 S. Salisbury v. Stainer, 331 Salmon v. Goddard, 624, 627 Salomons v. Nissen, 315 Salte V. Field, 400 Saltmarsh v. Bower, 611 Sandilands v. Marsh, 110, 111 San Jose, 281 Sands v. Codwise, 468 V. Taylor, 329, 357, 364, 411 Sansee v. Wilson, 147 Sargent v. Metcalf, 164, 167, 172 Sater v. Henderstadt, 578, 611 Saunderson v. Jackson, 625 XXXVl INDEX TO CASES CITED. Savage v. Mallory, Saville v. Robertson, Sawyer v. Joslin, V. Shaw, Sampson v. Fletcher, Samuel v. Darch, Sanborn v. Hunt, V. Kittredge, V. Osgood, Sanders v. Pepoon, V. Stokes, Sandford v. Wiggins, Schneider v. Heath, V. Norris, 624, V. Westerman, Schneizer v. Weiber, Sohotsmans v. Lancashire, 280,: Schumaker v. Eby, Schuster v. McKellar, Schuyler v. Russ, Scott V. Baber, V. Eastern, V. Hix, V. Jones, V. King, V. Littledale, T. Pettit, 282, V. Thomas, Scott's V. Gill, Scudder v. Worster, Seabi v. Dugdale, Seaborne v. Maddy, Seaman v. Stoughton, Searle v. Keevers, Sears v. Conover, Seavy v. Dearborn, Seaton v. Benedict, Seaver v. Bradley, V. Dingley, 377, Seidenbertger v. Charles, Seixas v. Wood, 323, 325, 826, 341, Selby V. Selby, Seligman v. Kalkman, Serfe v. Morgan, Sere v. Patot, Seris v. Bellocq, Sessions v. Little, Sewall V. Allen, V. Pitch, V. Henry, Sewatter v. Pord, Sewell V. Eaton, Seymour v. Davis, V. Pycklan, Shackleford v. Pranks, PiOl PAOI 489 Shaddon v. Knott, 122 113 Sharon v. Mosher, 386 552 293 Sharp V. Jones, 452 437 Shaw V. Pinney, 632 570 V. Levy, 186 541 V. Nudd, 55,65 206 V. Spencer, 49 470 Shearer v. Barrett, 469 420 V. Jewett, 29 470 Sheldon v. Cox, 519 4 397 Shelton v. Levins, 258 203 V. Springett, 79 327 Shepard v. Palmer, 513 628 629 Sheperd v. Hamilton, 553 60 V. Harrison, 192 530 v. Pybus, V. Rain, 336 337 352 282 283 Shepley v. Davis, 192 193 195 170 Shever's v. National, 102 103 145 Sheridan v. New, &c. 437 333 386 Sherman v. Champlain, 394 120 V. Elder, 592 618 Shields v. Pettee, 42, 54 419 388 Shillitoe v. Claridge, 372 601 Shipham v. Saunders, 544 150 Shipton V. Casson, 8 355 Shireman v. Jackson, 160 293 294 Shoemaker v. Keely, 561 462 Short V. Tinsley, 176 594 Shotwell V. Webb, 572 192 Shoutz V. Brown, 465, 471 596 Shumway v. Butter, 79 123, 138, 177, 180 473 Shurfeldt v. Pease, 442 131 Sias V. Bates, 58 558 Sibbald's case,. 559 466 476 Sibley v. Beard, 393 74 Sidderdale v. Montrose, 494 579 Sidwell V. Lobly, 120 384 410 Siffken v. Wray, 307 485 Sigerson v. Barker, Silver v. Heseltine, 131 419 642 354 356 Sill V. Rood, 547 629 Simerson v. Branch, 470 440 Simmons v. Anderson, 636 501 V. Kincaid, 480 603 V. Swift, 193 200 190 Simon v. Lloyd, 236 493 V. Motives, 633 620 Simond v. Hibbers, 272 619 636 Simpson v. Nicholls, 501 396 Sims V. Bond, 101 326 V. Kline, 333 205 V. Radcliffe, 565 617 V. Willing, 118 96 Sinclair v. Healy, 442 566 Singleton v. Butler, 464 1 NDE X T CA SES CITED. XXXVll PAOB P4GE Skeate v. Beale, 88 Seames v. Spencer, 112 Skinner v. Somes, 602, 610 Somers v Barrett, 416 Sloan V. Sommers, 662 Sorrel v. Brewster, 510 Slark V. Highgate, 258 So, &c. V. Cole, 622 Slocomb V. Lurty, 521 Southby V. Wiseman, 87 Slubey v. Heyward, 205, 275, 313 Soutberton v. Whitelock, 77 Small V. Dudley, 461 Sortwell V. Hughes, 491 V. Quincy, 65 Soutbwick V. Harnwell, 46 Smalley v. Hendricks on, V. Hopkins, 699 341, 414, 416 Southworth v. Sebring, 572 Smart v. Sanders, 91 Spain V. Hamilton, 590 Smead v. Williams, 466 Sparkes v. Marshall, 175 Smith V. Arnold, 636 Spartali v. Benecke, 242 V. Atkins, 14 Spaulding v. Austin, 146 V. Bean, 601 V. Brewster, 444 V. Blandy, 234 Spears v. Hartly, 273 V. Bowles, 320 Speiglemyer v. Crawford, 333 V. Bryan, 640 Spencer v. Cone, 618 V. Chitwood, 86 Spicer v. Cooper, 630 T. Clarke, 261 262 Splidt V. Health, 413 V. Countryman, 435 Spooner v. Baxter, 221 V. Craven, 110 Spring V. Coffin, 430 v. Culbertson, 466 V. South Carolina, 567 V. Dennie, 158 161 164 Spurrier v. Elderton, 263 V. Field, 395 400 412 Squier v. Hunt, 636, 594 V. Friend, 204 St. Anthony v. Vandall, 565 V. Godfrey, 492 Staat V. Evans, 635 V. Goss, 290 304 Stafford v. Roof, 81 V. Gray, 661 V. Webb, 169 V. Gugerty, 215 V. Whitoomb, 83 V. Guthrie, 342 343 Staines v. Shore, 264, 372 V. Kelley, 82 Stanley v. Bobbins, 178 V. Kennett, 559 Stanton v. Eager, V. Lynes, 122 157 443 143, 284, 292 , 316, 320 V. Mawhood, 488 V. Small, 9, 16, 125 V. Mercer, 238 V. Wilson, 79 V. Mobile, 470 Slants V. Hodges, 38 V. Payne, 463 State V. Bank, 537 V. Rogers, 594 V. Duckworth, 1 V. Sherwood, 608 V. Greenleaf, 486 V. Smith, 420 439 , 505 V. Hastings, 561 V. Sparrow, 501 Stearns v. Dillingham, 529 V. Stein kamper, 381 V. Foote, 542 V. Stern, 468 ,470 V. McCullougb, 386, 387 V. Sterritt, 577 Stebbins v. Leo wolf, 496 T. Surnam, 616 Stedman v. Gooch, 245 T. Swartbout, 372 Steel V. Brown, 180, 186 V. Tracy, 322 Steele v. Brown, 456 V. Wheeler, 110 V. Hobbs, 633 Smoot V. Morehouse, 475 Steelwagon v. Jeffries, 17 8,181,186 Snee v. Prescott, 282 ,300 Steelyards v. Singer, 157 Snell V. Moses, 331 Stephens v. Chappell, 372 Snodgrass v. Broadwell, 609 Stephenson v. Clark, 123 Snook V. Davis, 30 V. Hart, 439 Snow V. Lang, 479 Stere v. Brown, 861 V. Warner, 641 Sterling v. Repley, 466 Snyder v. Hitt, 186 Stevens v. Blanchard, 475 xxxvm INDEX TO CASES CITED. Stevens v. Boston, V. Ellis, V. Eno, V. Hyde, V. Legh, V. Parker, T. Smith, V. Stevens, V. Stewart, V. Wheeler, V. Whitmore, Stevenson v. Newnham, V. Reaves, Stever v. Lamoure, Steward v. Lombe, Stewart v. Spedden, v. West, Stiles V. Campbell, V. Howland, V. Lightfoot, V. Union, Stinson v. Clark, V. Walker, Stockbridge v. West, Stockdale v. Onwhyn, Stockfleet v. Flyer, Stocks V. Dobson, Stoddert v. Vestry, Stokes V. Jones, 465, 467, V. La Riviere, V. Whittaker, Stonard v. Dunkin, Stone V. Case, V. Dennison, V. Hodges, V. King, V. Marsh, V. Peacock, V. Van Heythuysen, V. Watson, Storer v. Hunter, Storr V. Scott, Story V. Pery, Stoveld V. Hughes, Stover V. Plack, Strak V. Hess, Street v. Blay, 381, • Streeter v. Sumner, Strickland v. Turner, Strother v Hamburg, Stroud V. Pierce, Strutt V. Smith, Stubbing v. Weintz, Stucley V. Bailey, Studdy V. Saunders, Sturges V. Bush, Sugg V. Tillman, FAOE PAGE 142 Summers v. Mills, 19 34 Sumner v. Hamlet, 2oa ,270 191 Summervill v. Elder, 311 442 Button V. Sears, 623 534 Suydam v. Clark, 99 131 ,215 599 Swan v. Dent, 458 337 Swancott v. Westgarth, 248 597 Swansey v. Parker, 607 622 Swartz V. Chappell, 59 280, 286 Sweeney v. Owsley, 120 177 Sweet V. Bradley, 342 443 V. Pym, 306 382 Sweetman v. Prince, 391 546 Swett V. Colgate, 325, 355 ,356 ,388 180. Swift V. Swift, 32 135 Swisher v. Williams, 501 607 Sykes v. Halstead, 74 536 398 469 Symonds v. Carr, 373 T. 477 122 Talver v. West, 156 396 Tam pet's case. 557 4,5 Tansiey v. Turner, 206 493 Tappenden v. Randall, 298 385 Tarling v. Baxter, 6 596, 600 Tarleton v. Allhusen, 234 549 Tatum V. Hunter, 466 468, 469 Taunton v. Caswell, 40 302, 309 Taylor v. Caldwell, 18 110 V. Croker, 77 132, 155 V. Galland, 560 218 V. Gitt, 594 77 V. Hare, 420 404 V. Wakefield, 644 136 Taymon v. Mitchell, 110 323, 327, 341, 381 422 190 Tempest v. Fitzgerald, 222, 225, 614 460 Territt v. Bartlett, 481 386 Terry v. Olcott, 485 186 Y. Wheeler, 56 93 Thayer v. Gallup, 516 78 v. Havener, 591 319 V. Lyman, 598 622 V. Turner, 427 607 V. White, 79 415, 419 Thomas v. Hillhouse, 83 452 509 V. Winters, 34 14 Thompson v. Alger, 551 593 V. Ashton, 329 416 V. Baltimore, 125 264 247 V. Bell, 610 87 V. Blanchard, 470 847 V. Davis, 263 207 V. Emery, 576, 600 610 484 v. Freeman, 462 468 v. Gray, 125 INDEX TO CASES CITED. XXXIX Thompson v. Hervey, V. Macaroni, V. McCullough, V. Moore, V. Morris, V. Perkins, V. Trail, Thomson v. Davenport, Thornton v. Hargreaves, V. Jones, V. Kempster, V. Lane, ■V. Simpson, T. Thompson, v. "Wynn, 377, 379, ■ Thorp V. Stallwood, Thrapp v. Fielder, Thurston v. Blanohard, Tibbetts v. Towle, Tibbits V. George, Tichnor v. Allen, Tifft V. Barton, Tilman v. Stringer, Timms v. Shannon, Tipton V. Triplett, 384, Tisdale v. Harris, Titcomb v. Seaver, V. Thomas, V. "Wood, Todd V. Stokes, Tome V. Dubois, Tomkinson v. Staight, Tomlinson v. Collins, V. Tomlinson, Tompkins v. Haile, Topping V. Boot, Torrey v. Corliss, Toulmin v. Hedley, Tounley v. Crump, Towell V. Galewood, Towers v. Barrett, V. Osborne, Towle V. Hoit, Town V. Griffith, Towne v. Collins, Towsley v. McDonald, Traly v. Tallmage, Trask v. Bowers, Tremain v. Edwards, Trice v. Cockran, Trimble v. Eatoliff, Tripp V. Childs, Troop V. Wood, Trott V. Warren, Troxell v. Lehigh, Truman v. Hurst, PAOE PAGB 78 Trust V. Delaplaine, 264 226 Tucker v. Humphrey, 606 282,293,295,309, 813, 316 468 v. Muoklow, 340 522 V. Euston, 132 97 V. Welch, 458 285, 287 Turner v. Huggins, 84, 435 91 V. Trisby, 77 462 V. Trustees, 166, 312 545 Tuttle V. Brown, 350 628, 632 Tuxworth V. Moore, 130 466 Twett v. Green, 588 221 Twining v. Morrice, 264 386 Twiss v. Cheever, 581 Twyne's case, 76, 455, 456 419, 426 Tye V. Pinsmore, 861 106 Tyler v. Strang, 39, 207 77 Tyne v. Causey, 342 438 Tyre v. Cousey, 382 271 Tyson v. Thomas, 482 576 473 470 U. 422 594 Ulley V Smith, 476 392, 394 TJllman v. Barnard, 234 621, 627 Ulmer v. Hills, 6 84 United States v. Barrv, 266 576, 586 V. Buford, 603 444 V. Harris, 647 75 V. Hooe, 456 560 V. Sturges, 597 639 V. Tillotson 6 36, 129 Urmston v. Newcomen, 78 472 Usher v. De Wolfe, 610 222 65 487, 492 V. 419 272, 287 Vail V. Strong, 2 350 Vale V. Bayle, 171 381 Vanada v. Helm, 342 615, 619 Van Allen v. Allen, 327 466 Van Brunt v. Pike, 169 148 Van Bucklin v. Fonda, 370 46 Van Castell v. Booker, 167 593 Van Cleef v. Fleet; 437 487, 489 Van Hooser v. Cory, 15, 159 180 Van Kleeck v. Le Boy, 431 510 Van Ostrand v. Beid, 884 382 Vanpell v. Woodward, 507 467 Van Valkinburgh v. Wat son, 510 466 Varney v. Toung, 79 263 Varnum v. Mitford, 572 460 Veazie v. Holmes, 470 515 V. Somerhy, 211 77 V. Williams, 96 xl INDEX TO CASES CITED. PAOE Yernede v. Weber, 65 Vertner v. Humphreys, 467 Yertue v. Jewell, 312, 313 Yibbard v. Johnson, 388, 392 Yickery v. Taft, 111 Ylelie v. Osgood, 629 Yincent v. Gumond, lo'2 Yining v. Gilbreth, 138 Yisher v. Webster, 120, 152 Yon Phul V. Powell, 173 Yoorhees v. Earl, 419 Yose V. Handy, 576 Yrooman v. Phelps, 548 Yyse V. Lelarke, 236 W. Wackerbarth v. Masson, 221 Waddington v. Oliver, 8, 155 Wadworth v. Gr'iswold, 562 Wadsworth v. Allcott, 24 Wait V. Green, 159, 161 Wakefield v. Martin, 566 Waloott V. Almy, 466 V. Keith, 470 Waldo V. Belcher, 190, 192, 193 V. Halsey, 415 Waldron v. Chase, 153, 584 V. Romaine, 129 V. Willard, 558 Walker v. Advocate, 250 V. Blake, 29 V. Clyde, 269 V. Dixon, 8, 153 V. Hays, 56 V. Jlauro, 590 V. Eussell, 14 V. Savell, 480 Wallace v. Breeds, 290, 291 V. JIcYey, 115 V. Morse, 82 V. Wren, 382 Waller v. Cralle, 546 V. Drakeford, 72 Walley v. Montgomery, 301 Walling V. Miller, 170 Walter v. Ross, 142, 309, 310 V. Trimer, 470 Walton V. Cody, 330 Walworth v. Readsboro, 470 Wanser v. Messier, 392 Ward V. Byrne, 499 V. Gavin, 389, 391 V. Evans, 96 V. Harris, 540 V. Morrison, 566 I PAOB Ward V. Shaw, 4,209 V. Woodburn, 440 Warden v. Eden, 570 Waring v. Mason, 325 360, 362 Warner v. Bennett, 561 Wiirren v. Bartlett, 272 V. Buckminster, 196 V. Ireland, . 571 V. Leland, 57 V. Manufacturers ,&c.,488 Warwick v. Bruce, 80 Washburn v. Cuddihy, 370, 371 V. Goodman, 113 Washington v. Johnson, 29 Waterhouse v. Skinner, 510 Waterman v. Prank, 564 Waterston v. Getchell, 39 Watkins v. Baird, 83 V. Birch, 184 Watson V. Denton, 372 V. Hunkins, 557 V. Kennedy, 467 V. Mid. Wales, 600 V. Sproul, 311 V. Yan Pelt, 341, 416 Watt V. Grove, 458 Way V. Wakefield, 518 Waymell v. Reyd, 483 Weatherly v. Banham, 512 V. Higgins, 121 Webber v. Tivill, 231 Webster v. Hodgkins, 537 V. Munger, 8,491 V. Wise, 600 Wedge v. Newlyn, 461 Weed V. Bntterfield, 616 V. Page, 407 Weimer v. Clement, 325, 341, 432 Weine v. Davenport, 558, 663 Weinwick v. Bender, 596 Welch V. Bagg, 528 V. Bell, 243 V. Mandeville, 605 Welles V. Cole, 468 Wellington v. Fuller, 466 V. Sedgwick, 453 Wells V. Porter, 16 Wenger v. Barnhart, 300 Wentworth v. Outhwaite, 292 West V. Anderson, 349 V. Botton, 33 V. Cutting, 401 V. Pritchard, 653 V. Snodgrass, 466 Westcott V. Keeler, 560 V. Nims, 647 V. Thompson, 30 INDEX TO CASES CITED. xli PAGE PAGE Western v. Marshall, 50 157 Williams v. Coggeshall, 477 V. Short, 393 V. Donaldson, 423 "Westmoreland v. Walker 419 V. Ingram, 327 Weston V. Downes, 381 523 V. Merle, 45, 48, 51 Wetherell v. Jones, 482 488 V. Moore, 274 Wetherill's case. 594, 596 V. Paul, 501 Wetherill v. Neilson, 328 V. Spafford, 359 Wheat V. Norris, 513 V. S aughter. 337 Wheaton v. Baker, 436 V. Tappan, 487 Wheeler v. Collier, 259 V. Tilt, 442 V. McFarland, 270 V. Willington, 255 V. Eussell, 490 V. Woodman, 485 v. Wheeler, 587 Williamson v. Alanson, 337 Wheelwright v. Peyster, 51 V. Dawes, 76 Whitcomb v. Williams, 536 V. Sammons, 387, 389 White V. Buck, 565 V. Walker, 431 V. Dodd, 449 V. Watts, 77 V. Trotter, 471 Willing V. Peters, 388 V. Tucker, 564 V. Rowland, 84 V. Welsh, 281 Willis V. Dudley, 386 V. West, 579 V. Twambly, 81, 576, 000, 605 V. Wilev, 563 566 Wilmot V. Hurd, 345 V. Wilkes, 191 , 192 194 Wilson V. Balfour, 266 Whitehead v. Tuckett, 98 V. Church, 573 V. Vaughan, 270 V. Cooper, 23 Whitehouse v. Frost, 192 291 V. Day, 461 Whitesides v. Poole, 472 V. Hart, 82 Whitford v. Chace, 449 V. Howser, 469 Whiting V. Farrand, 171 219 V. Marsh, 345 349, 383 Whitmore v. South, 341 345 V. Nason, 49 Whitney v. Brunette, 470 Wiltshire v. Sims, 88 V. Sutton, 341 345 Winch V. Keeley, 602 Whittaker v. Johnson, 604 Winchell v. Noyes, 529 V. Merrill, 558 Winfleld v. Hudson, 557 Whitton V. Smith, 118 Winks V. Nassau, 270 Whitwell V. Vincent, 161 535 Winslow V. Loring, 119 Why wall v. Champion, 78 Winsor v. Kendall, 474 Wider v. Cook, 37 V. Lombard, 351, 354 Wiggin V. Day, 440 V. McLellan, 212 Wiggins V. McDonald, 577 Wintz V. Morrison, 436 Wight V. Stiles, 509 Wiseman v. Vandeput, 319 Wilbur V. Howe, 263 Wisner v. Farnham, 466 Wilby V. Harris, 515 549 Withers v. Eeynolds, 8, 414 Wildman v. Glossop, 543 Witherow v. Witherow, 525 Wilkins v. Holmes, 60 Wolf V. Gardner, 5 V. Stevens, 224 Wolley V. Montgomery, 320 Wilkinson v. -King, 99 Wood V. Ashe, 325 V. Oliveira, 2 V. Bell, 62 Wilks v. Atkinson, 538 V. Jones, 316 T. Ferris, 136 137 V. Partridge, 562, 576 Willard v. Bridges, 14 V. Perry, 594 Wilmshurst v. Bowker, 165 T. Smith, 343, 348 Williams v. Adams, 206 218 V. Vance, 82 V. Allen, 202 V. Wallace, 572 V. Avent, 468 V. Yeatman, 290 293, 444 V. Birch, 442 Woodbridge v. Perkins, 562 V. Chadbourne, 510 Woodbury v. Long^ 224 xlii INDEX TO CASES CITED. PAGE PAOI Woodbury v. Bobbins, 372 Wright V. Lawes, 286 Woodcock V. Bennett, 107 V. Sharp, 549 Woodford V. McClenahan 85 Woodin V. Burford, 85,89 Woodruff V. Weeks, 372 Y. Woods V. Eussell, 11 Woodson V. Poole, 466 Tantes v. Smith, 565 Woodward v. Gates, 185 Yohe V. Eobertson, 537 V. Solomon, 469 Yorke v. Smith, 70 Wooley V. Edson, 147 Young V. Austin, 64 Wooten V. Clark, 470 V. Booe, 490 V. Miller, 492 v. Hunter, 114 Wooter V. Sherwood, 48 V. Ward, 473 Wooton V. Hinkle, 264 V. White, 67, 465, 470 Wordall v. Smith, 184 Worselley v. De Mattos, 463 Worthen v. Curd, 678 Z. Worthington v. Bullett, 466 V. Shipley, 467 Zabriskie v. Smith, 558 Worthy v. Patterson, 386 Zagurn v. Purnell, 200 Wotton V. Gavin, 501 Zarbe v. Miller, 467 Wright V. Brandis, 466 Zebrar v. Keplee, 433 V. Heart, 321, 323, 365 Zouch v. Parsons, 81 LAW OF SALES OF PERSONAL PROPERTY. THE LAW OF SALES OP PERSONAL PROPERTY. CHAPTER I. GENERAL PRINCIPLES RELATING TO SALES OF PERSONAL PROPERTY. 1. WHAT CONSTITUTES A SALE — PAYMENT, DBLIVERY, GIFT, EXCHANGE, ETC. 10. SALE or SEVERAL ARTICLES TOGETHER, WHETHER ONE CONTRACT. 11. AFTER SALE, VENDOR NOT LIABLE FOR LOSS, ETC. 12. ORDER FOR GOODS PASSES THE PROPERTY. 13. EXCHANGE. 14. LAW IMPLIES A SALE, WHEN. 15. MANUFACTURE OF GOODS TO ORDER, OR EXCHANGE OF SKOUKITIES ; NO SALE. 16. DEVIATION FROM THE CONTRACT — NO ACTION LIES. 17. TRANSFER BY ACT OP LAW. 18. SALE OF A THING NOT IN EXISTENCE AT THE TIME. 21. PAYMENT OF EARNEST. § 1. A SALE of goods and chattels is a transfer of prop- erty from one man to another, in consideration of some price or recompense in value, or in consideration of a money price ; accompanied, when practicable, with delivery to the purchaser." ' (See Delivery.) • Delivery is one of the elements of a sale. Per Thomas, J., Com. v; Williams, 6 Gray, 9. It is held, that, hy the law of England, the sale- 1 Per Hosmer, C. J., Patten v. Smith, 6 Conn. 199; Smith's Merc. L. 393; Noy, Ch. 42; Shep. Touch. -224; Denn v. Wamond, 4 B. & 0. 246 ; Com. v. Williams, 6 Gray, 8 ; 21 Verm. 520. See State v. Duck- worth, 1 Winst. No. 1, 243; Huthmacher v. HarriSr3aBenn- 491i. 1 2 LAW OF SALES OF PERSONAL PROPERTY. § 2. Independently of the Statute of Frauds, any words inaporting a bargain, whereby the owner signifies his wil- of a specific chattel passes the property without delivery. That the doubt as to this point, expressed in the case of Bailey v. Culverwell (2 Mann. & Ey. 566), can apply only to a sale of goods, generally, where the par- ticular articles are not ascertained. Dixon v. Yates, 5 B. & Ad. 340. "We shall hereafter have occasion to illustrate the distinction between an actual, executed sale, and a mere executory contract to sell. (See Chap. V.) It is said, that by the civil law, and by the law of Scotland, a sale is always executory until delivery and payment. So, also, by the law of Prance and Holland, until the recent establishment of the Code Civile and the Code de Commerce. Bell on Sale, 9 ; Story on Sales, 1, 2, 3. A sale differs from a gift, which is a voluntary transfer of property, without consideration ; and from a barter, which is an exchange of one thing for another, and for which no price is necessary. 2 Bl. Comm. 323, 426 ; 21 Verm. 520; Smith's Merc. L. 393. See s. 13; McGeehee V. Rump, 1 Ala. 580; Bailey v. Moore, 1 Winst. No. 1, 86. Where the declaration alleged, that in consideration that the plaintiff, at the request of the defendant, had ^i«en the defendant a certain letter, by which the defendant obtained the property of one deceased, the de- fendant promised to give the plaintiff £1000 ; it was held that the promise was founded on a sufficient consideration. In answer to the objection, that the declaration showed the letter to have been handed to the defend- ant by way of a spontaneous gift, Tindal, C. J., said, . . . " What would you say to the case of a man, who, entering a shop, should say, 'I'll give JEIO for such an article.' Here the word give is used on both sides. It is a gift upon a mutual consideration." Wilkinson v. Oliveira, 1 Bing. N. C. 490. It is an old maxim, permutatio vicina est empiioni. But an allegation of sale is not sustained by proof of an exchange. Vail v. Strong, 10 Verm. 457 ; 3 Salk. 167. If goods have been delivered by one party, and the other agrees to de- liver other goods of similar quality on demand, this is not a sale, but an agreement to exchange. Mitchell v. Gile, 12 N. H. 890. When property is transferred at a fixed price, and money and other property received in payment, it will, in the absence of express evidence that an exchange only was intended, be deemed a sale rather than an ex- change. Loomis V. Wainwright, 21 Vt. 520. The plaintiff agreed to give a horse, warranted sound, in exchange for a horse of the defendant and a sum of money. The horses were ex- changed, but the defendant, pretending the plaintiff's horse was unsound, refused to pay the money. Held, it might be recovered in a count for horses sold and delivered. Sheldon v. Cox, 8 B. & C. 420. As to the distinction between a sale and a mortgage, see Miller v. GENERAL PKINCIPLES OF SALE, ETC. 3 lingness and consent to sell, and the other party his wil- lingness and consent to huy, in prcesenti, for a certain price, constitute a sale and transfer.* '■ § 3. A sale may he good in part, and void as to the residue, on which some third person has a prior lien. It may be good between the parties, and void as to creditors ; or valid as to some creditors, and void against others." § 4. Other authorities add to the definition of a sale the further element of payment.^ See § 6. Thus it is said, the making of a bargain for a chattel, and payment of the price, constitute an executed contract, upon which the vendee may maintain trover for the thing sold.' So, that two things are essential to a transfer of the title to personal Baker, 20 Pick. 285 ; Boyd v. Brown, 17 lb. 453. Between a sale and partition, Barnes v. Bartlett, 15 Pick. 71. A sale of goods for a certain sum, with an agreement that, if on a sale by the vendee, they should bring more than such sum, the excess should be credited to the vendor, is not a pledge »r mortgage. Reeves v. Se- bern, 16 Iowa, 234. • A merely colorable sale, without consideration, made with the inten- tion that the title should be transferred only in appearance, is held to convey no title. Cox v. Jackson, 6 Allen, 108. (The action was trover, brought by the purchaser against an officer who seized the property, under a writ against a second purchaser from the same seller. A distinction, not quite intelligible, is made between this case, and the usual one of a colorable sale, the purpose of which is to de- fraud creditors. The case cannot be regarded as an authority for the general proposition, that, as between the parties to a sale, its being " merely colorable " would avoid it.) * The seller is bound to deliver goods on payment or tender of the price. He may keep them until paid for, unless the sale was on time. Barr v. Logan, 5 Harring. 52. See Lien. Two parties being equally bound to perform acts at the same time — one to deliver property and the other to pay for it — neither can sue until the property is delivered, or the price is offered, or a reasonable demand made. Hungate v. Kunkin, 20 III. 639. ' De Fonclear v. Shottenkirk, 3 John. 170. » Bradford v. Tappan, 11 Pick. 79. » Higgins V. Chessman, 9 Pick. 10. See Coil v. Willis, 18 Ohio, 26; Costar V. Davies, 3 Eng. 213. 4 LAW OF SALES OF PERSONAL PROPERTY. property upon a cash sale ; payment by the vendee, and actual or constructive delivery.' So that, in general, if no credit is given, property does not pass by a sale till pay- ment be made. Blackstone says it is no sale without pay- ment, unless the contrary is expressly agreed. Perhaps this is too strong language, as an intention to give credit may be sometimes implied. But such intention must un- equivocally appear from the acts and declarations of the parties.^ So in an early case it was held, that, if a horse is bought in a market, for which the vendee is to pay £10, if the ready money be not paid, the property is not altered, but the party may sell him to another.^ § 5. "With regard to the form of sale, a hill of lading^ hill of sale, or deed is not necessary, even though the seller agreed to give one.^ Delivery alone will pass a title.' ' Though, if there is a bill of sale, parol evidence is inad- missible without first accounting for it." And delivery without payment, or evidence of some understanding or agreement to give credit, is not conclusive evidence of a perfected sale.' Delivery is inoperative to pass the title where simultaneous payment is contracted for, unless such payment be made or waived.' When a deed or bill of * Where goods have been sold and delivered, the vendor cannot hold the vendee to terms not agreed on, by sending him a bill or memorandum of sale, with such terms set out upon it; as, that "no claims for deficien- cies or imperfections will be allowed unless made within seven days from receipt of goods." Schuchardt v. Aliens, 1 "Wall. 359. 1 Ward V. Shaw, 7 "Wend. 406. 2 Phillips V. Hunnewell, 4 Greenl. 379. See Com. v. Packard, 5 Gray, 101. 3 Mires v. Solebay, 2 Mod. 243. * Meyer v. Sharpe, 5 Taunt. 80; McKinny v. Port, 10 Tex. 220; 14 Mass. 257; 9 Pick. 82; Sanders v. Stokes, 30 Ala 432. s McTaggart v. Rose, 14 Ind. 230; Stockbridge v. West, &c., 14 Mass. 261 ; Milford v. Bellingham, 16 lb. 108. 8 Nancy v. Snell, 6 Dana, 148. ' Ferguson v. Clifford, 37 N. H. 86. « Dudley v. Sawyer, 41 N. H. 326. GENERAL PRINCIPLES OF SALE, ETC. 5 sale becomes necessary or proper, or is adopted as the most convenient mode of transfer, it is to be liberally construed, to effect the intention; and not rigidly, by the precise rules relating to real estate.* Thus a broker altered the invoice of goods sold from one person to another, and sent it to the latter, advising him that for the sake of sim- plicity he had made this change. Held, the invoice con- stituted a contract of sale.^ But a certificate from one person to another, that he has purchased property from the latter, is not conclusive evidence of a sale which actu- ally passes the title, if it was understood at the time that a bill of sale be given afterwards.' So an agreement be- tween merchants, that one of them shall take a share in the outfit of a ship and the adventure, is not an agreement for the sale of goods within the stamp act.* So, as security for a debt, A. gave B. a written agreement, acknowledging that he had received from B. a horse as his property, which he would return at a certain time or pay the debt. The horse was at the time really A.'s, and was never delivered to B., but was afterwards sold by A. to C. Held, the prop- erty passed to C. ; that the writing held by B. was not a bill of sale nor a mortgage, and passed no interest in the property.' § 6. With regard to -payment of the price as necessary to constitute a sale, it is said in a very late case, " "When the purchase price is to be paid upon the delivery of the article . . . the title remains in the seller until delivery.'"" But the following important distinctions are to be ob- * Stockbridge v. W. Stoekbridge, 14 Mass. 257 ; Hastings v. Blue Hill, &c., 9 Pick. 92. ^ Pauli V. Simes, 6 C. & P. 506; ace. Hodges v. Harris, 6 Pick. 360. See Pratt v. Parkman, 24 lb. 42; "Wolf v. Gardner, 12 Gush. 19. ' Higgins V. Chessman, 9 Pick. 7. In this case, a. bill of sale was afterwards applied for by the vendee, and, upon payment of the price, the vendor gave his note for the amount. * Leigh V. Banner, 1 Esp. 403. ' Crane v. Pearson, 49 Maine, 97. * Per Johnson, J., Pierson v. Hoag, 47 Barb. 245. 6 LAW OF SALES OF PERSONAL PROPERTY. served. If I sell a horse for money, I may keep him till paid ; but can have no action of debt till he is delivered." But the property passes by the bargain. If the purchaser presently tender the money and I refuse it, he may take the horse or'have an action of detainment. If the horse die in my stable between the bargain and delivery, an action of debt lies, because the property was changed by the bargain. And on the other hand it is held, that the mere circumstance of payment in advance does not pass a title to the vendee, though followed by delivery, if the circumstances indicate a contrary intention.' ' § 7. But though, by the terms of an agreement, pay- ment is to be made infuiuro, and to precede delivery ; yet the right of property will pass to the vendee, if it appear to be the intention of the parties that the vendee should immediately have a property in the goods, and the vendor in the price, and nothing remain to be done by the ven- dor, as between him and the vendee." So where an article, ordered to be made, is finished and paid for, and the ven- » It is held that the sale is complete only on delivery and payment, though prior thereto. Leger v. Bonnaffe, 2 Barb. 475. On a sale for cash, the buyer cannot maintain trover for the goods, be- fore delivery, without payment. Conway v. Bush, 4 Barb. 564. ■> A. agreed with the War Department to build a fort; advances to be made in part payment for materials delivered with an invoice at the fort, and approved by the engineer, and at the end of each month for the work done also. Held, such advances did not constitute a purchase of the materials delivered, so as to vest a property in them in the United States. IT. S. V. Tillotson, Paine, 305. "^ January 4, A. agreed to sell B., and B. agreed to buy of A., a stack of hay, for a certain sum of money, to be paid for on February 4, and allowed to stand on the premises of A. till May 1. B. agreed that the hay should not be cut till paid for. Before it was taken by B., the hay was destroyed by fire. Held, the above agreement constituted an imme- diate sale, and passed the right of property to B., though A. still retained the right of possession ; and that B., having given a bill of exchange for the price, which he afterwards paid, could not recover the amount in an action for money paid from A. Tarling v. Baxter, 6 B. & C. 360. 1 Koy, 88. See Bradley v. Michael, 1 Smith, 346. GENERAL PRINCIPLES OF SALE, ETC, 7 dee does acts which indicate that he considers himself as the owner, a property passes, notwithstanding orders from him for an alteration, which are not complied with." § 8. After an executed sale, the vendor can maintain no action for the goods, even for the vendee's benefit, and though the latter has never had possession. Thus A. as- signed all his interest, in a crop growing upon land of B., to C. ; but, for a subsequent injury to the crop, a suit was brought in the name of A., and alleged an injury to C. as his assignee. Held, there had been a complete transfer of the property, and C. must bring an action in his own name ; that there was no necessity for suing in A.'s name, and he, having parted with all his interest, could not maintain the action for his own benefit.' § 9. After a sale to one person, the goods may be resold to another by the vendor, with the consent of the first pur- chaser ; and the latter vendee will then be alone liable to the vendor for the price. Thus A. sold goods to B., and B., being unable to pay for them, transferred them to C, and C. promised A. to pay him. Held, this was a new sale of the goods to C, not a mere agreement to pay B.'s debt. A. could have maintained no action against .B.*"^ * The plaintiff had a chariot built to his order, and paid for it, and it was finished. The plaintiflT then ordered an additional front seat. The builder having delayed to make it, the plaintiff repeatedly sent for the chariot, and the builder promised to deliver it. The plaintiff, being dis- satisfied, ordered that the chariot should be sold. The additional seat had not been made, as ordered. While the chariot stood in the builder's warehouse, for sale, according to usage, he became bankrupt. The plain- tiff brings trover against his assignee for the chariot. Held, the action would lie. The court remarked, that both parties had treated the article as finished, the whole price was paid, and the plaintiff had often sent for it. The order for an additional seat made no difference in the case, nor was the chariot "in the order and disposition of the bankrupt, with the consent of the true owner," so as to pass to his assignee. The article was in existence on payment of the price ; and therefore the property passed. Carruthers v. Payne, 6 Bing. 270. •" An order for goods, sent by letter from Massachusetts to another 1 Carter v. Jarvis, 9 John. 143 ; 2 Pirt. Dig. 355. * Browning v. Stallard, 5 Taun. 450. 8 LAW OP SALES OF PERSONAL PROPERTY. § 10. An order for several articles at the same time, though at distinct prices, is one order. Hence, the ven- dee is not bound to accept one article, unless all the rest are furnished. But if he does accept and offer payment for one, he is bound to pay for all that are supplied. So, where three parcels of goods are ordered, and only one sent, but this is accepted, the vendee will be bound to re- ceive and pay for the second, though sent without the third. But where different parcels of one quantity of goods are to be delivered at different times, though one parcel be delivered and accepted, the vendor cannot sue for the price before the time appointed for delivery of the remainder, because, if not delivered, the vendee may re- turn the parcel which he received. But unless he does return it, the vendor may sue for the value, though not the contract price of the part accepted, after the time a2> pointed for delivery of the whole. But he will be liable to an action by the vendee for breach of contract. If from the terms of the contract it may be implied that each parcel of the property sold is to be paid for on de- livery, an action for the price may be maintained accord- ingly. Thus, where one contracts for certain numbers of a periodical publication, to be delivered as published, at so much per number, it seems he is liable to pay for the numbers delivered, before deliverj^ of the whole.' § 10 a. The defendant, in a suit for goods sold and de- livered, pleaded, never indebted. It was shown, that he state, was executed by the successor in business of the person to whom it was addressed, and the goods forwarded by a carrier, and accepted on their arrival, and the freight paid, by him who ordered them. Held, that his assent related back to the original order, and that the sale was complete on delivery to the carrier in the other State. Orcutt v. Nel- son, 1 Gray, 536. See Webster v. Hunger, 8 Gray, 584. 1 Baldey v. Parker, 2 B. & C. 37; Champion v. Short, 1 Camp. 63, 55 lb. n.; Waddington v. Oliver, 2 N. R. 61; Walker v. Dixon, 2 Stark, 281 ; Shipton v. Casson, 5 B. & C. 378 ; Oxendale v. Wetherell, 9 lb. 386 ; Withers v. Reynolds, 2 B. & Ad. 882 ; Mavor v. Payne, 3 Bing. 286; 6 Moo. 114. GENERAL PRINCIPLES OF SALE, ETC. 9 ordered from the plaintiffs specified quantities of particu- lar kinds of crockery, to be sent by railroad ; that the plaintiffs sent a crate containing a smaller quantity, with other goods, not ordered, but distinguishable, and one in- voice, debiting the entire contents, which the defendants refused to receive, on the ground that they were out of time. Held, the defendant was not bound to take any of the goods, because of their being mingled with goods not ordered.' § 11. Where a specific chattel is sold and the price paid, since, as has been already stated, the property vests in the vendee, if the article be left with the vendor, the latter is not liable for any loss or deterioration, unless guilty of gross negligence.^ Thus A. agreed to sell to B. a quan- tity of beef, and soon afterwards gave him a bill of par- cels, and received payment, with the agreement that the property should remain in the hands of A. till forwarded to Ifew York. Seven or eight months afterwards, B. received a portion of the beef, which was then of bad quality, and the whole, upon inspection, was found un- merchantable. In an action brought by B., for non-de- livery of good and merchantable beef, held, a title passed to B., upon payment, and the action could not be sus- tained.' § 12. An order for goods, found in the hands of the drawee, more especially if such be the usage, is primd facie evidence of a sale to the drawer, and a delivery at his request. It is otherwise with orders for the payment of money. These are presumed to be drawn upon funds in the drawee's hands, who therefore can maintain no action against the drawer, unless he offers evidence to rebut this presumption." So, where a vendor draws an 1 Levy V. Green, 1 Ellis & E. 969. ' Lansing v. Turner, 2 John. 13; Inst. 1, 24; 3 Lit. Sel. Cas. 217; 4 Bibb, 66. ' Lansing v. Turner, 2 John. 13. * Alvord V. Baker, 9 Wend. 823. See Stanton v. Small, 3 Sandf. 230. 10 LAW OF SALES OF PERSONAL PROPERTY. order upon the depositary of the goods, who accepts it, this is a sale according to the terms of such order. And an order of this kind is presumed to be for value, though not expressed nor proved to be for value received, espe- cially' if it is accepted. The party receiving the order is presumed to have a beneficial interest in the property, and to be something more than a mere agent. A parol acceptance of the order is binding upon the depositary ; and an indorsement and delivery of it, with intent to as- sign, constitutes an assignment. If the order has been accepted, such indorsement and delivery constitute a sale, which is sufficient consideration for a promise by the ven- dee.^ And, in an order for the transfer of goods sold, a particular description, by numbers and marks, is not necessary, if the particular parcel intended is otherwise well known. ^ § 13. We have already (§ 1, n.) alluded to an exchange, ^s distinguished from a sale. It may here be added, that in many respects an exchange of chattels is subject to substantially the same rules as a sale. The diiference be- tween these two transactions is this, that the one is a transfer /or money, the other /or goods, by way of barter.'' " In case of an exchange of property, unless there is fraud, the same formalities are requisite to effect a re-exchange, which were required in the original transaction. Thus the plaintiff contracted with A. to ex- change soap belonging to the plaintiff for a quantity of wine belonging to A. The soap was delivered. The wine was in the hands of the cus- tom-house officer. Being of bad quality, it was marked as Fayal wine, though really Madeira. The plaintiff being dissatisfied because it was thus marked, and therefore not subject to debenture, the parties submit- ted the matter to arbitrators, who awarded, that, as the wine still re- mained in the custom-house, it should continue to be the property of A., and the soap be returned or paid for at the market price, to which award both the plaintiff and A. gave their assent. No fraud was charged upon either party. The soap being attached as belonging to A., held, the > Bailey v. Johnson, 9 Cow. 115; contra, Burrall v. Jacot, 1 Barb. 165. ' Frazer v. Billiard, 2 Strobh. 309. ' Denn v. Diamond, 4 B. & C. 246. See Baldwin v. Williams, 3 Met. 367. GENERAL PBINCIPLES OF SALE, ETC. 11 § 14. While, as has been seen, no precise terms are re- quired to constitute an express contract of sale, it has even been held, that the law implies a contract to pay for goods, from their having belonged to the plaintiff, and coming to the possession of the defendant, if unaccounted for, more especially if the latter has practised any fraud.' Thus A. fraudulently persuades B. to sell goods to C, an insolvent person, and himself obtains possession of them. Held, B. might maintain indebitatus assumpsit against A. for the price. A. cannot set up in defence the sale to C, because procured by his own fraud, and, independently of this, mere possession of the property raises an implied promise to pay for it.^ And whether a contract for sale has been completed, is a question for the jury. The court will not order a nonsuit for want of full proof of the con- tract.^ § 15. It is held that the mere manufacture of goods to order does not necessarily pass a title to the party for whom they were made. Thus, if a tradesman finish goods according to the order of one person, and sell them to another, and the former have other articles made for him within the stipulated time, he cannot maintain trover against the latter for those first manufactured.'' So a transaction, which is in effect a mere exchange of securities between two parties, though connected with the furnish- ing of goods by one for the other's benefit, cannot be treated as a sale, so as absolutely to charge the latter as vendee of the goods." plaintiff could not maintain an action against the ofScer, there having been no effectual re-exchange, and A. having elected, by not returning the soap, to keep and pay for it. Quincy v. Tilton, 5 trreenl. 277. * Thus A. delivered to B., a ship-master and joint owner with 0., a 1 Hill v. Perrott, 3 Taun. 274. » lb. 3 De Eidder v. McKnight, 13 John. 294. * Mucklow V. Mangles, 1 Taun. 318. See Woods v. Eussell, 5 B. & A. 942 ; Foster v. Pettibone, 3 Seld. 433. 12 LAW OF SALES OF PERSONAL PROPERTY. § 16. 'No action lies for the price of goods sold, where there is a material deviation by the vendor from the terms of sale, and a refusal by the vendee to receive the prop- erty. Thus A., residing at Albany, ordered certain goods from B. at ISTew York. A portion of them were sent, but on a diiFerent credit from that stated in the order. The vessel was wrecked, and a part of the cargo lost. A. re- fused to receive the remainder, and immediately notified B. that he did not consider the goods as belonging to him, on account of the above deviation from the order. Held, he was not liable for the price, the facts showing neither an express nor implied assumpsit.^ § 17. In addition to the transfer by sale and purchase, which is the act of parties, a title to personal property may pass by act of law, or by recovery of damages in trover, trespass, book-debt, or assumpsit.^ But where one is sued in trover, or, it would seem, in any other form of action, a mere defa.ult has not the effect of transferring the title of the goods to him. There must be a, judgment; be- cause, in the former case, judgment might be arrested or the default taken off.' And it is further to be remarked, that the title to a chattel is transferred by operation of law, only when the damages recovered by the former quantity of wheat, to be carried to New York and there sold. It was agreed between A. and C, that B. should appropriate the proceeds to the use of C. in New York, who was to pay A. the amount received by B. That is, if B. sold on credit, taking notes in payment, C. was to give corresponding notes to A. ; if for cash, then C. was to pay cash. B. sold on credit, according to the usual course of trade, to D., taking his note at ninety days ; and C. gave a similar note to A., upon which A. brings the present action. Before the expiration of the ninety days, D. had be- come insolvent. Held, the transaction was an exchange of notes for the accommodation of A. ; that the property had not vested in C, and he was not liable to the present suit. Herring v. Marvin, 5 John. 393. 1 Bruce v. Pearson, 3 John. 534. ^ Canaan v. Greenwoods, 1 Conn. 7. » Carlisle v. Burley, H Greenl. 260. GENERAL PRINCIPLES OF SALE, ETC. 13 owner, in a suit against one who has wrongfully inter- fered with it, include the value of such chattel." § 17 a. Curious questions have sometimes arisen, where an article sold included or contained some separate thing, not in contemplation of the parties. Thus where the ven- dors of a saje^ after sale and delivery to the purchasers, removed therefrom an account book and some Kansas City warrants ; in a suit for the agreed price, it was held that they could recover, as having performed their agree- ment.^ So a party purchased, at an administrator's sale, a "drill machine," which, unknown to all parties, con- tained money and other valuables secreted there by the decedent. Held, the sale passed the machine and every constituent part of it, but not the valuables contained in it; which, on discovery, were treasure trove of the ad- ministrators.^ So if a bill of sale of cattle states their marks, none without such marks pass, although the bill of sale concludes, " I do sell him my entire stock and claim."^ But on the other hand one of two partners, by ' Thus the plaintiff brings trespass qu. claus. for cutting and carrying away his timher, and in this suit attaches the timber, and takes posses- sion of it as reclaimed. The defendant confesses the trespass, and the plaintiff formally abandons so much of the suit as concerns the asporta- tion of the timber, and proceeds for the breaking of the close and prostra- ting the trees, for which he recovers nominal damages. Held, thejudg- ment in this suit did not vest the property of the timber in the defend- ant. The plaintiff was not estopped by his attachment of the timber, to deny that it belonged to the defendant ; for such attachment might be founded on erroneous information. Nor was the return of the officer conclusive upon the same point. It is a common case, for an officer to return an attachment, and afterwards to justify himself for not seizing the property on execution, by showing that it did not in fact belong to the debtor. Moreover, the officer's return must be taken in connection with the other parts of the same record, including the judgment; which show conclusively that the title had not vested in the defendant. Loomis V. Green, 7 Greenl. 386. 1 Keevil v. Eoldani, 34 Miss. 149. ' Huthmacher v. Harris, 38 Penn. 491. ' Harrell v. Durrance, 9 Florida, 490. 14 LAW OF SALES OF PERSONAL PROPERTY. bill of sale, conveyed " the undivided one-half of all and singular the said goods, working tools, notes and bills re- ceivable, and all other property and valuable thing or things belonging to said firm, subject to the payment by the vendee of one-half of all the debts and liabilities of said firm due and to become due ; " and the vendee took the vendor's place in the firm. At the time of sale an in- ventory of the property conveyed was taken, which was supposed to embrace every article belonging to the firm. Held, a deposit in a bank, in the name of the firm, passed to the vendee, to the extent of the vendor's interest therein, although the parties did not know of the e^iistence of euch deposit.' § 18. The question has sometimes arisen, whether it is necessary to the validity of a sale, that the thing sold should be in existence at the time, or whether, if sold in expectation of its future existence, or under a contract to manufacture it, a title will vest in the vendee whenever the article is brought into being. Upon this subject it is said, in general, that the subject of sale must be defined and specified, and the seller in possession.^ But it is also said to be now well settled, that a possibility coupled with an interest is assignable, more especially in equity ; that a man may grant that which he hath potentially, though not actually. As, if a person grants all the tithe wool which he shall have such a year, the grant is good in its crear tion, though it may happen that he shall have no tithe wool in that year.' So it is said, a sale may be made of 1 Cram v. Union, 42 Barb. 426. ' See Candlish v. Newman, 22 Penn. 400. » Bigelow V. Willson, 1 Pick. 493; Grantliam v. Hawley, Hob. 132; 2 Eolle, 47, 8. See Butterfield v. Baker, 5 Pick. 522 ; Glover v. Austin, 6 Pick. 209; 1 Gov. & Hughes, 345 (4) ; Walker v. Eussell, 17 Pick. 280; 11 Mass. 157, n. ; Couturier v. Hastie, 16 Eng. L. & E. 562; "Wood v. Foster, 1 Leon. 42; Strickland v. Turner, 14 Eng. L. & E. 471; Scrans V. Roach, 22 Ala. 675 ; Smith v. Atkins, 18 Verm. 461 ; Pettis v. Kellogg, 7 Cush. 456; Mitchell v. Winslow, 2 Story, 638; Leslie v. Guthrie, 1 Bing. N. 97 ; Langton v. Horton, 1 Hare, 549 ; "Warne, 8 Price, 269, n. ; Curtis T. Auber, 1 J. & "W. 526. GENERAL PRINCIPLES OF SALE, ETC. 15 the wine tliat a vineyard is expected to produce ; or the grain that a field is expected to grow ; or the milk that a cow may yield for the coming year." ^ And in principle • The following case was decided in North Carolina : Agreement to deliver the plaintiff the first colt which should be foaled by the defendant's mare. Held, a title to the colt hereby vested in the plaintiff. Ponville v. Casey, 1 Mur. 389. So, in Tennessee, it is held that the owner of a mare during gestation may sell her future offspring, the property to vest in possession whenever such offspring shall be born. It is remarked by the court, that in general no right can be communi- cated to property, of which the bargainer has no title in possession, actually or potentially. But that the case above mentioned does not fall within this principle. It is like that of a growing fleece, a crop of fruit or grain. Hence, where A. agrees with B. that the foal of A.'s mare shall belong to C, and, after the colt is born, conveys it to D., C. may maintain trover against D. McCarty v. Blevlns, 5 Yerg. 195. But the assignment of the freight, earnings, and profits of a ship, which after- wards, in a voyage to the South Seas, not contemplated at the time of assignment, obtains a quantity of oil, the produce of whales taken in the voyage, does not pass the oil ; the assignor, at the time of assignment, having no property, actual or potential, therein. Kobinson v. McDon- nell, 5 M. &. S. 228. In case of a contract to deliver, at a future day, at a certain price and place, property not in esse when the contract is made, but to be produced by the cultivation of the earth, and of a speci- fied character and description ; the property does not pass by its mere de- livery at the appointed time and place, and its tender on refusal to accept it. Kider v. Kelley, 32 Vt. 268. A., having license from B., the owner of land, to enter and cut and make staves, at a certain sum to be paid for each stave, enters and makes a quantity, and in a reasonable time tenders the price. The staves are his property, and he may maintain trover against B., who, after such tender, converts them to his own use. In New Hampshire, the number of staves need not be counted by a sworn culler of staves, or notice given to B. before the count. Clough v. Kay, 20 N. H. 558. A sale by A. to B. of growing wood, with the right to cut it within a specified time, but without any agreement that B. may assign his rights, gives him a title to the wood cut within that time, which title he may sell to C. ; and C. may maintain an action against A. for subsequently burning the wood. Nelson v. Nelson, 6 Gray, 385. A lessee conveyed to his lessor, by an instrument executed with all the formalities of a lease, all the crops which might be grown during the term. Held, delivery of the crops, after they were harvested, was not necessary, as against attaching creditors. Bellows v. Wells, 36 Vt. 599. 1 1 Pars, on Contra. 438 n. g. ; Van Hoozer v. Cory, 34 Barb. 9. 16 LAW OF SALES OP PERSONAL PROPERTY. there seems to be no distinction, with reference to the point now under consideration, between sales of chattels in possession, and assignments of choses in action ; which have been often held assignable, though consisting in future and contingent debts. Thus, it is said, a contingent debt may be assigned in equity, and, when the contingency happens, the debtor is liable to the assignee. So, where the master of a vessel drew a bill upon a consignee of goods, for the money that might be due to the former for freight on delivery of the goods ; held, this was an assign- In Louisiana, avente d remere, like any other sale, is perfected as to third persons, in the case of movables, by delivery, and the vendee becomes the owner of the fruits and the property absolutely, if not redeemed at the time stipulated. Hughes v. Klingender, 14 La. An. 845. If stocks be sold before the dividends are declared, the latter pass by the sale. Abercrombie v. Riddle, 3 Md. Ch. Decis. 320. It has been held, that, if personal property is in the actual adverse pos- session of a third party, the owner cannot make a valid sale of his right or title in it. O'Keefe v. Kellogg, 15 111. 347. It has been held, that, in case of a transfer in trust, with an agreement that the assignor may sell, and substitute similar articles, a title in the new articles vests in him, subject to the trust. Hope v. Hayley, 34 Eng. L. & Eq. 189. See Munson v. Munson, 24 Conn. 115. The doctrine has been sometimes adopted, that the sale of property which the seller does not own at the time, and has not contracted for, and has no definite right to expect, but merely intends to go into the market and buj', is void. Brj'an v. Lewis, Ry. and Moo. 386 ; Lorymer V. Smith, 1 B. & C. 1 ; 2 D. & R. 23 ; Head v. Goodwin, 37 Maine, 187; Stanton v.. Small, 2 Sandf. 230. But in a later case, Hibblewhite v. McMorine, 5 M. &. W. 462, this doctrine, asserted in the two cases first cited by Lord Tenterden, has been pronounced by Parke, B., untenable, upon the ground that such a contract is not a wager, or at any rate not one having a necessary tendency to in- jure third persons. Ace. Wells v. Porter, 2 Bing. N. C. 722 ; Mortimer V. McCallan, 6 M. & W. 58. So it has been held, that a contract for the sale of flour is good, though there be none in the possession of the seller, nor any arrangements to buy. Stanton \ . Small, 3 Sandf. 230. And the general rule is laid down, that, if one sell goods in which he has no property at the time of sale, and subsequently acquire a title, the property in the goods, as soon as a title is acquired by the seller, will vest in the buyer. Prazier v. Hilliard, 2 Strobh. 309. ETC. 17 ment of tlie demand for freight wheii it should accrue.' See 8. 18, n. Upon a similar principle, there would seem to be no doubt, that where it is agreed between two parties, that one shall do a certain piece of work for the other, the foundation or substratum of which, being in ex- istence at the time, is convej'ed to the latter ; all materials subsequently affixed will become his property, by acces- sion. Thus', if the keel of a ship is conveyed, in connec- tion with a contract by the vendor to finish it for the vendee, every stick of timber that goes into the vessel be- comes the vendee's property. It is the rule of the civil law, proprietas totius navis carince causam sequitur. And it is said, the same principle would apply to an unfinished house, sold by the builder, and subsequently completed by him.^ * « In case of a contract to perform work and supply materials upon the premises of another, for a certain sum, to be paid on completion of the whole ; no part can be recovered before such completion, unless prevented by his fault. As where the plaintiffs contracted to erect machinery upon the premises of the defendant, at certain prices for particular portions, and to keep it in repair for two years, payment to be made on comple- tion ; and before completion the whole was accidentally burned. Appleby V. Myers, Law Eep. (Eng.) Dec. '67, p. 650. Mr. Justice Blackburn remarks, " It was argued .... that .... the labor and materials necessarily became the property of the defend- ant as soon as they were worked into his premises, and became part of them, and therefore were at his risk. We think that, as to a great part at least of the work done in this case, the materials had not become the property of the defendant ; for, we think that the plaintiffs .... would have had a perfect right, if they thought that a portion of the engine which they had put up was too slight, to change it and substitute another, without consulting or asking leave of the defendant. But, even on the supposition that the materials had become unalterably fixed, we do not think that, under such a contract as this, the plaintiffs could re- cover anything unless the whole work was completed Materials worked by one Into the property of another become part of that property. This is equally true, whether It be fixed or movable property. Bricks built into a wall become part of the house ; thread stitched into a coat which is under repair, or planks and nails and pitch worked into a ship 1 Crocker v. Whitney, 10 Mass. 316; Cutts v. Perkins, 12, 246. « Glover v. Austin, 6 Pick. 220. 18 LAW OF SALES OF PERSONAL PKOPEKTY. § 19. Ill the foregoing remarks, it has not been con- sidered, Avhat communications between two parties are necessary to constitute a contract, in distinction from a mere offer or proposal, to sell or buy ; because this point has no exclusive reference to contracts of sale. It seems not inappropriate, however, to state here the general prin- ciples on this important subject. § 19 a. The contract of sale is understood to 'be made, in the State where an otter sent by letter from another State is accepted.' § 20. AVhere there is a written oifer to sell, an accept- ance consummates the agreement, if the offer is still stand- ing. And it is presumed to be so until the time fixed, or, if none were appointed, till it is expressly revoked or countervailed by a contrary presumption. If the other party agrees to decide whether he will accept the ofler, upon the happening of a certain event, no bargain arises till such decision, though the event have happened. There is a binding agreement, when the minds of two persons meet, as signified by acts, although both do not know of such concurrence at the time. A bargain is under repair, become part of the coat or of the ship ; and therefore, gener- ally, the bricklayer, or tailor, or shipwright, is to be paid for the work and materials he has done and provided, although the whole work is not complete, whether .... the non-completion is because the shipwright did not choose to go on with the work, as was the case in Roberts v. Havelock, 3 B. & Ad. 404, or because, in consequence of a fire, he could not go on with it, as in Menetone v. Athawes, 3 Burr. 1592. But . . . there is nothing to render it either illegal or absurd in the work- man to agree to complete the whole, and be paid when the whole is complete, and not till then. Had the accidental fire left the defendant's premises untouched, and only injured a part of the work which the plaintiffs had already done .... the plaintiffs must have done that part over again. . . As it is, they are, according to Taylor v. Caldwell, 3 B. & S. 826, 32 L. J. Q. B. 164, excused from completing the work; but they are not therefore entitled to any compensation for what they have done, but which has, without any default of the defendant, perished." Appleby v. Myers, Law Kep. (Eng.) Deo. '67, p. 658. ' Mclntyre v. Parks, 3 Met. 207. GENERAL PRINCIPLES OF SALE, ETC. 19 closed, where nothing mutual remains to be done, to give either party a right to have it effected. Until both parties are agreed, either may withdraw an offer which he has made. "Where A. offers to sell goods to B., receiving an answer by return of mail ; but, by A.'s misdirecting the letter, B. does not immediately receive it, and sends an answer by the first mail, accepting the proposal, which reaches A.' two days later than he expected ; A. is bound by the contract. He must be considered in law as making, during every instant his letter was travelling, the same offer to B., and B.'s acceptance completed the con- tract.' But, on the other hand, A. offered to buy of B. a certain number of barrels of flour, to be delivered at Georgetown by the first water, and to pay a certain price for them. He also demanded an answer by the return of the wagon which carried the letter. This wagon was in use by B. to carry flour from his mill to Harper's Ferry, near which A. then was. B. signified his acceptance of the proposition by the first regular mail to Georgetown, where the letter was received by A. ; but no letter was sent to Harper's Ferry. Held, A. was not bound.^ So when there was a proposal to purchase and an acceptance, but nothing said respecting the terms, but the vendors, having communicated the terms, and supposing that they would be assented to, shipped the goods \^^thout waiting for an answer ; held, there was no sale, and they might resume possession.^ So A. and B. verbally treated for the purchase of a horse, by the former of the latter. A few days afterwards, B. wrote to A., saying that he had been informed that there was a misunderstanding as to the price ; A. having imagined that he had purchased the horse for £30, B. that he had sold it for 30 guineas. A. thereupon wrote to B., proposing to split the differ- > Maotier v. Frith, 6 Wend. 103; Adams v. Lindsell, 1 B. & A. 681 ; 3 M. & R. 97 ; Koutledge v. Grant, 4 Bing. 661. * Eliaaon v. Henshaw, 4 Wheat. 225. ' Summers v. Mills, 21 Tex. 77. 20 LAW OF SALES OF PERSONAL PROPERTY. ence, adding ; " If I liear no more about him, I shall con- sider the horse is mine at £30 15s." To this no reply M-as sent. No money, was paid, and the horse remained in B.'s possession. Six weeks afterwards, C, the defendant, an auctioneer, who was employed by B. to sell his farm- ing stock, and who had been directed by B. to reserve the horse in question, as it had already been sold, by mis- take put it up with the rest and sold it. After the sale B. wrote to A. a letter, which substantially amounted to an acknowledgment that the horse had been sold to him. Held, A. could not maintain an action against C. for con- version of the horse, he having no property in it at the time C. sold it ; B.'s subsequent letter not having (as be- tween A. and a stranger), any relation back to A.'s pro- posal.' § 21. We have already considered payment of the price, as a material element in the contract of sale. It remains to be stated, that payment of a part of the 'price, for the purpose of binding the bargain, may also have an import- ant bearing upon the contract. Upon this subject, it is said that payment of earnest does not change the property of the thing sold, but merely binds the bargain, and gives the vendee a right to demand the thing." But the same author elsewhere says, if A. sell B. a horse for £10, and B. pay earnest, or sign a note of the bargain, and the horse die in the vendor's custody before payment, still he is entitled to it (payment), because, by the contract, the property vested in the vendee. If a day of payment is given, payment of earnest has no operation, because the bargain is complete without it.'^ And it is further held, • It seems, the payment of earnest binds only the bargain, not the prop- erty. It gives tile vendee a riglit to demand tiie article ; but such de- mand, without payment of the whole price, is void. Langfort v. Tiler, 1 Salk. 113. i" "If I sell my horse to you for £10, and we are both agreed, and I » Felthouse v. Bindley, 11 C. B. (N. S.) 869. 2 Swift's Dig. 377 ; lb. 380. GENERAL PRINCIPLES OF SALE, ETC. 21 that after the payment of earnest the vendor cannot- re- sell the property without default of the vendee. If the latter does not come and pay for and remove the article, the vendor should request him to do so. If he still neglects to do it in convenient time, the agreement is dissolved, and the vendor may re-sell.' accept a penny in earnest, this is a perfect contract ; you shall have the horse, and I shall have an action for the money." Per Brudnel, C. J., Tr. Bk. 14 H. 8, 17 b. 1 Hinder v. Whitehouse, 7 E. 571. 22 LAW OF SALES OF PERSONAL PROPERTY. CHAPTER II. WHETHER A CONTRACT IS A SALE OR A BAILMENT. § 1. The important question often arises, whether a transfer of personal property constitutes a sale or a bail- ment ; that is, whether it passes an absolute title to the person receiving the property, leaving in the former owner only a claim for the value or agreed price, or a mere tem- porary and qualified interest, subject to a reversionary claim on the part of the temporary vendor ?" It vf\\\ be seen by the cases cited, that a transaction, which was originally a bailment, may, by some subsequent act or omission of the bailee, become a sale. Thus, A. put into the hands of the defendant a carriage, for the purpose of paying debts due to him and the plaintiff. The defend- ant kept the carriage more than a year, repaired it on his own account, the plaintiff refusing to join in the expense, used it as his own, and never sold it, although he twice offered it for sale. The carriage was sufficient in value to pay both debts. Held, the defendant was liable to the plaintiff as purchaser of the carriage ; that he had a rea^ sonable time to effect a sale, and should have sold at auc- tion, if he could not privately ; and his offers to sell might have been merely collusive.' So where, by contract, raw materials are delivered to a manufacturer, and manufac- • See Law Keg., April, 1864, p. .321; Bryant v. Crosby, 40 Maine, 9; Marson v. Barber, Gow, 17 ; 1 Harr. Dig. 294. After sale the seller is a bailee, and liable only for the care of a bailee, unless he wrongfully de- tain the goods. McCandlish v. Newman, 22 Penn. 460. 1 Norton v. Squire, 16 John. 225. WHETHER A CONTRACT IS A SALE OR A BAILMENT. 23 tured articles of the same value are to be returned, the transaction is a sale, and the title to the raw material is changed.' Thus, where a warehouseman receives wheat, and, by consent of the owner, or in accordance with the custom of trade, mixes the wheat with the other wheat in his warehouse, with the understanding that he is to retain or ship it for sale on his own account, at pleasure, and on presentation of the warehouse receipt, is either to pay the market price thereof in money, or redeliver the wheat, or other wheat in place of it: the transaction is not a bailment, but a sale ; and the property passes to the depositary, and carries with it the risk of loss by accident.^ So the plaintift' delivered a quantity of wheat to the de- fendant, at the mill of the latter, to be exchanged for flour ; and the defendant put the wheat into his own com- mon stock. The mill being afterwards burnt, the defend- ant refused to deliver the flour, and the plaintiff brings assumpsit against him. Held, the transaction was not a bailment, but a sale, and the defendant therefore liable to this action.^ So the defendant, a miller, agreed, with the plaintiff, to take wheat from him, and give him one barrel of superfine flour, warranted to pass inspection, for every certain quantity of wheat. Held, a sale, and not a bail- ment ; and, a quantity of wheat being burned with the mill, that the defendant was liable for the price/* So " But if, under a contract with a miller to receive a certain quantity of flour for every certain quantity of wheat ground, a person takes wheat to a mill to be ground, and, by the assent of the miller, mingles it with wheat of the latter ; he does not thereby lose his property in the wheat, but is entitled to have divided to him as many bushels as he has put in. Inglebright v. Hammond, 19 Ohio, 337. So a receipt for "2845 bushels first quality wheat, subject to order any day when called for, after 1st day of January next, without charge for 1 Foster v. Pettibone, 3 Seld. 433. 2 Chase v. Washburn, 1 Ohio, 244; Wilson v. Cooper, 10 Iowa, 565. » Ewing v. French, 1 Blac. 354. * Baker v. Woodruff, 2 Barb. 520. 24 LAW OF SALES OF PERSONAL PROPERTY. where A. buys cloth at a sheriff's sale, and leaves it with B., the defendant, a tailor, to be made up for B.'s own profit, he accounting to A. only for the price of the cloth ; it is a sale to B., and the cloth is liable to levy and sale on a subsequent execution.' So B. delivered to A. six cows, under the verbal agreement that they should be returned after two years, or the value then paid, unless A. should be dissatisfied with an exchange of land made at the same time between the parties; in which case the cows were to be the property of A. forever. The two years having expired, A. expressed himself as satis- fied with the exchange, but refused to deliver or pay for the cows. B. brings assumpsit against A., declaring upon a quantum meruit. Held, the transaction was a sale, not a bailment ; that it was not within the Statute of Frauds, though verbal and in part to be performed, so far as related to payment, after a year, it being partly executed by delivery ; and that, even if within the stat- ute, the plaintiff might recover upon a quan. m£r? So the defendant received from the plaintift' a quantity of leather, and gave him therefor the following receipt: "Received the following leather, viz., &c., which I agree to pay for as follows : one shilling deduction to be made on each side of upper leather from the price above, and two shillings per pound from the sole leather, with the privilege of returning any quantity of said leather remain- ing on hand at settlement." Held, this was a sale, not a delivery upon commission ; that parol evidence was inad- missible to control the terms of the receipt ; and that a loss of the leather by fire must be borne by the defend- storage," was held not to import a sale, but a bailment. Wadsworth v. Allcott, '2 Seld. 64. And, in general, when raw materials are delivered to a manufacturer, to be manufactured and returned, it is a bailment, and the title is not changed. Foster v. Pettibone, 3 Seld. 433. 1 Dick V. Lindsay, 2 Grant, 431. •Holbrook v. Armstrong, 1 Pairf. 31. ■WHETHER A CONTRACT IS A SALE OR A BAILMENT. 25 ant. It was remarked by tlie court, that the privilege, of returning such part as remained unsold, was a provision for the benefit of. the defendant, as to the mode of pay- ment. Had the delivery been on commission, there would have been some provision as to compensation or rate of commission. But the deduction mentioned in the receipt did not admit this construction. The defendant agreed to pay for the leather at a certain rate; hence, the transac- tion could not be a bailment. The deduction was to be in the frice} So the following form of receipt — " Received of, &c., three barrels of white fish, to be paid for when sold, at six dollars per barrel " — is evidence of a sale, not a bailment ; and, after three years and a half, a sale by the first purchaser will be presumed, and the original vendor may recover the stipulated price, without direct proof of such second sale." So, where A. signed a contract, on re- ceiving the possession of personal property, by which he promised to pay for it, and also agreed that it should remain the property of the other party till paid for ; held, not a bailment, but a conditional sale.' So A. delivered to B. certain articles of hai'dware, B. agreeing " to sell and account to hire for, and pay him the cost prices, and twenty per cent, in addition for all articles sold at retail, and fifteen per cent, for all articles sold at wholesale." Held, a contract of sale, and not of agency and guaranty ; that, in the event of a sale, B. would be immediately liable for the stipulated price ; and that he could not claim the expenses incurred by him for storage, freight, Ac.*" * The following case is reported in the Philadelphia Legal Intelligencer : McFee v. Petrie. Opinion by Hare, P. J. "This was an issue arising out of a sheriiTs interpleader. The claimant, McPee, furnished yarn to "William Hill, the defendant in the execution from which the interpleader grew, to be manufactured into shawls and cloakings, which were, when 1 Marsh v. Wickham, 14 John. 167. 2 McArthur v. Wilder, 3 Barb. 66. ' Bryant v. Crosby, 36 Maine, 562. See chap. 3. ' Depew V. Keyser, 3 Duer, 335. 26 LAW OF SALES OF PERSONAL PROPERTY. § 2. But, on the other hand, in general, when the iden- tical thing delivered is to be restored, though in an altered made, to be forwarded and sold by Hill, in his own name, to a firm in New York, upon whom he was to draw for the price. The draft was then to be delivered to McFee, who was to collect the amount, pay him- self for the yarn, and hand the balance over to Hill. The profits, if any, were to belong to Hill; the loss, if a loss occurred, to be his; and he was to pay the wages of the men and all other charges incident to the process of manufacture. All the circumstances indicating or constituting ownership were, there- fore, united in Hill. He conducted the business and paid the hands. The goods were in his possession when seized ; they had been sold, and were to be delivered by him ; he was to have the profit, or undergo the loss. It was indeed said, that as McFee furnished the materials, the product might be his ; and the case was likened to that of cloth sent to a tailor, or leather to a shoemaker. The comparison fails at the outset, because yarn manufactured into shawls loses its identity in all respects, which cannot be alleged of leather made into shoes, or cloth into a garment. The test of ownership in every such case is not who furnishes the mate- rials, but who pays for the work ; and if the agreement were, that the tailor should sell the coat, and keep the proceeds, after paying for the cloth, the coat would belong to him. Tried by this rule, there can be no doubt in whom the right of property was in this instance ; for as the whole cost was to be borne by Hill, except the price of the yarn, and that was to come out of a sale made by him, there was nothing to dis- tinguish the case from the ordinary one, where goods are manufactured by one man from materials furnished by another, except the agreement that the draft drawn for the price should be transferred to McFee as a means of security or payment. If this stipulation had been carried into effect McFee might have retained his debt out of the draft, subject to the duty of accounting for the residue to Hill, but it obviously did not give him a right to the goods, even as against Hill, and still less as against Hill's creditors, who were, in any aspect of the case, entitled to the ad- ditional value which the yarn had gained by being made into shawls. The whole seems to have been an ingenious device to give McFee a lien upon the price of the yarn, which being unattended with possession, was constructively fraudulent under the law of Pennsylvania, which will not permit a debtor to gain a false credit by the appearance of ownership without the reality, and still less to conceal the reality of ownership under a pretence that the title is in some other person. The means by which creditors are hindered and delayed are various, all tending to dis- credit the maxim that "honesty is the best policy," by giving the use of covert and undue means an advantage over the open and customary course of dealing. If the method taken in the present instance were allowed to prevail, there would be nothing to prevent a manufacturer WHETHER A CONTRACT IS A SALE OR A BAILMENT, 27 form, the property is not changed. Thus, where A. allows B. to use hay, the manure made therefrom to belong to A., a sale of the manure by B. is invalid.' So where, upon a dec- laration in general assumpsit for goods sold and delivered, the evidence showed a consignment for the purpose of sale, and a sale of a portion of the property ; this was held to be a special bailment, and the action did not lie.^ So where liquors are delivered by liquor merchants to a tavern-keeper, to be by him retailed at his bar, the title to remain in them until sold ; the liquors are liable to be levied on and sold under execution against them.^ So, where a bill of sale authorized the vendee to take possession of the property at pleasure, and account for it to the owner at the auction price ; it was held that the vendee was accountable only for that portion of the property which he took, and not even for this, unless his conduct discovered an intention to make it his property, or gross negligence sufficient to render him accountable.'* So where the contract pro- from reaping the profits of his business, while placing the goods from which they were derived, beyond the reach of execution for his debts.'' Judgment for defendant on the point reserved. * Where the consignee of goods is entitled to the proceeds only ot goods to be sold by him, the title to the goods remains in the consignor. Bonner v. Marsh, 10 S. & M. 376. Where goods are shipped on board a steamboat, there being no ooa- tract of purchase between the consignor and consignee, a delivery of a bill of lading by the shipper to the steamboat, for the consignee, is not a delivery of the goods which vests the property in them in the consignee. Otherwise, if there was a contract of purchase, and the delivery of the bill of lading was intended as a delivery of the goods to the consignee. lb. Where goods are consigned, with authority to the consignee to apply the proceeds of sale to discharge a debt due from the consignor to the consignee, after the goods come into the actual possession of the con- 1 Moore v. Holland, 39 Maine, 307. See Brwin v. Clark, 13 Mich. 10; Mallory v. Willis, 4 Comst. 76; Gregory v. Striker, 2 Denio, 628; Lofft, 341 ; Eldridge v. Benson, 7 Cush. 485. ^ Colman v. Price, 1 Blac. 303. » Bonesteel v. Flack, 41 Barb. 435. * Durkee v. Leland, 4 Verm. 612. 28 LAW OF SALES OF PERSONAL PROPERTY. vides, that agents of the party receiving the goods for sale shall receive ■ them directly from the other party, this fortifies the construction of the transaction as a bail- ment. Thus A. agreed w^ith B. to furnish such responsible persons as B. should designate, to act as agents for the sale of certain books, with the books at a specified price ; supplying their orders, and receiving their remittances, and placing all moneys thus received, above the amount of the agreed price, to B.'s credit ; and, at the end of the labors of such agents, to receive all the books returned by them uninjured, and credit them at the cost price to B. ; B. guaranteeing to A. the security and full payment of the agreed price for all books thus furnished. Held, a bailment, not a sale, of the books thus supplied to agents. And the transaction is not turned into a sale by the pro- vision, that the party delivering the goods for sale shall credit the receiver vs^ith all returned.' § 3. Contracts of sale or return, or by which the article is to be returned unless sold, seem to occupy an interme- diate ground between a sale and a bailment. Such con- tracts have been adjudged legally valid.^ The property in the goods passes to the purchaser, subject to his option to return them within a fixed time, or in a reasonable time ; and, if he fails to do so, the sale becomes absolute, and the price may be recovered in an action for goods sold and delivered.' The rule," sometimes stated, that de- livery of goods, to be returned, or something instead of them, at the option of the receiver, constitutes a sale, has been held not to apply to factors and agents.*" signee, he has a claim on them to the extent of his debt, as against other creditors of the consignor ; but, while the goods are on the passage, they may be seized for any other debts of the consignor. lb. " Recognized in Hurd v. West, 7 Cow. 752 ; Jones, 102. •> By a written contract between A. and B., A. was to furnish B. from ' Eldridge v. Benson, 7 Cash. 486. 2 Meldrum v. Snow, 9 Pick. 444; Moss v. Stone, 5 Barb. 616. 5 Jameson v. Gregory, 4 Met. (Ky.) 363 ; GrifSn v. K.eith, 1 Hilt. 68. WHETHER A CONTRACT IS A SALE OR A BAILMENT. 29 time to time with goods, to be sold for cash, lumber, country produce, &c. ; but not otherwise. The goods or the proceeds of them to be held by B. as A.'s property, the former to be charged to B. on the books of A., and all the articles received in exchange credited, and the business to be carried on in B.'s name. No provision was made for compensation to B. The word agent, appeared on B.'s sign, and his agency was well known. The goods in possession of B. having been attached by a credi- tor of B., whose demand accrued before they came into his bands, and the jury having negatived fraud, held, A. should have judgment against the attaching oflScer. It was suggested that the case might have been different had the vendee originally owned the goods and sold them to the vendor. Blood v. Palmer, 2 Fairf. 414. A sale on trial falls naturally under this head. Such sale is not abso- lute; but a trial for two years is held a waiver of the condition, and the buyer must actually try the article ; — as in case of a force-pump. Donald V. Pierson, Law Keg., May, '63, p. 441, N. Y. See "Washington v. John- son, 7 Humph. 468. Parol evidence is not admissible, that, contemporaneously with a bill of sale, the vendor agreed to take back the articles and repay the money within a certain time. Fales v. McKeon, 2 Hilt. 53. Agreement in writing between A. and B., that A. should carry on the farm of B., and receive one-half the produce in payment for his services, B. to furnish all necessary seeds, and A. to pay for one-half of the seeds sown, or return one-half of them after harvest at his option ; B. to sup- ply A. with grain till he could harvest the crops, and to receive the same quantity at harvest, or the value in cash. B. accordingly furnished A. with rye and oats, a part of which was sown, and the rest used by A. ; also with a quantity of hay. A. raised oats and sold them. B. brings indeh. assump. against A., the contract still remaining in force. Heldj he could not recover for the rye and the first parcel of oats, because these were included in the contract, and A. had the right to pay for them in kind. But he might recover for the hay, which was not included in the contract, and for one-half of the last parcel of oats, because, by the sale, A. had disabled himSelf from delivering them in kind. Shearer v. Jew- ett, 14 Pick. 232. The plaintiff built a barn upon land mortgaged to the defendant, and in possession of the mortgagor ; under an agreement that the latter might pay for the barn, or permit the builder to remove it. Held, the use of the barn by the mortgagor for a number of years was evidence of an ac- ceptance, and the builder had no right to remove it. Walker v. Blake, 37 Maine, 373. Where a horse is purchased to be returned at the end of two days if he does not answer the description of him, the right of returning ceases at the end of that time, the sale becomes absolute, and the buyer is liable, though the horse prove inferior to the representation. Moore v. Pierce, 1 Jones, 131. Where the vendee is allowed until the end of the year, to determine 30 LAW OF SALES OF PERSONAL PKOPERTT. ■whether a conditional sale shall become absolute, he may make his elec- tion at any time before the expiration of the year, and is not confined to the last day of the year only. Reese v. Beck, 24 Ala. 651. In a sale, what is termed giving a refusal of property to a party who may take it or not, within a certain time, unless upon some other con- sideration, or under seal, is not a valid contract in law, for want of con- sideration. Faulkner v. Hebard, 26 Verm. 462. Where one receives goods to be accounted for at certain prices, or re- turned on demand, there is no sale till a demand or failure to return. Bolles V. Stearns, 11 Gush. 320. A brewer sold a quantity of ale, in barrels bearing his brand, to a re- tailer, on an agreement that the barrels should be returned, and, if not, paid for, at two dollars per barrel. Held, merely a liquidation of dam- ages if they were not returned, not a sale of the barrels. Westcott v. Thompson, 18 N. Y. (4 Smith), 303. In general, the delivery of an article at a fixed price, to be paid for or returned at the receiver's option, constitutes a sale. But where the party receiving the property, by a writing given by him at the time, admits that the title is in the paity delivering it, and agrees that it shall so con- tinue till the price is fully paid, and meanwhile to use the property in a particular way; he is a mere bailee, and is answerable for a conversion if he uses the property differently, Crocker v. Gullifer, 44 Maine, 491. A contract by which a yoke of cattle was delivered to a hirer, "to keep and use in a farmer-like manner for one year," and then to be returned; with privilege to pay a price named and keep them ; the hire agreed on being delivered at the time ; is a bailment and not a conditional sale. Chamberlain v. Smith, 44 Penn. 431. R. agreed with the plaintiff to sell merchandise in the store where E. had formerly carried on the same business ; to sell such goods as the plaintiff should place there, to contract no debts against the plaintiff without special permission, to be personally liable to the plaintiff for all bad debts contracted in such business, to give up possession of the store, and pay over the avails when required; the plaintiff' agreeing to pay E. all the profit on sales above ten per cent., after paying cost and trans- portation, and the plaintiff having the right to close the business at any time, and R. to buy the goods on hand or any part of them at the plain- tiff's option, at cost and transportation, and that the goods during the continuance of the business and transportation should be at R.'srisk. Held, in the absence of fraud, the goods purchased by the plaintiff, and delivered into R.'s possession, did not become thereby the property of R., liable to his creditors. Snook v. Davis, 6 Mich. 156. CONDITIONAL SALE. 31 CHAPTER III. CONDITIONAL SALE. 1. VARJOTJS FORMS Or CONDITION IN CONNECTION WITH SALE. 2. PAYMENT OP PRICE AS A CONDITION — WHETHER A TITLE VESTS BB- rOKB PATMENT^RIOHTS' OP PURCHASERS, CREDITORS, ETC. — CON- DITIONAL OR UNCONDITIONAL DELIVERY. 6. MISCELLANEOUS POINTS. 8. SALE OP MATERIALS TO BE MANUFACTURED. 10. CONDITION IN PAVOK OP THE VBNDKK. 11. IN PAVOR OP A SURETY. 12. SALE UPON TRIAL. 15. QUESTIONS OP TIME IN REFERENCE TO CONDITIONS — ARRIVAL OF GOODS. § 1. A SALE may be conditional. The condition may be a precedent one; or the contract executory; not, therefore, strictly speaking, a sale, which is an executed agreement. Upon this point it is held, that a mere promise to sell, when certain conditions are complied with, does not con- fer a title, but only creates an obligation, which may be en- forced by an action for specific performance or for dam- ages.' Again, the condition may be one, not by virtue of which, on fulfilment, the buyer is to acquire an absolute title ; but one by whose performance the seller may re- gain a title which he has conditionally transferred. It is however, foreign from the plan of the present work to consider a sale of this description, which is in the nature of a mortgage." The conditional sale to be here noticed * On a sale of a stock of goods, evidence of the taking of an inventory, of the acceptance of the warehouse keys, and other acts of ownership on 1 Knox V. Payne, 13 La. An. 361. See chap. 5.- 32 LAW OF SALES OF PERSONAL PROPERTY. is an executed sale, but made liable to be avoided by non- fulfilment of a prescribed condition ; ordinarily payment of the price. § 2. It is stated by an ancient authority, that a contract or sale of a chattel personal, as an ox or the like, may be upon condition, and the condition doth always attend and wait upon the estate or thing whereunto annexed ; so that though the same do pass through the hands of a hundred men, it is still subject to the condition.' Thus, where corn was delivered, to be paid for on delivery of the last load, and, as delivered, was placed in a heap with other corn of the purchaser in the seller's presence ; payment not being made, held, the seller might maintain replevin, not- withstanding the intermixture." So A. purchased from the part of a purchaser, are admissible as proving to the jury delivery, and taking the case out of the statute of frauds. Gray v. Davis, 10 N. Y. (6 Selden) 285. An agreement to convey property on payment of money and performance of conditions, followed by delivery, constitutes a conditional sale, and not a mortgage. Rowan v. Union, &c., 36 Vt. 124. By written agreement with B., A. recited that he had purchased property at specified prices, and stipulated that B. might redeem any part of the property at a certain price. The contract was preceded by a proposition for a loan made by B. to A., which was not accepted, but, in- stead thereof, A. took upon himself liabilities of B. to a certain amount, and received B.'s notes for the difference between such amount and the value of the property as estimated in the agreement, which estimate ap- proximated to the actual value. There was no evidence of fraud, impo- sition, or unfairness on the part of A. Held, a conditional sale, and not a mortgage. Swift v. Swift, 36 Ala. 147. So an instrument of sale, providing that the ownership is to remain " exclusivel}' vested" in the seller, and not to be vested in the buyers, un- less, prior to a certain date, they fully pay the purchase-money. Plum- mer v. Shirley, 16 Ind. 380. 1 1 Shep. Touch. 118, 119, 120. See Caggill v. Hartford, 3 Gray, 445; 3 Duer, 20 ; Goodwin v. May, 23 Geo. 205 ; Hoover v. Wells, 33 Miss. 536; Dannefelser v. Weigel, 27 Miss. 45; Baker v. Hall, 15 Iowa, 277; Ferrier v. Wood, 4 Eng. 85; Herring v. Willard, 2 Sandf. 418; Parvis V. Eoberts, 12 Ind. 268 ; Davis v. Bradley, 24 Verm. 55; Hart v. Carpen- ter, 24 Conn. 427; Lane v. Borland, 2 Shep. 77; Pairbank v. Phelps, 22 Pick. 535. ' Henderson v. Lanck, 21 Penn. 359. CONDITIONAL SALE. 33 B. a COW, on condition that, if A. should pay for her, she should become his property, otherwise to remain the prop- erty of B. A. took possession of the cow, used her three or four years, and paid a part of the price, which B. ac- cepted ; but he neglected to pay the residue, though re- quested. The son of B., by his order, took possession of the cow, and A. brings trespass against him. Held, the property had not vested in A. and the action did not lie.' So when there-is an express or implied agreement that the title is not to vest until payment or delivery of notes ; a delivery will not pass the title until this condition is per- formed.^ And where the condition was delivery of a note with surety, and, upon objection made, the buyer inserted the words, "with interest;" held, the surety was dis- charged, and therefore the title did not pass.^ § 3. One in possession of personal property, by virtue of a conditional sale, can convey no title prior to satisfaction of the condition.'' Thus where A. purchased a mare of B., and it was agreed in writing upon the note, which A. gave for the purchase-money, that B. should keep posses- sion of the mare till the note was paid, and A. sold the mare before he paid the note ; held, no title passed to the vendee, as none had vested in A., and the vendee was liable, after demand, in trover to B.^ So A. exchanged a colt with B. for a mare, on condition that if, after trial and inquiry as to title, A. was satisfied, then the exchange was to be permanent ; otherwise A. was to take the colt wherever he could find him. B. sold the colt to 0. with- out notice of the condition. A. learned that B. had stolen the mare, and gave her up to her rightful owner, and then notified C. of the condition, and claimed and took the colt. Held, A. had never parted with his title, and C. could not 1 West V. Botton, 4 Verm. 558. 2 Hotchkiss V. Hunt, 49 Maine, 213. » Kountz V. Hart, 17 Ind. 329. * Couse V. Tregent, 11 Mich. 65. ' Ballew V. Sudderth, 10 Ired. 176. 34 LAW OF SALES OF PERSONAL PROPERTY. maintain trover.' So an agreement was made between a railroad company and the plaintiffs, that the plaintift's should deliver to the company a certain quantity of rails; that the company should lay them in a designated part of their track, and, upon payment of a specified price, the rails should become the property of the road ; but, until such payment, should remain the property of the plaintiffs. The rails having been thus laid, held, they did not become the property of the company until paid for, and the plain- tiffs were entitled to hold them against subsequent mort- gagees of the road, with notice.'^ So in case of delivery of a sewing machine, with the agreement to "keep and carefully use and not remove from the county, and return it in three months ; provided, if on or before that time I pay," &c., a bill of sale to be given. The buyer having soon sold the machine, held, replevin would lie against the second purchaser.^ So in case of a contract : " I have bought of A., two steers, for which I agree to deliver be- fore March, &c. ; said A. holds said steers, as his property, until said delivery:" held, this did not pass the title, though the steers were delivered at the time, and sold to a bond fide purchaser.' So where cattle were wrongfully sold by a bailee, without payment of the price; held, the o^\'ner could, after the year, follow and retake them wherever found, though from a purchaser for value.' So a sale and delivery of a stock of goods to a shopkeeper, to be put into his shop for sale, but upon condition that the ■ But where, a company being engaged in building a bridge, materials were delivered on the company's ground, or another place designated by their agent, and paid for by the company in pursuance of the agreement; held, on the work being abandoned by the contractor (a contingency provided for in the contract), they became the prqperty of the company. Pusey V. Potomac, &c., 8 Md. 470. ' Stevens v. Ellis, 48 Maine, 601. » Haven v. Emery, 33 N. H. 66. ' Dunlap V. Gleason, 16 Mich. 158. * Thomas v. Winters, 12 Ind. 822. ' Chamberlain v. Smith, 44 Penn. 431. CONDITIONAL SALE. 35 title shall not vest in him until payment of the price, does not pass a title to him, before such paj'ment, which he can, as against his vendor, transfer to a purchaser of his whole stock of goods, including so much of the first stock as re- mains unsold ; though eight months elapse before such second sale, and the second purchaser has no notice of the condition. And the original vendor, after notice to the second purchaser that he owns part of the goods, may maintain an action against him for their value, without more particularly designating the articles claimed by him.^ So merchandise was purchased from the plaintiffs by B., in his own name, for W., one of the defendants ; and, on his order, was sent to the vessel of C, the other defendant, with whom "W. had a freight contract. The terras of sale were for cash on delivery, the sellers to keep the ship's receipts until payment. During the shipment the ship's agents signed and delivered to W. a bill of lad- ing, on which he obtained an advance. W. had no indicAa representing possession or ownership, when the bill of lad- ing was given him. A custom of the port was proved, to deliver bills of lading for merchandise, shipped for trans- portation, only to the party holding the receipt of the master or owner of the vessel. Held, the vendors did not lose their title, because they did not, while the goods were going on board, send word to the master or owners of the vessel that the goods had been sold conditionally, and that no bill of lading must be delivered to any other party until payment ; and judgment was given for the plain- tiff's.^ § 4. And a sale and delivery of a chattel, on condition that the title shall remain in the vendor until payment of the price, vests no title in the purchaser before such pay- ment, which will pass, as against the vendor, by a sale on execution against the purchaser.' Thus A. sold a wagon • Burbank v. Crooker^ 7 Gray, 158. 2 Blossom V. Champion, 37 Barb. 554. ' Blanchard v. Child, 7 Gray, 155. 36 LAW OF SALES OF PERSONAL PROPERTY. to B. for a certain sum. Possession was delivered, but at the same time it was agreed, in writing, that the title should remain in A., until payment within a certain time. B. did not thus pay, and sent word to A. to come and take his wagon ; subsequently it was attached as the property of B., and taken into possession by the ofScer. Held, a conditional sale, and that A. might maintain trover against the officer.' So a sale was made at four months, upon notes satisfactory to the seller. A clerk, at the appointed time, delivered the goods to the cartman of the purchaser, and another clerk, soon after, called on him with the bill of parcels, containing the words, "at four months, for satisfactory security." The purchaser inquired what kind of notes would be satisfactory, and he replied, "just what the bill calls for." He called again, and the purchaser then said he had not fixed on the paper, but proposed the notes of a third person, and the vendor said he would inquire about him. Before time was given for further inquiry, the purchaser stopped pay- ment, and no note was ever given. In replevin by the seller against a sheriif, who seized the goods on execution against the purchaser ; held, there was evidence for the jury of a conditional sale and delivery.^ "While, on the other hand, before payment, the property may be seized by a creditor of the seller.^ § 5. But the distinction is taken, that, if the vendor trusts to the vendee's promise to perform the conditions of sale, and delivers the property, the title passes. But if performance and delivery are understood to be simultar neous, possession obtained by artifice and deceit does not pass a title.^ (See Conditional Delivery.) Or, where the 1 Buson V. Dougherty, 11 Humph. 50. See Herring v. Hoppock, 16 N. Y. 409, 3 Duer, 20; Patton v. McCave, 15 B. Mon. 655. 2 Draper v. Jones, 11 Barb. 263. ' Tomlinson v. Collina, 20 Conn. 364. * Harris v. Smith, 3 S. & K. 20. See Kichardson v. Kimball, 20 Maine, 483. CONDITIONAL SALE. 37 seller, relying on the buyer's promise to pay on delivery, delivers the property absolutely, the title passes, vi^ithout payment. Otherwise, where the seller does not rely on such promise, and claims the property so soon as he learns that the buyer cannot pay for it.' Thus in case of a sale of goods, for which a note was given in payment, which expressed that, if not paid at maturity, the goods sold should be turned out as security ; the buyer sold the goods to a bona fide purchaser, from whom the original vendor took them. Held, he was a trespasser.^ And, if a vendee obtain possession, without complying with the conditions, and the vendor lie by, and make no complaint in a reasonable time ; he consents to the absolute transfer of the property.^ " § 6. Where property is sold and delivered, with a con- dition that the title shall not vest in the vendee until the price is paid ; the right of the vendor to the property will not be aftected by his recovering jlidgment against the vendee in an action of book account for the price, the judgment remaining unsatisfied, nor by the fact, that, previous to the judgment being recovered, the property • Molasses was sold, the price payable on delivery. The vendees ob- tained its delivery on board of their vessel, when hopelessly insolvent, and sent it out of the country. Held, if a note, given by them some six weeks before the delivery, was purely an accommodation note, or if upon demand for payment the vendees waived its return ; the jury would be justified in finding that the sale was conditional upon payment of the price ; otherwise if it was an advance upon the molasses, or gave the ven- dees the right to appropriate from the proceeds thereof enough to meet it, unless there was a waiver of these rights by the vendees. Also that the sale must be conditional as to the whole of the molasses, or as to none. Held, also, that, since the molasses hacf left the Cuban port be- fore demand and refusal of payment, the laws of Cuba had no bearing in this suit, except upon the question of fraud. Pequeno v. Taylor, 38 Barb. 375. ' Henderson v. Lanck, 21 Penn. 359. §ee Wider v. Cook, 31 Maine, 840; Draper v. Jones, 11 Barb. 263; Foley v. Mason, 6 Ind. 37. * Lewis V. Palmer, Hill & Denio, 68. ' Backentoss v. Speicher, 31 Penn. 324. 38 LAW OF SALES OF PERSONAL PROPERTY. was left by the vendee in the possession of the vendor, v^ithout the vendor's consent.' § 6 a. Where possession of the property is dehvered, upon condition that the title shall not pass until payment of the price, which is also to be paid by certain instal- ments ; the vendor may reclaim the property for breach of condition, and the portion of the price paid will then be forfeited." § 7. Upon conditional sale of a mare, the seller owns colts foaled in the mean time.^ § 8. A very familiar case of conditional sale, is where materials are furnished by one to another, to be wrought or manufactured by the latter, who, after the manufac- ture, is to become owner of a certain portion of the pro- duct. In such case, the vendee cannot pass a title to the materials as against the vendor, more especially to a pur- chaser with notice.' Thus, A. agreed to cut all the timber » By a written agreement between A. and B., the former was to give the latter three horses, and the gear belonging to them, for $200; in consideration of which, B. agreed to work out the amount by carting, at seventy cents per thousand, till the property was paid for, A. to pay one- half the amount earned by B. for carting during the season, till the prop- erty should be paid for. The horses, &c., to remain the property of A. till worked out or paid, any agreement to the contrary notwithstanding. B. to attend to the carting, and furnishing carts necessary for delivering brick to buildings and wood to kiln, at the above price, to the brickyard. At the end of the season, January 1, 1836, whichever party is in debt upon settlement, to be paid in cash. If B, refused to cart when called on, the horses, &c., to be returned, and the agreement void, and B. to forfeit the balance of cash remaining with A. as collateral. Held, only the right of possession passed to B., till payment of $200 by carting; and this right revested in A. whenever B. refused to pay the price agreed on ; that B., afte» paying "by his labor for the horses, &c., could in no event forfeit them ; but if, before such paj-ment, he refused to cart for A., he was to.lose the possession, and forfeit what he had paid. Huhn v. Long, 2 "Whart. 200. See Hunter v. Warner, 1 Wis. 141. 1 Boot V. Lord, 23 Verm. 568. See Stauts v. Hodges, Hill & Den. 211. ' Buckmaster v. Smith, 22 Verm. 203. 2 See Gaminage v. Alexander, 14 Tex. 414; Barber v. Lyon, 22 Barb. 622. See also p. 58. CONDITIONAL SALE. 39 from B.'s land, and carry it to B.'b mill, to be sawed into boards ; A. to have^ a certain portion of tbe boards, but B. to remain tbe owner till certain debts of A. were paid, and tbe wbole agreement fulfilled. Held, this was a valid contract, and tbe sale of a part of tbe logs, after being taken from tbe land, to one baving notice of its terms, passed no title as against B.' ' § 9. So, wbere tbe manufacturer bond fide agrees to pay a certain price for tbe material in a certain time, but, until payment, tbe material, wbetber manufactured or otberM'ise, to remain tbe property of tbe party who fur- nishes it ; tbe vendee, before such payment, acquires no interest which is liable to be taken by bis creditors. Thus A. delivered to B. a quantity of wool, taking tbe follow- ing receipt : " Received, &c., wool to manufacture into cloth, &c., tbe wool to be reckoned at seventy -five cents per pound, amounting, &c., which amount I agree to pay in six months. Tbe wool, before being manufactured, after being manufactured, or in any stage of manufactur- • A written contract set forth, that A., upon the payment to him, his heirs or assigns, of $18,000, agrees to sell to B. certain real estate " owned by C of the city and county of Philadelphia," and B. agrees to pay A. the sum named in instalments ; " that the logs cut on the premises are all to be included in the above purchase and sale, subject, how- ever, to the payment by the said B. in cash, on demand, in addition to the purchase-money aforesaid, of the cost of cutting and delivering the same where they are now;" and B. agrees to convey to one W., any land which he may have improved or built upon under an agreement with C. It was further agreed, that A. should hold the logs on the premises at the time of the contract, and the lumber from the same, and the logs which B. should afterwards cut, and the mill, fixtures, &c., as security for the payment of the instalments, and no timber to be cut on the premises during the pendency of the agreement, except sufficient to stock the mills on the premises. Held, that under this contract no por- tion of the subject of it vested in B. until full payment of the whole pur- chase-money, and that, until such full payment, it was not liable to at- tachment for B.'s debts, and a party deriving title by purchase from A. could hold against B.'s creditors. Tyler v. Strang, 21 Barb. 198. I Waterston v. Getchell, 5 Greenl. 435. 40 LAW OF SALES OF PERSONAL PROPERTY. ing, to be the property of A., till the above amount is paid." The transaction was proved to be bona fide. "Wool received into the manufactory from different persons was usually kept distinct, while in the process of manufacture. Held, that payment by B. was a condition precedeiit to his becoming owner of the wool, even with regard to his creditors ; that thei-e was no fraud against creditors, and none was intended, nor was there any concert or decep- tion ; that the creditors of B. had no reason to suppose him the owner of the property, unless they were notified of the above transfer ; and, in that case, they must also have been acquainted with the particular terms of it.' § 10. A condition may be provided for the benefit of the vendee as well as the vendor, and the latter will be strictly bound by it, even though the breach does not afifect the vendee's title to the property. The vendor is estopped to deny that his own act, done in violation of the condition, is invalid.' Thus a town in Massachusetts, by virtue of the statute of 1818, ch. 106, sold to one A. the right of fishing in a certain river, upon condition that they should sell no further right. The town afterwards sold another right of fishing to B., upon condition to be void, if the town could not lawfully make such sale. A. refused to accept and pay for the privilege sold to him, but united with B. in carrying on the fishery under B.'s right. Held, although the sale toB. was void, the town could not maintain an action against A. for the price which he agreed to pay. The condition in the convey- ance to A. was intended for his benefit. The town, hav- ing pretended to convey the privilege to B., were estopped to deny their power so to do.^ § 11. Not only the vendor, but a third person, who has become responsible for the price, may avail himself of a condition in the sale, and, by taking a bill of sale from the 1 Barrett v. Pritohard, 2 Pick. 512. See Ayer v. Bartlett, 9 Pick. 156. 2 Taunton v. Caswell, 4 Pick. 275. CONDITIONAL SALE. 41 vendor after breach of condition, may maintain an action for the property. Thus A. sold a quantity of wines to C. as the agent of B. & Co., giving him the following writ- ing : " Sold C. twenty pipes wine, at $1 per gallon, at six months, payable in P., or, if his principal prefers cash, three per cent, discount; the acceptance to be perfectly satisfactory. Principal, B. & Co." Upon the importunity of C, the wine was delivered on this express condition, and C. agreed that B. & Co. should comply with the condi- tion. The contract was not fulfilled. B. & Co. sold to the defendant, and became insolvent. C, who had pledged himself for fulfilment of the contract by B. & Co., paid the sum due A., and took a bill of sale. C. brings re- plevin for the property. Held, the sale was conditional ; B. & Co. gained no title till payment and delivery, or till satisfactory paper w^as given ; and the action was main- tainable.' § 12. Where a cotton-gin was taken wpon trial, in the spring, with an agreement to purchase, if it answered its purpose ; and notice was sent in October following, by the party who took it, that it would not perform, and that he would not keep it : held, he had made his elec- tion seasonably.^ § 13. A sale, on condition that the veudee may return the article in a specified time, becomes absolute, if the vendee so misuse it during that time, as materially to impair its value ; and the vendor may recover the price in general assumpsit for goods sold.' § 14. When a horse is sold conditionally, to be returned if the vendee should be dissatisfied with him on trial, the sale will become absolute by keeping the horse beyond a reasonable time.* § 15. A condition in favor of the vendor will be some- ' Copland v. Bosquet, 4 "Wash. C. C. 588. « Hall V. Meriwether, 19 Tex. 224. s Ray V. Thompson, 12 Cush. 281. * Quinn v. Stout, 31 Miss. 160. 42 LAW OF SALES OF PERSONAL PROPERTY. times strictly construed, as to time. Thus, where A. sold to B. a quantity of coflee, "provided it is not sold iu ISm York ;" held, the sale was absolute, unless the coffee was then sold ; the jiroviso did not apply to future sales.' § 16. But a condition, relating to the arrival of the goods sold, will receive a reasonable and liberal construc- tion in favor of the vendor." Thus, an agreement was as follows : " I have this day sold, on arrival, one hundred tons barilla, in your Bon Fim from Teneriffe." By acci- dent, and without fraud or fault of the vendor, the ship arrived without the barilla. Held, this was a conditional contract, and the condition on which it was to bind had failed ; though, if the vendor had been guilty of any fraud, an action on the case would lie against him.' So, in case of an agreement to deliver certain goods upon their arrival, to be delivered with all convenient speed, but not to exceed a certain day ; it was held, that their arrival in time for delivery on that day was a condition precedent of the con- ■ In reference to both parties, a sale to arrive is conditional ; and, if the article contracted for do not arrive, either from the ship's being lost or other cause, the contract is at an end. Thus, where there was a sale of pig iron No. 1, on board the ship Sid- dons, then at sea, and she arrived with iron, but not No. 1, consigned to the seller ; held, that this was a sale of goods to arrive, and, the article contracted for not having arrived, neither party was bound by the con- tract. Shields v. Pettee, 2 Sandf. 262. A contract of sale of goods to arrive, at the price ruling at the time of arrival, does not pass any present property in the goods. Benedict v. Field, 4 Duer, lo4. A sale was made of an invoice of sugar (700 tons, more or less), per ship A. K., to arrive on or before a day named. The vessel had sailed before the sale, and arrived after the day named, with part of the sugar, the rest having been lost by a sea peril. Held, the buyer was entitled to what did arrive sound, at the price named, if he was willing to waive the delay ; that the seller was hound to deliver only so much as arrived, the stipulated amount having been shipped on the vessel. Havemeyer v. Cunningham, .35 Barb. 515. 1 Blydenburg v. Welsh, Bald. 331. 2 Hawes v. Humble, 2 Camp. 327 n. See Fischell v. Scott, 28 Eng. L. & Eq. 404. CONDITIONAL SALE. 43 tract ; and, if they did not thus arrive, without any fault of the vendor, the contract was void, and no action would lie against him for non-delivery.' And, on the other hand, in favor of the vendor, a sale will not be regarded as con- ditional upon the arrival of the goods at the vendee's plaoe of residence, although the contract provides for payment upon such arrival ; if other terms of the contract contem- plate an immediate change in the title. Thus A., residing in Naples, sent an order to B. at Birmingham, to forward to him certain goods, upon insurance being effected on them, with three months' credit from the time of arrival. B. marked A.'s initials upon the goods, sent them by canal to Liverpool, and efl'ected insurance upon them as the property of A. At Liverpool, the agent of A. delivered the goods to the owner of a ship bound to IS'aples. By the negligence of the ship-owner, they were damaged, and A. brings an action against him upon this ground. Held, the action was rightly brought. The goods became the property of A. when sent from Birmingham, and their arrival at Naples was not a condition precedent of pay- ment. If it were, the insurance would have been useless. The true construction of the order was, that, if the goods should reach Naples, A. should have three months' credit from their arrival. If not, for a reasonable time after their arrival at Naples became impossible. Unless the goods belonged to A., no suit would lie upon the policy. B. could not maintain one, because they were represented as A.'s property. Nor was A.'s agent alone entitled to bring an action, because the goods were receipted for to him by the defendant ; for this created a liability in law to the principal : although some difficulty niight have arisen on this point, had the agent himself set up an ad- verse interest."^ • A contract was made in New York, for the sale of five hundred bales of cotton, to be delivered upon its arrival at New York from New Orleans, 1 Alewyn v. Pryor, Ky. & M. 406. 2 Pragano v. Long, 4 B. & C. 219. 44 LAW OF SALES OF PERSONAL PROPERTY. CHAPTER IV. EFFECT OF A SALE BY ONE NOT OWNING THE PROPERTY SOLD. § 1. By the English law, a vendee of personal property may, under certain circumstances, gain a better title to it than the party had of whom he bought. This is where sales are made publicly and loith notoriety, or in market overt." 8ueh sales ai-e good, not only between the parties, but as to all other persons ; although the vendor was not the owner of the property sold.*" The precise requisitions, any time between the date of the contract and the first of June foUowing. Payment in cash, on delivery. The cotton to be weighed and two per cent, tare allowed. Held, this was a mere executory contract, which did not pass the property, and that the proposed vendor was not bound to deliver the cotton, unless it arrived in New York at the time appointed. The specification as to time merely fixed the period to which the liability of each party was to be limited ; but did not constitute an agreement to deliver the cotton at all events. The cotton was to be brought to New York, weighed there, and paid for by the vendee, after making the stipu- lated deduction. The vendor might retain it for the purpose of weigh- ing, and until it should be paid for. Had the property been lost between New Orleans and New York, or at the latter place before weighing, the vendor must have borne the loss. Upon these grounds, held, assumpsit for non-delivery of the cotton did not lie against the vendor. Eussell v. Nicoll, 3 Wend. 112. • In a late case termed a Saxon institution. 32 III. 411. By the laws of Athelstan and other Saxon kings, all sales must be in market overt, or before at least two witnesses. See Ancient Laws and Institutes; The Mirror. •• See 43 Penn. 508. The following, though more curious than prac- tically useful, may be given as some of the points settled in England in relation to sales in market overt. A sale in market overt, with the excep- tion of the city of London, must take place on a day and at a place assigned or set apart, by charter or prescription, for the market, in the SALE BY ONE NOT OWNING THE PROPERTY SOLD. 45 however, relating to market overt, are of little compara- tive importance in American law, because the whole doc- trine may be considered as in the United States obsolete ; and the universal maxim, of our jurisprudence is said to be, nemo in alium potest transfei-re plus juris quam ipse habet.'' So, it is said, the owner of property can be divested of it, only by his own consent, or by operation of law ;' unless, perhaps, the case may be regarded as an exception, where one is allowed by the owner to have possession of the thing, and of the indicia documents relative to it."" ^ daytime, between sunrise and sunset, and be made wholly in the market, and not merely begin or end there. In pleading a sale in market overt, it need not be alleged that the mar- ket was in any certain person, or that it was not held on a Su,nday, — the prescription being to hold a fair there every year upon the 29ih of August; or that any toll was paid, or that the seller had a property in the goods. Comyns v. Bayer, Cro. Eliz. 485. A fair holden upon the Sunday is well enough, although by 27 Hen. 6, c. 5, there is a penalty inflicted upon one who sells on that day ; but it makes a sale not void. lb. A public sale of a horse, at a repository for sale of horses, is not in market overt. Lee v. Kobinson, 87 Eng. L. & Eq. 406. A shop in London is a market overt only for such things as the owner professes to trade in. "Wilkinson v. King, 2 Camp. 336. As to the distinction, even under the English law, between ordinary chattels and negotiable instruments, in reference to the point considered in this chapter, see Smith's Merc. L. 159. • In Louisiana, the sale of a thing belonging to another person is null; though it may give rise to damages when the buyer had no notice of the fact. C. C. 2447 ; Alexander v. Gusman, 16 La. An. 251. •> It is held a universal and fundamental principle of the law of per- sonal property, that no man can be divested of it without his consent. But if he consent to the transfer of such property, though such consent be temporary only and obtained by fraud, and therefore revocable as against such unfair purchaser, an honest purchaser from him will be pro- 1 Per Savage, C. J., Williams v. Merle, 11 Wend. 81. Ace. McMahon V. Sloan, 12 Penn. 229; 13 111. 610; Jones v. Steamboat, &c., 14 Ohio, 408. 2 Chit, on Contr. 304 ; see st. 6 Geo. 4, ch. 94 ; 2 Ph. & M. ch. 7 ; 31 Eliz. ch. 12, relating specially to the sale of horses ; Long on Sales, 164 ; 10 Kich. 332. 46 LAW OF SALES OF PERSONAL PROPERTY. And mere possession of personal chattels, without some other evidence of property, or of authority from the owner to sell, Mail not enable the possessor to transfer a better title than he has himself Thus, in Massachusetts, where stolen goods were sold in the public market-place in Boston ; it was held that no title passed to the vendee, notwithstanding an ancient or- dinance of 1633, which provided, that " henceforth a mar- ket shall be kept at Boston on the fifth day of the week."^ So, in Maryland, a purchase at a public market estabhshed by law has been held not to be in market overt? So, in Pennsylvania, where goods were sent from Huntingdon to Pittsburg by a wagoner, to be delivered to one person, and the wagoner sold them openly in the streets of Pitts- burg to another ; it was held, that the vendee gained no teeted, and the first owner must bear the loss. Jennings v. Gage, 13 111. 610. The loss of title to goods, as between parties equally innocent, should fall upon him who has voluntarily transferred to another such possession of them as enabled him to commit the fraud, even in cases which would authorize a rescission of the sale and a recovery of the goods from the vendee. lb. If the true owner of property has intrusted to a third person written evidence of title, or of an absolute and unqualified power of disposition, any one who advances his nionej' to, and obtains possession of the prop- erty from, such third person, in good faith, relying on the facts being in conformity with this written evidence of their truth, will acquire an in- defeasible title as against the true owner. Keyser v. Harbeck, 3 Duer, 373. See p. 48. In a late case it is remarked, with more particular reference to any change of form in property subject to a trust, " It is of no consequence into what form different from the original the change may have wrought it . . whether it be that of goods, chattels, notes, stock, or coin ; for the product, as a substitute for the original thing, still follows the nature of the thing itself, so long as it can be ascertained to be such." Per Mer- rick, J., Le Breton v. Peirce, 1 Allen, 12. I Covin V. Hill, 4 Denio, 323. ' Dame v. Baldwin, 8 Mass. 518; Towne v. Collins, 14 Mass. 500; Southwick V. Harndell, 2 Dane's Abr. 286; ace. Carmichael v. Buck, 11 Rich. 332. » Browning v. Magill, 2 Har. & J. 30. SALE BY ONE NOT OWNING THE PROPEIITY SOLD. 47 title to the goods ; that the law of Pennsylvania does not recognize any market overt} And the same doctrine has been recognized in Illinois. Thus A. and B., merchants and dealers in leather in New York, furnished hides to C. and D., tanners in the country, to be manufactured into leather and returned to A. and B. ; the ownership in the hides and leather to remain in A. and B. C, while the leather was in the possession of C. and D., clandestinely shipped away a quantity of it to Chicago, and there, through an agent, sold it in the ordinary way of busi- ness, in open market, at a fair price, to parties without notice. Held, A. and B. might assert their title.^ So a person who buys a stolen horse, and afterwards sells it in good faith and without knowledge of the theft, is liable to the owner for its value ; and this without demand.' So the plaintiff passed to A. a gold $10 coin, issued by a private individual, and current and worth its face in Cali- fornia, mistaking it for a half dollar ; and A. passed it to the defendant for the same amount. The plaintiff having demanded the coin of the defendant, and tendered half a dollar, brings this action (of trover) for the coin. Held, the action was maintainable, although, had the coin been an eagle of American money, the plaintift"'s only remedy would have been, an action for money had and received against A.* And, without reference to the doctrine of market overt, it is the general rule of law, that, where the ' Lecky v. MoDermott, 8 S. & E. 500. It was remarked by the court in this case, that the owner of the goods was guilty of no imprudence, and held out no false colors. The goods were sent in the usual and no- torious course of business, from Huntingdon to Pittsburg, and the wag- oner could not be presumed to own or have authority to sell them The owner might maintain trespass or trover against any one who should take them from the carrier, although the latter might also maintain an action. He had a bare authority to carry, but no interest. See further, as to market overt, Hosack v. Weaver, 1 Yeates, 47S; Hardy v. Metzgar, 2, 347 ; Easton v. Worthington, 5 S. & K. 130. ' Fawcett v. Osborn, 82 111. 411. » Robinson v. Skipworth, 23 Ind. 311. * Chapman v. Cole, 12 Gray, 141. 48 LAW OF SALES OF PERSONAL PROPERTr. bailee of a chattel sells it, the owner may recover the property, or its value, from any one in possession of it even a bond fide purchaser without notice. The principle has been held to apply to a broker, though he purchase in the regular course of business, and dispose of the property according to the instructions of his principal, before suit brought. The rule of caveat emptor is to govern, and the vendee's claim is upon the implied warranty of title by his vendor. ' § 2. The general rule upon this point is sometimes qual- ified by the equitable consideration, that an owner who has furnished another with the indicia of ownership may thereby lose his title as against a bond fide purchaser. Upon this subject it is held, that the mere giving of pos- session of goods, to one whose general and acknowledged business is not that of selling such goods, although he may incidentally be thus concerned, does not transfer to him the external indida of the right of disposition.^ So where the plaintiff purchased of a brewer a lot of barley, and left it with him to be malted ; and the brewer wrongfully sold the barley, together with his brewery, to a third person, with notice of the plaintift''s right, who sold it to the de- fendant, who bought without notice : held, the apparent authority of the defendant's vendor not having been con- ferred by the plaintiff, nor with his knowledge or assent, the defendant was not within the rule protecting, as a bond fide purchaser, him who deals with one to whom the real owner has given the iwHcia of power to sell.^ So the owner, in leaving coal on storage upon a wharf, is not guilty of such negligence as will justify a sale by the wharfinger, or a verdict against the owmer in an action to recover its value.' So a sale of wheat, by one who has possession for the mere purpose of shipping it to the owner's 1 Roland v. Gundy, 5 Ohio, 202; Williams v. Merle, 11 Wend. 80. ' Linnen v. Cruger, 40 Barb. 633. See p. 46 n. 3 Wooster V. Sherwood, 25 N". Y. (11 Smith) 278. * Kusenberg v. Brown, 42 Penn. 173. SALE BY ONE NOT OWNING THE PROPERTY SOLD. 49 consignee, is void as against the owner, although the vendor sells it innocently, believing it to be his own, and the purchaser receives it in good faith, in the like belief, and pays value therefor. So with the sale of a commission merchant, receiving and making advances on the wheat.' So where a minor son of one of the owners of stock took twenty shares out of their possession, without their per- mission or knowledge, and sold them, no title passes.'' But the distinction is made, that where a plaiutift", by his own voluntary act, has, through misplaced confidence, conferred the apparent right of property in bank stock upon a third party, a bond fide purchaser from such party will be protected against any secret trust in favor of the plaintiff. But where a party having notice, actual or constructive, of the plaintiff's equities, has dealings in re- spect to such' stock, he will hold subject to the plaintiff's rights.' ' § 3. It is to be further remarked, that the equitable owner of property cannot divest the title of a bond fide purchaser without notice, who has bought from an agent • In a late case it is held, that in case of stock a transfer is good, though from one having no title. But a corporation with notice of an equitable right is liable for a wrong transfer. And if the certificate shows a trust, the transfer-agent may require authority to transfer. Bayard v. Far- mers', &c., 62 Penn. — Law Eeg., Aug. 18C7, p. 633. A very recent transaction in Massachusetts, remarkable for the parties concerned, the large amount of property involved, and the variety of forms, civil and criminal, in which it has been litigated, furnishes another case, strongly illustrative of the same rule. It was held, that one hold- ing a certificate of corporate stock as " trustee " could not, as against the beneficial owner, validly pledge it for his own debt, but the pledgee was required by the implied notice involved in the word "trustee," at his peril to inquire into the pledgor's authority ; and that no usage of brokers or course of business could excuse from such inquiry. And the pledgee was perpetually enjoined from transferring the certificate. Mass. S. J. C, Shaw V. Spencer, Amn. Law Eeg., Apr. 1869, p. 219. ' Wilson V. Nason, 4 Bosw. 155. ' Anderson v. Nicholas, 5 Bosw. 121. s Crocker v. Crocker, 31 N. T. 507. 4 50 LAW OF SALES OF PERSONAL PROPERTY. to whom the equitable owner has secretly confided tlie legal title.^ This general principle was illustrated in the following case. A large amount of grain was delivered by the plaintifis, on board the vessel of the defendants, M. & Co., for the account of M. & R. as purchasers, to be paid for in cash on delivery ; and a measuring officer de- livered the half-bill to the sellers, who were agents for the plaintiffs, and who soon after sent the measurer's certifi- cate of quantity, the half-bill, and their own bill for the price of the grain to M. & R. M. & R. in payment sent their check, which was not paid at the bank. M. & Co., upon production by M. & R. of the half-bill, executed and delivered to them on behalf of the vessel and owners a bill of lading, such being the custom of business ; and the defendants M. & Sons advanced money to M. & R. upon security of the bill of lading, after M. & R. had come into possession of the measurer's certificate and half-bill, and of the grain. Held, the defendants M. & Co. and M. & Sons were entitled to protection against the plaintifls; and that M. & Sons stood in the relation of bond fide pur- chasers, to the extent of their advances and liabilities.^ § 4. The owner of property 'is not bound by a sale made in a mode different from that which he has author- ized, and not for his benefit, even though the property has been resold by the vendee. Thus, where the plaintiff delivered a horse to A., to be sold for the plaintift''s bene- fit, and A. sold to B. in payment of a debt of his own, and B. to the defendant ; it was held, that the plaintiff still retained his title to the horse, and might maintain replevin against the defendant.^ § 5. So where property is taken hy mistake from the owner's premises, though advertised and afterwards sold, in compliance with law, by parties who received it from the original taker ; the owner may assert his title as 1 Calais, &c. v. Van Pelt, 2 Black, 372. 2 Western, &c. v. Marshall, 37 Barb. 509. » Parsons v. Webb, 8 Greenl. 38. SALE BY ONE NOT OWNING THE PROPERTY SOLD, 51 against the final purchaser. Thus the master of a tow- boat took by mistake four barrels of potashes from the warehouse of the plaintift", who occupied the same build- ing with the owners of the boat at Albany. Upon arriv- ing in New York, the master discovered his mistake, and delivered the property to the clerk of his employer's agent, who undertook to carry it to the inspector and ad- vertise it, which was accordingly done. The clerk sold the ashes to the defendant, a produce broker, who pur- chased on account of one A., for a fair price, and received the inspector's certificate. The defendant took the ashes from the inspector's oflice, and shipped them to the order of his principal. Held, after demand, the plaintiff might maintain trover against the defendant.' § 6. The principle, that a sale, though made for valua^ ble consideration, and without notice of any adverse claim, passes to the vendee only the title of the vendor, and that the true owner may evict him, is true of a sale made abroad, unless there is some local law to the con- trary. So, where goods are captured, and sold by order of a prize court established by a belligerent in a neutral country, the property does not pass, as against the true owner. And a sale, made by a captor, even of the goods of an enemy, does not divest the owner's title, unless there has been a judgment of condemnation by a court, of com- petent jurisdiction, of the sovereign of the captor. The maxim of the civil law, nemo plus juris in alium transferre potest, quam ipse habet, makes a part of the law of France, of Scotland, and probably most of the countries of Europe.^ But, where goods are wrecked or abandoned, and sold agreeably to the municipal regulation of the country, the property passes, as against all prior titles. The same rule applies, although before abandonment the property was in possession of pirates, or of captors before adjudication. The regularity and competency of such sale are presumed, ' ■Williams v. Merle, 11 Wend. 80. » Wheelwright v. De Peyster, 1 John. 471. 52 LAW OF SALES OF PERSONAL PROPERTY. where no doubt is raised as to its fairness and official character, because it is a summary proceeding. Foreign courts are bound, not only in comity but by the priuci- pies of public utility, to recognize a title thus acquired ; for otherwise there would be no security in any derivative titles. Hence, where a ship was brought into a Spanish port by Frenchmen, in a feeble and dismantled condition, after two months abandoned, several months afterwards, cast ashore, and sold at auction by the public agent and commissary of the port ; held, the sale passed a good title as against all the world. This is not a case governed by the law of nations, like the question of prize or capture.' ' Grant v. McLachlin, 4 John. 34. CONSTRUCTION OF SALES. 5S -CHAPTER V. CONSTRUCTION OF SALES. 1. DISTINCTION BETWKIN A SALE AND A CONTRACT TO SELL. 5. CONTRACTS TO MANUFACTURE AND SELL ; MANUEACTURE AND SALE OP SHIPS, ETC. 7. EPEBCT OP DELIVERT. 8. WANT OP IDENTIFICATION OR SEPARATION OP THE ARTICLES SOLD. 9. ENTIRE CONTRACT FOR SALE AND DELIVERT. 10. ALTERNATIVE OR CONDITIONAL SALB ; CONSTRUCTION, WHETHER IN FAVOR OF THE SELLER; TIME, ETC. 13. RISK OF LOSS, AS APFBCTINO THE CONSTRUCTION. 14. CONSTRUCTION BY THE ABILITY OP THE SELLER TO PERFORM. 15. BY NOTICE AND USAGE. • § 1. It has been heretofore stated (p. 1), that a sale is a transmutation of property. Strictly speaking, therefore, until the property has changed, or the title passed, from seller to purchaser, there is no sale, and the transaction, as a sale, does not raise any question of construction." But * " If the property passes, then it is a completed sale ; and if a com- pleted sale, then the property passes." 1 Parsons on Contr. 440. See Jennings v. Gage, 13 111. 610. In case of a written contract of sale, the intention of the parties is to he collected from the whole instrument, notwithstanding the literal im- port of particular words. Kelly v. Upton, 5 Duer, 336 ; Huthmacher V. Harris, 38 Penn. 491. And in determining the character of a con- tract, as executed or executory, the question is, whether the intention was to vest in the purchaser an immediate and absolute title, without reference to payment, or whether delivery and payment were to be simultaneous acts ; in which case, the title remains, until delivery, in the seller. Kelly v. Upton, 5 Duer, 336. See chap. 3. And where delivery and payment are to be concurrent, the promises of the parties are dependent and conditional, and neither can maintain an action against the other, without showing performance or tender. lb. In reference to the construction of a sale as depending on place, a 64 LAW OF SALES OF PERSONAL PROPERTY. the question itself, whether a contract of this nature is a sale or a mere agreement to sell, in other words, whether it is executed or executory, often arises, more especially in the construction of written contracts, and may very prop- erly be considered in this connection.* ' § 2. It is difficult to apply any definite test in reference to this distinction. The one sometimes suggested, that, after a sale, the thing sold is at the risk of the buyer— res perit domino sua — while after a mere contract to sell it re- party living in Michigan made an agreement in New York for the pur. chase of liquor, the vendors agreeing to forward the liquor to their agent in Michigan, on condition that the purchaser should pay freight, and be allowed for any excess of " outage," or leakage over the original outage. The vendors sent a letter by the purchaser to their agent, upon delivery of which the purchaser received the liquor, after examining it, and gave his note for the price. Held, the sale was subject to the laws of Michi- gan. Whether the title to the property passed to the purchaser, in New York, was doubted. Myers v. Carr, 12 Mich. 63. » Where an executory contract of sale is followed by another instru- ment of actual sale, in ease of any discrepancy between them, the latter will control. A. contracted with B. in writing as follows: "Bought the brig T., with stores, boats, and forty tons of iron kinilage (a species of ballast), for ^£1600." Afterwards, a bill of sale was given, as follows ; " A. in consideration of £1500, sells the brig T., with all her stores, tackle, apparel," &c. Held, the latter writing was decisive as to the contract between the parties ; that the kinilage was not included in the sale, and that B. could maintain no action for non-delivery of it. Lane V. Neale, 2 Stark. 105. A sale is not complete till the execution of the papers agreed on be- tween the parties, though such papers were in fact unnecessary, except by reason that the parties had agreed they should be made. Lovelace v. Stewart, 23 Miss. 384. In case of a mere contract to sell, and possession surreptitiously ob- tained by the purchaser, no rescinding is necessary to enable the seller to reclaim the property. Jennings v. Gage, 13 111. 610. A. agreed with B., to deliver to him a certain quantity of corn, more or less, at a stipulated time and price, and acknowledged the receipt of five dollars on the contract ; the balance to be paid when all the corn should be delivered. Held, no title to the corn passed prior to delivery. Low V. Freeman, 12 111. 467. See Shields v. Pettie, 4 Comst. 122 ; ace. Brown v. Brooks, 7 Jones, 93. ' See Leonard v. Winslow, 2 Grant, 139. CONSTRUCTION OP SALES, 55 mains at the risk of tTxe seller, is by no means satisfac- tory/ ' It clearly involves the logical fallacy of a peiitio principii, except in case of an express agreement as to risk, where undoubtedly it may have great weight, and even be conclusive.'' § 3. The distinction, however, between the effect of a contract to sell and an actual sale, is a very simple one. The former conveys a chose in action, the latter a chose in possession. A mere contract to sell, without actual or symbolical delivery, does not pass a title, but a subsequent sale and delivery has precedence of such contract, and passes the property; and the Statute of Fi-auds is said to proceed upon the above distinction, in requiring written evidence of a mere contract to sell.^ § 4. Some general principles, serving to explain the dis- tinction between a sale and a contract, may be extracted from the decided cases. And it may be observed, that Where A. gave to B. a memorandum, that he had received $175 as an advance to buy barley for B., and A. agreed to deliver at a certain place, ■within a certain time, for a certain price, 1000 bushels of merchantable barley ; held, a sale, and not an agency. Black v. Webb, 20 Ohio, 304. * Partial damage before the goods are weighed for delivery is at the risk of the vendor. Gerard v. Prouty, 34 Barb. 454. Where goods were sold as damaged, and the buyer claims that, between the sale and delivery, they suffered further damage, the burden of proof as to this point is on him ; and he must prove the actual amount of dam- age, and cannot assume that it was the difference, between their value when delivered, and the price which, upon a necessarily imperfect ex- amination, he had paid for them. lb. •• In some cases, however, an express agreement, that the purchaser shall take the risk of the property during its transit to his hands, has been held to involve the construction, — directly contrary to that arising from an implied risk, — that no title has passed to him by the contract ; upon the principle, expreasum JacU cessare taciturn. The purchaser's contract, in such case, is regarded in the light of an insurance. Shaw v. Nudd, 8 Pick. 9. See Phillips v. Hunnewell, 4 Greenl. 376. » See Black v. Webb, 20 Ohio, 304; Lovelace v. Stewart, 23 Mis. 384; Garrett v. Crooks, 15 La. An. 483. ' Roberts v. Beatty, 2 Penn. 67 ; McDonald v. Hewett, 15 John. 351, per Spencer, J. ; Penniman v. Hartshorn, 13 Mass. 87. 56 LAW OF SALES OF PERSONAL PROPERTY. the mere provision for an act, or iise of the word, which designates either an executory or an executed agreement, will not be held conclusive, but will be controlled by the nature of the transaction, and the various engagements of the parties. Thus an agreement by the vendor of chattels, to transport them to a place named for delivery, does not render executory a contract of sale otherwise completed on his part.' Accordingly, where, on a sale of lumber then in the vendor's yard, the pieces sold were selected and designated, and the price paid, but the vendor agreed to deliver the lumber at a railroad station ; the lumber being destroyed by fire before such delivery, held, the loss was that of the purchaser.^ So it was agreed in writing between A. and B., that A. should buy of B. cer- tain merchandise, and should take up the notes of B. given to various parties, paying to each such a sum as he would receive from a 2^1''^ ^''^^c- distribution, of the merchandise between these several note-holders and A. And, if this arrangement should not be acceded to by the note-hold- ers, then A. was to give his note to B. for the amount which, under the arrangement, would have been payable to them. Held, an actual sale, upon a consideration, to be performed on a future day.^ So, where a bill of sale did not declare that the property was delivered, but that it was bargained and sold, and concluded with the usual warran- ties ; hidd, the sale was complete, and the property at the risk of the buyer.* So, on the other hand, it is held, that the word sold, at the commencement of a writing signed by a vendor, may mean, in law, contracted to sell.^ So, although the word bought is used, yet, if the property remains at the seller's risk, is to be carried by him to a distant place, and there inspected before delivery, and the price is not 1 Terry v. Wheeler, 25 N. Y. ( 11 Smith) 520. 2 lb. ' Conner v. Comstock, 17 Ind. 90. ♦ Walker v. Hays, 15 La. An. 640. » Eussell V. Nicoll, 3 Wend. 112. See Lowe v. Crook, 27 Ala. 624. CONSTRUCTION OF SALES. 57 paid at tlie time of the contract, this is not an executed sale. Thus, where a written agreement stated, that the plaintiff bought of one A. a quantity of timber lying in Washington and Saratoga counties, in the State of ITew York ; the plaintiff to pay for it at the measurement in JSTew York, upon delivery and inspection, and at a fair market price when delivered ; A. to deliver the timber by a certain day ; the amount to be indorsed upon certain notes held by the plaintiff, and the surplus, if any, paid to A. : it was held, that the plaintiff could not maintain trover against the defendant, a servant of A., who carried the timber to ITew York, and refused to deliver it to the plaintiff.' So a writing in this form: "H. & A., of P., December 13th, 1813. I sold to the above gentlemen thirty-nine bales of upland cotton, at forty cents ; sixty days for approved security. S. P. Bill to be made out in the names of H. & A., "W. & B., and A. T. ;" was held not a sale, but a mere contract to sell." ^ • An instrument executed by the owner of a slave, and accompanied by delivery, was in these words : " I have this day bargained and sold to (the vendee) for the sum of $700, in the following payments, to wit : $200 in hand, and $500 25th December, 1853, for a negro woman named Mary. Now the condition of the above obligation is such that on the payment of the above sum of $500, I am to make him a good and suffi- cient deed to said negro,'' &c. Held, that the instrument did not pass a legal title in prcesenti, but was an agreement to convey on payment of the $500. Carnes v. Apperson, 2 Sneed, 562. By a writing not under seal, A. " bargained and agreed to sell" to B. a lot of timber trees, for a certain price, for which B., on or before a cer- tain day, was to give his note, with an indorser. . Three days after the time fixed, the note was given and accepted, and B. commenced to cut the trees. Held, the contract was an executed one, and the title passed on the acceptance of the note. Warren v. Leland, 2 Barb. 613. The plaintiff manufactured a pump for the defendant, under the agree- ment, that, if not a good pump, he should have nothing for making it. The pump was placed in the defendant's well, and he paid part of the price; but, on trial, it proved not good, and not to answer the purpose intended, of which the defendant gave notice ; and, after several attempts 1 McDonald v. Hewett, 15 John. 349. ' Penniman v. Hartshorn, 13 Mass. 87. 68 LAW OF SALES OF PERSONAL PROPERTY. § 5. An agreement to sell an unfinished chattel, to be delivered in futuro, is in its nature executory, and does not pass a title to the property ; more especially if the price is that of an article ready for the market.' It is said, if the vendor were understood to retain possession as servant of the vendee, the labor and materials to be added by him being the subject of a separate compensation, no purchaser of a finished article would have a secure title. The value of the article in its unfinished state is not to be regarded as the basis of the contract.'' Where an article of the plaintiff to make it work well, requested the plaintiff to take it away. Held, the pump never became the property of the defendant, that no acceptance of it could be presumed, and that the plaintiff could neither recover the price, nor for his labor in repairing it. Sias v. Bates, 18 Verm. 579. The defendant signed an agreement in the following form : "New Yoek, April 15th, 1864. " 3000 shares B. 90, 72 1-2 cts. " I have purchased of Eelley, Townsend & Co., three thousand (3000) shares of the stock of the Lindsay Mining Company, at 72 1-2 cents per share payable and deliverable, buyer's option, in ninety days, with in- terest at the rate of 6 per cent, per annum, and CJ cents per share commis- sion, and have deposited with them one hundred shares of McCuUock Gold Company's stock, as security for the performance of this contract. "Francis H. Upton." Held, an executory agreement to sell, and not an actual sale, on which an action could be maintained by the plaintiffs, without a previous tender of the stock. Kelly v. Upton, 5 Duer, 336. An agreement, for good consideration, to transfer post-office warrants for carrying the United States mails, which fall due quarterly, andwhich at the time were not yet due, is executory, and does not pass the prop- erty in the warrants. Benford v. Sanner, 40 Penn. 9. " " A contract for machines to be built, though at a fixed price, is ex- ecutory merely ; they are not sold ; no right of property vests in the pur- chaser, until they are completed and delivered, and paid for or security taken." Per Shaw, C. J., Blasdell v. Souther, 6 Gray, 152. See p. 38. ^ In July, 1828, A., in consideration of a prior debt, agreed to sell B. certain hides and skins then in process of tanning in A.'s vats, but capa- ble of removal, to be delivered on or before November 12th, some of them at fixed prices, the rest at the market price, the value to be passed to the credit of A., in settlement of his account. Held, no immediate title passed to B., but the property still remained liable to be taken on CONSTRUCTION OF SALES. 69 is manufactured to order, completion and delivery or tender or notice only can pass a title, because, at the time execution jigainst A., though the transaction was an open one, and though a long-established usage was shown for curriers in the city to purchase leather from tanners in the country, while in process of manufacture, to be delivered when tanned, and to make advances under these circum- stances. Pritchett v. Jones, 4 Bawie, 260. But a bill of sale will pass the title to property immediately, although the vendors are bound by contract to perform labor on it. Swartz v. Chappell, 19 Mis. 804. A. agreed with B. to build for him a carriage at a certain price. Some time afterwards, B., being a creditor of A., agreed to take the carriage in its then unfinished state in satisfaction of his debt, and it was delivered to him. Held, such delivery passed the property in the carriage to B., and he was entitled to it as against the creditors in an execution, subse- quently, on the same day, placed in the sherifi's hands. Clemens v. Davis, 7 Barr, 263. Where a manufacturer or a mechanic agrees to construct a particular article out of his own materials, or where he is to furnish the principal part of the materials ; the property of the article, until its completion and delivery, is in the maker. Aliter, if the employer furnish the whole or the principal part of the materials. Gregory v. Stryker, 2 Denio, 628. A worn-out wagon was delivered to another to be repaired and re- newed, by the labor and materials of the latter. The cost of repairing was $78.50, and, when completed, it was worth $90. Held, that the property in the article, together with the accessorial additions, remained in the former owner during the performance of the work, and was his when completed. Gregory v. Stryker, 2 Denio, 628. A contract was made with a coachmaker to make a buggy for a speci- fied price, and, before completion of the buggy, the parties came to a settlement, and the price was paid, with an understanding that it was to be finished, and then delivered. Held, that the property in the buggy vested in the purchaser, from the time of payment of the money. But- terworth v. McKinly, 1 1 Humph. 206. Contract between A. and B., his debtor, made in September, as fol- lows . ..." I (A.) agree to purchase, and do hereby purchase of (B.) " a quantity of cheese "if he makes as much," and certain cattle, at fixed prices, . ..." B. to keep the cattle on his farm free of expense until foddering-time, if there cannot be any sale made that will answer before ; the cheese to be kept until the 1st of November next, unless called for sooner ; and for payment .... A. is to discharge all the claims he may have against B., and the balance he is to pay in cash whenever de- manded." Held, not a present sale, but the undelivered articles remained the property of B. Mason v. Thompson, 18 Pick. 305. 60 LAW OF SALES OF PERSONAL PROPERTY. of giving the order, there is no property in anything to pass, and the accidental existence of a part, at the time, surely would not give a specific right to the whole. The case is unlike that of growing grain. This depends npon the process of nature ; but manufacture is a process of art, which changes the quality of the article. The vendee would not be bound to accept it, if injured, or manu- factured in an unworkmanlike manner.^ § 6. The principle in question has been applied in refer- ence to sAips, and the materials used in their construction. If the hull or foundation is transferred by an executed sale to the proposed buyer, or party for whom the ship is to be built; then the maxim applies, '■'■ proprietas iotius navis carina causam sequitur" and every distinct addition to the vessel, becoming an integral and inseparable part thereof, is subject to the same ownership. But, on the other hand, a mere executory contract to build a ship passes no title to the ship itself in any stage of its manu- facture, and still less, to any mere materials, though spe- cially set apart to be used for this purpose." It is said, " if a ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work, part when the keel is laid, part when they are at the light plank, the payment of these instalments appears to us to appropriate specifically to the purchaser the very ship so in progress, and to vest in him a property in that ship.'" ' »■ A. agreed with B. to build a house on B. 's land, and left lumber there to be so used. B. made a bill of sale of the lumber, and delivered it, and assigned his contraet for the house to C, who made payments to A. on account of the contract. Held, as against A.'s creditors, there was no sale of the lumber, and the transfer from B. was void. Wilkina v. Holmes, 5 Cush. 147. ' In the month of November, A. agreed to build a ship for B., to find ^ Pritchett v. Jones, 4 Eawle, 260; Schneider v. Westerman, 25 111. 614;, Pettengill v. Merrill, 47 Maine, 109. 2 Per Lord Tenterden, Woods v. Eussell, 5 B. & A. 946. CONSTRUCTION OF SALES. 61 § 7. As has been already stated, mere delivery of prop- erty, under a conditional contract for future sale, does not and perform all the carpenter-work, and to launch and deliver her in September following ; B. to pay a certain sum per ton in thirty days from delivery. By another instrument of even date, A. leased his ship- yard to B., and covenanted, when the keel should be laid, to give a bill of sale of the vessel, before B. should be bound to make any advances. On the same day, B. and C. entered into an agreement, that the ship should be for their joint account and risk, and that each should bear his proportion of profit and loss. On the 12th of May ensuing, in considera- tion of advances made by B., and for his security, A. conveyed to him all the lumber and materials in the yard, and covenanted to apply them in building the vessel. This instrument was made before the laying of the keel. May 20th, the keel being laid, and the stem and stern-posts raised, A., for the purpose of securing performance of the first contract, conveyed to B. "the keel and other parts of an unfinished ship, being the same which was agreed to be built by the instrument of November ;" at the same time giving a lease of the yard, and making a symbolical de- livery, and a condition being added, that, if B. fail in his contract, the conveyance should be void, and also a covenant by B. that A. shall have the right of free entry to the shipyard, for the purpose of finishing and launching the vessel. The property being attached by creditors of A., B. and C. bring trespass against the officer. Held, by the contract of November, though designed to give B. a lien upon the materials, he would acquire no title till delivery of the vessel in Boston ; that probably the agreement of May 12th was equally inoperative, notwithstanding B.'s prior advances, for it did not appear that the ship had been then com- menced, or the materials to be used in the work separated from the rest, without which separation none would pass. But, by the contract of May 20th, B. acquired a valid title to the property. This was a lawful contract, because it enabled A., without funds, to build the ship with those of B. ; and the means to effect the object were lawful, being neither imperfect in form, nor fraudulent against creditors. The maxim ap- plied, " proprietas totius navis carirue causam seguUur." As the facts showed, that the transfer was made merely as security for past and future advances; A.'s continuing to work upon the ship, without any new agreement, was no proof of a covert bargain. The parties considered the original agreement as still in force, but the property was changed for the purpose of security. It was immaterial, whether the transaction constituted a mortgage or conditional sale, or both. The jury found that there was no fraud ; nor was the want of any public declaration of the transaction, evidence of fraud. It was further held, that C. was rightly joined in the suit as plaintiff. In relation to A., B. was to be regarded as sole owner ; but, before registration, the title to a ship may pass by parol agreement; and if B., under a conveyance from A., had 62 LAW OF SALES OF PERSONAL PROPERTY. change it from an executory into an executed agreement, and thus vest an immediate title in the proposed buyer. Thus, where A. agreed with B., that B. should take his sheep and depasture them for a certain time, and if, at the end of that time, he paid a certain sum, have the claimed the whole title, equity would have compelled him to assign a portion to C. Glover v. Austin, 6 Pick. 209. A. gave B. a bill of sale of all the lumber and materials in a shipyard for the purpose of building and finishing a ship, but without any schedule or speciiication, and not followed by any separation of a particular por- tion from the whole mass. By a former agreement, A. had contracted to build a ship for B. By a subsequent instrument, A. conveys to B. the keel and other parts of an unfinished ship, then lying on the stocks. Held, that the second instrument passed no property to B. ; but, by the third, he acquired a title to all the timber which had been actually se- lected and fitted for the ship, provided it could be identified. Glover v. Hunnewell, 6 Pick. 222. A. contracts with B. to build a ship for him. B. immediately after- wards agrees with C. that he shall own one-quarter of her. Held, not- withstanding a subsequent instrument, which transferred to B. the ma- terials in A.'s shipyard, to be used in building the ship, C. had no title to any timber which was not actually put into the vessel. Glover v. Hunnewell, 6 Pick. 222. A. agreed with B. to build him (A.) a screw steamer, according to specification, for £16,000, payable by instalments, at various times, which instalments were in fact paid in advance. The building began in March, and continued till December, 1854, when B. became bankrupt, the steamer not being then finished. The building of it had been carried on under the superintendence of C, on behalf of A., who examined and rejected materials when necessary. Soon after the building began, A. named the ship "The Britannia," and she was known by that name. In October, A.'s name was punched on the keel by B.'s assent, for the purpose of assuring the ship to A. Held, the property in the .ship passed to A., as she advanced towards completion ; that such of the materials on the wharf, as had been shaped for, fitted into, and approved as suit- able for the ship, passed with the ship, though detached after being fitted, and lying detached at the time of the bankruptcy ; but the other ma- terials did not vest in A., although shaped and intended to be fitted into and to form part of the ship. "Wood v. Bell, 3b Eng. Law & Eq. U8. A contract to build a steamboat according to specifications, and to de- liver it completed at a place designated before a day certain, for which payments were to be made as the work progressed, vests no title in the vendee until after the completion and delivery of the boat. Forsyth T. Dickson, 1 Grant, 26. CONSTRUCTION OF SALES. 63 sheep for his property ; it was held that this was no sale, and that A, might, before the day, make a valid sale toC.i § 8. Upon a similar principle, a contract to sell a cer- tain number of articles of a particular kind, but without identifying them, or giving a claim to have that number separated and delivered, and distinguishing them, is lield to be executory, and to pass no actual title to the num- ber, not executed; and this, notwithstanding payment of the price ; and, if the buyer undertakes to re-sell the property, either by assigning his own contract, or by giving a new order upon the original seller, which he de- clines to accept, the second purchaser acquires no title to the property, but a mere chose in action, a claim upon which will be subject to all equities between the original parties, although the first purchaser thereby commits a fraud upon the second. The original seller is held, in such case, to have relied upon the property, and the second purchaser upon the personal security of the party with whom he dealt." * See chap. 9. The defendant contracted with A. to sell him two hun- dred hogsheads of sugar, which contract A. assigned to the plaintiff. The plaintiff inquired of the defendant, whether he had in his possession this number of hogsheads belonging to A., which he would deliver to the plaintiflT, and the defendant replied in the affirmative. Paj'ment was made, according to the contract. Held, an action of trover did not lie, because the transaction was a mere contract, not an actual sale, and the fifteen hogsheads were not in esse. Austen v. Craven, 4 Taunt. 644. The defendant agreed with A. to sell him, at so much per ton, a pile of slate, to be sold and paid for as parcels of it should from time to time be taken away. After paying for fourteen tons, A. sold this quantity to the plaintiff, giving him an order therefor upon the defendant. A. then made a settlement with the defendant before notice of the transfer, giving his note for the balance due upon the contract, and taking a memoran- dum, that, when paid, the rest of the slate should be delivered. After- wards the plaintiff presented the order to the defendant, but he refused to accept it. Held, the plaintiff, by the foregoing transactions, had 1 Long on Sales, 109 ; Eeed v. Upton, 10 Pick. 524 ; Mason v. Thomp- son, 18 Pick. 305. 64 LAW OF SALES OF PERSONAL PROPERTY. § 9. An entire contract for sale and delivery does not per se, pass a title to the property ; more especially where special provisions are made as to the charges of transpor- tation, and that the buyer shall bear the risk of loss until actual delivery. Thus, where A. agreed with B., at New- buryport, to sell him A.'s " fare of fish," at 12.s. M. per quintal, and nine cents per quintal for carrying to Boston, wharfage to be paid by B., and all other accidental charges by A., the fish to be at B.'s risk when on board the vessel; it was held that this contract did not pass a title to B. ; that it was to be construed as entire, for a sale and de- livery at Boston, not a sale at ISTewburyport, and an inde- pendent agreement to carry to Boston, in which case B. would not have agreed to pay wharfage ; and that, before gained no title to the fourteen tons, and could not maintain trover. That the defendant and A. had the right of rescinding their bargain; and the defendant was entitled to retain the slate, as security for the note given him by A. Young v. Austin, 6 Pick. 280. A. and B. owning a brig and her cargo, which were bound upon a voyage, C. advanced to them six hundred dollars, and took back an in- strument acknowledging receipt of the money, " being the amount of his (C.'s) adventure on board said brig, to be received from the proceeds of said brig's cargo, whenever her voyage may end," and concluding thus, " We promise to pay C, or order, his proportion of the proceeds of the cargo, according to said investment of six hundred dollars, reckoning the cargo at a fair cash price and the necessary charges, including duties and insurance. In case of loss, the above amount to draw a proportion of the insurance recovered. " Invoices and bills of lading were made in the names of A. and B. During the absence of the vessel, A. and B. in- dorsed the bills of lading, and assigned the cargo bon&Jide to E. andF.,^ who had signed or indorsed notes for A. and B., by way of indemnity for such liabilities, the balance of the proceeds to be paid to the order of the assignors. After the assignment, and before notice of the agreement with C, the assignees accepted an order drawn by the assignor for an amount equal to the whole surplus. E. and F., having sold and received the cargo, C. brings assumpsit for money had and received against them. Held, by the contract with C, he did not become part-owner of the cargo, hut acquired only a personal claim against A. and B., and there- fore the action could not be sustained. The property might have been attached by creditors of A. and B., and consequently was assignable to one ignorant of C.'s interest. Gallop v. Newman, 7 Pick. 282. CONSTRUCTION OF SALES. 65 delivery, he could not maintain trover against a subse- quent purchaser from A.' § 10. Where a sale is alternative or conditional, in refer- ence to time, notice, quantity, or other particulars, the prevailing principle seems to be, to favor the seller, or to throw upon the purchaser the burden of showing, that he has strictly entitled himself to that performance of the contract which is most advantageous to himself.^ Thus, in case of an agreement, made in August, to deliver cer- tain property between October 1 and December 1, to be paid for on delivery at a certain place, with liberty to the vendee to have the quantity inoreased on reasonable no- tice ; it was held, that the vendee was bound to give such notice before October 1, and to prove a readiness to pay for the increased quantity.* So, where A. and B., living in Maine, made a written agreement, by which A. was to deliver, and B. to receive, at Philadelphia, from one thou- sand to three thousand bushels of potatoes ; it was held, that A. might elect to deliver any quantity between the two quantities named, and was not bound to make an election till the arrival of the potatoes at the place of de- livery, although requested by B. to do so after the ship- ment.* So, where A., being the owner of certain land, sold to B. by deed all the timber-trees standing thereon, allowing him two years for the purpose of taking them away ; it was held, that this was a sale of only so much timber as B. might take from the land within the two years, and that a subsequent entry by him was a trespass ; "also, that the fact of a sale of the land to C, nearly four years after the expiration of the period above specified, reserving the right of B., gave no new operation to the original contract, nor constituted any new license to B. to enter upon the land.' So, where there was an agreement 1 Shaw V. Nudd, 8 Pick. 9. s See Vernede v. Weber, 30 Eng. L. & Eq. 277. ' Topping V. Koot, 5 Cow. 404. « Small V. Quincy, 4 Greenl. 497. ' Pease v. Grlbson, 6 Greenl. 81 ; Howard v. Lincoln, 1 Shepl. 122, 6 66 LAW OF SALES OF PERSONAL PROPERTY. to deliver from seven hundred to one thousand barrels of meal, at so much per barrel, and seven hundred were de- livered, and then three hundred more were tendered; it was held, that the vendor might elect to deliver any num- ber of barrels, from seven hundred to one thousand, and that B. was bound to pay for those tendered.' So the plaintiff agreed to buy from the defendant, and the de- fendant to sell the plaintiff, all the naphtha that the de- fendant might make for two years, say from one thoasand to twelve hundred gallons per month. Upon demurrer to the defendant's pleas, a question arose as to the suffi- ciency of the declaration, which alleged no construction by usage of the word say, used in this contract. Held, in the absence of any proof of fraud, the declaration did not allege a sufficient breach of the contract ; the true mean- ing of which was, that the quantity of naphtha made by the defendant would probably amount to one thousand or twelve hundred gallons, and that the plaintiff should have all he might make.^ § 11. But the general rule stated in the text will not ' receive any forced application in favor of the vendor. Thus A. agreed to purchase of B. about three hundred quarters, more or less, " of foreign rye," shipped in the ship C, at Hamburgh, at a certain price, subject to the safe arrival of the C. with the goods, and being unsold at Hamburgh. The C. arrived, bringing three hundred and fifty quarters of rye ; but B. refused to deliver any part of it, unless A. would take the whole. A. thereupon abandoned the contract, and brought an action to recover the money paid for the three hundred quarters. Held, the agreement did not contemplate an excess of fifty quarters over the three hundred expressly mentioned; that, if the construction of the contract was doubtful, the burden of proof was on the defendant, and the defence not made out. The agreement might mean all the rye ' Disborough v. Neilson, 3 John. Cas. 81. ' Gwillim V. Daniell, 2 Cromp. M. & E. 61. CONSTRUCTION OF SALES. 67 that could be brought by the ship C, or all that the cor- respondent of B. could send by her, there being other goods on board ; or the remainder of the cargo, after sale of a part. It was doubted, whether the terms " about " and " more or less " could be explained by the testimony of merchants.' So A. agreed to pay for certain hay, if B. should pronounce it merchantable. B. said of the hay, that it was " a fair lot, say merchantable — not quite so good as I expected — the outside of the bundle some dam- aged by the weather." Held, this did not bind A. to take the hay.^ § 12. And where the terms of sale are absolute as to time, although also referring to a certain use to be made of the thing sold ; the seller is liable for not furnishing it at that time, though such use could not have been made of it. Thus an agreement, to have a boat ready for the spring trade on the first of March ensuing, otherwise to pay ten dollars damages for every day after that time, till the boat should be ready, was held a covenant, that the boat should be ready on the first of March for the spring trade ; and the promisee may recover damages for a breach, though it could not have been then used for that purpose.* § 13. "We have heretofore referred (s. 2) to the risk of the property after the contract, as bearing upon the ques- tion of an executed or executory sale. It may be added in the present connection, as illustrative of the protection afforded to the seller, that the law will not impose upon him the risk of loss by the sale, unless he would have been the gainer by any profit. Thus a contract was made, for the sale, at a specified price, of tobacco on board a vessel bound from A. to B., one-fifth of the price to be paid in cash on a certain day ; for the other four-fifths the vendor to look to his correspondent abroad, the consignee of the goods. There was a further understanding, that interest 1 Cross V. Eglin, 2 Barn. & Adol. 106. ' Crane v. Eoberts, 5 Greenl. 419. ' Young V. White, 5 "Watts, 460. 68 LAW OF SALES OF PERSONAL PROPERTY. should be allowed, as if the sale had been at two and three months from final delivery ; the vendee to have the benefit of the vendor's policy, in case of average. One-fifth of the price was paid in cash. The property was sold at B., at a loss of two-fifths of the computed value. Held, the vendee was responsible to the vendor for such loss ; that the foreign arrangement was a mode of payment provided for the ac- commodation of the vendee, and, the consignee not being able to make up the price, that the vendee was bound to do it.' § 14. A doubtful contract may be construed by the facts and circumstances of the case ; as by the ability of the seller to execute it in one way and not in another. Thus A. sold to B. all the hemp that might be shipped in certain vessels at Riga, not exceeding three hundred tons, by C, " the agent of the concei'n." C. shipped in these vessels only seventj^-one tons on A.'s account, but more than three hundred tons on account of other persons. Held, the con- tract must be limited to such hemp as was shipped by C, as the agent of A. ; and the latter was obliged to deliver no more than the seventy-one tons. It could not be sup- posed that A. meant to sell property which did not belong to him, but to others.^ § 15. The correct construction of a contract is often de- termined by facts or declarations not contained in the agreement itself; as, for instance, by a certain notice or usage. Thus, at a repository for horses, certain rules were posted up, regulating private sales. Held, such regular tions were binding upon parties contracting there and having notice of them.^ § 16. So A. ordered from B., with whom he had pre- viously dealt, more of a certain article, to be sent by a par- ticular coach. At the oflice of this coach a notice was ' Hoffman v. Heyman, 2 D. & R. 74. ' Hayward v. Soougall, 2 Camp. 56. See Couturier v. Hastie, 88 Eng. L. & Eq. 8. » Bywater v. Eiohardson, 2 Nev. &M. 478 ; 1 Ad. & Ell. 508. CONSTRUCTION OF SALES, 69 posted up, that the proprietors would be liable for only £5, unless the goods were insured. The goods ordered by A. exceeded this amount, were sent by this coach, and not insured ; but there had been no insurance on goods sent in previous cases. The goods being lost, held, B. might maintain an action for the price.^ So a promise to pay a sum of money, in wares of a certain trade, means articles which are entire, and of a kind and fashion in common use, not antiquated and unsaleable.^ So the defendant bought goods of the plaintiff through A., a broker, and paid A., partly by an advance on his general account with A. before delivery, and partly by a settlement of accounts after delivery. A. not having paid the plaintiff, and having become bankrupt, this action was brought for the price, deducting the cash payment. Held, the validity of the other payment depended on the custom of trade, and was a question for the jury.' § 17. So, though a usage of trade cannot be set up in contravention of an express contract, yet, to explain an ambiguity, the general understanding of a particular trade may be shown.^ § 18. And a usage may control, even though founded upon an incorrect basis. Thus, where certain mill-logs were sold, for so much per thousand, according to the quantity of lumber they should be estimated to make ; and a table or scale of estimation was so generally used, that the jury found the parties referred to it in order to compute the quantity of lumber : held, they were bound by such table, though somewhat erroneous.* § 19. The construction of a sale may also be determined by a statute relating to the subject-matter of the contract. Thus an agreement, to deliver Salina salt in barrels, was 1 Cothay v. Tute, 3 Camp. 129. 2 Dennett v. Short, 7 Greenl. 150. » Catterall v. Hindle, Law Kep. Eng., June, 1867, p. 367. ' Powell V. Horton, 3 Scott, 110. See Humphrey v. Dale, 38 Eng. L. & Eq. 120. 6 Heald v. Cooper, 8 Greenl. 32. 70 LAW OF SALES OP PERSONAL PROPERTY. held to require, that the barrels must be such as were prescribed by the statute.' ' * In general, a bill of sale cannot be construed by parol evidence. Davis V. Bradley, 24 "Verm. 55 A bill of sale, containing an inventory of the articles, " said property being subject to" certain mortgages, covers all the articles mentioned, though some are not included in the mortgage, and cannot be controlled by parol evidence of a purpose to limit its operation to the portion mort- . gaged. And when delivered to the buyer, with notice to the party hold- ing the property, it passes the whole, although at the time of such notice the seller delivers only the mortgaged articles, and declares that he delivers no other. Bidgway v. Bowman, 7 Cush. 268. B., holding A.'s note, applied for payment. A. proposed, that an in- ventory should be made of the goods on his premises, and that B. should take them at a valuation, in discharge of the debt. B. consulted his attorney, who prepared a document. A. delivered the inventory to B., and then insured the goods in their joint names, and B. gave up to A. the note, which was destroyed. B., at the same time, credited A, in his book to the amount of the debt. B. took possession of a few articles in- cluded in the inventory, for which A. had no use ; but A. remained in possession of the rest. The goods being seized on execution against A., B. sued the sheriff, and offered the document in evidence, but it was re- jected for want of a stamp. Held, as A. was in possession, it lay on B. to prove clearly that the goods were his ; and, as the document was in- admissible for want of a stamp, no other evidence of a sale was admis- sible. Yorke v. Smith, 9 Eng. L. & Eq. 342. See Barber v. Lyon, 22 Barb. 622. 1 Clark V. Pinney, 7 Cow. 681. PARTIES TO A SALE. 71 CHAPTER VI. PARTIES TO A SALE. 1. GENERAL CAPACITY. 22. ALIEN ENEMIES. 2. HUSBAND AND WII'E. 23. AOBNTS, FACTORS, AND BROKERS. 13. INFANTS. 59. EXECUTORS, ETC. 20. IDIOTS, LUNATICS, ETC. 61. JUDICIAL SALES. 21. DURESS. 71. PARTNERS. § 1. As a general rule, all persons are competent to buy or sell, unless laboring under some special disability, which incapacitates them for making any valid contract. Inas- much as personal disabilities, — more especially those per- taining to marriage and to infancy, which occur much more frequently than any others, — ^have no peculiar applica- bility to the contract of sale ; it is inconsistent with the plan of the present work, to present more than a summary view of the subject, with a reference to the leading au- thorities. Moreover, the relation of husband and wife has been so extensively and variously modified, in this country, hj state legislation, that many of the common law rules have become virtually obsolete. And the foi'mer of the above suggestions is equally applicable to sales made by and to agents, and all others acting in a representative capacity, which will therefore be considered in a compara- tively concise form. § 2. A married woman or feme covert is incapable, for the most part, of buying or selling personal property. The law vests all her chattels in her husband, and of course she cannot sell that to which she has herself no title ; nor, except under special circumstances, can she become a pur- 72 LAW OF SALES OF PERSONAL PROPERTY. chaser, so as to charge either herself or her husband with the price of the thing sold.' § 3. A husband is, under some circumstances, liable for necessaries furnished to his wife. But, in order to charge him, the seller must prove either his express or implied authority for, or assent to- the sale, or that the property was necessary and convenient, and suitable to his actual condition and fortune, and that the wife was unprovided for, and had no adequate means of support. The circum- stance of her living with him is strong evidence of Ma assent to her contracts, and has been held primd facie evi- dence that the goods were ordered b}^ his authority, unless they were luxuries, or unsuitable to her station.*" Other acts of the husband may justify the same inference. § 4. The husband may prohibit any particular indi- vidual from trusting his wife ; and has, in general, the right of judging what is necessary for her use ; but he cannot prohibit all persons from supplying her with nec- essaries. And, it seems, even his express dissent will not exempt him from liability, where the thing sold was ab- * A married man contracted a second marriage, took possession of per- sonal property of the second wife, and sold it to a bond fide purchaser. Held, the title passed as against the second wife. Depew v. Eobarda, 17 Mis. 680. The plaintiff, a widow, was in possession of furniture of her deceased husband, but not executrix or administratrix of his estate. She afterwards married A., whom she supposed to be sole, but who was subsequently convicted of bigamy, and with him occupied the house where the furni- ture was. In order to raise money to pay off a distress for rent, A. sold the furniture to the defendant, the plaintiff taking an active part in the sale. Held, she could not maintain an action for the furniture. Waller V. Drakeford, 18 Eng. L. & Eq. 367. '> A wife, with a sufficient wardrobe, went, against the wishes of her husband, to a watering-place, there attended balls, and ordered dresses not suited to his circumstances. Held, the husband was not liable, al- though the seller had no notice of the above facts. Atkins v. Curwood, 7 C. & P. 756; Bentley v. Griffin, 15 Taun. 756. Assumpsit, for board and lodging furnished to the defendant's wife, and her servant, and u, lap-dog. "The claim for the lap-dog was dis- allowed, as not being for necessaries." Keed v. Moore, 5 Car. & P. 200. PARTIES TO A SALB. 73 solutely necessary for her comfort. But if she has the means of support, though derived from her own resources, he is not liable.* Nor if it is clearly proved that the credit was given to her. Her improper and lewd conduct, while he continues to live with her, will not exempt him from the liability to support her. And though they are separ rated, yet, if he has the control of the goods purchased by her, and fails to return them, he is liable. If he turn her away, or without reason refuse to receive her, or treat her in such a way as justifies her leaving him, he is liable for necessaries, even to one whom he has expressly prohibited from trusting her.* But if she leave him for anything short of actual violence, or a reasonable fear of it, or a reasonable cause for refusing to cohabit with him ; he is not liable." It is sufficient to charge a man, that he rep- resents a woman as his wife, cohabits with her, or permits her to assume his name.' « Thus, where the wife bought jewelry, having had jewelry at the time of marriage ; and the credit was given to her, and the husband in mod- erate circumstances: the seller was nonsuited, in an action against the husband. Montague v. Benedict, 3 B. & C. 631. •• " If a husband conducts himself towards his wife with such a degree of misconduct and cruelty, as to render it not safe for her to remain in his house, she is not to be turned out into the street to starve, or to seek relief in the parish workhouse, but is justified in leaving her home, and goes forth into the world with a credit for the necessaries of life suitable to her condition." Per Garrow, B. Emery v. Emery, 1 Y. & Jer. 505. A request to return makes no difference. lb. 501. Nor the fact of her receiving a pension from the Crown. Thompson v. Hervey , 4 Burr. 2177. = " If a woman, who can have no goods of her own to live on, departs from her husband against his will, and will not submit herself to him, let her live on charity, or starve, in the name of God ; for in such case the law says her evil demeanor has brought it upon herself, and her death ought to be imputed to her own wilfulness." Per Hyde, J. Manly V. Scott, 1 Lev. 4 ; 1 Mod. 124 ; Bolton v. Prentice, 2 Str. 1214, and note. 1 3 Barn. & Cr. 631, 63; 7 C. & P. 756; Ewers v. Hutton, 3 Esp. 255; Clifford V. Laton, 3 C. & P. 16 ; Metcalfe v. Shaw, 8 Camp. 22 ; Sid. 109 ; Liddlow V. Wilmot, 2 Star. 86 ; Bolton v. Prentice, Str. 1214 ; Pickering V. Pickering, 6 N. H. 124 ; Felker v. Emerson, 16 Verm. 653 ; Hurlong v. Hewson, 35 Maine, 336; Bead v. Segard, 4Eng. L. & Equ. 523; Montague 74 LAW OF SALES OF PERSONAL PROPERTY. § 5. If a wife purchase goods without the knowledge of the husband, and he, knowing of it afterwards, allow her to use or keep them, he is liable for the price.' If, on being applied to for payment, he disavows any partici- pation in her business, and denies that the goods were pur- chased in his behalf ; the vendor may consider the agree- ment as rescinded, and retake or sue for the property.' § 6. Where a wife elopes with an adulterer, the husband is no longer liable for anything furnished her; because the circumstances are sufficient to put all persons on their guard. Otherwise, where, after acts of adultery by the wife, the husband leaves her in his house with children bearing his name, although she afterwards continue her criminal conduct ; unless such conduct be brought home to the knowledge of the creditor.^ § 7. A man is liable for necessaries supplied to a woman whom he has married and held out to the World as his wife, notwithstanding his previous marriage with another woman, unless he can clearly prove notice to the creditor of such marriage.' So after abandoning such woman.* § 8. Where the husband has himself brought to his house, and held criminal intercourse with, a M'oman not his wife ; treated the wife with great cruelty and turned • " If a wife takes up silks and pawns them, before they are made into clothes, the husband shall not be liable for the silks, because they never came to his use : contra, if they were made into clothes, and worn by the wife, and then pawned by her." Per Holt, C. J. Etherington t. Par- rot, 2 Ld. Kay. 1006. V. Benedict, 3 B. & C. 631 ; Seaton v. Benedict, 5 Bing. 28 ; Sytes t. Halstead, 1 Sandf. 483 ; Clement v. Mattison, 3 Rich. 93 ; Fredh v. Eyes, 4 Harr. 386; Allen v. Aldrieh, 9 Post. 63. 1 Mackinley v. McGregor, 3 Whart. 369. 2 Manby v. Scott, 1 Sid. 109 ; Morris v. Martin, Str. 647 ; Hindley v. "Westmeath, 6 B. & C. 200; Mainwaring v. Leslie, 2 C. & P. 607; Bird V. Jones, 3 M. & E. 121 ; Mott v. Comstock, 8 Wend. 544 ; Kimball & Keyes, 11 "Wend. 33 ; Norton v. Fazan, 1 B. & P. 226. •'' Robinson v. Nahon, 1 Camp. 246. * Blades v. Free, 9. B. & C. 167. PARTIES TO A SALE. 75 her away ; and afterwards the wife is guilty of adultery, but oft'ers to return to her husband, who refuses to receive her : he is not liable for goods supplied to the wife. But if, after her criminal conduct, he receive her back, and again turn her away, he is liable for necessaries furnished her.' § 9. If a wife elope, but not with an adulterer, and after- wards request the husband to receive her back, which he refuses to do ; it seems he is liable for her subsequent sup- port.' § 10. Where husband and wife live apart, upon an agreement for separate maintenance, he is not liable for necessaries furnished her, though the creditor were igno- rant of such agreement, provided it was matter of general notoriety in the neighborhood. Otherwise, if the wife took up the goods immediately after leaving the husband. The separate maintenance need not be secured by deed, in order to discharge the husband ; but it must be propor- tionate to his means, and shown to be so by other proof than merely the wife's assent. If the separate mainte- nance is secured through a trustee, and the husband fails to fulfil his contract, the trustee may maintain indeb. assump. against him for necessaries furnished the wife, though the agreement is under seal.' § 11. A wife is not rendered liable upon her contracts, by an allowance of alimony made to her in a suit in the Ecclesiastical Court between her and the husband ;" ■* nor « On the other hand, if the husband neglect to pay the alimony, he will be liable for necessaries furnished the wife, — as furniture. Hunt v. De Blaquier, 5 Bing. 550. ' Govier v. Hancock, 6 T. K. 603 ; Harris v. Morris, 4 Esp. 41. ' Ewers v. Hutton, 3 Esp. 256; Child v. Hardyman, Str. 875; Mc- Cutchen v. McQahay, 11 John. 281 ; McGahay v. Williams, 12 John. 293. ' Todd V. Stokes, 1 Lord Eaym. 444; Hodgkinson v. Fletcher, 4 Camp. 70 ; Nurse v. Craig, 2 New B. 148 ; Baker v. Barney, 8 Johns. 72. < Ellah V. Leigh, 5 T. K. 679. 76 LAW OF SALES OF PERSONAL PROPERTY. by living apart from him, under a contract for separate maintenance. This last point seems to have been finally settled as above stated,' after some previous decisions to the contrary. But a creditor, in such case, may have re- lief in equity. Divorce a mensd does not make her liable.' Divorce a vinculo does.^ § 12. "Where the husband has permanently left the realm, by abjuration or banishment for life ; or, it seems, where he has been transported, even if he remain abroad beyond the time assigned to him : the wife is liable. So where the husband is by any means, for the time, civiliier mortuus, or the marriage contract is suspended or dissolved. And it seems, though the authorities on the subject are somewhat contradictory, that it makes no difference whe- ther the husband is an alien or a native, but the question turns entirely upon the consideration, whether the absence is intended to be temporary or permanent. If the husband is an alien enemy, the wife is liable, because he cannot lawfully be in the country.' § 13. In/ants constitute another class of persons, whom the law holds to be incapable of buying and selling, as well as entering into other contracts. To this disability, how- * Otherwise in Massachusetts. Dean v. Eichmond, 5 Pick. 461. ' Marshall v. Button, 8 T. E. 545. s Lewis V. Lee, 3 B. & C. 291 ; Hookham v. Chambers, 3 Br. & B. 92; Jee V. Thurlow, 2 B. & C. 547. 3 Cox V. Kitchin, 1 Bos. & P. 338; Lean v. Schultz, 2 W. Bl. 1197; Carroll v. Blencow, 4 Esp. 27; Marsh v. Hutchinson, 2 B. & P. 232; Harden v. Keverberg, 2 M. & W. 64 ; Eobinson v. Keynolds, 1 Aik. 174; Gregory y. Paul, 15 Mass. 31 ; Abbott v. Bayley, 6 Pick. 89; Bean V. Morgan, 4 McCord, 148 ; Barden v. Keverberg, 2 M. & W. 64; Den- nis V. Sargeant, 6 C. & P. 419 ; Williamson v. Dawes, 9 Bing. 292; Ex parte Franks, 7 Bing. 762 ; Deerly v. Duchess of Mazarine, Salk. 116, 646; De Gaillon v. L'Aigle, 1 B. & P. 357; Marsh v. Hutchinson, 2 B. & P. 226 ; Walford v. Duchess de Pienne, 2 Esp. 554, 587 ; Bufrield v. Duchess de Pienne, 2 N. E. 380; Farrer v. Granard, 4 B. & P. 80; Kay V. Duchess de Pienne, 3 Camp. 123 ; Derry v. Mazarine, 1 Lord Kay. 147 ; Lewis v. Lee, 3 B. & C. 291 ; Jee v. Thurlow, 2 B. & C. 547; An- stey V. Manners, Gow, 10. PARTIES TO A SALE. 77 ever, there are some exceptions. Thus an infant may le- gally purchase and bind himself to pay for necessaries ; that is, for the food, clothing, medical attendance, instruc- tion, etc., which are suitable to his condition. So also for necessaries furnished to his family. A single hill, promis- ing to pay the precise sum due for necessaries, is binding ; but not a penal bond, negotiable instrument, or account stated. But, notwithstanding these securities, an infant still remains liable to pay a reasonable sum for necessaries. If, after coming of age, he promise to pay a negotiable instrument given during infancy for necessaries, it seems, he is bound, provided he does it voluntarily, and with full notice of his rights. But mere part-payment, after coming of age, will not bind him for the residue.' ' § 14. "What articles the law will adjudge to be neces- saries for an infant, depends upon his real, and not his os- tensible rank and fortune. The law requires the party who trusts to make due inquiry. A captain in the army, under age, is bound to pay for a livery supplied to his ser- vant ; but not for cockades furnished his soldiers. A lieutenant in the navy is not bound for a chronometer. But an infant member of a volunteer corps is liable to pay for regimentals. An infant is not bound to pay money which is loaned him for the purchase of necessaries, unless • Where the plaintiff sold the defendant goods while the latter was a minor, but before receiving them she came of age ; held, inasmuch as the property would vest in her, if at all, upon delivery to the carrier who was to transport them, she was not bound for the price. Griffin v. Langfleld, 3 Camp. 264. 1 Southerton v. Whitelock, Bull. N. P. 155; Eoach v. Quick, 9 Wend. 238; Turner v. Trisby, Str. 168; Fisher v. Mowbray, 8 East, 330; Eus- sel V. Lee, 1 Lev. 86 ; Charters v. Bayntun, 7 Car. & P. 52 ; Dean v. Pitts, 10 John. 35; Trueman v. Hurst, 1 T. E. 40; Hedgley v. Holt, 4 C. & P. 104 ; Williamson v. Watts, 1 Camp. 552 ; Baylis v. Dineley, 3 M. & S. 477 ; Teatman v. Woods, 6 Yerg. 20 ; Makarell v. Bachelor, Cro. Eliz. 583; Stone v. Dennison, 13 Pick. 1 ; Taylor v. Croker, 4 Esp. 188; Everson v. Carpenter, 17 Wend. 419; Thrupp v. Fielder, 2 Esp. 628 ; Harmer v. Killing, 5 lb. 102. 78 LAW OF SALES OF PERSONAL PROPERTY. it be thus appropriated. But, in equity, he is liable for money borrowed to pay a debt for necessaries. An infant cannot bind himself to pay for goods purchased to trade with, because the law regards him as incapable of trading. {Infra, § 19, note.)" § 15. Where an infant lives with his father, and is properly supported by him, he is not liable even for nec- essaries. So if he has been supplied by his friends, or by other tradesmen, the creditor is bound to inquire into the proper quantity as well as quality of the articles with which he may be trusted.^ § 16. On the other hand, it is held that, to charge a father even for necessaries supplied to his child, the plain- tifl:' must prove a deliberate desertion of the latter by the former. Nor is the father liable, if he had reasonable ground to suppose that the child was supplied. And the general doctrine is laid down that, to charge the parent, an express or implied authority must be shown, to supply the articles.'' ^ » An infant is not liable to pay for grain furnished for horses of a firm to which he belongs, though the horses were employed in the usual busi- ness of the firm, and though he was emancipated by his father. Mason V. Wright, 13 Met. 306. ^ Whether a father is liable for necessaries supplied to his child, is a point very variously decided at difterent times and by different courts, in reference to the special circumstances of successive cases. The more modern doctrine is, that he is not thus liable. See Baker v. Keen, 2 Stark C. 501 ; Blackburn v. Mackey, 1 C. & P. 1 ; Fluck v. ToUemache, 1 Hands v. Slaney, 8 T. K. 678 ; Berolles v. Ramsay, Holt, 77 ; Coatcs V. Wilson, 5Esp. 152; Clarke v. Leslie, lb. 28; King v. Dilliston, 1 Salk. 386 ; Crantz v. Gill, 2 Esp. 472 ; Marlow v. Pitfeild, 1 P. Wms. 558 ; Story v. Pery, 4 C. & P. 526 ; Cook v. Deaton, 3 lb. 114; Ford v. Fothergill, 1 Esp. 211; Ive v. Chester, Cro. Jac. 560; Bainbridge v. Pickering, 2 W. Bl. 1325,; Guthrie v. Murphy, 4 Watts, 80; Burghart V. Angerstein, 6 .Oar. & P. 690; Whywall v. Champion, Str. 1083; Whittingham v. Hill, Cro. Jac. 494. » Duffy V. Duffy, Law Eeg. May,— 63, p. 434 ; Pa. ; Urmston v. New- comen, 4 Ad. & El. 908; Blackburn v. Mackey, 1 C. & P. 1 ; BolfeT. Abbott, 6 C. & P. 286 ; Maaddon v. White, 2 T. E. 161. PARTIES TO A SALE. 79 § 17. But it has been held, that any fraud or misrepre- sentation by the father will render him liable, even in an action of contract. Thus, in case of a sale of goods to an infant, on the false and fraudulent representation of his father, that he (the father) was about to relinquish his business in favor of the son: it was held, that an action might be maintained against the father, as for goods sold and delivered, upon the grounds, that, if he was jointly interested with the son, he was liable for the whole, no plea in abatement having been filed ; and, if the son had no interest in the property, then the father appropriated the fund from which creditors expected to receive pay- ment.' § 18. It is to be understood, that the contracts of an in- fant are not, in general, like those of a married woman, absolutely void, but only voidable, or liable to be avoided at the election of the infant himself." Consequently, the lb. 5; Eolfe v. Abbott, 6 lb. 286; Clements v. Williams, 8 lb. 8 ; Sea- borne V. Maddy, 9 lb. 497; Mortimore v. Wright, 6 M. & W. 482; Shelton v. Springett, 20 Eng. L. & Equ. 281. But see Bryan v. Jackson, 4 Conn. 288 ; Rumncy v. Keyes, 7 N. H. 571 ; McKenzie v. Stevens, 19 Ala. 691 ; Thayer v. White, 12 Met. 343; Deane v. Annis,14 Maine, 26; Finch v. Pinch, 22 Conn. 411 ; Stanton v. Wilson, 3 Day, 87 ; Hunt v. Thompson, 3 Scam. 180; Varney v. Young, 11 Verm. 268 ; Owen v. White, 5 Port. 435. But the failure of the parent himself to provide for the child, or the child's ability to provide for himself; his implied assent to the purchase made by the child, arising either from a, failure to repudiate it, after notice, or his adoption of previous similar contracts ; and the nature of the articles purchased, as being more or less absolutely necessary-;— ^are all facts, which may modify or control the general rule of law. - It is said, a contract beneficial to an infant (as in the case of -necessa- ries), is binding ; one that is prejudicial is void ; while those -neither ab- solutely beneficial nor prejudicial are voidable at his election. Long on Sales (Am. Ed.) 13. See 1 Pars, on Contr. 245. Of coarse these distinc- tions must be predicated upon the original tendency of the contract in question, or its general nature, not upon the actual results. The contract must be valid, void, or voidable at the time. It has been further re- marked, that the doctrine, that certain acts done by an infant are not 1 Biddle v. Levy, 1 Stark. 20. 80 LAW OF SALES OF PERSONAL PROPERTY. promise of an infant is a good consideration for that of the other contracting party ; because, at the time of the contract it cannot be known that the former will fail to fulfil his agreement. Thus the plaintiff", an infant, having agreed to take all the potatoes growing upon certain land of the defendant, paid a part of the price, and dug and carried away a part of the potatoes ; but the defendant would not permit him to take the remainder. Held, the plaintiff might sustain an action.^ § 19. The law, however, will not allow an infant to use his personal privilege as an instrument of fraud upon those with whom he deals. This privilege is designed " for a shield, not for a s^oord." Hence, where the infant exercises his right of disaffirming a contract, the other party may reclaim the consideration which he has paid.' even voidable, has been only applied to cases of land, which, it is said, are necessarily required by law to be binding, otherwise the land would lie unoccupied. There is no case in which it is holden that an executory contract by an infant, except for necessaries, is binding. Moses v, Stevens, 2 Pick. 336. Necessaries are said to be " such things as he ought properly to have, and not merely that which is indispensable to his life or his comfort." 1 Pars, on Contr. 245. {Supra, ^ 14.) The term has been held to include food, clothing, lodging, medicine, instruction. See Manby v. Scott, 1 Sid. 112; Eaymond v. Loyl, 10 Barb. 489. So a horse to ride, for an invalid. Hart v. Prater, 1 .Tur. 623. What are necessaries, is sometimes a question of law, and sometimes of fact. The former, where the article is one which absolutely does or does not come under this technical class ; the latter, where it is admitted to fall under this class, but is claimed to have been improper or super- fluous under the particular circumstances of the ease. Buler v. Young, 1 Bibb, 619 ; Makarell v. Bachelor, Cro. Eliz. 583. Perhaps wearing apparel furnishes the most obvious example of goods in themselves necessaries, as matter of law, but for which an infant would be chargeable or otherwise, in any particular case, as matter of fact, ac- cordingly as it was shown to be adapted to his condition, means, and actual previous supply, or otherwise. While, on the other hand, in an ancient case, balls and serenades were ruled, as matter of law, not to be necessaries. Kainsford v. Fenwick, Cart. 216. * In December, 1816, A. and B. commenced business as partners, and 1 Warwick v. Bruce, 2 Maule & S. 205. PARTIES TO A SALE. 81 § 20. The contracts of sale, as well as other agreements, of idiots^ lunatics, and persons of such defective under- purchased their stock in trade of C, giving therefor their joint note for over $700. A. was then an infant, but represented that he should be of age in a month or six weeks. In March, 1817, the partnership was dis- solved, and B. relinquished (to A.) all his interest in the concern, who carried it on alone for a short time in his own name. The plaintiff then, in presence of B., agreed with A. to buy of him all his stock, at cost, A. to continue in the management of the business, receiving one-third of the profits, and bearing one-third of the expenses ; and a certain notice to be given, before putting an end to the contract. During the negotia- tion, the plaintiff inquired of A. whether he was of age. A. answered, in the presence of B., that he was. The plaintiff then gave his note to A. and B. for the stock, which they indorsed to C, and C. thereupon discharged B. from the old note first above mentioned. In the autumn of 1817, the plaintiff sold the stock remaining on hand to A. at cost, ad- ditions having been in the meantime made to it. The plaintiff brings an action against A. for the price, and attaches the goods. A. having died, his administrator pleads infancy, and prevails in the suit. The plaintiff then brings the present action of replevin against the adminis- trator, to recover the goods sold by him. Held, the action might be sus- tained. The sale in March, 1817, to the plaintiff, was executed by A. He delivered and received payment for the goods, and the law would not allow him to retain them, without restoring the money. The sale was valid, till rescinded, and A. never expressed any dissatisfaction. The plaintiff delivered the goods, in the autumn, because A. agreed to pay for them, and said he was of age. The basis of the contract had failed through the fault, if not the fraud of A., and the property either never passed, or had re-vested in the plaintiff. Badger v. Phinney, 15 Mass. 369. It is said, if an infant give or sell goods, and deliver them with his hand, he cannot maintain trespass against the other party. But if the latter take them by force of the gift or sale, he is liable to an action. Even in the former case, it seems the infant may avoid the sale during minority. Long on Sales (Am. Ed.) 14; Stafford v. Roof, 9 Cow. 626; Manby v. Scott, 1 Mod. 137 ; Zouch v. Parsons, 3 Burr. 1804. So it is held, that, if an infant sell personal property and receive pay- ment, he may reclaim it upon tender of the price. Willis v. Twambly, 13 Mass. 204. But it is also said, that, if an infant should purchase and pay for a watch, he could not, by offering to return the watch, acquire a right to recover back the price. So also, that an infant could not buy a large quantity of corn or grain, and, after re-selling or consuming a portion, disaffirm the contract, and, by returning the remainder, miaintain a suit 6 82 LAW OF SALES OF PERSONAL PROPERTY. standing as disqualifies them to comprehend the nature of their own engagements, are of course void or voidable- and it seems to be now well settled, though a contrary doctrine was once established, that they may allege their own incapacity, in avoidance of their contracts. Mental incapacity to contract consists in an essential privation, for a proportional part of the price. Holmes v. Blogg, 8 Taun. 35; Story, Eq. 25. The defendant, when an infant, bought goods of the plaintiffs, who, three days before his coining of age, brought an action for the price and attached the goods. The goods had ever since been retained by the officer, and the defendant, after coming of age, had not repudiated the sale. He havint; had no control of the goods, it was held that he had manifested no intention to retain them, and the action could not be maintained. Smith V. Kelley, 13 Met. 309. It being well settled, that infancy is no justification of a iort or wrong, the question has been much agitated, how far an infant can be held liable in those frequent cases which partake of the character both of contract and tort ; including, of course, the sales and purchases of an infant. The early cases of Manby v. Scott, 1 Sid. 129, and Grove v. Nevill, 1 Keb. 778, — one relating to an infant buyer, the other to an infant seller, — rather raised than settled this question. In Mills v. Graham, 4 B. & P. 140, the defendant, a minor, but not disclosing his minority, applied to the plaintiff to sell him skins, which the plaintiff refused, but furnislied him with them to finish, promising to pay him therefor. The defendant afterwards refusing to return them, upon denjand, and tender of the sum agreed; it was held, that detinue or trover would lie against him. Obviously, however, in this case, there was nothing at all partaking of contract ; the property was from the beginning in the plaintiff, and the defendant's appropriation of it to himself an unmixed fraud or wrong. In Wallace v. Morse, 6 Hill, 391, an infant, who had obtained goods fraudulently, and not intending to pay for them, was held liable. So, in Vasse v. Smith, 6 Cranch, 226, trover was sustained against an infant, to whom goods were consigned to be sold at Norfolk, but who shipped them to the West Indies. In Word v. Vance, 1 N. & McC. 197, an infant was held liable exdt- Kcto for false warranty of a horse ; but a contrary decision was made in Morrill v. Aden, 19 Verm. 505. But the infant must either affirm or avoid the entire contract; and if he affirm it, after he comes of age, by bringing an action upon the notes given him, he cannot, upon his plea of infancy, preclude the defendant from taking advantage of the false warranty, in any proper manner, as a defence. Ibid. PARTIES TO A SALE, 83 at least for a time, of the reasoning faculties, whicli dis- qualifies one for acting in the ordinary affairs of life.' § 21. Duress also may avoid a contract of sale ; and this consists in actual unlawful imprisonment, or fear of death, wounding or imprisonment ; but not, it seems, in fear of a battery or loss of property. And the threats must be of a nature to terrify persons of ordinary cour- § 22. It is the general rule of law, that an alien enemy can maintain no action in the courts of the hostile na- tion ; but the exceptions and nice distinctions relating to this subject have no particular connection with sales of personal property, and are therefore wholly omitted in the present work. § 23. Contracts of sale are often entered into, through the intervention of agents and factors,'' acting for the ven- dor or purchaser, or for both. The general rule, in rela- tion to sales and purchases made in this mode, as well as other contracts, is, that the ■principal or party employing an agent is as much bound by, and entitled to avail him- self of, the act of the latter, as he would be if it were his own. The legal maxim is, " quifacit per alium, facit per se."" ' See s. 36. * A factor has possession as well as the disposal of property belonging to others. A broker, merely the latter. See s. 47. A vendor may act as the agent of the vendee in filing a hill of sale for record, and managing the property for him. Thomas v. Hillhouse, 17 Iowa, 67. A mortgagee and mortgagor are sometimes held to stand in the rela- tion of principal and agent. A mortgagee may sell the chattel with the assent of the mortgagor. Patrick v. Meserve, 18 N. H. 300 So the mortgagor, with the consent of the mortgagee, although the purchaser was not at the time informed of the mortgage. Staiford v. Whitcomb, 8 Allen, 618. ' It has been held in Pennsylvania, that although the above rule, that 1 2 Kent, 452. * 2 Inst. 483 ; 2 Kent, 453. See Watkins v. Baird, 6 Mass. 511 ; Atlee V. Backhouse, 3 M. & "W. 642 ; Skeate v. Beale, 11 Ad. & Ell. 983 ; Gates v. Hudson, 5 Eng. L. & Eq. 469. » See Bailey v. Moore, 1 Winst. No. 1, 86. 84 LAW OF SALES OF PERSONAL PROPERTY. § 24. In case of sale by a factor, the contract is in fact between the owner and vendee, whether the factor is a del credere agent or not.* Hence, after notice of the prin- cipal's title to the property, the vendee cannot be charged as trustee of the factor, except for the amount of the latter's commissions.^ And, upon the same ground, the principal has a right of action against the buyer, not lia- ble to be affected by the state of the account between the buyer and the factor ; provided the buyer had notice of the factorship. Thus a factor, acting under a del credere the sale of a factor is that of the principal, and the factor a mere insiru^ ment, is subject to certain qualifications ; there is nothing in the acts re- lating to auctioneers, to take them out of the general principle. The auctioneer's exclusive right of selling at auction has not this efliect; for, inasmuch as the owner has no power to select his agent, he ought to have additional authority to call himself upon the purchaser. Nor does the fact, that auctioneers are under bonds to the State, change the general principle ; for the amount of the bonds bears a very small proportion to the value of the property sold ; and a private factor's giving security would not affect the right of the principal to call on the purchaser. So the auctioneer's receiving a commission does not vary the general rule. For, although this impliesthe general rightof collecting from purchasers, yet the vendor may interpose and prevent it, and will thus make himself liable for the commission. As the auctioneer is bound to pay duties, and receives commissions, he has the right of collecting to this extent, and may so far retain the money and forbid payment to the principal; and probably the vendee would be bound to take notice of this right. The case of Willing v. Rowland, 4 Dall. 106, n., is said to favor the contrary doctrine, that the owner of the goods cannot maintain an action against the purchaser, but the auctioneer is the proper party. But this is said to have been a hasty decision. The case of Lea v. Yard, lb., merely de- cides that the bond of an auctioneer is designed for the benefit of his private customers, as well as to secure payment of duties. Girard v. Taggart, 5 S. & E. 19. » In an action for fraud in a sale, the plaintiff must prove a sale to him by the defendant. And the defendant may show that the sale was made by another person. But if the defendant made the sale, it is no defence for fraudulent representation or concealment, that the title was in another person. And if a third person furnish the thing to the defend- ant to sell to the plaintiff, or stand by and permit him to sell it; it is in law a sale by the defendant. Turner v. Huggins, 6 Eng. .337. ' Titcomb v. Seaver, 4 Greenl. 542. PARTIES TO A SALE. 85 commission, sold goods in behalf of the plaintiff to the de- fendant, not disclosing the plaintiff's name, but known by the defendant to be a factor. The plaintiff, conform- ably to the usage between him and the factor, drew upon the latter for the amount of the sale. Before maturity of the draft, the factor stopped payment, and subsequently became a bankrupt. At the time of his stopping pay- ment, there was a balance of account current between the factor and the defendant, in favor of the factor, but, at the time of suit brought by the plaintiff against the de- fendant for the price, a balance in favor of the factor. Held, this suit might be maintained.^ § 25. An agent is either general or special. A general agent is one authorized to transact all business, or all of a particular kind. He can bind his employer only by acts within the scope of his employment, and within the usual , course of dealing in that particular business. But no private order from the principal, unknown to the other party, will limit the agent's authority. ISTor will it depend at all upon the question whether his acts are advantageous or otherwise. A special agent is one appointed to do some specific act or acts, and in the doing of these alone can he bind his employer. A party dealing with him is bound to inquire into his authority. But an agent, employed to effect a certain object, has authority to use all the usual and proper means for accomplishing it, unless these are excluded by express instructions.' ^ See s. 32. » An agent's authority to warrant is held to depend on usage. Gibson V. Colt, 7 John. 390; Helyear v. Hawke, 5 Esp. 72; Groom v. Shaw, 1 Florida, 211. Upon this point, see Nelson v. Cowing, 6 Hill, 336; Wood- ford V. McClenahan, 4 Gilm. 85; Hunter v. Jameson, 6 Ired. 252; Franklin v. Ewell, 1 Sneed, 497; Bradford v. Bush, 10 Ala. 386; "Woodin V. Burford, 2 Cr. & M. 291. An authority to sell a slave includes and implies a power to warrant the slave to be sound. A warranty of soundness is one of the usual means of effecting a sale of such property, and the power to make it is 1 Hornby v. Lacy, 6 M. & S. 166. 2 Paley, 139, 200, 207, 209. 86 LAW OF SALES OF PERSONAL PROPERTY. § 26. It is the general rule, that an agent must execute his authority in person ; he cannot delegate it to another, without the principal's consent, unless the husiness is of a nature which naturally or necessarily requires the em- ployment of sub-agents.^ § 27. No particular form is requisite for the appoint- ment of an agent to buy or sell personal property. A mere verbal authority is sufficient ; and in some cases the power may be implied from other acts and dealings. Thus, if a man send his servant with the money to buy goods, the servant cannot render him liable by purchasing on credit." But if a servant, who usually buys for the master incident to the power to sell. Dennis t. Ashleys, 15 Miss. 453. See Mosely v. Gordon, 16 Geo. 384. Goods sold were taken by a drayman, acting without authority, and to whom they were delivered by the porter of the sellers, without instruc- tions, and by mistake, before a note for the price had been given, as agreed, by the agent of the purchaser; and were left at a forwarding- house, where, the same day, they were attached as the purchaser's. Held, the seller might maintain trespass against the officer. Lelar v. Brown, 15 Penn 215. A. assigned by deed to B. certain slaves, in trust to sell them and pay debts ; A. to retain possession, but not sell without consent of B. ; on pay- ment of the debts, the assignment to be void. A. notified B. of his in- tention to sell one of the slaves, and B. neither assented nor dissented, and A. afterwards made the sale in the absence of B. Held, the sale passed no title as against B. Smith v. Chitwood, Bush. (Law), 445. " The plaintiff brings an action for hay and oats furnished the defend- ant's horses. It appeared, that the plaintiif had never dealt with the defendant, but always with his coachman, to whom the defendant had periodically supplied money for this object. The debt was incurred several years before commencement of suit, and no demand made upon the defendant. Held, he was not liable. Kendall v. Andrews, Long, 220. The plaintiff delivered a quantity of hay and corn at the stables of the defendant, but had never seen or received any orders or money from him. The defendant kept a book with his coachman, in which entries were made of the things bought by, and sums advanced to, the latter. The advances were made on general account, and not specifically appropriated to particular items. The defendant gave the coachman money to pay the plaintiff's demand, but he applied it to his own use. Held, if the 1 Paley, 175-7. PARTIES TO A SALE. 87 on credit, purchase certain articles without any order to do so, and if the vendor give credit to the master, he is liable for the price, more especially if the vendor has previously dealt with him. A general agency cannot be implied from a single recognized dealing, but only from repeated instances.' Where a master usually pays cash for a part of the goods supplied by a tradesman to his servant, this is sufficient notice, that he considers these only as furnished to his family, and the vendor is bound to ascertain the destination of the goods which he sells. Hence, if he deliver them without payment or notice to the master, the latter is not liable, unless they come to his use.^ § 28. It is the general principle of the law of agency, applicable to sales as well as other contracts, that, where one assumes to act for another without authority, if the latter, with notice of all the facts, expressly ratify, or fail for a reasonable time to dissent from, the act done ; he is bound as much as by a previous authority.^ Thus the defendant bond fide purchased goods from one A., as the agent of the plaintiff, who brought an action and re- coachman was always in funds beforehand to pay for the goods, the de- fendant was not liable, never having authorized him to pledge his credit. But if he was not so in funds, he had a right to obtain credit, and the de- fendant was liable, notwithstanding the advance made to the coachman. A verdict was rendered for the plaintiff. Rusby v. Scarlett, 6 Esp. 76. In this ease, Lord Ellenborough thus stated the rule of law on this subject. The general rule is, that, in order to bind one person by the act of another, the former must either antecedently authorize or subsequently adopt such act. If I authorize a man to obtain credit on my account, which he does, I am liable, unless I have paid him. And so if, after the sale, the money was given to the servant to pay for the goods, it seems the master is liable, in ease the servant does not pay for them, because he has authorized the servant to purchase on credit. 6 Esp. 76. • 1 Shower, 95; Nickson V. Brohan, 10 Mod. Ill ; Southby v. Wiseman, 3 Keb. 625; Hazard v. Treadwell, 1 Str. 506; Stubbing v. Heintz, Peake, 48 ; Bolton v. Killersden, 1 Lord Eay. 224. « Pearce v. Rogers, 3 Bap. 214 ; Plemyng v. Hector, 2 M. & W. 181. 3 2 Kent, 615. 88 LAW OF SALES OF PERSONAL PROPERTY. covered judgment against A. for the price. The plaintift now seeks to disavow the agency, and brings replevin against the defendant for the goods. Held, the former record was conclusive evidence for the defendant.' § 29. Where no special instructions are given, a general power to sell implies a power to sell in the usual way ; but not to barter, pledge, or sell in an unusual manner, or for anything but cash, or upon the ordinary term of credit. A factor may sell on credit, though not expressly author- ized, because such is the constant usage. But, for the same reason (reversed), a broker cannot thus transfer stock. If a factor, contrary to usage, sell on credit, no title passes to the' vendee ; unless the sale were in market overt ; nor even then, if the vendee knew that the vendor acted for another.' Thus, A., the salesman of B., agrees with C, a creditor of B., to sell goods in payment, at night, without the knowledge and against the wishes of B., known to both parties. C. selects and sends off goods. Held, no title passed, and C. was liable for the taking.' § 30. A factor has no power to barter the goods of his principal, even with one ignorant of his agency ; but the principal may maintain trover for property thus disposed of ; unless it be done in market overt.''* § 31. One to whom goods are consigned, for sale, is justified in incurring any expenses in effecting such sale, which a prudent man would find to be necessary in the discreet management of his own atfairs. Thus, where the owner of a ship conveyed her to a creditor, to be sold by him to the best advantage, and, after payment of his debt, the surplus to be returned to the debtor ; held, the expense, in the form of commissions, of selling the vessel through » Aliter in England, by St. 6 Geo. 4, ch. 94. 1 Marsh v. Pier, 4 Eawle, 273. 2 Paley, 26, 212; 12 Mod. 615; "Wiltshire v. Sims, 1 Camp. 258; Quei- zoz v. Trueman, 3 B. & C. 342. ' Peshire v. Shepperson, 17 Grntt. 472. • Guerreiro v. Peile, 3 B. & Aid. 616. PARTIES TO A SALE. 89 the medium of a ship-broker, was a reasonable charge upon the gross proceeds of sale, unless some local usage could be shown to the contrarj'.' § 32. In this connection, we may properly recur to the distinction (already referred to, §. 25 a, n.) between general and special agents." § 33. Where a factor, having a general power to sell, is instructed to sell for not less than a certaiu price, and does seU for less ; the principal is still bound, unless the vendee had notice of such instruction. On the other hand, though a special agent, with limited authority, cannot bind the principal, if he exceed such authority, and, if he is ex- pressly limited as to price, cannot go beyond such price ; yet, though a price be specified, if the agent is at liberty to exceed it, he is not a special agent, and the principal is bound, though he go beyond the price named.'' ^ •The following cases familiarly illustrate this distinction. If a livery- stable keeper, having a horse for sale, directs his servant not to warrant the horse, but the servant disobeys the order ; the master is bound, be- cause the servant did not transgress the general scope of his authority, and a purchaser without notice could not be affected by any private in- structions given to him. Otherwise, where the owner of a horse sendls him by a servant to a fair for sale, with similar instructions. In such case, the servant alone is bound by the warranty. Penn v. Harrison, 3 T. E. 760 1 Woodin v. Burford, 2 Cr. & M. 392. The plaintiffs, the E. I. Company, sold a quantity of silks to the defend- ant, through a broker, whom the defendant had instructed to purchase ihe beat Bengal raw silk. In an action for the price of the silk, the de- fence was, that it was not raw silk, nor of the best quality. Held, the broker was a special agent, "and, having deviated from his instructions, the defendant was not responsible for his acts, nor liable to the present action. B. I. Co. v. Hensley, 1 Esp. 112. It is held in an old case, that, where one appoints a factor to purchase for him a certain kind of property, as for instance tin, and that only ; the factor may bind him for an entirely different article, such as silk (aaics) ; " and for that, let the master take heed what factor he makes." Petties V. Soam, Gouldsb. 138. ■• The following remarks, in an American case, well illustrate this somewhat nice, but still sound, distinction: "all which may be said to 1 Colley V. Merrill, 6 Greenl. 50. » Daniel v. Adams, Amb. 497, 498 ; Hicks v. Hankln, 4 Esp. 114. 90 LAW OF SALES OF PERSONAL PROPERTY. § 33 a. A general agent has authority to warrant, even though he receive positive instructions, but unknown to the buyer, not to do so.' § 34. A princij»al is bound by the representations or ai- missions of his agent, relating to the business of the agency ; but not by any others. Thus, in a prosecution to recover a penalty for selling coals short of the legal meas- ure, the confession of the defendant's agent, employed to sell them, made previous to the sale, is admissible evi- dence ; but not a confession relating to some former sale.^ § 35. A principal may always revoke a hare or naked, authority conferred upon an agent, and will no longer be bound by his acts, after notice of such revocation to the agent and the party with whom he deals. It seems, he is bound by any bond fide acts of the agent, previous to receiving notice of the revocation, which are to his disad- vantage ; but may waive the benefit of those which are in his favor. He is also bound by any dealings of the agent a special agent, about the mode in which his agency is to be executed, even if said at the time that the authority is conferred, or the agency constituted, cannot be regarded as part of the authority itself, or as a qualification or limitation upon it. There may be, at all times, upon the constitution of a special agency, and there often is, not only an authority given to the agent, in virtue of which he is to do the act proposed, but also certain communications addressed to the private ear of the agent, although they relate to the manner in which the authority is to be exe- cuted, and are intended as a guide to direct its execution. Thus, where one person employs another to sell a horse, and instructs him to sell for $100, if no more can be obtained, but to get the best price he can, and not to sell him for less than that sum, and not to state how low he is authorized to sell, because that will prevent him from obtaining more. Such a private instruction can with no propriety be deemed a liuoitation upon his authority to sell, because it is asecret matter between the prin- cipal and agent, which any person proposing to purchase is not to know, at least until the bargain is completed. From the nature of the case, such an instruction, so far as regards the minimum price, must be in- tended as a private matter." Per Parker, C. J., Hatch v. Taylor, ION. H. 538. > Milburn v. Belloni, 22 How. (N. T.) 18. ' Peto V. Hague, 6 Esp. 134. PARTIES TO A SALE. 91 witli persons who have previously dealt with him, and who have not heen notified of the revocation. "Where a hroker has verbally agreed to sell the goods of his princi- pal, a revocation by the latter avoids the sale, it not being legally valid by the Statute of Frauds. If the agent has a power coupled with an interest, as where he is authorized to sell goods and apply a part of the proceeds to his own debt, the authority can be revoked only by the death of the principal. And even this is no revocation, where the power is of such a nature as may be executed in the name of the agent himself.' ' § 36. It has been already intimated, that, where one person purchases goods for another, but without disclos- ing his agency, the vendor may call upon the principal for payment, though he gave credit to the agent. Thus, where a bankrupt coachmaker, who continued the busi- ness for the benefit of the assignees, purchased varnish in his own name ; he was held to be a mere agent, and the assignees were held liable to the vendor.^ So where the vendor merely knew that the nominal vendee was acting for another, but not the name of the principal. But if a vendor has notice who the principal is, and chooses to give credit to the agent, he can resort to the latter only.' And • The defendants sent their agent to the plaintiff with a written order for a load of rye, not mentioning in the order any price, or authorizing the agent to make a contract. i The plaintiff said the price was seventy- five cents per bushel, and requested the agent so to inform the defendants. He did not thus inform them, though he took a load. He afterwards took a second load, stating to the plaintiff that he had given notice of the price, and that the defendants did not object. The market price was fifty cents. Held, the plaintiff might recover for the second load, at the rate of seventy-five cents. Booth v. Bierce, Law Reg., Peb. '64, p. 254 — N. T., 40 Barb. ' 2 Kent, 644; Bao. Abr., Master, &c., k. ; Gaussen v. Morton, 5. M. & E. 613 ; Dickinson v. Valpy, 10 B. & C. 137 ; Hunt v. Ennig, 2 Mas. 244. « Kinder v. Howarth, 2 Stark. 354. See s. 23. ' Paterson v. Gandasequi, 15 East, 62 ; Kailton v. Hodgson, 4 Taun. 574, 576, n. See Smart v. Sandars, 5 Com. B. 895; Brown v. McGran, 14 Pet. 479 i Blot v. Boiceau, 3 Comst. 78 ; Thomson v. Davenport, 9 92 LAW OF SALES OF PERSONAL PROPERTY. it is said, generally speaking, by the usage of trade, where an agent buys /or a foreign house, the vendor cannot resort to the principal for payment. And, on the other hand, if one sell for a foreign house, he may sue in his own name." § 37. Where goods are furnished to A., on the sole credit and responsibility of B., their value cannot be re- covered from A. by the vendor.^ It is to be understood, however, that a principal unknown at the time of pur- chase will be held liable as the real vendee, only at the election of the vendor. The agent may still be resorted to for payment." Upon the same principle, where one per- son sells property in his own name but for another's bene- fit, either the real or nominal vendor may bring an action for the price.' § 38. Public agents are not personally liable, even under circumstances which would charge private agents in their individual capacity. Thus, where the governor of Quebec purchased corn and grease for the use of the lieutenant- governor, commanding a fort in his province, he was held not to be personally liable. So a commissary is not liable for forage furnished for the army upon his order. So the captain of a troop of horse, during his absence, and while it is actually commanded by another, who issues the orders for subsistence for the men, is not liable to pay for such subsistence, though still entitled to a profit upon the sums issued on that account, and still commanding the troop. And though present with the troop, he is not liable for forage furnished by the orders of a clerk of his appoint- nient, but receiving his directions from any officer who " Where goods are in fact sold and delivered by A. to B., the declara- tion of A., that he did not or would not credit B., on his own responsi- bility, is not sufficient to discharge B. Hicks v. Bailey, 16 Tex. 229. B. & C. 78 ; Nelson v. Powell, 3 Doug. 410 ; Cothay v. Fennell, 10 B. & C. 671 ; Graham v. Dyster, 6 M. & S. 1. 1 Long (Rand''s Ed.) 406, 407, 412. ' Bailey v. Hicks, 16 Tex. 222. » Wilson V. Hart, 7 Taun. 295; Cothay v. Fennell, 10 B. & C. 671) Bateman v. Phillips, 15 East, 271 ; Sims v. Bond, 2 N. & M. 617. PARTIES TO A SALE. 93 happened to command. But if the captain receive money from the paymaster of the regiment, to whom it is issued by government, and on whom the captain has the right of drawing for a certain sum, according to the returns of the preceding month ; the party who furnishes the forage may recover the amount thus paid to the captain in an action for money had and received.' § 39. It has been seen, that an agent is always liaWe for goods purchased by him, where the vendor receives no notice that they are bought for the use of another ; be- cause in such case credit is given to the agent alone. The same rule applies, where such notice is given, but the vendor refuses to deliver the goods on the credit of the principal ; for then he has no claim upon the latter. So, also, where the agent discloses that he is acting as such, but after delivery refuses to give the name of his em- ployer. But if the agent notifies the vendor that he is buying for another, and gives the name of his principal, he is not liable for the price.* ^ § 40. "Where one contracts in writing to deliver certain goods, not disclosing that he is a mere factor at the time, • A. purchased a cup from B. B. inquired whether he should send it to the house of A., and A. replied, "I have nothing to do with it,— send it to the clerk of the course at Lichfield " (meaning the race-course, the cup heing designed for a premium). The clerk owed B. on a prior ac- count. The article was sent to the clerk, according to A.'s direction; and B. afterwards wrote to him, successively sending him an account, made out to himself, and threatening him with a suit, if not paid. The clerk had requested A. to order a cup for the ahove purpose. Held, A. was not liable for the price. As he ordered the artiele, it must have been presumed that the credit was given to him, unless proved to have been given to another ; but the circumstances of the case, and more particu- larly. the account made out to the clerk, showed that he was the person trusted. Storr v. Scott, 6 C. & P. 241. See Meux v. Humphries, 3 C. & P. 79. 1 2 Kent, 632; Paley, 377, 8; Macbeath v. Haldimand, 1 T. E. 172; Allen V. Waldegrave, 8 Taun. 566; Gidley v. Lord Palmerston, 3 Br. & B. 275; Eice v. Chute, 1 E. 579. ' Owen V. Gooch, 2 Esp. 568. 94 LAW OF SALES OF PERSONAL PROPERTY. he is personally responsible for breach of the agreement, although, before suit brought, the promisee is informed of his being an agent.' § 41. If an agent, purchasing goods, by the same writ- ing acknowledges the receipt of them for his principal, and personally promises to pay the price, he is individu- allj'' responsible for the debt." ' § 42. The relation between the master and the owner of a ship constitutes a peculiar kind of agency, governed by principles somewhat different from the general rules of law above stated. Where a ship-master purchases necessaries for the ship, although he discloses the name of the owner at the time, both master and owner are liable to the vendor. On the other hand, a ship-owner is re- sponsible, though he have let the vessel to the master for a limited time, covenanting that he shall have the sole management of her, and employ her for his sole benefit, wdth a covenant by the master to repair the vessel, and though the owner was neither known to the vendor, nor knew of the sale. It might be otherwise, if facts dis- tinctly showed that the vendor gave credit wholly to the captain. But where goods were ordered for a ship by the owners, before the appointment of a captain, and some were delivered before, and others after, such appointment ; held, the captain was not liable for any part, no credit having been given to him. Kor is he liable in any case, where it distinctly appears, that credit was given to the owners only.' * It is a good and reasonable usage in the wool trade at Liverpool, that a broker, employed to buy wool, may either contract in the name of his principal, or, at the request of the seller, may, without notice to the principal, make himself personally liable for the price. Cropper v. Cook, Law Eep. (Eng.) May, 1868, p. 194. " Paley, 250. » Alford V. Eglisfield, Dyer, 230. » Kich V. Coe, Cowp. 636 ; Farmer v. Davies, 1 T. K. 108 ; Hoskins V. Slayton, Cas. Temp. Hardw. 376. As to the power of the master to PAKTIES TO A SALE. 95 § 43. In order to charge an owner, the articles furnished to the captain must be such as were necessary or proper for the ship at that time, and such as any prudent owner might be expected to procure. The person attempted to be charged must be shown either to be legal owner, or to have so represented himself; or else it must be proved that the articles were sold upon his credit. Hence, in the absence of the two last requisites, a person to whom a conveyance of a vessel was made, void under the registry law, cannot be charged for supplies furnished to such vessel.* ' § 44. "Where one part-owner of a ship purchases neces- sary supplies, the others are liable, unless the contrary is specially agreed.' § 45. The question may arise, whether an agent can charge his principal as purchaser from him, of goods bought by the agent of a third person. On this point it has been held, that, where one man employs another to purchase goods for him, and the agent buys and pays for them by a bill on time, the agent, it seems, cannot sue the principal for the price ; certainly not, before maturity of the bill." • In a very late case it is held, that, to render a ship-owner liable for repairs and equipments furnished to the master ; either the latter must have received actual authority to bind the former, or the owner must by •word or act have held out the master ag such, and thus induced the sale upon his own credit. Where by an agreement and charter-party the master, ofScers, and crew were to be appointed by the owners, be under their cpntrol, and dismissed by them, but the wages to be paid by the charterer, and the master was to act as supervisor of repairs and fittings ; upon the testimony of the master, that he considered himself as acting for and as the servant of both owners and charterer, held, the owners were liable for necessaries supplied to the ship. The Great Eastern, Law Sep. (Eng.) July, 1868, p. 87. ^ A., a foreign merchant, employed B. to purchase goods for him on sell the ship, see Sarah Ann, 2 Sumn. 206 ; Hunter v. Parker, 7 M. & W. 322. 1 Abbott, 102, 119, n. 1 ; Harrington v. Fry, 2 Bing. 179. ' Abbott, 76. 96 LAW OF SALES OF PERSONAL PROPERTY. § 46. One who coraniits a fraud, through a sale made by his agent, is responsible to the vendee ; as where a goldsmith, by his servant, sells counterfeit plate, or a tav- erner corrupted wine. And the principal is responsible in such case, even though the fraud was committed with- out authority from him, if done in his employment ;'■ as where an agent sells counterfeit jewels for real and good ones, or diseased animals as healthy ; or where a factor beyond sea sells silk as of one kind, which proves to be of another. The principal is charged in such cases, upon the common rule, that, where a loss must fall on one of two innocent parties, it shall be borne by him who employed and trusted the deceiver.' § 47. The preceding remarks are particularly applicable to the class of agents commonly called factors. Brokers constitute another important class, sustaining the same commission, which he did, from C. C, knowing the purchase to be made for A., made out the invoices to B., and took in payment his ac- ceptances at six months. Held, the above facts did not constitute a con- tract of sale between A. and B. ; or, if they did, no action could be brought by B. against A. for the price of the goods, until the expiration of six months. The commission to be paid B. made him a factor or agent, and he became entitled to such commission upon the performance of his duty, that is, making payment for the goods. If A. could be called upon immediately for the money, his object in employing B. was defeated, and he stood in a worse situation than he would, if dealing di- rectly with the vendor. A. was the real purchaser, and B. merely an agent in procuring the goods, and pledging his own credit, not generally, as a broker, but specially, by guaranteeing payment. In relation to C, the vendor, B. may have been the principal and the vendee of the goods, and yet, as between him and A., a mere agent. Seymour v. Pyohlau, 1 B. & A. 14. ■ An ancient authority (Bro. Abr., Action on the Case, pi. 8) seems to be contra, unless the act be done through the covin, or by command, of the master. See Atwood v. Small, 6 CI. & Fin. 448; Veazie v. Wil- liams, 8 How. 134; Fitzsimmons v. Joslin, 21 Verm. 129; Dunkley v. Farris, 20 Eng. L. & Equ. 285. ' Paley, 301 ; Parsons v. Armor, 3 Pet. 413 ; Jeffrey v. Bigelow, 13 Wend. 518 ; Hern v. Nichols, 1 Salk, 289 ; Ward v. Evans, 2 Salk. 441 ; 2 Molloy, 334. See 2 Hilliard on Torts, 3d edit., 452. PARTIES TO A SALE. 97 general relation. A distinction is sometimes taken be- tween factors and brokers, as to their respective power of binding their principals. Factors are said to have pos- session of the goods, a lien upon them, usually, for ad- vances, and the right of selling in their own names, neither of which is true of brokers. Hence the latter do not appear to the world clothed with the same authority as the former, and have not the same opportunity of de- ceiving those who deal with them. The principal is not bound by the contract of a broker, exceeding his authority, unless it can be shown that the former, by his conduct, gave the latter the means of deceiving third persons, that they actually were deceived, and that they were not them- selves guilty of negligence.' § 48. From this statement, it may be inferred, that the actual authority conferred upon a broker is not in all cases the measure of his power to bind the principal. If property is so placed in the broker's hands, as naturally to induce the belief, on the part of third persons, that he is authorized to sell it, a sale by him will bind the owner. Thus, where A., a broker, engaged in the business of buy- ing and selling hemp, purchased a quantity of hemp for B., who was in the habit of buying it at the London wharves, and the hemp, at the time of purchase, was transferred in part into A.'s name, and the rest into the names of A. or B., and A. afterwards sold the hemp to C. ; it was held, that B. was bound by the sale.^ § 49. And an implied authority of a broker, arising from the previous course of dealing between him and his em- ployer, will not be controlled by special instructions in a particular case. Thus certain brokers had been in the habit of purchasing and selling sugars on speculation, in their own names and at their own discretion, for their principal, and of paying and receiving the price. At some » Baring v. Currie, 2 B. & A. 148. See Humfrey v. Dale, 38 Eng. L. & Eq. 120; Thompson v. Perkins, 3 Mas. 232. » Pickering v. Busk, 15 E. 38. 7 98 LAW OF SALES OF PERSONAL PROPERTY. times, in a low state of the markets, they had unlimited authority as to quantity and price ; at others, special in- structions to purchase. They also received at intervals special instructions to sell, and were limited as to price, and advised, from time to time, as to the prospects of the markets. They kept a general account with the principal of their payments to and receipts from him, not account- ing separately for each lot purchased and re-sold. Having re-sold a particular parcel^ which was bought and paid for in their own names, and lodged in their own ware- house, for a less price than was authorized by the princi- pal ; held, the sale was valid.' § 50. Possession of the muniments of title, accompanying that of the goods themselves, it seems, is sufficient evi- dence of a broker's authority to sell. Thus A., residing in London, having as agent of B. imported certain goods, sent the invoice to B., but delivered the bill of lading to a warehouse-keeper, who entered the goods in his books as A.'s property. The bill of lading made the goods de- liverable to the order of the shipper, or his assigns, and was indorsed in blank. Five months afterwards, A., without authority, sold the goods, and B. brings trover against C, the purchaser. A verdict, having been ren- dered for the defendants, was set aside, and a new trial granted; because it was not left to the jury to say, whether B. had enabled A. to appear as owner.^ § 51. Where brokers effect sales or purchases of personal property, it is usually done by means of bought and sold notes, so called. In reference to these, in an action brought by the vendee of goods upon a contract made through a broker, the plaintiff is bound only to produce the bought note delivered him by the broker, and to prove that the latter was employed by the vendor. If the sold note varies from the bought note, the burden is upon the defendant to show this by producing the former.^ 1 Whitehead v. Tuckett, 16 E. 400. » Dyer v. Pearson, 4 D. & R. 648 ; 3 B. & C. 38. " Hawes v. Forster, 1 Moo. & R. 368. PARTIES TO A SALE. 99 § 52. "Where a contract of sale is made through a hroker, the bought and sold notes, not the broker's entry in his books, constitute such contract ; more especially if such is the established usage.' § 53. Where the note of the bargain delivered by the broker to the vendee materially differs from that delivered to the vendor, there is no binding contract. The object of the note is, not merely to show that there v^as a bar- gain, but also the terras of such bargain ; or, at least, the extent and entirety of the consideration for the promise upon which suit is brought. Hence, where the vendee refuses to take the goods, the vendor cannot maintain against him either a special assumpsit, or a count for goods bargained and sold.' § 54. A wharfinger, wifh whom goods are deposited until they shall be sold, cannot make a valid sale of them, though accustomed to sell property of the same descrip- tion from the wharf. The same is true of warehousemen, packers, and carters? % 55. Upon the general principle, that property in- trusted for a special purpose by one man to another con- tinues to belong to the former, notwithstanding any change of form ; where the goods of a principal are sold by his agent, or exchanged for others, any securities taken for the price, or property received in exchange, will be owned by the principal. From the peculiar nature of money, which has no ear-mark," it will be otherwise where the price is received in cash. In such case, the money belongs to the agent, leaving him accountable merely for the same amount. But if the money be kept by itself, or * See, as to this phrase, Ld. Mansfield's remarks in Miller v. Bace, 1 Burr. 457 ; also Chapman v. Cole, 12 Gray, 141. See also chap. 4. 1 Hawes v. Porster, 1 Moo. & E. 368. • Peltier v. Collins, 3 Wend. 459 ; Suydam v. Clark, 2 Sandf. 133. » Wilkinson v. King, 2 Camp. 335 ; Monk v. Whittenbiiry, 2 B. & Ad. 484. 100 LAW OF SALES OF PERSONAL PROPERTY. marked, so as to distinguisli it from any other, it is subject to the same rule with other kinds of personal property.* ' » The following case is found in the Philadelphia Legal Intelligencer : Supreme Court. The Bank v. King. Opinion by Strong, J. "There •was evidence at the trial that the money which had been deposited in the bank by John H. Curtis was not his own, but that it belonged to his clients. He obtained it as their agent, and he held it as such. And, had the additional evidence oflFered been received, it would have appeared that at least $835.81 of the amount belonged to the Philadelphia Saving Fund Society, and to the trustees of the Fotteral estate. It had been collected for them and deposited to the credit of their agent. Their right to it was not lost because it was thus deposited. It is undeniable that equity will follow a fund through any number of transmutations and preserve it for the owner so long as it can be identified. And it does not matter in whose name the legal right stands. If money has been converted by a trustee or agent, into a chose in action, the legal right to it may have been changed, but equity regards the beneficial ownership. It is conceded, for the cases abundantly show it, that when the bank re- ceived the deposits it thereby became a debtor to the depositor. The debt might have been paid in answer to his checks, and thus the liability have been extinguished, in the absence of interference by his principals, to whom the money belonged. But surely it cannot be denied that when the principals asserted their right to the money before its repayment, and gave notice to the bank of their ownership, and of their unwilling- ness that the money should be paid to their agent, his right to retain it ceased. A bank can be in no better situation than any other debtor. If an agent receives money of his principal, and lends it, taking a promis- sory note to himself, the note belongs to the principal, and the borrower may not pa.y the agent after he has been informed that there is a superior right, and has received notice not to pay the agent. This is a rule of general application. Story, in his Treatise on Equity, in section 1259, remarks, " It matters not in the slightest degree into whatever other form, different from the original, the change may have been made, whe- ther it be that of promissory note or of goods, or of stock, for the pro- duct or the substitute for the original thing still follows the nature of the thing itself, so long as it can be ascertained to be such.'' Even at law an unknown principal may often avail himself of a contract made with his agent. In the case of a simple contract, he may show that the appa- rent party was his agent, and treat the contract as made with himself, not, however, injuriously affecting the rights of the other party. In many of these cases he is allowed to sue directly upon the contract. But wherever he can show that his money has been placed in the hands of another by his agent, it is no objection to his claim that that other has 1 Long, 427, 428, 429. (oe: 1^ ^/ V V PARTIES TO A SALE. l€,l^>9JP^yv § 56. All agents and factors are in a certain sense trus- tees, and subject to the general principles of the law of promised to pay it to the agent. In Prazier v. The Erie Bank, 8 W. & S. 18, it was ruled that if an agent procure the note of his principal to be discounted, and deposit the proceeds in bank to his own credit, the principal may maintain an action therefor against the bank in his own name, and this though the bank had no notice when the deposit was made that the money deposited did not belong to the agent. There are several English cases at law, some cited in the argument, and others re- ferred to by Bead, J., in Bank of Northern Liberties v. Jones, 6 Wright, 536, that may be noticed. Sims v. Bond, 5 Barn. & Ad. 389, is one. It was an action brought to recover the balance of an account with a banker, in the name of another, upon the allegation that it was the money of the plaintiffs, and it was held that plaintiffs who seek to recover the balance of such an account must show that the loans were made by them. So in Tapell V. Cooper, 9 Com. Bench. 509, where the bailiff of Lord Dudley had paid a check belonging to his employer into his own account with certain bankers, who received the cash for it, and gave credit for it in the bailiff's account, it was held that the bailiff could recover it, even after Lord Dudley had given notice to the bankers of the fraud and indemni- fied them. These cases are hardly reconcilable with our own case of Frazier v. The Erie City Bank. It is perhaps fair to surmise that they ■would have been differently decided did the English system of pleading allow parties to stand in a court of law either as plaintiffs or defendant on a mere equitable right. In Pennell v. Deffell, 23 Eng. L. & E. 460, we have the rule as understood in equity. It was a contest between an official assignee in bankruptcy and insolvency, and the executors of a prior deceased assignee, who had kept an account with bankers, into which he had paid his own money as well as moneys of the trust. The accounts were not distinguished as official accounts, but were opened in the depositor's own name. There was nothing to show that he was not alone interested in the sums due from time to time from the bankers. Lord Justices Knight, Bruce, and Turner held that the assignee was en- titled as against the executors of the depositor. The former said that " when a trustee pays money into a bank to his credit, the account being a simple account with himself, not marked or distinguished in any other manner, the debt thus constituted from the bank to him is one which, as long as it remains due, belongs specifically to the trust as much and as effectually as the money so paid would have done, bad it specifically been placed by the trustee in a particular repository and so remained." There is much more in the case. It is particularly to be noticed that the moneys of several distinct trusts were carried into the account, that the trustee's own money had been mixed with them, and that a rule was laid down for determining what belonged to the trusts and what to the depositors. It is true Pennell v. Deffell does not determine the right 102 LAW OF SALES OF PERSONAL PROPERTY. trusts. In this connection, however, it may be proper briefly to allude to the subject of sales made by trustees, to sue at law, but it determines the ownership of the fund under the cir- cumstances described, and if that is established, with us there can be no difficulty as to the right of the owner to sue. This was decided in Sherer's Administrator v. The York National Bank, a case decided at last May Term, not yet reported, in which the opinion was delivered by our brother Agnew. There W. W. Wolf had deposited in the bank a sum of money belonging to Sherer's estate. It was credited in a pass- book in which other credits were given to him as sheriff. Yet Sherer's administrator d. b. u. was allowed to recover it from the bank. A de- posit in bank then does not change the property in trust funds deposited by a trustee. The depositor may become a creditor of the bank, but he holds the contract in trust as he held the money before. It is not appli- cable to the payment of his debts to a general creditor. And a creditor who attaches the debt due from the bank to him, can be in no better con- dition than the depositor is. At most he becomes a statutory assignee of a naked legal right, with the beneficial ownership in another. It is strenuously insisted, however, that Jackson v. The Bank of the United States, 10 Barr, 61, asserts a different doctrine. But that case differs materially from the present, and is not in conflict with anything we have hitherto said. There, after a foreign attachment served, and even after a scire facias against the garnishees, the defendant had made deposits in the bank in his own name. He subsequently drew out all his deposits, the bank paying his checks without any regard to the at- tachment. It was held that the bank could not afterwards defend against the scire facias by attempting to show that the money deposited in fact was the money of some undisclosed principal of the depositor. When the money was paid, the bank had no knowledge that it belonged to any other. There was no other cause for withholding it than the attachment itself. The case seems to have been put upon the ground that the bank could not have resisted the claim of the depositor. Said Judge Coulter, " They (the hank) received it (the money) and the bills as his, entered them on their books as his, and were bound, in the absence of any attach- ment, to have paid the funds to him." .... "The attaching creditor stands in the place of Warwick " (the depositor). All this is true. But how would it have been if the real owners of the funds, as in this case, had given notice to the bank of their claim to the money, and demanded it? Could they not then have resisted the claim of the depositor? Pra- zier V. The Erie Bank, and Sherer's Administrator v. York County Bank, show they could. If, at the time the deposits were made, they had known the money was clothed with a trust, they could not have paid it to War- wick, in disregard of the trust. The Bank of the Northern Liberties v. Jones, 6 Wright, decided that until warned to the contrary, they had a right to assume the depositor was authorized to draw the money, but PARTIES TO A SALE. 103 technically so called ; that is, by persons to whom either the law, or the party interested in property, has committed when warned, it was not so. The judge said, " It is worthy of remark that the persons alleged by the garnishees to he the cestuis que trust, never gave notice to the attaching creditor of any claim, never appeared in court to move that the attachment should be quashed, nor took any step asserting ownership or indicative of it." Another reason given for holding the garnishees liable to the attaching creditor was, that they, after having paid the money to the depositor, and by their own books, papers, and records given the evidence that it was his, should not be per- mitted to allege the contrary for the purpose of protecting themselves in a wrongful act. "The duty of the garnishee," said the judge, " was, after having received the money and bills, as the money and bills of Warwick from himself, to have retained them until liberated by due course of law." All this is totally inapplicable to the present ease. The language of the judge must he considered with reference to the facts, and if so, Jackson v. The Bank of the United States does not rule the present case. Here the money remains in bank undrawn, and while thus remain- ing the true owners assert their claim to it. And had the rejected evi- dence been received, there would have been no difficulty in identifying that portion of it which belonged to the Saving Fund Society, and to the Fotteral estate, for $835.81 of the money in bank was theirs. It was collected by Curtis, and deposited since any check was drawn, and unless their right to it was lost by the deposit, it is still theirs. Now that the fact of depositing it did not destroy their ownership is settled by the cases already cited, among which are our own. Bank v. Jones, and Sherer's Administrator v. York County Bank. But it is insisted there was no ear-mark to the money. What of that, if the money can be fol- lowed ? 6r if it can be traced into a substitute ? This is often done through the aid of an ear-mark. But that is only an index enabling a beneficial owner to follow his property. It is no evidence of ownership. An ear-mark is not indispensable to enable a real owner to assert his right to property, or to its product or substitute. Evidence of substantial identity may be attached to the thing itself or it may be extraneous. It is freely admitted that if a trustee or agent receive money of a cestui que trust or principal and mingle it with his own, the principal cannot re- cover it specifically. This is not because the ownership is changed, but because the court cannot lay hold of the property as that of the owner. But in regard to money, substantial identity is not oneness of pieces of coin or of bank bills. If an agent to collect money puts the money col- lected into a chest where he has money of his own, he does not thereby make it all his own, and convert himself into a mere debtor to his prin- cipal. The principal may by the law claim out of the chest the sum. which belonged to him before the admixture. Pennell v. Deffell, supra. Applying now what we have said to the present case, the evidence 104 LAW OF SALES OF PERSONAL PROPEETT. it, to be managed or disposed of by them, without author- ity to bind the principal in any other way. § 57. Where property is in the hands of a trustee for sale, the law demands of him great care to promote the best interests of his cestuis, in making such sale, so far as is consistent with the rights of other parties concerned. He may sell either at public or private sale, unless spe- cially restricted, but is bound to use all proper exertions to obtain the best price ; and, having done this, he will not be responsible for any unfortunate result of the sale.' § 58. In general, neither a trustee, nor any agent or auctioneer employed by him, can either directly or indi- rectly become purchaser of the property sold ; unless the relation of trustee and cestui has been dissolved, or the latter acts with full notice and waives all objections to the sale on this ground, and the trustee takes no advan- tage of his peculiar situation. But a sale originally in- valid may be ratified by the express confirmation of the cestui, made with full notice of his rights, and after all undue influence has ceased.^ § 59. Under this head, we may briefly refer to the sub- ject of sales by executors and adiainistrators. In general, an executor or administrator may absolutely dispose of the deceased person's personal property, and pass a title, oifered and rejected should have been received, and the jury should have heen instructed that if they believed it, $835.81 of the fund in bank were not the property of John H. Curtis, and were not liable to attachment as such. It is apparent in this view of the case, that it is quite immaterial whe- ther the attachment was served before the Saving Fund Society and of the trustee of the Potteral estate. The attaching creditor stands in the position of the depositor, and can recover only what the depositor could. The judgment is reversed and a venire de novo awarded." 1 Lewin on Trusts, 367 ; Ex parte Dunman, 2 Kose, 66 ; Ord v. Noel, 5 Madd. 440 ; Garrett v. Noble, 6 Sim. 504 ; Prevost v. Gratz, 1 Pet. C. 364. 2 Lewin, 376, 390; Gallatin v. Cunningham, 8 Cow. 862; Clute v. Barron, 2 Mich. 192 ; Dwight v. Blackmar, lb. 330. PARTIES TO A SALE. 105 free of all Hens and claims, to the vendee. So also lie may mortgage such property. And the purchaser or mort- gagee will not be bound to see to the application of the purchase-money. But if a sale be made at a sacrifice to one having notice that there are no debts ; if there be col- lusion between the vendor and vendee ; or if the latter aid the executor, &c., in committing waste or other breach of duty : he will share his responsibility to the full value of the property ; and creditors or legatees may within reason- able time follow it in his hands. An executor, &c., can- not sell or pledge the assets to pay or secure his own pri- vate debt. In general, it is no proof of collusion, that a party receives the property by way of sale or pledge, for a consideration advanced at the time, though such prop- erty is specifically disposed of by the will or otherwise. Otherwise, where he receives the property on account of a subsisting debt. To each of these rules, however, there may be exceptions, arising from peculiar circumstances.' § 60. An executor may claim the price or value of goods belonging to the deceased, though sold without authority from him, and though the vendee have promised to pay another person. ■ Thus, where an auctioneer, employed by a supposed executor, sold goods of the testator ; but, be- fore payment, the lawful executor claimed the price from the purchaser, who had expressly agreed to pay the auc- tioneer, on being allowed to take away the property, which he did : it was held, that the purchaser was liable to the lawful executor, and therefore the auctioneer could not sustain an action against him." ^ » The following case is found in the Philadelphia Legal Intelligencer : Holcomb, Jr. v. Roberts. Opinion by Read, J. " The plaintiffs intestate purchased from the defendant the oak timber on lot No. 135, in Pittsfleld township, and paid him for it. In the spring of 1864, P. J. Tafts, as the 1 2 Wms. on Exrs. 609, 610, 612, 613; 8 Story on Eq. 384; 1 lb. 544; Nugent V. Gifford, 1 Atk. 463 ; Mead v. Lord Orrery, 3 Atk. 237; Mc- Leod V. Drummond, 14 Ves. 358. » Bickenson v. Naul, 4 Barn. & Ad. 638. 106 LAW OF SALES OF PERSONAL PROPERTY. § 61. Under the present title, also, may be considered the subject of sales made by virtue of judicial order or de- agent, and by the authority of Kate E. Roberts, the widow of J. L. Kob- erts the intestate, cut and made a considerable quantity of staves without objection by the defendants. But when he commenced to haul them to the Eoberts mill at Pittsfield, he was forbidden, and finally arrested on a capias in trespass, issued by defendant, and this prevented him from removing the staves. Letters of administration on the estate of J. L. Roberts were issued to his widow, the plaintiff, on the 10th August, 1864, and this suit was brought to recover damages for this breach of contract, and the first question is, can it be maintained by the administratrix, and does the grant of the letters of administration in this case relate back to the death of the intestate, and place her in the same condition as if she were an ex- ecutrix. The leading cases on this subject, are our own case of Leber v. Kauffett, 6 W. & G. 445 ; Thorp v. Stallwood, 5 Manning & Granger, 760, 44 Eng. C. L. ; and Foster v. Bates, 12 Meeson & "Welsby, 226, cited and approved in Rockwell v. Saunders, 19 Barb. 473 ; and Priest v. Watkins, 2 Hill, 225. An administrator may maintain an action of trespass for taking away the goods of his intestate after_his death and before the grant of the letters of administration. "It would be strange indeed," says C. J. Tindal, "if an administrator might sue for a trespass committed in the lifetime of his intestate, and for one committed after the grant of letters of ad- ministration, but not for one committed in the intermediate time." 5 Manning & Granger, 773. So where a person having sent a quantity of goods abroad for sale, died intestate, and after his death the defendants purchased the goods from the agents of the deceased there, who sold them for the benefit of the in- testate's estate, and, subsequently to the sale, the plaintiff took out letters of administration to the intestate, and sued the defendants for the price of the goods, it was held that the action was maintainable ; that the title of an administrator, though it does not exist until the grant of adminis- tration, relates back to the time of the death of the Intestate, so as to en- title the administrator to sue in assumpsit for goods sold and delivered; and that as the act of the agent was ratified by the plaintiff after he be- came administrator, it was no objection that the intended principal was unknown at the time to the person who intended to be the agent. 12 M. & W. 226. So where a note belonging to the estate of an inestate was paid to his widow, who afterwards took out letters of administration, it was held they related back, and legalized the payment. 2 Hill, 25-5. In Leber v. Kauflfett, Judge Sergeant says, "There are cases in which, for the benefit of the estate and to support the right, the law makes letters of adminis- PARTIES TO A SALE. 107 cree, or upon execution ; such sales being effected through the intervention of agents, appointed not by the party him- self, but by the law. § 62. Sales made under decretal orders of Chancery are under the control of the court, and may be rescinded or opened at any time previous to confirmation. But when confirmed, any error in the decree will not affect the title of the vendee. He has a right to presume that a sale was properly ordered. But his title, it seems, is liable to be impeached by parties claiming the property, who were not properly brought before the court. The court will not protect him from a title not in issue, or affected by the decree ; more especially, where he had notice of such title. And a sale is ineffectual, unless conformable to the decree.* ' § 63. A sale on execution, conducted according to law, passes a good title, if the process be not absolutely void, though voidable for irregularity, or founded upon an er- roneous judgment. Otherwise, where the court has no jurisdiction, or the execution is vpid for irregularity, or the proceedings of the officer do not conform to the re- quisitions of the law.^ tration relate back to the death of the intestate, so as to render the inter- vening acts done by the administrator valid and binding." "The dis- tinction, therefore seems to be, that the relation back will be admitted, for the purpose of supporting the rights of the intestate, and of ratifying acts for the benefit of his estate, and giving a remedy where otherwise there would be none." These principles cover the present case, and the court were therefore right in negativing the defendant's point. "That there can be no re- covery unless it appears that after the granting of letters of administra- tion he refused to permit the plaintiff to take the timber in accordance with the contract." » Chancery cannot set aside a public sale, regularly made by an officer not acting under the direction of the court, though the price was grossly inadequate, and the party chiefly interested did not know that it was to take place. March v. Ludlum, 3 Sandf. Ch. 35. I Bennett v. Hamill, 2 Sch. & Lef. 577 ; Colclough v. Sterum, 3 Bligh, 188 ; Lloyd v. Johnes, 9 Ves. 37. « Woodcock V. Bennet, 1 Cow. 734; Loftus's Case, Cro. Eliz. 279; 108 LAW OF SALES OF PERSONAL PROPERTY. § 64. It was formerly held in Massachusetts, that, in general, an execution purchaser, receiving and paying for the goods, acquires a title to them, notwithstanding any irregularity in the officer's proceedings. If it were not so, hoth creditor and debtor must suffer loss, because no pur- chaser of the property could be found. But the officer's return ought to show a compliance with the law ; other- wise the vendee would not hold his title. A different rule from the above applies to the sale of shares in a cor- poration. These are more like choses in action, or mere evidence of property, and, at common law, cannot be sold on execution. Hence, to give a title, the statutory re- quirements must be strictly pursued. If certificates of shares were given to the vendee, this would be more like delivery of a chattel. But even in such case, unless the return showed a compliance with the requisitions of the law, the corporation might not be justified in giving cer- tificates to the purchaser.' § 65. But, in the same State, it has since been decided otherwise, with respect to the return of the officer. In this case, A. recovered an execution against B., upon which C, an officer, seized and sold a horse, but the return did not state where the notifications were posted." B. brings trover against A. and C. Held, parol evidence was ad- missible of a legal notification, and that the officer might amend his return. The court remarked, that a dift'erent rule would operate to the injury of both creditor and debtor, because no purchaser would be found, but at a very low price. Also, that the old rule was inconsistent with the principle, that a seizure of goods upon execution discharges the debtor, though the sheriff' waste them or » It mentioned merely " two public places." The amendment was said not to contradict the return, but only make it more distinct. Doe V. Thorn, 1 M. & S. 425; Luddington v. Peck, 2 Conn. 7O0; Jack- son V. Bobins, 16 John. 537 ; Branwell v. Penneck, 7 B. & C. 536 ; Bead V. Markle, 3 John. 623 ; Goodyer v. June. Mete. Yelv. 180, n. 1 Howe V. Starkweather, 17 Mass. 240; Davis v. Maynard, 9, 242. PARTIES TO A SALE. 109 fail to return the execution. The case differs from a sale of land upon execution, for there, to give a perfect title, X the proceedings must all appear of record. (The action was remanded to the Court of Common Pleas, with in- structions to the officer to apply to the magistrate who issued the execution, for leave to amend. And the amount of the execution was deducted from the value of the horse, in mitigation of damages.)' § 66. The return upon an execution stated the adver- tisement of goods sold to have been made twenty-four hours before the sale. The debtor brings an action of trespass against the officer. Held, the defendant could not be per- mitted to show by parol evidence, that the time was forty- eight hours.^ § 67. A. fraudulently purchases goods from B., and the goods are afterwards taken upon an execution against the latter. In an action by A. against the officer, A. cannot avail himself of any irregularity in the proceedings con- nected with the execution sale.* § 68. Where the purchaser of property at an execution sale refuses to receive and pay for it, the officer may sell it anew.' § 69. A sheriff cannot legally purchase goods sold by himself. Such purc!hase is a conversion, which will justify an action of trover against him. But he may show the amount paid to the creditor in mitigation of damages.' § 69 a. An officer may recover the price of his own prop- erty, which he has fairly sold with other property belong- ing to the debtor at an execution sale, although the pur- chaser bought it, supposing it to belong to such debtor.^ § 70. "Where goods have been levied upon by execution, and the judgment debtor sells them with the sheriff's 1 Richards v. Smith, S. J. C. Norfolk, Oct. 1839. ' Purrington v. Loring, 7 Mass. 388. (See Law Beporter, Jan. 1840.) ' Daggett V. Adams, 1 G-reenl. 198. * Winslow V. Loring, 7 Mass. 392. » Perkins v. Thompson, 3 N. H. 144. ' Bice V. Andrews, 32 Vt. 691. 110 LAW OF SALES OF PERSONAL PROPERTY. assent, such sale does not divest the title of a previous purchaser from the debtor, though the previous sale would be void against the execution.' § 71. In immediate connection vpith the subject of sales made 'by and to factors and agents, may properly be con- sidered those made by or to partners. The right and power of one partner to bind his firm depends in great measure upon the fact, that he is expressly, or by implicar tion, their authorized agent, in relation to the partnership business.* § 72. In general, a contract of sale made by one partner binds the firm. Each member is individually liable for the fulfilment of the entire agreement. But the rule ap- plies to such matters only as are within the scope of the partnership business, or arise out of its regular transac- tions. "With this qualification, also, a sale to one partner binds the firm to pay the stipulated price, although the vendee purchased with a fraudulent intent, and has ac- tually applied the property to his own use ; unless the vendor was privy to such intent.'' ^ (See s. 80, n.) • This power is sometimes spoken of as resulting from the join< tenancy of partners. Gow, 80. See Smith v. Wheeler, 9 Fost. 334. ■> The plaintiff, a manufacturer, called at the place of business of " Gan- dell & Co." for orders for goods. At that time the firm consisted of Thomas Gandell only, and the business was managed by Edward Gan- dell, a clerk. On inquiring for Messrs. Gandell, the plaintiff was directed to a counting-house, where he .oaw Edward G., who led the plaintiff to believe that he was one of the firm of Gandell & Co., and under that belief, at the request of Edward G., the plaintiff sent goods to the place of business of Gandell & Co., and invoiced them to " Edward Gandell & Co." Edward G., who, unknown to the plaintiff, carried on business with one Todd, pledged the goods witb the defendant for advances bon& fide made to Gandell & Todd, and the defendant afterwards sold the goods 1 Frost V. Hill, 3 Wend. 386. 2 Bice v. Shute, 6 Burr. 2613; Ex parte Agaoe; Ex parte Tate; 2 Cox, 312 ; Sandilands v. Marsh, 2 B. & A. 673 ; Smith v. Craven, 1 C. & J. 500 ; Stokes v. Whittaker, 1 Sim. 376 ; Bond v. Gibson, 1 Camp. 185 ; Jacaud v. French, 12 E. 317 ; Rapp v. Latham, 2 B. & A. 795; Stone v. Marsh, 6 B. & C. 551 ; Jones v. Yates, 9 B. & C. 532. PARTIES TO A SALE, 111 § 73. "With regard to sales made by a partner of part- nership property, the following distinction has been taken. Where the property is of snch a nature, as shows that it is intended to be sold, and the profits of the concern to be derived from a sale, a sale by one is not only sufficient to pass the title to a purchaser, but, as between the part- ners themselves, is regarded as the joint act of all, and creates no liability on the part of the vendor to the other partners, except accounting for a share of the profits. But where partnership property is from its nature prop- erly intended only for use, as, for instance, in the case of tools and machinery ; although the sale by one may be considered as valid against all, so far as to pass a title, yet it is a wrongful act on the part of the vendor towards the other partners.' In a case in Massachusetts, where one partner had undertaken to dispose of a ship belong- ing to the firm, it was objected that the general rule did not apply to this species of property, on the grounds of its superior value, and its being usually transferred by sealed instruments. But the court, recognizing the power of one partner to dispose of any other partnership eifects, held that ships did not constitute an exception to the general rule.^ § 73 a. "Where a partner sold goods belonging to the firm, and gave a written order to the vendee, upon the depositary of the goods, for their delivery, and notified him of the sale ; the title is in the vendee, as against a under a power of sale. Held, that there was no contract of sale, inas- much as the plaintiff believed that he was contracting with Gandell & Co., and not with Edward G. personally, and Gandell & Co. never au- thorized Edward G. to contract for them ; consequently, no property passed, and the defendant was liable in trover for the amount realized by the sale. Hardman v. Booth, 1 Hurl. & Colt. 803. ' Vickery v. Taft, Chip. (Verm.) 242. See Piersons v. Hooker, 3 John. 70 J Livingston V. Koosevelt, 4 John 277; Lambert's Case, Godb. 244 ; Barton v. Williams, 6 B. & A. 405 ; Sandilands v. Marsh, 2 B. & A. 678. ' Lamb v. Durant, 12 Mass. 54. 112 liAW OF SALES OF PERSONAL PROPERTY. subsequent purchaser from another partner, although the first vendee has never delivered the order to the deposit- ary or demanded the goods of him.' § 7-i. Partnership in a particular adventure, as well as in general trade, authorizes one member of the firm to sell the partnership property. But one part-owner or tenant in common has not the same pow^er.^ § 75. A subsequent ratification, by one partner, of a sale made by another, binds the former as effectually as a previous authority. Thus A. and B. were jointly inter- ested in a stock of oil. A. contracted to sell it, without authority from or notice to B. B., on being notified, re- fused to be bound by the contract, but afterwards ver- bally assented. Samples were delivered to the purchaser. Held, the ratification was equivalent to a previous au- thority.^ § 76. "Where there is a doubt, whether a party purchas- ing goods bought them for himself alone or for the benefit of others also, as partners ; to prove the latter point, evi- dence may be offered of acts subsequent to the delivery of the property. But such evidence will be insufficient to charge third persons, who afterwards become partners, if it is clearly shown that no partnership existed at the time. If one partner purchases in his own name, but the prop- erty is delivered to all, the firm are bound. So, if several persons agree to share in goods to be purchased, and in pursuance of such agreement one of them makes the pur- chase, though without express authority from the rest, and as for himself only. But it is othervsdse, where seve- ral persons, though jointly interested in the same general business, have distributed it among themselves, each tak-* iug the exclusive management of a particular section. Thus, where several persons were jointly concerned in running a stage, and each supplied horses for a certain 1 Anthony v. Wheatons, 7 E. I. 490. " Collyer, 218; Barton v. Williams, 5 B. & A. 395, ' Soamea v. Spencer, 1 Dow. & Ry. 32. PARTIES TO A SALE. 113 part of tlie route ; it was held, that one who furnished grain to one of the partners could not hold the others for the price.' (See p. 85, n.) § 77. The warranty, misrepresentation, or fraud of one partner, in buying or selling, within the scope of the part- nership business, binds the firm.' § 78. After dissolution of a partnership by bankruptcy or otherwise, one partner has no power to dispose of the partnership property. But a secret act of bankruptcy, on the part of one, will not prevent the other, being solvent, from selling the joint effects, if done M'ithout fraud, and for valuable consideration.' § 79. One of four partners having died, and the partner- ship being thereby dissolved, one of the survivors took out administration upon the estate of the partner deceased. The three survivors then formed a new firm, and took the stock on hand, each giving his note, payable to the three, for one-third of the appraised value. Held, the supposed sale was void,' and the three survivors were jointly accountable to the funds of the old firm for the value of the stock.* * » The flrm of A. & B. delivered and invoiced a quantity of goods to the firm of C. & B., upon agreement that C. should pay for one-half, which he did, and that B. should pay for the other half, which he did not. Held, the property passed, notwithstanding an agreement between A. and B. that their firm should retain an interest in the moiety that B. was to pay for. Kent v. Porter, 18 N. H. 50. The following case turns upon the distinction, between a sale made, in constructioij of law, to one really, but not ostensibly, connected with the nominal vendee, whereby he becomes party to the original purchase; and a mere sub-sale to him by the former purchaser. An indictment for selling a lottery ticket alleged that it was sold to A. and B. The evidence showed, that A. and B. agreed to go shares in a ticket, and afterwards A., in presence of B., selected the ticket from a number produced by the defendant at A.'s suggestion. Both paid their 1 Saville v. Robertson, 4 T. R. 720; Gouthwaite v. Duckworth, 12 E. 421 ; Barton v. Hanson, 2 Taun. 49. 2 CoUyer, 241-252. ' Hague V. EoUeston, 4 Burr. 2174; Fox v. Hanbury, Cowp. 445. * "Washburn v. Goodman, 17 Pick. 619. 8 114 LAW OF SALES OF PERSONAL PROPERTY. § 80. A sale may take place as well between partners or joint-owners, as from or to them, to or by a third per- son. The general principle is, that, where two parties are jointly interested in the same property, each stands, to some extent, in the relation of trustee to the other, and is subject to the restrictions and liabilities, in buying and selling the common property, which that relation in- volves. Thus, A. and B. entered into a contract, by which A. was to advance to B. the means for the building of a vessel, which, when completed, was to be delivered to A. " as his property, as collateral security." A., after de- livery, oft'ered the vessel for sale by auction, and she was struck off on the bid of his agent. In a suit of A. against B., for the advances, held, B. was not bound by the sale, (if he had not assented to it), but might show the value of the vessel ; that A. could not legally purchase ; and that the legal title remains in A.^ But in Massachusetts it has been held, that, where two tenants in common of a ship are not jointl}^ engaged in buying or building ships for sale, they are not placed in such a relation of mutual respective shares of the price, B. laying the money on the counter. A., with B.'s consent, kept the ticket till the drawing of the lottery. The ticket having drawn a prize, the defendant paid the whole to A., and A. paid B. his share. There was no communication between A. and B., from the time of purchase till information was given of the prize, and the money paid. Held, the facts supported the indictment, by showing a joint purchase. It was immaterial, whether the defendant was paid by the particular money advanced by each of them, or otherwise. As there was no subsequent agreement, B. must have been originally an owner, because he received a part of the prize. Even if B, had advanced nothing, nor been present at the sale, the purchase, according to a prior agree- ment, would be a joint act, and vest the title in both, B. becoming in- debted to A. for the price. It was so far a partnership, that one might act for both, contract for the purchase, receive a delivery, and, in case of credit, bind both for the price. The fact, that the defendant was ignor- ant of B.'s interest, made no difference. There was no sub-sale, as in the case of Young v. Hunter, 4 Taun. 681. Commonwealth v. Lang, 14 Pick. 76. 1 Parker v. Vose, 45 Maine, 54. PARTIES TO A SALE. 115 trust and confidence with respect to the sale of the vessel, that each is bound in dealing with the other to communi- cate all the facts known to him, which may affect the price or value ; but they may deal with each other as dis- tinct owners. Thus one of them, in bargaining for a pur- chase from the other of his share, is not bound to inform him that a third person had previously agreed to pay him (the vendee) a larger price for the whole. But any studied eftbrt at concealment, or even slight fraudulent suggestion or representation, would avoid the sale ; if such suggestion was any part of the vendor's inducement to sell, though not the predominant motive. In an action brought by one part-owner against another for such fraud- ulent representation, it was held, that the defendant might show, for the purpose of disproving fraud, and upon the question of damages, that he paid the full value of the vessel ; but that the price agreed to be paid the defendant by the third person was strong, though not conclusive, evidence of the value.* * * The following case is found in the Philadelphia Legal Intelligencer: Per Sharswood, J. Densmore Oil Co. v. Densmore et al. " Where several parties associate to form a partnership or » corporation, for the purpose of prosecuting any branch of business, if some of the parties secure the property with which it is to be carried on, and then transfer it to their associates or to the corporation, at an advance, they are bound to account to the partnership or corporation for the advance so received by them. Prom the time the association is formed, or even during the process of formation, the parties all stand in a fiduciary relation to each other, and cannot deal with the subject-matter for their own private advantage or profit. Such is the case of Hitchens v. Congrove, 4 Russell, 562, and it has been followed by other cases of a similar character, all, however, resting upon the same broad and sound principle. The doctrine has been applied to one, who, while he is endeavoring to form a partnership buys property for the purpose of selling it to the partnership when it is formed. Such a person is a trustee or agent for the prospective firm, when it shall be formed, and he is under the disability of such a relation. Faucett v. Whitehouse, 1 Euss. & M. 132. On the other hand it cannot be doubted that if an individual, being the owner of property, whether land or a stock of goods, proposes to one or 1 Matthews v. Bliss, 22 Pick. 48. See Wallaee v. McVey, 6 Ind. 300. 116 LAW OF SALES OF PERSONAL PROPERTY. more persons to form a partnership, of which such property is to be the capital, and puts his price upon it, makes no misrepresentation about it, tells no falsehood as to what he gave for it, and his associates agree to take it at that price, it is an honest and fair contract, which cannot be impeached either at law or in equity. Foss v. Harbottle, 2 Hare, 489. As the vice-chancellor said in that case: "A party may have a clear right to say, 'I begin the transaction at this time; I have purchased land no matter how, or from whom, or at what price — I am willing to sell it at a certain price for a given purpose.' " It can make no dif- ference what may be the number of the associators or the character of the association, a private copartnership or a corporation composed of many stockholders. A contrary doctrine would throw doubt over every sale by a stockholder to the corporation of which he is a member. A farmer having land worth $50 an acre, may say to his richer neighbor, here is a valuable mill seat, but I have not the means of improving it. I will sell a moiety of it to you at $100 per acre, and put one half of the purchase-money, if you will advance a similar sura, into a common stock to erect and carry on a grist mill. It would not alter the case if he should call together a large number of persons and propose to form a joint stock company or a corporation, he to receive a part of his price in stock of the company to be formed. This is the position in which the defendants, Amos Densmore, Emmet Densmore, Koudebuck and Canfleld stood in regard to the subject-matter of this suit. They were the owners of land or leasehold interests in Venango County, and had been for a con- siderable time. A very large sum of money had been expended in im- proving and developing it. One well upon it was producing at the rate of eighty barrels of oil per day. They came to the city of Philadelphia, and proposed through the agency of the other defendants to form an oil company, to work these lands. They fixed the price at $250,000, insist- ing, however, upon retaining a large interest for themselves, by receiving a considerable part of the purchase-money in shares of stock of the pro- posed company. The corporation was created, the contract was executed. Shares of the company to the extent agreed upon were issued, and the balance paid in cash. I have looked through the examinations in vain for any evidence that these gentlemen, either by themselves or their agents, made any false representations as to the character or value of their property, or resorted to any trick or contrivance to blind the eyes of those who became subscribers to the stock. Indeed there is abundant testimony that at the rates at which such property was selling in the market the price was not an unreasonable one. Nor do I think it at all material what the vendors gave for it, or the lowest price they would have been willing to take. In foro consciaiHcs a man may not be justified in taking more for his goods than what he thinks they are really worth, or in asking more than he is really willing to accept. But such a prin- ciple as a rule of law in the common transactions of buying and selling would be an impracticable one. " It would be difficult to circumscribe such a doctrine within proper limits," as was remarked by C. J. Marshall PARTIES TO A SALK. 117 in Laidlaw v. Organ, 2 Wheat., 195, when it was insisted that it was the duty of the vendor to communicate all the intelligence in his possession of extrinsic facts which might influence the price of the commodity. I think these gentlemen, the owners of the lands, stood in no fiduciary re- lation to those who became subscribers to the stock, which placed them under any disability to become vendors to the corporation for the best price which they could obtain. Nor can I perceive any better ground of recovery against the other de- fendants. They were the agents of the owners to dispose of lands by getting up an oil company. They were to receive from them by agree- ment a certain number of the shares of the stock, to which the owners were to be entitled under the contract, as a compensation for their ser- vices. It matters not whether it was much or little. They stood in no fiduciary relation to the corporation any more than the real estate broker of a private vendor occupies such a relation to the vendee. He is not bound to disclose how much of the purchase-money he is to receive as commissions. Nor does it matter that they stated that they were going to take shares, or that the stock was issued to them directly. To have issued all the shares to the vendors, and then they to have transferred them to their agents respectively, would have been a more formal mode of doing the business, but it would have been mere formality. It was the same thing in substance when the Messrs. Densmore directed a cer- tain amount of the stock to which they were entitled under the contract to be issued directly to the parties, to whom they had engaged to transfer them. If we have settled that the owners had a right to the stock, it is equally clear that they had a right to give or transfer it to whom they It only remains that I should notice one more point which has been made. It is strongly urged that the sworn certificate upon which the charter was granted, in stating " that the sum of five dollars a share has been already paid in," is false. The only one of the defendants whose name is attached to that certificate is Francis 0. Lawrence, and he is not now a party before me, having never been served with process nor ap- peared. As I understand the argument, however, the other defendants are to be affected by his acts, because he was the principal and most active agent in the whole of the business. I will not stop to inquire whether this is so, or what effect this false statement, supposing it to be such, ought to have in coloring the whole transaction with fraud. I think the certificate was substantially true. The whole amount of five dollars a share on 50,000 shares was to be paid to the owners under their contract. To have required them to have paid in a large amount in cash for the shares they were to receive, to be immediately returned to them would have been the merest form, and an unnecessary and inconvenient form. They probably would have been compelled to pay for the use of so large a sum of money even for so short a period, and would have run some hazard of loss by carrying it backwards and forwards, unless indeed checks had been handed in and immediately handed back. 118 LAW OF SALES OF PERSONAL PROPERTY. On the whole, then, I am of the opinion that this bill should he dis- missed with costs." In further illustration of the rights and liabilities of one partner, growing out of the act of another, either as seller or purchaser, it may be added, as already suggested (s. 72), that, " unless the seller is guilty of collusion, a sale to one partner is a sale to the partnership, with whatever view the goods may be bought, and to whatever purposes they may be applied." Per Lord Ellenborough, Bowd v. Gibson, 1 Camp. 185. But one partner may dissent from a future or incomplete sale to the firm, and will not then be bound for the price, even though thegoodscome to the use of the firm. Monroe v. Conner, 15 Maine, 178. If one of several persons, jointly interested in the purchase of goods, acts in such purchase as the agent of the others, they will all be liable, as partners, for the price. Yet, in order to create this liability, their agree- ment must be to share jointly in the ultimate profit and loss of the pur- chase. And, upon the same ground, although there may be a partnership in reference to the transportation and sale of an outward cargo ; yet, if the interest of the parties in the return cargo is separate and distinct, each being entitled to his own respective proportion, they are not part- ners with reference to such return cargo. Post v. Kimberly, 9 John. 470; Gouthwaite v. Duckworth, 12 E. 421 ; Sims v. Willing, 8 S. & E. 103; Coope v. Eyre, 1 H. Bl. 37; Ketchum v. Durkee, 1 Hoffm. Ch. 538; Brooke v. Evans, 5 Watts, 196. (See s. 76.) One partner may sell the whole stock in trade at once; and the sale will be valid, though he appropriate the proceeds to his own private debt. The objection to this right has been strongly urged, that such a sale is contrary to the usage of business, and in violation of the implied, mutual obligation, incident to the relation of partnership. But the courts have taken the view, that the right of sale cannot be made to depend upon the question, whether it is made by wholesale or retail ; and, inasmuch as one partner would clearly have the right to sell the whole stock in the latter mode, he cannot be prevented from doing it in the former. And the principle more especially applies, in case of any sudden exigency, which calls for such a sale ; and in reference to the title thereby acquired by the purchaser, whatever might be the effect of it as between the parties themselves. Arnold v. Brown, 24 Pick. 89 ; Pierson v. Hooker, 3 John. 70; Kirby v. Ingersoll, 1 Barring. 172; Whitton v. Smith, 1 Freem. Ch. 238. DELIVERY. 119 CHAPTER VII. DELIVERY. 1. NECESSITY or DELIVERY ; STATUTE OF FRAUDS ; FRAUDULENT CON- VEYANCE. 2. A QUESTION FOR THE JURY. 2 a. AUCTION SALE. 2 6. EXECUTION SALE. 8. POSSESSION OF THE BUYER; CONSTRUCTIVE DELIVERY; SETTING APART AFTER THE SALE; SALE OF PONDEROUS ARTICLES. 6. MARKING OF THE ARTICLES SOLD. 7. SALE BY A TENANT IN COMMON. 8. SALE OF PROPERTY SUBJECT TO A LIEN FOR DUTIES OR ATTACHED ; OR ATTACHMENT AFTER SALE. 10. DKAWINQ OF AN ORDER FOR GOODS. 12. WRITTEN INSTRUMENT OF SALE ; DEED, BILL OF SALE, INVOICE, ETC. 14. DELIVERY OF KEY. 16. LEASE OF BUILDING. 16. PREVIOUS POSSESSION OF THE PURCHASER, OR HIS AGENT. 18. SALE BETWEEN TENANTS IN COMMON. 19. BILL OF LADING. 25. PROPERTY IN POSSESSION OF A THIRD PERSON ; SALE WITH NOTICE. 27. AGREEMENT, FOR FUTURE POSSESSION. 29. PART-DELIVERY. 36. DELIVERY OF A SAMPLE. 37. CONDITIONAL DELIVERY. 42. DELIVERY TO A CARRIER. § 1. By the common law," a sale of chattels, as between vendor and vendee, is said to pass the title without de- • On the other hand, it is a maxim of the Civil Law, " traditionibus ei iigucapionibus dominia rerum, non nudis paciis, transferuniur." Cod. 2, 3, 20. When the price, time, and manner of payment, and the time and manner of delivery, are agreed upon, delivery will, in the absence of all other facts, pass the title. Hotchkiss v. Hunt, 49 Maine, 213. If there is an actual delivery, on payment, with the design to make 120 LAW OF SALES OF PERSONAL PROPERTY. livery.^ ' But there are two points of view, in which the question of delivery becomes highly important, and which have given rise to very numerous cases and distinctions. One arises from a provision of the Statute of Frauds (see Statute of Frauds), making delivery, if accompanied or followed by acceptance, an equivalent or substitute for a written agreement, and effectual to bind the bargain, which, under that statute, would otherwise be void. This statute, however, as will be seen, applies to execu- tory, rather than executed sales. The other has relation to the rights of third persons, who are connected with, or claim under, the vendor, by attachment, execution, subse- quent conveyance, or otherwise ; and involves the very important and voluminous law o{ fraudulent conveyances (see Fraudulent Conveyance). In regard to the latter point, it is said to be the general rule, that delivery of posses- sion is necessary in the conveyance of personal chattels, as against every one but the vendor.*" ^ " A mere contract a sale, the title, passes, except as to prior liens. Sid well v. Lobly, 27 111. 438. Delivery is not necessary to pass the title of an absent article; but spe- eificaiion is an indispensable requisite. Leonard v. Winslow, 2 Grant, 139. See Law Kev. April, 1867, p. 413. * It is no defence to an action upon a note given for the price of goods sold, that they remain in the seller's hands. Ingersoll v. Kendall, 13 S. & M. 611. Payment and an agreement to deliver make an executed sale. McKay v. Hamblin, 40 Miss. 472. •• Mere possession, with no further indicia of title than a delivery order, is not sufficient to enable the bond fide pawnee of the person fraud- ulently obtaining possession from the true owner, to resist the claim of the latter in an action of trover. Kingsford v. Merry, 38 Eng. L. & Eq. 582. The plaintiffs, by their brokers, sold a quantity of tartaric acid, re- taining possession of it, but delivering an invoice to the vendee. E. pur- ' Visher v. Webster, 13 Cal. 58 ; 27 111. 438. See Cowper v. Andrews, Hob. 41 ; Sweeney v. Owsley, 14 B. Monr. 413 ; Ingersoll v. Kendall, 13 S. & M. 611 ; Scott V. Baber, 13 Ala. 182 ; Frazer v. Hilliard, 2 Strobh. 309. » Lanfear v. Sumner, 17 Mass. 113 ; Kicker v. Cross, 5 N. H. 571. See, as to delivery and acceptance, Browne on Frauds, 317, s. 316. See also chap. 12, s. 4 n. J chap. 25, a. 3. DELIVERY. 121 to sell personal property, without any delivery either ac- tual or symbolical, does not pass the title as against third persons, although it may have that eiFect as against the vendor."'^ § 2. In general, delivery is not a necessary element, but chased the acid from the vendee, and received from him a delivery order on the plaintiffs. A., fraudulently pretending that he was buying for V. «& Co., purchased the acid from E. through his broker, who received the delivery order and indorsed it, making the acid specially deliverable to himself, and then delivered the order to A. for the purpose of his in- specting the acid. A. then sent the order to the plaintiffs, and, by his false representation that he had purchased the acid on his own account, obtained an order from the plaintiffs making the acid deliverable to his order. The plaintiffs also forwarded the goods, which A. then pledged for money honS, fide advanced to him by the defendant. Held in an ac- tion of trover, that the plaintiffs and A. had never stood in the relation of vendor and vendee ; and, as A. hjid obtained the order by fraud, the plaintiffs were entitled to recover. lb. In order to constitute a valid delivery, there must not only be an act, but an act intended for this purpose. Lester v. McDowell, 18 Penn. 91. An offer by the seller to deliver, on condition of payment or security for the price, and a refusal by the buyer to accept the goods, do not con- stitute delivery. Messer v. Woodman, 2 Fost. 172. But delivery passes the property, though the terms of sale are cash, and the goods are not paid for. Bowen v. Burk, 13 Penn. 146. Where a seller has set apart property for the purchaser, by the survey or assortment of a person other than the one agreed upon, and such property has been received by the purchaser or his assignee, the seller cannot reclaim the property, on the ground that the purchaser did not consent to such survey or assortment. Frost v. Goddard, 25 Maine, 414. With regard to the question of delivery, as affected by the peculiar nature of the property ; a charge, that growing corn is " not susceptible of delivery," is not proper. Weatherly v. Higgins, 6 Ind. 73. The delivery, necessary to change property and possession, is not ef- fected by the words (in a contract for wood) " now delivered and being hauled and piled," and " to be piled eight feet high, and delivered when called for." Illinois, &c. v. Cassell, 17 III. 389. » " The title .... may have become vested in the purchaser, so as to make him liable for the price in the event of their destruction .... before coming to the actual possessioij of the purchaser, and yet the seller's lien for the unpaid purchase-money may not have been divested." Gill V. Pavenstedt, Amn. Law Reg., Sept. 1868, p. 684— N. T. ' Per Bigelow, C. J., Brown v. Pierce, 97 Mass. (1 Browne), 48. 122 LAW OF SALES OF PERSONAL PKOPERTT. only evidence, of title. And the question of delivery is for the jury.' A symbolical delivery is sometimes held to raise a mixed question of law and fact.' Thus where A. agreed to sell certain goods to B., a record of sale was made in the book of original entries of A., the goods were set out on one side of the store by themselves, an account taken of them, and B. consigned them to C, his agent, for sale. As these acts might constitute a delivery, held, it should be left to the jury whether they did.^ So A. sold to the plaintiff twenty tons of shipstuff, to be paid for on delivery, receiving $200 towards the price, and afterwards sold to B. all the remaining shipstuff in the building, and delivered the whole, specifying the amount belonging to the plaintiffs. The employees of the plaintiffs and of B. were employed one day in setting apart the amount belonging to the plaintiffs, when the defendant levied upon it an execution against A. Held, that there was at least sufficient evidence of a delivery to the plain- tiffs to be left to the jury.^ § 2 a. The question of delivery may arise in a sale at public auction. On an auction sale of a wagon the de- livery is sufficient if the wagon is pointed out when put up for sale, and the purchaser informed when he bids it oft' that he can take it, though he may not remove or take manual possession of it.* § 2 6. The same question may arise upon an execution sale. Thus where the property of an intestate has been wrongfully sold by the administrators, at private sale, to one of their number, and judgment taken for the purchase- money, they may buy back the stock at sheriff's sale upon 1 Stinson v. Clark, 6 Allen, 340; McCandlish v. Newman, 22 Penn. 460; 20 Verm. 624 ; Harban v. Bidwell, 16 Ohio, 609; Phelps v. Cutler, 4 Gray, 137; Pratt v. Chase, 40 Maine, 269; Frazier v. Fredericks, 4 Zabr. 162; Shaddon v. Knott, 2 Swan, 358; Smith v. Lynes, 1 Seld. 41; Sawyer v. Nichols, 40 Maine, 212 ; 14 Ala. 469. 2 Atwell V. Miller, 6 Md. 10. » Wylie V. Kelly, 41 Barb. 594. * Cloud V. Moorman, 18 Ind. 40. ' Seller v. Block, 19 Ark. 666. DELIVERY. 123 their own judgment, and may permit one of themselves, the son and original purchaser, to carry on the business under the same sign and trade-mark he had used when carrying on the business in his own name. The judicial sal^ is legal notice of a change of property, without cor- respondent change of possession, and of the indicia of ownership.' § 3. Where a sale is bond Jide, and for valuable consid- eration, more especially if the price is paid, slight evidence of delivery is sufficient, even against third persons. And it is enough for the vendee to take possession, with con- sent of the vendor, though there be no formal delivery.'' So the delivery of a chattel is complete, when it is so sit- uated, though in possession of the seller, that the buyer can take it rightfully, when so disposed ; if such posses- sion continues by mutual agreement, and nothing remains to be done on either side.' A delivery is said to be a di- vesting of possession, which any man, knowing such facts as could be ascertained on reasonable inquiry, would be bound to understand as the result of a change of owner- ship.* It must be such as accords with the nature of the property, followed by removal and change of possession, as soon as practicable under the circumstances.' Thus, the terms of a sale being settled, the vendor accepted the vendee's promise to pay the agreed price to a third person, not making actual payment a condition of sale. Held, the vendee gained a title to the property with the actual possession, by consent of the vendor, express or implied, this being equivalent to formal delivery.' § 4. Even upon the theory, that delivery of some kind is necessary to perfect a sale ; the law recognizes a con- • Lothrop V. Wightman, 41 Penn. 297. ' Shumway v. Butter, 8 Pick. 446. See Sawyer v. Nichols, 40 Maine, 212. • Means v. Williamson, 37 Maine, 556. • Stephenson v. Clark, 20 Verm. 624. • Haynes v. Hunsicker, 26 Penn. 58. • Bucknam v. Nash, 3 Fairf. 474. 124 LAW OF SALES OF PEKSONAL PROPERTY. struetive, as well as actual delivery ; and it is upon the question, what constitutes such constructive delivery, that most of the cases in the books have arisen. The question depends very much on the particular character of the property, and the circumstances attending the al- leged delivery.' § 5. Upon this subject it may in general be stated, that a sale, without delivery or possession taken by the vendee, passes the title, if the property is of such a nature, and so situated, that his possession would be impracticable or inconvenient. And where the thing sold is not present, even a symbolical delivery is perhaps unnecessary.' Thus, where goods are ponderous and incapable of being handed over from one to another, there need not be an actual de- livery, but only that which is tantamount, such as the delivery of the key of a warehouse, in which the goods are lodged, or of other indicia of property, or some act of the vendee from which possession and ownership may be inferred.^ So where the article, though bought in general * The plaintiff made an agreement, in Boston, for the sale and pur- chase of liquors belonging to him, which were stored in Concord, New Hampshire, with the agent of the defendant. The terms of the agree- ment being complied with ; held, as between the parties, the title passed without delivery. Felton v. Puller, 9 Fost. 121. If a mortgagor and mortgagee of chattels which are at a distance agree that the latter shall receive them in payment of the debt, and that he may immediately take possession ; that is equivalent to actual delivery, if the purchaser uses no laches in obtaining possession. Patrick v. Me- serve, 18 N. H. 300. But where A., a creditor of B., asked for security, to which B. re- plied, " I own a vessel, and will give her to you to secure your claim if you are afraid;" and thereupon A. left, and returned to his home in another State ; and afterwards B., without the knowledge of A., placed on record at the custom-house an absolute bill of sale to A. of the vessel : held, the sale was invalid as against subsequent attaching creditors. Hinkley v. Bridgham, 46 Maine, 450. ■ Caldwell v. Garner, 31 Mis. 131. ' Jewett V. Warren, 12 Mass. 300; Badlam v. Tucker, 1 Pick. 389; Kicker V. Cross, 5 N. H. 571, 572; Parsons v. Dickinson, 11 Pick. 354; DELIVERY. 125 terms from a large number of the same description, is afterwards selected and set apart, with the assent of par- ties, as the thing purchased ; it is held to be as much identified and sold, as if selected before sale, and specified in the contract, and a title passes to the purchaser." So, * A. purchased from B. the boards which should be manufactured from a certain quantity of logs in B.'s possession, to be paid for at so much per hundred feet, when sawed. The logs were sawed and piled, and A. notified thereof. Held, this was a sufficient delivery of cumber- some articles, to pass the property to the vendee. Bates v. Conkling, 10 Wend. 389 ; Stanton v. Small, 3 Sandf. 230. So actual removal, of an entire mass of a crib of corn, is not necessary to constitute delivery and change of possession. May v. Tallman, 20 111. 443. So a sale of flour, as so many sacks, weighing so many pounds, the vendor showing them in a separate pile, in a general storehouse, to the vendee, who reckoned the number by counting the outside tier, and reading the number of sacks marked on one of them, and paid the price ; is good against creditors. Cartwright v. Phcenix, 7 Cal. 281. So the delivery was held sufficient, where pig-iron, lying in piles at a furnace and on the road, was sold and charged to the purchaser, with the purpose of delivery. Thompson v. Baltimore, &c., 28 Md. — Amn. Law Beg. May, 1869, p. 318. A. agreed with the managers of a lottery^ to take twenty-five hundred tickets, giving approved security for the price upon delivery. The tickets were specified in a schedule, and deposited in books of a hundred each, thirteen of which were received and paid for, and the remaining twelve superscribed with the name of A. himself, and indorsed by the agent of the managers, thus : " Purchased, and to be taken by A. ;" with afurther indorsement upon the envelope covering the whole, " A., twelve books." At the second day's drawing, one of the last designated tickets drew a prize of $20,000. Between the third and fourth day's drawing, A. tendered sufficient security, and demanded the remaining twelve hundred tickets, but the managers refused to deliver the prize ticket. Held, the property of the tickets passed to A. when the selection was made and agreed to, and they remained in the possession of the vendor only as security ; that A. might recover the prize ; and that the contract was an entire one, and not divisible. Thompson v. Gray, 1 Wheat. 75; ace. Dows V. Morewood, 10 Barb. 183. A declaration by one to a slave, who had previously been in the habit of managing a boat belonging to his master, "Jim, there's your boat," Chaplin v. Rogers, 1 B. 194, 195 ; Rice v. Austin, 17 Mass. 197 ; Howe V. Starkweather, lb. 240; Atwell v. Miller, 6 Md. 10. 126 LAW OF SALES OF PERSONAL PROPERTY. as has been already suggested, where one person contracts absolutely with another to sell him ponderous articles, which are left upon land purchased by the latter, and in his possession, and have ever since remained there, in his power ; this is a sufficient delivery of the articles.' Or where the goods are designated for the use of the pur- chaser, by marking or removing them for the purpose of being delivered.^ And the same rule has been applied, although the property still remained in the place where it lay before the sale, and though the sole consideration was the liability of the vendee as surety for the vendor, and the latter died immediately after the sale, and his admin- istrator took charge of the property." amounts to a mere designation or pointing out of the boat to the slave, and, disconnected from other facts, does not amount to a delivery of the boat to a slave. But whether it was a delivery, is a question for the jury. The Governor v. Daily, 14 Ala. 469. An action for the price of goods may be maintained, by evidence that all goods of a certain kind, made during a certain time, which the manu- facturer had agreed to sell for a specified sum, were set apart as soon as made, and that the buyer had never been refused permission to take them away. Middlesex, &c., v. Osgood, 4 Gray, 447. "Where by custom at a certain port, upon n purchase of grain in store, the buyer selects a measurer, who is thereupon employed by the board of measurers, which measurement, and leaving the grain in the storehouse, is by the same custom a delivery; the delivery is effectual, though the measurer be employed by the board upon an order from the seller. Mc- Cready v. Wright, 5 Duer, 571. * Sale of logs lying in a boom. The vendor went in sight of the logs with the vendee and showed them to him, but the latter placed no person in keeping, allowing them to lie as they were, till he should have occa- sion to use them. The transfer was made by a bill of parcels, attested by a witness, valuing the property at $1602, and acknowledging payment received, "by indorsing for me at the Kennebec Bank for $1750." The vendee was, at the time, a surety for the vendor to this amount. The day after the transaction, the vendor died, and his administrator took charge of the logs, which were otherwise in danger of being lost. Held, the vendee might maintain trover against the administrator, there having been a sufficient delivery to pass the property. The fact of the defend- > De Kidder v. McKnight, 13 John. 294. ' Hall v. Kichardson, 16 Md. 396. DELIVERY. 127 § 6. So marking the name of the purchaser upon the articles purchased has been held, to some extent, a con- structive delivery, more especially if also counted and paid for ; as where flour is purchased for shipment, and marked with the initials of the purchaser and the ship, and delivered to the proper agent of the ship.' So A. ant's taking care of the logs made no difference, as they were pledged for less than their value, and he had, therefore, a valuable interest to pro- tect. Nor could it be objected, that the sale was an absolute one, for the very form showed it was not, and this must have been known to the wit- ness. Neither was there any want of consideration, because the transfer was a pledge, and the mortgagee might be compelled to pay the debt. For this reason the excess in value of the property over the debt was immaterial, and the case showed no fraud. Jewett v. Warren, 12 Mass. 300. A. had agreed to sell live-oak timber to the United States. The plain- tiff advanced funds to him, to be invested in this kind of timber in Florida, the timber to be procured, cut, and transported at A.'s expense, but on account and at the risk of the plaintiff, to the navy yards. A. to have one-half the profits, and the plaintiff the other half, besides having the principal sum advanced, repaid. A. consigned a quantity of timber to the plaintiff; the latter had the bill of lading, and indorsed his orders upon it, directing the ship-master, who was appointed by A., to proceed to the navy yard, and deliver the timber. While he was doing it, a creditor of A. caused the timber to be attached as A.'s property. The plaintiff did not go on board after arrival of the ship, and before the attachment. Held, under the circumstances, the plaintiff had an au- thority, coupled with an interest, in the disposal and proceeds of the property ; that possession of it was to be inferred from his dealing with it as his own by indorsing the bill of lading ; and therefore that he had a lien for his advances, and might maintain an action against the at- taching officer. Bice v. Austin, 17 Mass. 197. Where the second assignee, of a permit to cut timber from the State lands, held for two months undisturbed possession of logs cut before the first assignment, his title was held good as against attaching creditors, although there had been no formal delivery to either assignee. Mason V. Sprague, 47 Maine, 18. The title to logs, floating with others in a public boom, passes by a symbolical delivery, as by a bill of sale. Leonard v. Davis, 1 Black, 476. Or by the parties going upon the raft, and formally delivering and ac- cepting possession, and marking the logs in each string with the pur- chaser's mark. Brewster v. Leith, 1 Min. 56. ' Hall V. Eichardson, 16 Md. 396 ; Long v. Knapp, 54 Penn. 514. 128 LAW OF SALES OF PERSONAL PROPERTY. went into the cellar of B., and selected several pipes of wine, a2;reeing to pay a certain price for them. The spills were then cut off, and B.'s clerk marked A.'s initials on the casks, in presence of B., and A. took the gauge num- bers. Held, these acts amounted to a delivery ; but, as the delivery was merely incipient, A. might maintain an action against B. for non-delivery of the wine.' But, under some circumstances, this act does not amount to a delivery. Thus the plaintiff sold to the defendant certain casks of wine lying in the London docks, and marked them with the defendant's, initials, at his request and in his presence ; but the terms of payment were agreed upon, not at the time, but in a subsequent conversation, being a credit of two months. Held, the contract was not com- plete at the time of marking the wine, and the facts did not constitute a sutficient deliver^' to take the case out of the Statute of Frauds ; that the defendant could not have maintained trover for the goods, if not delivered, for the seller would have had a lien upon them for the price ; and consequently that this action, for goods sold, did not lie.^ § 7. The same rule of constructive delivery has been applied, where the seller was only tenant in common of the property, and at the time of sale it was held under lease from another of the tenants in common.* » A. being a surety for B., a minor, upon a note which A. afterwards paid, B. conveyed to him, by a bill of parcels, one-third of a machine owned in common with C. ; the bill having a memorandum attached to it, that th£ transfer was to be void on payment of the debt by B. The agent of B, went to the mill where the machine was, and delivered the property to A., showing him the machine,^and declaring that he made delivery of B.'s third part of it. At and after the time of delivery, one D. improved the machine under a parol lease from E., one of the owners, who acted for the rest, and accounted to them for the rent. A. claimed no rent, and E. agreed to indemnify D. from any such claim. After- wards, E. claimed the whole property. The machine was subsequently 1 Anderson v. Scot, 1 Camp. 236, n. 2 Proctor v. Jones, 2 0. & P. 532. DELIVERY. 129 § 8. Goods sold may be subject to a previous lien which prevents full and immediate delivery. Thus, goods in bond were sold in New York, to be shipped to Canada, the buyer to pay duties. Held, that, after the seller had done all he was bound to do, the property passed to the buyer, though the latter could not obtain possession until he had satisfied the revenue officers.^ Upon a similar prin- ciple, where goods are wrongfully attached, they may be sold by the owner, and no delivery is necessary to vest an interest in the vendee. But as only a chose in action passes, the vendor may bring an action against the officer in his own name, though for the vendee's benefit. Thus the property of A. was attached in a suit against B. While under attachment, A. sold it to C. Held, an action might be brought (in the name of A.) against the oflicer for C.'s benefit, and that C, having purchased merely a chose in action, could not sue in his own name.^ And, under some circumstances, the attaching officer himself may make a valid delivery, as the agent of the vendor. Thus A. gave a bill of sale of a vessel without consideration to B., and B., with A.'s consent, conveyed her to C, a creditor of A. After the transfer to C, an officer, who had before at- tached the vessel on behalf of other creditors, discharged the keeper, and delivered the vessel, lying at A.'s wharf, to C. Held, a valid delivery, if made with the consent and on account of A." ' seized upon an execution against the joint owners, and sold by the sheriff, notwithstanding a notice of A.'s title, and a prohibition of the sale, one of the other owners, however, denying the title of B. In an action brought by A. against the officer ; held, there was an effectual transfer of B.'s title, there having been all the delivery which under the circum- stances was possible. Haskell v. Greely, 3 Greenl. 425. » A. as keeper, held goods attached as the property of B. B. gave a bill of sale of them to A., as security for a debt, and A. subsequently, without any other act or agreement, handed back the bill to B. Held, B. could 1 "Waldron v. Eomaine, 22 N. Y. (8 Smith), 368. ' Holly V. Huggeford, 8 Pick. 73 ; Tomlinson v.Collins, 20 Conn. 364. ' Boyd V. Brown, 17 Pick. 453. 130 LAW OF SALES OF PERSONAL PROPERTY. § 9. On the other hand, where property sold is incapa- ble of delivery at the time, and a creditor of the vendor attaches it before the vendee obtains possession, the sale shall prevail over the attachment, and the vendee may maintain trespass. Thus, where A. assigned to B., among other things, a chaise and harness, which were then at a distance, in possession of C, and, before B. could obtain possession, the property was attached by A.'s creditors ; held, B. might recover against the officer.' So, where A. sold goods to the plaintiff on Saturday night, and the latter used due diligence to obtain possession on Sunday, but, on the latter day, a creditor of A. obtained possession and secreted the property, and on Monday caused it to be attached ; held, the plaintiff might maintain trespass, both against the officer and the attaching creditor.^ So one A. sold to the plaintiff a mare, then being in the livery-stable of B., who had a lien upon her for the keeping. Upon the day of sale, both A. and the plaintiff by letters, duly re- ceived, informed B. of the sale, and requested him to keep the mare for the plaintiff. Soon afterwards, the mare was attached as A.'s property, B. not having then written to A. or the plaintiff, but being ready to make delivery to the latter. B. required payment of the sum due him, before he would allow the officer to make an attachment. In an action of trover by the plaintiff against the officer ; held, the above transaction passed the property, both as between the parties and in relation to creditors ; that the action was therefore sustained, and, in estimating the damages, the sum paid by the officer was not to be de- ducted, being a claim of the defendant against A.^ § 10. A very frequent form of symbolical or construe- not maintain trover, as the title did not revert, and he had neither pos- session nor the immediate right to it. Middlesworth v. Sedgwick, 10 -Cal. 392. 1 Kicker v. Cross, 5 N. H. 670. ' Parsons v. Dickinson, 11 Pick. 352. • Tuxworth V. Moore, 9 Pick. 847. DELIVEET. 131 tive delivery, is by the seller's drawing am order, in favor of the buyer, upon a third person having possession of the goods ; more especially if such order is accepted, recog- nized, or adopted by such depositary. Most of the cases of this nature found in the books will be seen to have grown out of the insolvency or bankruptcy of the seller, subsequent to the giving of such order." , § 11. An order drawn by the vendor of goods upon the depositary of them, and delivered to the vendee, more es- pecially if accompanied by a receipt for the price or a se- curity therefor, or by a bill of parcels, is held sufficient to pass the property under the Statute of Frauds.' So if, in pursuance of an executory contract of sale, the owners of merchandise send a quantity of it to the place named for the delivery, and notify the purchaser thereof, and furnish him with an order entitling him to obtain it of the car- rier, and receive pay therefor ; this is sufficient to vest the title in the purchaser.^ So, where goods sold lie at a wharf, lodging with the wharfinger a delivery order, with a power of sale, passes the property, without re-weighing or re-housing them. And, upon the bankruptcy of the vendor, his assignees cannot maintain trover against a purchaser from the first vendee, as for goods "in the » In case of a sale of flour, to te delivered on a certain day, the de- livery of an order on a barge, in which the flour is, is not a delivery ac- cording to the contract, where the flour is not actually delivered upon the order. Suydam v. Clark, 2 Sandf. 133. An order for goods was sent by a party in Florida to a merchant in Kew Tork, without particular directions as to the mode of sending them. A portion of the goods ordered were selected, and placed on board a brig, the cartman taking receipts. On the same day, they were attached as the goods of the purchaser. Held, they were not attachable, till the receipts were given up, and a bill of lading taken, making the goods deliverable to him. Jones v. Bradner, 10 Barb. 193. 1 Merrick v. Bradley, 19 Md. 50 ; Searle v. Keeves, 2 Esp. 598 ; Hol- lingsworth V. Napier, 3 Caines, 182; Pleasants v. Pendleton, 6 Rand. 473 ; Sigerson v. Harker, 15 Mis. 101 ; Prazer v. Hilliard, 2 Strobh. 309. * Claflin V. Boston, &o., 7 Allen, 341. 132 LAW OF SALES OF PERSONAL PROPERTY, order and disposition " of the bankrupt.' So, in case of sale of a lot of flour, on storage in one place, to three pur- chasers in distinct lots, and to each a delivery order ; such orders were all given to the vv^arehouseman, but the lota never separated. Held, a good delivery, and that the prop- erty passed, as against the vendor or his creditors.^ So th^ vendor of malt sent an order to the warehouseman having possession of it, to hold it on account of the ven- dee. The warehouseman gave an acknowledgment in writing that he thus held the malt. In an action of trover brought by the vendee against the warehouseman, held, it was no defence, that, according to the established usage, malt must be remeasured before it is sold ; and that prior to such remeasurement the vendee had failed. The ware- houseman, by his acknowledgment, attorned to the ven- dee.' So A., a manufacturer, deposited goods with B., a wharfinger at Stockton, to be shipped to C.'s wharf in London, taking receipts therefor. Upon these receipts, A. indorsed orders upon C. to deliver the goods, when they should arrive, to D., who had advanced money upon them. D. sent the receipts and delivery orders to C, and demanded the goods. C. answered, that the goods had not arrived, but, when they did arrive, they should be forwarded to D. Held, D. might bring trover against C. for the goods, who, by his reply to D.'s application, as- sented to his title. ISTor did it make any difference, that at the time of such assent the goods had not arrived. There was an attornment to D., though prospective; like a promise by a tenant to attorn, made before he has entered upon the premises." So A. sold goods to B., taking his note at sixty days for the price. B. sold the same goods to C, and gave him an order upon A. for delivery, which, however, wa,s not immediately presented, nor A. informed ' Tucker v. Ruston, 2 C. & P. 86. ' Horr V. Barker, 11 Cal. 393. ' Stonard v. Dunkin, 2 Caipp. 344. « Holl V. Griffin, 3 Moq. & Soott, 732. DELIVERY. 133 of the sale. B. having become insolvent, A. deposited his note, together with the goods, in the hands of D., as security for a debt due to D. from A. C. having de- manded possession from A., who refused to deliver it, on account of B.'s bankruptcy and non-payment of the note; held, C. might maintain trover against J)} So property in another town was sold, the vendee taking an order upon the agent who held it for delivery. The order was presented next day at the store of the agent, and accepted by his son, but, there being other goods in the store, the purchaser consented to allow the goods to remain until the agent's return. On the same evening the agent de- livered to the purchaser a bill of sale, and afterwards the goods were attached by the vendor's creditors. Held, a sufficient delivery.^ So, where the owner of lumber sells it, and indorses and delivers to the purchaser the receipt of the proprietor of the lumber-yard in which it is deposited, this passes the title as between the parties.^ And the same principle has been applied, in determining upon whom a loss of the goods should fall, after such constructive de- livery ; and it is held that the buyer cannot set up such loss, either as a ground of action to recover back the price already paid, or of defence against a siiit for the price. Thus, by a usage of trade in Liverpool, the vendor of goods was bound to pay warehouse rent for two months from the time of sale, if they remained so long in his pos- session. The vendor's agent, within this period after the sale, gave the usual delivery order to the vendee, who paid the price. During the two months, the goods were dis- trained for rent, and the agent of the vendee, having paid the rent to redeem them, brings assumpsit, for money paid, against the vendor. Held, the property of the goods had vested iu the vendee, and he must bear the loss, in the same way as if they had been destroyed by fire. Hence, ' Hunn V. Bowne, 2 Caines, 38. 2 Barrows v. Harrison, 12 Iowa, 588. » Mitchell V. McLean, 7 Florida, 329. 134 LAW OF SALES OF PERSONAL PROPERTY. this action could not be maintained.' So A. sold to B., for an agreed price, one hundred and nineteen barrels of flour, lying in a certain warehouse, and having upon them the brand of eight different mills. B. gave a check for the whole amount, and A. gave B. a bill of parcels, stat- ing the number of barrels of each brand, an order on the warehouseman, and a receipt for the price. Held, this was an executed contract, which passed the property to B. ; and, the warehouse, flour and check having all been destroyed by fire before delivery of the flour, the loss must fall upon B., and A. might sue for the price." ^ " A., who had shipped goods to his agent, B., for sale, drew a bill on B. in favor of C, and delivered to C. the railroad receipt for the goods. Held, no transfer of title, so as to enable C. to maintain trover. B. was not a purchaser, but a mere consignee for sale. McPherson v. Neutfer, 11 Rich. 267. Upon the same principle, where usage requires a delivery order to vest a title in the vendee, the property will not vest without such order, notwithstanding other symbolical acts of ownership on the part of the purchaser. Thus A. purchased of B. forty-six puncheons of rum, in B.'s warehouse at Liverpool, and resold them to C, a clerk of B., doing business on his own account. A. gave C. an invoice, mention- ing the marks and numbers of each puncheon, and took his acceptances for the price. The rum and the samples taken remained in B.'s ware- house. It was proved to be an invariable usage in Liverpool, upon the sale of goods lying in a, warehouse, for the vendor to give the purchaser a delivery order. C. demanded such orders from A. in the present case; but A. refused them for all but two or three puncheons, which C. re- ceived. The casks were marked, coopered, and gauged by C. Before maturity of the bills, C. sold twenty-six puncheons to D., who paid for them, and, by permission of C, but without the knowledge of A., gauged and coopered the casks in the warehouse, and marked them with his initials. C. gave an invoice to B., mentioning the marks and numbers of the casks, and by whom the rum was branded. Before maturity of the bills, C. also sold eighteen puncheons to two other persons, and gave them similar invoices and samples. These persons afterwards obtained such puncheons, upon a delivery order, signed by themselves, but not by A. They also paid C. for the whole. C.'s bills, given in payment for forty-four puncheons, were dishonored. Held, under these circum- stances, C. never had actual possession ; upon the dishonor of his ac- ceptances, A. had a lien for the price, and the parties who purchased ' Greaves v. Hepke, 2 B. & A. 131. 2 Pleasants v. Pendleton, 6 Kand. 473. DELIVERY. 135 § 12. It is held, that, where there is a deed or writing, conveying the title to chattels, no delivery of possession is necessary.' More especially, in case of a bill of sale with notice to the person holding the property.^ And an instrument, which acknowledges payment of the con- sideration for personal property therein described, though in form of a receipt, is, in effect, a bill of sale." ^ So where goods lying in a dock are sold, it seems a transfer in the from C. could not claim, as against A., the rum which remained unde- livered. With respect to the acts relied on to show a change of property, the coopering might have heen done for the purpose of ascertaining whether the casks were in order, and the marking could have no pecu- liar effect, because C. knew that he had no delivery order. He was the clerk of B., had the management of his cellar, and could therefore mark and gauge at pleasure. These acts might have vested the property in him, if B. had approved of them, knowing that C. had purchased from A. The delivery of one part was, in this case, no legal delivery of the whole, because accompanied with an express refusal to part with the whole. Nor was C.'s taking samples » constructive delivery of the whole, as they constituted no part of the hulk. He took two puncheons, for the purpose of separating them from the rest. A.'s lien was sus- pended while the hills continued to run, hut revived upon their being dishonored. The case was said to turn upon two points : 1. Where the goods remain in possession of the vendor, unpaid for, he may retain till payment ; if in possession of his agent, whether warehouseman or carrier, he may stop them in transitu. 2. The second vendee could be in no bet- ter situation than the first. Dixon v. Yates, 5 Barn. & Ad. 313. » A. purchased a quantity of pork through B., who was in the ware- house business. The vendor gave a written memorandum of sales, and receipts for the money paid, and B. agreed, in writing, to deliver the pork at Toledo, to the order of A., as soon as navigation opened. Held, these documents transferred the possession and property. Pierce v. Gibson, 2 Cart. 408. Also, that these documents, being indorsed and delivered to C.,in New York, in consideration of advances of money in the usual course of trade, transferred to him the legal possession, and made him an actual purchaser to the extent of his advances ; as against a subsequent attachment by a supposed creditor of A. lb. 1 31 Mis. 131 ; Jaggers v. Estes, 2 Strobh. Eq. 343 ; Stewart v. Spedden, 5 Md. 433 ; Cooke v. Chapman, 2 Eng. 197 ; Gibson v. Stevens, 8 How. 384. ' Eidgway v. Bowman, 7 Cush. 268. » Bush V. Bradford, 15 Ala. 317. 136 LAW OF SALES OP PERSONAL PROPERTY. dock books is a sufficient symbolical delivery.' So delivery of a receipt given by the storek'eeper, who has the custody of the goods, is sufficient to pass a title ; this being the proper documentary evidence. So a sale of a cargo of goods de- posited in a government vs^arehouse is perfect by the con- sent of the parties, although it remains in the warehouse for the purpose of securing the duties, the price having been paid, and the delivery made fictitiously by the transfer of the warehouse receipt. Where property so situated was sold, but, for the mutual convenience of both vendor and vendee, was suffered to remain in the warehouse, the vendee not requiring the importer to pay the duties and perfect the delivery for a certain time, at the end of which time it was found that the warehouseman had made away with a portion of the goods ; held, the property was at the risk of the vendee, and, in the absence of any want of care on the part of the vendor, he was not responsible.^ § 12 a. The delivery and recording in the town clerk's office, of a bill of sale of personal property in the posses- sion of a third person, do not amount to a constructive or symbolical delivery of the property, if there is nothing to prevent an actual delivery, and no notice of the sale is given to the third person.' So the delivery of a bill of sale to the recorder, without the knowledge or consent of the vendee, does not vest the title, as against subsequent attaching creditors of the vendor.* And the delivery of a bill of sale, without consideration and without delivery of the property itself, is not such a transfer as a court of equity will enforce.' So in case of railroad ties, upon the land of the plaintiff, and conveyed to him by delivery of a bill of sale. Caldwell v. Garner, 31 Mis. 131. A bill of sale, in order to constitute delivery, must itself be delivered. Dyer v. Bean, 15 Ark. 519. ' Procter v. Jones, 2 Carr. & P. 535. 2 Wilkes V. Ferris, 5 John. 385 ; Meeker v. Vredenburg, 15 La. An. 488. ' Surge V. Cone, 6 Allen, 412. * Day V. Griffith, 15 Iowa, 104. ' Stone V. King, 7 R. I. 358. DELIVERY. 137 § 13. It is said, in case of any sale of goods, the common course is for the vendor to deliver the vendee an invoice, but that does not vest the actual possession.^ But where goods which have been shipped and are at sea are sold, delivery of an invoice, with an assignment of the goods indorsed upon it, is sufficient to pass the property." ^ § 14. Delivery to a vendee of the key of a warehouse, where the goods lie, is a sufficient delivery under the Statute of Frauds.' Thus A. sold goods to B., and made delivery of a part of them, agreeing also to deliver the key of the shop which contained the rest to C, which was accordingly done, for the use of B. A. afterwards sold the part which remained in the shop to D., who ob- tained possession of them by borrowing the key from C. Held, B. might maintain trespass against D., there having ■ In a recent English case, counsel cited a passage from Blackburn on the Contract of Sale, to the effect that dock warrants, wharfinger's re- ceipts, and delivery orders represent goods on shore, and of which posses- eion may readily he taken, and therefore the transfer of them should not have the same effect as that of hills of lading which represent goods at sea. Mr. Justice Blackburn replied, "That was published twenty-two years ago, and I have not changed my opinion. But it has no bearing on this question." And Martin, B., says, " Por many years past there have been two symbols of property in goods imported ; the one, the bill of lading ; the other, the wharfinger's certificate or warrant. Until the latter is issued by the wharfinger, the former remains the only symbol of property in the goods." It was accordingly decided, as no such certificate could lawfully issue so long as there was a lien for freight, and as this lien had not terminated, that an assignee of the bill of lading should hold the goods. Meyerstein v. Barker, Law Kep. (Eng.) December, 1867, pp. 661-74-75. In Illinois, a warehouse receipt is held not a negotiable inetrument. Thus A., a packer of pork, sold pork to B., giving him such receipts deliverable to A.'s order, and by A. indorsed in blank. B. did not notify the warehouseman. Por the purpose of a repacking, B. returned the receipts, and A. passed them to C, who had no notice of the former sale, and made no inquiries of the warehouseman. Held, B.'s title should prevail over C.'s. Burton v. Curyea, 40 111. 320. (See 111. Sts.) " Dixon V. Yates, 5 Barn. & Ad. 338. » Gardner v. Howland, 2 Pick. 599. » Wilkes V. Ferris, 5 John. 335 ; Farkes v. Hall, 2 Pick. 206. 138 LAW OF SALES OF PERSONAL PROPERTY. been a constructive delivery of the whole property to B} So in the sale of a building, which constitutes personal property, delivery of the key, though not made at the shop, is a sufficient delivery.^ So delivery of the keys of a safe and room perfects the sale of the safe.' § 15. So taking a lease of the house in which the goods lie, is a sufficient delivery, though the vendor afterwards remove them to another building. Thus a quantity of furniture, being in a tavern, was sold ; and the vendee took a lease of the house, went there to live, and used it in common with the vendor, who had occupied under a pre- vious lease, and continued to do so and to keep the tavern. The vendor afterwards removed to another house, carry- ing the furniture with him, and continued to use it as his own. Held there was a sufficient delivery, and the property could not be attached as the vendor's.^ So, where prop- erty lying in a yard is sold, with a lease of the yard to the buyer, facts showing a constructive possession of the premises by the vendee are held sufficient to vest the prop- erty in him, without actual removal of it, even as against creditors of the vendor ; and this, notwithstsnding an agreement that the vendor may repurchase the property, or himself sell it. In such case, the yard is not like a house or warehouse, which might be constantly occupied, or the key of it kept, by the vendee or his agent. The vendor gains no false credit by the transaction, because the vendee's possession is visible and notorious ; and the vendor's authority to sell, under the agreement, is not in- consistent with the vendee's title, for it involves no right in the former to interrupt the possession or divest the property of the latter. The property is not delivered to the vendor to sell, but the agreement is merely for a re- purchase, by which no creditor or purchaser can be de- ' Chappel V. Marvin, 2 Aik. 79; Packard v. Dinsmore, 11 Cush. 282. « Vining v. Gilbreth, 39 Maine, 496. ' Benford v. Schell, 55 Penn. 893. ♦ Shumway v. Butter, 8 Pick. 443. DELIVERY. 139 ceived, because the vendor has no possession. In order to ascertain the terms of the vendor's agency, the vendee or his agent must be applied to." ' § 16. Where a vendee is in possession, no delivery is necessary.* ^ Thus, A. purchased four horses of B., which he had for some time previously kept at his own stable for B., without formal delivery. Held, the sale was good against the creditors of B.' So the lessee of a brickyard and the brickmaker were joint-owners of the bricks made in the yard. The lessee transferred his interest in the yard and bricks, and delivered possession, to assignees, who appointed the maker their agent to sell the property. He accepted and acted under the agency, and then sold to the assignees all his interest in the bricks that remained. Held, no delivery was necessary, because the assignees were already in possession.* So one A. married the daughter » Bon&f.de sale of bricks lying in a yard, with a lease of the yard to the vendee, the plaintiff, till a sale and rgmoval of them, and a private agreement that the vendor might repurchase and sell them on his own account, or sell them on condition of fii'st paying or securing to thp vendee the amount of his claim, or the value of what were sold. The bricks were not removed. There was no proof of the yard's being used after the sale, in making other bricks, or for any purpose, except keeping the bricks of the vendee and vendor. Possession was duly delivered before witnesses. The nature of bricks is such, that they cannot be moved without expense and loss ; and it is an unusual proceeding to re- move them before a sale, or to place them in a warehouse for sale, on ac- count of the expense and damage likely to be incurred. Held, the sale was valid against creditors of the vendor. Allen v. Smith, 10 Mass. 308. >> This is also the doctrine of the civil law. " Interdum etiam sine traditione nuda voluntas domini sufficit ad rem transferendam ; veluti si rem quam tibi aliquis commodaverit aut locaverit aut apud te deposuerit, postea aut vendiderit tibi aut donaverit aut dotis nomine dederit. Quam- vis enim ex ea causa tibi cam non tradiderit, eo tamen ipso quod patitur tuum esse, statui tibi acquiritur proprietas, perinde ac si eo nomine tibi tradita fuisset." Just. Inst. lib. 2, tit. 1, o. 43. 1 Chapman v. Searle, 3 Pick. 38 ; Manton v. Moore, 7 T. K. 67 ; Parks V. Hall, 2 Pick. 206. ' Allen V. Smith, 10 Mass. 308. ' Lake v. Morris, 30 Conn. 201. * Macomber v. Parker, 13 Pick. 175. 140 LAW OF SALES OF PERSONAL PEOPERTT. of the plaintiff, being a widow, went to live in her house, and assumed the management of her family. A., be- coming insolvent, broke up the establishment, sold the carriage, discharged the servants, &c., and surrendered the management of the household to the plaintiff, who afterwards exercised the exclusive control, and paid all the expenses, of the family. The furniture still continued in use, except the plate, which was boxed up. The plain- tiff lent A. his notes to a large amount, payable at dif- ferent periods, A. covenanting to pay them at maturity ; in consideration of which, A. gave the plaintiff a bill of sale of his furniture and plate, the value of which did not equal the amount of the debt. Held, the facts showed a transfer of possession, which rendered the sale valid against creditors of A. ' So for a farmer to quit his farm, leaving the grain stacked upon it, may well amount to a delivery thereof to his landlord in pursuance of a sale.^ § 17. Upon the same principle, where an agent of the vendee is in possession, no delivery is necessary. Thus A., a commission merchant, sold goods of B. to C, and the same day bought them back from C. at a reduced price on his own account. Discovering that they were not of the quality warranted by B., A. charged them back to B., with his previous consent. Held, the prop- erty vested in B. without delivery. The possession of the factor was that of the principal. * § 18. So, where the vendor and vendee are tenants in common, no delivery is necessary, the possession of the former being that of the latter also.* » The plaintiff advanced to A. the materials for constructing two card- ing machines, A. agreeing that the plaintiff should own a share in them proportioned to such advance. Afterwards, having sold one of the machines, A. gives the plaintiff a writing to secure him in the property and possession of the other, authorizing him to sell it, repay himself for his advance, and account with A. for the surplus. The plaintiff tbere- 1 Ludlow v. Hurd, 19 John. 218. ' Pacheco v. Hunsacker, 14 Cal. 120. s Holly V. Huggeford, 8 Pick. 73. DELIVERY. 141 § 19. Bona fide indorsement and delivery of a hill of lading pass the property in the goods, if so intended by the par- ties, hke a delivery of the goods themselves.' " While the goods are afloat, the bill of lading represents them, and the indorsement and delivery of the bill of lading while the ship is at sea, operate exactly the same as the delivery of the goods themselves to the assignee after the ship's arrival would do."^ So a shipment of goods, un- der an agreement by which the consignee has advanced upon gave A. a receipt in full for his advance. The machine was in the house of B., whence it could not be removed without being taken in pieces and injured ; and no formal delivery was made of it. B., having a claim against A., attaches the machine as his. Held, the plaintiff and A., under the original agreement, were tenants in common, and no de- livery was necessary to transfer the share of the latter to the former. Beaumont v. Crane, 14 Mass. 400. A., the consignee of twenty thousand mats, sold them to himself and the plaintiff at ten cents each, upon a credit of six months ; both parties to be equally interested ; A. to store the mats six months gratis ; the plaintiff to pay one-half the expense of putting them in A.'s loft; and, as fast as they were resold, the proceeds to be paid to A., who was to pay interest for the six months. During this time, some of the mats were sold, and, at the expiration of it, A., to prevent an attachment by his creditors, gave a bill of sale of the whole to the plaintiff, who was ignorant of the fraudulent intent, with the agreement that the plaintiff should pay him storage afterwards, and interest till payment. The plain- tiff was not to pay more than $1104.50, which was paid in cash and notes, till he should have opportunity to sell, when he was to pay cash for those sold ; in the meantime, A. to keep possession. The mats having been attached by a creditor of A., the plaintiff brings trespass against the officer. Held, by the first sale, the plaintiff became a tenant in common of the property ; that A.'s possession was his, and the second sale valid without a new delivery; that trespass might be maintained, A.'s lien, if he had any, not being an attachable interest, and no defence to this suit. By parting with the possession, A. lost his lien, and he had no right of action against the officer, because the attachment was made with his pro- curement. Kittredge v. Sumner, 11 Pick. 50. See Hawes v. Tilling- hast, 1 Gray, 289. ' Newsom v. Thornton, 6 E. 41. ' Per Erie, C. J., Meyerstein v. Barber, Law Bep. (Eng.) Jan. 1867, p. 44 ; Audenreid v. Eandall, TJ. S. Cir. Ct. April, 1868 ; Maine— Law Beg., Sept., '68, p. 659. 142 LAW OF SALES OF PERSONAL PROPERTY. money thereon, and agreed to make a further advance on receiving the bill of lading, gives the consignee a title to secure both advances, as against one v^'ho after- wards, but before delivery of this bill of lading, receives a second bill of lading of the goods, vs^ith notice that the first has been issued.' And the bond fide transfer of a clean bill of lading is so far tantamount to an actual delivery, as to render inadmissible any evidence of a previous conditional contract between the consignee and owners.^ Mere indorsement, without delivery to the as- signee or some third person, for his use and with his assent, does not pass a title." But, it is said, delivery without indorsement, if the cargo is by its terms to be delivered to a certain person, constitutes a valid transfer, subject to the vendor's right of reclaiming the goods, upon non-payment, before actual possession by the vendee.' And, it seems, the mere putting of a bill of lading into the post-office, directed to the vendee at a distant port, is a sufficient delivery to take precedence of a subsequent attachment." § 20. The same rule applies, and the property vests in the purchaser, although the agreement as to the time of shipment is not complied with, if waived by the purchaser. So an action lies for the price, in case of loss, though agreed to be paid by bill at a certain time after the land- ing of the goods, such landing not being thereby made a condition precedent.* * Where the bill of lading is made deliverable to the order of the vendor or assigns, though the invoice is made out as of a shipment on account and at the risk of the purchaser ; no title passes to the purchaser, if he fails to accept a hill drawn for the price, on the alleged ground that his order has not been complied with. Shepherd v. Harrison, Law Eep. (Eng.) March, 1869, p. 195. •> The plaintiif, a trader in London, made the following agreement 1 Stevens v. Boston, &c., 8 Gray, 262. ' Wardwell v. Patrick, 1 Bosw. 406. ' Buffington v. Curtis, 15 Mass. 628 ; "Walter v. Koss, 2 Wash. C. C. 283. ■* Buffington v. Curtis, 15 Mass. 628. DELIVERY. 143 § 21. So the title of the purchaser, who has received a hill of lading, prevails over that of assignees of the seller, who has become insolvent." § 22. Nor can the seller, after obtaining a bill of lading for the buyer, defeat his title to the goods, by making the delivery to the buyer conditional upon payment of the price.*" with the defendant: " October 11th, 1833. Sold to G. & Son, for ac- count of A. & Co., two hundred firkins of M. & Co.'s Sligo butter, at 71s. 6rf. per cwt., free on board. Payment, a bill at two months from the date of landing. To be shipped this month," &c. The butters were not shipped until the following month, but the defendant waived this condition, and accepted the invoice and bill of lading indorsed to him. The property was lost upon the voyage, and the plaintiff brings an action for goods bargained and sold, long after the property in the ordinary course would have been landed, and the two months' credit expired. Held, the action might be maintained. Nothing being left to complete the contract, this action would lie, and, it seems, even an action for goods sold and delivered. Nor was it necessary to set out the contract as conditional, as it would have been if made by deed. Alexander v. Gardner, 1 Scott, 630 ; 1 Bing. N. E. 671. » A., residing at Providence, b'eing indebted to B., at New York ; and B. having demanded payment ; A. informed him, that he (A.) had or- dered a balance of funds in the "West Indies to be sent to B., and di- rected B. to give him credit therefor. A.'s agent shipped the funds, consisting of doubloons, in a general ship, consigned to B., and forwarded to B. a bill of lading, stating them to be on the account and at the risk of A. Before arrival of the doubloons, A. became insolvent, and as- signed all his property to trustees for the benefit of other creditors. Upon arrival of the doubloons, they were claimed both by the assignees and by B. The shipmaster files a bill of interpleader. Held, B. had a specific lien, not affected by the assignment. Clark v. Mauran, 3 Paige, 873. >• A., residing at Boston, having ordered certain goods from B. at Liverpool, B. shipped them in a general freighting vessel, which was consigned to B. and designated by A. A bill of lading was obtained by B., by which the goods were to be delivered to A. B. having with- held the bill of lading from A., and afterwards inclosed it with an in- voice in a letter t<^ his (B.'s) agent, with directions to deliver it to A. only on condition of his paying for the goods ; held, that after the above facts, which seemed to constitute a sale and constructive delivery, B. had no power thus to make the delivery a conditional one, and deprive A. of his title. Stanton v. Eager, 16 Pick. 467. A bill of lading (one of a set of three), of cotton, deliverable on pay- 144 LAW OF SALES. OF PERSONAL PROPERTY, § 23. So, after sending a bill of lading, the seller may maintain a suit for goods sold and delivered, although the ment of freight, was indorsed to A. In February, A. instructed the de- fendant B., a broker, to take samples of the cotton and offer it for sale. The cotton having been landed under an entry made by A. at a suffer- ance-wharf in London, with a stop thereon for freight, on the 4th of March, upon deposit of two of the bills, A. procured B. an advance from the plaintiff C, who supposed the third to be in the hands of the master, while in reality A. had fraudulently retained it. March 6th, after re- moval of the stop, A. obtained from the defendant B. an advance on the third bill. March 11th, the defendant, having notice of the plaintiff's advance, sent his bill to the wharf, had the cotton transferred into his own name, sold it, and received the price. The present action was for money had and received, and for conversion of the cotton. In an argument for the defendant, complimented by the court as "powerful and learned," it was contended, that by arrival at port, and the landing and warehousing of the cargo, the bill of lading was exhausted and spent, and ceased to operate as a symbol of property. Also that posses- sion is necessary to a pledge, and the pledge to the defendant, coupled with his subsequent actual possession, defeated the merely inchoate pledge of the plaintiff. These points, however, were overruled in very elaborate judgments of the several judges, that of Mr. Justice "Willes being peculiarly learned and exhaustive ; and judgment rendered for the plaintiff. Meyerstein v. Barber, Law Kep. (Eng.) January, 1867, p. 37. The plaintiffs, merchants in London, purchased for C, but on their own credit, goods abroad, debiting C. with the price and a commission. The goods were warehoused in London in the plaintiffs' name. C, in his own name, engaged a room for the goods in a general ship for Cal- cutta. The plaintiffs, at O.'s request, delivered the goods to a lighter- man, but, with a view to preserve their lien, took the lighterman's en- gagement to give them the mate's receipt. The goods were shipped, and the mate's receipt in blank handed to the lighterman, who gave it to the plaintiffs. C. promised the plaintiffs to redeem the mate's receipt, but never did so, and fraudulently induced the ship-brokers to get bills of lading to C.'s order, to be signed by the master, though the mate's receipt was not produced. C. fraudulently indorsed these bills of lading for value to a bonHfide indorsee. The plaintiffs had no communication with the ship-brokers or captain till after the ship had sailed, when, the facts being discovered, they demanded the goods both in this country and on the arrival of the ship at Calcutta. The goods were delivered by the captain at Calcutta to the holders of the bills of lading. An action was brought for this conversion against the ship-owner and the captain. The captain and crew were appointed by the ship-owner, but the ship was chartered for a lump sum to third parties, who put up the ship as a DELIVERY. 145 captain of the ship, by collusion with him, refused to de- liver the goods without acceptance of a bill drawn for the price ; if the buyer has recovered their value, and damages for detention, in a suit against the captain. In such case, the delivery was complete, as between buyer and seller, when the goods were put on board the ship. The transaction was in principle the same, as if, after de- livery into the warehouse of the vendee, the vendor had retaken the goods. He would be liable for a tort, but might still maintain a suit for the price. So, in this case, the detention by the captain, even though done by collu- sion with A., is no defence to this suit. The buyer had claimed the goods in his suit against the captain, as his property, and recovered ; which claim could be sustained only upon the ground that the property passed when the goods were shipped.' § 24. Where a bill of lading is signed before the goods specified therein are either shipped or purchased, and goods are afterwards shipped, before the vessel sails upon the intended voyage, as and for the goods referred to : as against the shipper and master, the bill of lading operates by relation and estoppel ; and the consignee, who receives it and accepts drafts upon the consignment, gains a good title.2 general ship. The refusal of the captain to deliver the goods at Cal- cutta was by the orders of the ship-owner. The only question left to the jury was, whether the master was justified in signing the bills of lading without production of the mate's receipt. The jury finding in the nega- tive, the plaintifls had the verdict against both defendants, on the pleas of not guilty and not possessed. Held, the property in the goods re- mained in the plaintiffs, there never having been any delivery animo transferendi to C. ; and the misdelivery at Calcutta was a conversion. Also that the question, whether the plaintiffs were precluded from relying on their property, or complaining of this conversion, was in effect properly left to the jury, and, the ship-owner having authorized the detention at Calcutta, the verdict was proper. Schuster v. McKellar, 7 Ell. & B. 704. 1 Groning v. Mendham, 5 M. & S. 189. " Rowley v. Bigelow, 12 Pick. 307. 10 146 LAW OF SALES OF PERSONAL PROPBETT. § 25. A sale of personal property, not in the vendor's possession, made in good faith, and without intent to de- fraud creditors, is valid, without immediate, actual and continued change of possession.' So where property sold is in possession of a third person, or bailee, giving notice to him of the sale is a sufficient delivery, more especially if followed by some act on his part indicating a recogni- tion of the transfer, or if the property be left with the bailee, for a special purpose, by the purchaser. Thus A. purchased sheep in the possession and keeping of B. He notified B. of the purchase, and requested him to act for himself (A.) in selecting the sheep, and to receive and keep them for him, to which B. assented. Soon after- wards, the selection was made, and the vendor delivered the sheep to B., who marked them with the name of A., and kept them as before, till attached by a creditor of the vendor. Held, they were not liable to attachment.^ So sixty-four barrels of whiskey, in the hands of a bailee, were sold ; and the parties completed the contract in the presence of the bailee, where the whiskey was deposited, without any formal delivery. Held, the property passed to the vendee, who then became bailor of it.^ So A. gave to B., as security, an absolute bill of sale of a chaise in possession of C, and of other property in possession of A. himself There was no change of possession, but notice of the sale was given to C, who agreed to keep the chaise for B. Held, there was a sufficient delivery of the chaise, as against A.'s creditors ; and the sale was valid in regard to this, though it should not be in regard to the rest of the property, unless fraud in fact was proved, which was a question for the jury.- So A. purchased of B. a carriage, which was in the custody of C, the shafts, tongue, and > Goodwin v. Kelly, 42 Barb. 194. = Barney v. Brown, 2 Verm. 374; Linton v. Batz, 7 Barr, 89; Heine V. Anderson, 2 Duer, 318. See Cocke v. Chapman, 2 Eng. 197. ' Field V. Simco, 2 Eng. 269. • Spaulding v. Austin, 2 Verm. 555. DELIVERY. 147 whiffletrees belonging to it being in A.'s possession. Held, a levy on the carriage, under an execution against B., made after the sale, but before notice to C, was invalid.* So testimony of a purchaser of lumber, that he bought and paid for it in another State, the lumber' being then in the custody of an agent of the seller in Massachusetts, to whom the seller promised to write ; that nothing more was to be done between the seller and himself in relation to the sale ; and that he afterwards saw it here ; — is sufficient evidence of delivery to be submitted to the jury.^ So if the owner of property, in the hands of a third person, proposes to sell it for a certain price, to be applied upon the seller's indebtedness to the buyer at a future adjustment of their accounts, and this proposal is accepted, and it is agreed that the person in possession shall be notified of the sale ; the title as between the seller and buyer passes by the bargain.' More especially where personal property, which is cumbersome, and in possession of a third person, is sold, there is a sufficient delivery of it, if it is turned over to the vendee where it lies, and he makes arrangements with such third person to take care of it for him.* And in case of a sale of chattels, which are in custody of a third per- son, for valuable consideration, with an order upon the latter and notice thereof; the title passes, whether he obeys the order and delivers the property, or claims to hold it by some title or lien.' And, upon similar grounds, if the buyer remove the property from the seller's posses- sion to the premises of a third person, though without notice to the latter ; this is a sufficient delivery, even as to creditors.* § 26. But merely leaving goods with a third person, tO' be called for by the vendee, is not of itself a delivery. ' Sansee v. Wilson, 17 Iowa, 582. « Hardy v. Potter, 10 Gray, 89. > Wooley V. Bdson, 35 Vt. 214. * Dixon V. Bucic, 42 Barb. 70. 6 Plymouth Bank v. Bank of Norfolk, 10 Pick. 459 ; 2 Duer, 318. « Bailey v. Quint, 22 Verm. 474. 148 LAW OF SALES OF PERSONAL PROPERTY. Thus the plaintiff left certain goods with A., requesting him to deliver them to the defendant, when called for. The}' were not called for, but remained in A.'s possession. Held, there was no delivery of the goods, and an action for goods sold and delivered did not lie.' So if A. deliver goods to an auctioneer, with directions to pay the proceeds of the sale to B. ; this is not a delivery to B., unless he has notice and assents, prior to which the goods may be attached as the property of A., and B. may be held as garnishee. So though B. is mortgagee of the goods, by an unrecorded mortgage.^ § 27. The question of delivery may sometimes be affected by an independent and collateral arrangement between the parties as to the future possession. Thus the mere act of extending his hand over the property by the vendee, followed by the vendor's borrowing it for a particular use, and immediatelj^ taking it away, has been held not to be a delivery.* But, under some circumstances, there may be • A., having negotiated with B. to purchase of him a yoke of oxen, extended his arm over one of them in the act of measuring, and said he would pay the price demanded. B. replied that he might have them, but at the same time borrowed them for the purpose of hauling a load of timber, with the agreement to use them in no other way. Held, there was no legal delivery, neither earnest being paid, nor a memorandum signed, and that no title had vested in A. There was nothing in the circumstances of the case to show any departure from the general rule, that payment must precede delivery. The application made by B. was merely an intimation that he was not then ready to part with the cattle; and, though his asking to borrow them seemed to imply that they were considered" as belonging to A., yet this inference must be qualified by the accompanying acts and declarations. The true import of what passed between the parties was, that B. knew the offer of A. was no engagement to receive the cattle at any future time, and a request that the bargain might not be defeated by his using them, but that A. would accept them afterwards. There was nothing to show any intention of giving credit. If the property had passed, B. might maintain an action for the price; the cattle would have been in his hands at the risk of A., and upon A.'s 1 Hart V. Tyler, 15 Pick. 171. See Hill v. McDonald, 1 Head, 383. 2 Town V. GrifBth, 17 N. H. 166. DELIVERY. 149 a legal delivery, though the vendor retain possession as before the sale, and merely by some writing, or otherwise, recognize its existence and validity. Thus, where the vendee of goods gives his note for the price, and the vendor agrees that they may remain on his premises, and after- wards affirms the sale ; this constitutes a sale and delivery, and the vendee may maintain trover for the goods.^ So, if a man bargains for the purchase of goods, and desires the vendor to keep them in his possession for an especial purpose for the vendee, and the vendor accepts the order ; this is a sufficient delivery. Thus the plaintiff, who kept a livery stable, and dealt in horses, asked from the de- fendant one hundred and eighty guineas for two. The defendant offered a smaller sum, which was refused, but afterwards sent word that the horses were his, but, as he had no servant nor stable, the plaintiff must keep them at livery for him. The plaintiff" removed the horses to another stable. Held, this last circumstance was imma- terial ; but without it there was a complete delivery to death have vested in his administrator; which clearly was not the case. Phillips V. Hunnewell, 4 Greenl. 376. In a sale of oxen, delivery of brass knobs, which had been worn upon their horns, does not pass the property, unless by special agreement. Clark V. Draper, 19 N. H. 419. A sale of a hog in a pen, on credit, to be kept by the vendor until called for, and then paid for at its market price, according to its then weight, after which the parties go together to the pen, and the purchaser directs the vendor to keep it well, who assents; is not a suflScient sale and delivery against a subsequent purchaser. Kourke v. BuUens, 8 Gray, 549. A.'s cattle were bid in at public sale by B., on terms of cash or note with sufficient securities, which were never complied with, or sought to be complied with. They remained on A.'s premises, but at the request of B., and subject to B.'s control. B. sent for the cattle, but at that time they had died. Held, A. could recover their price. Clark v. Bush, 19 Cal. 393. Where the parties were in sight of cattle sold, and the seller said, " here they are ; I deliver them;" and the herdsman was discharged; held, no sale. Doak v. Brubaker, 1 Neva. 218. 1 Atkinson v. Barnes, Lofft, 326. 150 LAW OF SALKS OF PERSONAL PROPERTY. the defendant, and an action for goods sold and delivered would lie against him.' So where goods were sold, to be paid for in thirty days, and, if not taken away at the end of that time, warehouse rent to be paid by the vendee ; the property was held to vest in the latter immediately upon the sale, the provision for storage being solely for his benefit.^ So the defendant sold wheat, to be delivered on board a boat lying at his warehouse on a day certain. Before that day, the time for delivery was indefinitely extended. Four days afterwards, he notified the plaintiif that he was ready to deliver whenever the plaintifi' would send a boat, and requested immediate payment, which was thereupon made. The plaintifi^ sent no boat, and three days afterwards the wheat was burned. In a suit for non-delivery, the defendant claimed that the property had passed before the fire, but the answer was held bad on demurrer. He then amended, by adding averments, that the plaintiff had failed to send a boat within a rea- sonable time, and that, at the time of payment in full, the wheat had been measured and set apart, and so remained until the fire, and was not removed by reason of the want of diligence of the plaintiff. Held good, as amended; that, if the contract required delivery on board before the property passed, that condition had been waived by the payment.' So, A., a manufacturer of bisulphate of lime, transferred his business and a lot of chemicals to B., in payment of a debt. B. continued the business, and bond fide employed A. to superintend it. Held, the transfer was valid as against creditors of B., who subsequently attached the property.'' So, where the plaintiff advanced money to one A., who, as security, gave an order upon 1 Elmore v. Stone, 1 Taun. 457. Of this case it has been said, that it goes as far as any case ought to go, and I think we ought not to go one step beyond it. I must say, that I doubt the authority of that decision. Per Bayley, J., Howe v. Palmer, 3 B. & Aid. 321. ' Phillimore v. Barry, 1 Camp. 513. » Scott V. King, 12 Ind. 203. • Miltenberger v. Parker, 17 La. An. 254. DELIVERY. 151 the defendant for a quantitj'- of malt, and the defendant acknowledged in writing tlaat he held the property for the plaintiif ; the defendant was held estopped to deny that the malt belonged to the plaintiff. "■ ' § 28. More especially does the rule prevail, that the con- tinued possession of the vendor, by special agreement with the purchaser, is equivalent to delivery ; where the vendee subsequently obtains possession, though without notice to • A certificate given by the vendor, that he holds the goods in storage, is so fully equivalent to actual delivery, that he has no greater right of lien, nor is the sale any more subject to be rescinded as against purchasers from the vendee, than if the property had come into the manual posses- sion of the latter. Thus the defendant gave one A., the vendee, such certificate, together with a bill of parcels, receipted, A. giving his nego- tiable note for the price. A. offered to cancel the contract if the defend- ant would return the note, and the latter agreed so to do. The note was then in a bank, having been discounted for the defendant. Some days afterwards the defendant tendered it to A., and requested him to cancel the contract. A. in the meantime had assigned the goods to the plain- tiffs, his creditors, with notice of the conversation as to the cancelling of the agreement. The plaintiffs bring trover for the goods. Held, the defendant was estopped to deny that he had the goods, and could not offer parol evidence to the contrary ; that the property had vested in A., subject to no lien by the defendant for the price ; that the contract was not rescinded, having been executed ; that there was no resale to the de- fendant, but, at most, a mere conditional agreement to reconvey, which was void by the Statute of Prauds. The facts, without the aid of parol evidence, showed a sale and delivery by the defendant to A., and an as- signment by A. to the plaintiffs. If the plaintiffs' rights had not inter- vened, A. might have resold to the defendant unconditionally, taking an indemnity against the note ; and the property would thereby have revested without delivery, being already in the defendant's possession. Chapman V. Searle, 3 Pick. 38. Contrary to the general tenor of the above cases, it has been held, in New York, that an agreement with the vendor respecting storage, and delivery by him of the export entry to an agent of the vendee, do not amount to constructive delivery, or afford an indicium of ownership. But where a vendee, after an executed sale, leaves the goods with the vendor, he is liable by an implied assumpsit to pay the expense of keep- ing. Eoe V. Martin, 2 Cow. 417 ; Bailey v. Ogden, 3 John. 399. 1 Stonard v. Dunkin, 2 Camp. 344. 152 LAW OF SALES OP PERSONAL PROPERTY. the vendor.'' Thus, upon a sale of cattle, no earnest paid, nor memorandum signed, the cattle to remain with the vendor at the risk of the vendee till called for ; the vendee having taken them away without notice to the vendor, held, this was a sufficient delivery under the Statute of Frauds, being an act of ownership on the part of the ven- dee in confirmation of the bargain.' § 29. The general principle is, that a delivery of any part of -property, sold under an entire contract, is a virtual delivery of the whole, and binds the bargain under the Statute of Frauds, unless there be an agreement or under- standing to separate a part.*"" Thus a purchase of goods, which are designated and set apart by the seller, and paid for, and a part of which are actually removed by the pur- chaser's order, is sufficient to vest the property in the pur- chaser, as between the parties, although he has never seen the goods.' § 30. In case of an entire contract to deliver a num- ber of articles at a certain time and place, the vendee is not bound to receive a part of them only, nor to pay for a part, though delivered, if willing to accept and pay for the whole. But if he accept a part, this is a disaffirmance of the entirety of the contract, and he is bound to pay for » A sale of lumber, in writing, on condition that the seller may re- purchase it at the same price, on or before a certain day, is not amort- gage, which requires to be recorded, but passes the title, as between the parties, without delivery ; and, if the seller afterwards proceed under the insolvent laws, and the buyer take possession, though opposed by the seller, of part of the lumber, before notice to the buyer or publication of notice of such proceedings, though after the issuing of the warrant, the buyer's title to the whole will prevail over that of the assignee in insol- vency. Lee V. Kilburn, 3 Gray, 694. ^ A. hired B.'s land on shares, and, while the crop was growing, B., by writing, sold A. all his interest in the crop. Held, the mere fact that B. occupied the farm-houses did not amount to possession by him of the part he sold to A. Visher v. Webster, 13 Cal. 68. ' Vincent v. Germond, 11 John. 283. s Parks V. Hall, 2 Pick. 206. 3 Rice v. Codman, 1 Allen, 377. DELIVERY. 153 such part/ ' Thus, upon an agreement for the sale of one hundred sacks of flour, a part of them were delivered, and payment was tendered for the whole. Held, the vendor could not maintain an action for the price of those which were delivered.^ But where corn is purchased and paid for, a part delivered, and the remainder left by the vendee in the heap; the property to the amount purchased passes, and that which is left is at the risk of the purchaser.' § 31. The rule above stated, that delivery of a part is a constructive delivery of the whole, applies, although the goods were taken a few hours subsequent to the sale. Thus, where the plaintiff, in the forenoon, sold to the de- fendant a lot of logs, lying together at the distance of a mile, and in the afternoon the defendant sent and con- verted to his own use a part of the logs, but there was no other delivery, nor any payment ; it was held, that the plaintiff might recover the price of the whole quantity sold." § 32. But delivery of a deed of a bake-house and land in a remote place, and of a bill of sale, including all the im- plements in the house and a bread-cart standing under an open shed on the land, accompanied by a delivery from the buyer to the seller of a lease of the house, land, cart, and implements, is not sufficient evidence of a delivery of the cart, as against an attaching creditor of the seller.^ So the plaintiff" A. and the defendant B. made a parol con- tract, by which A. agreed to give B. all her property, and " Where several chattels are sold together for one entire price, which is paid, and a part of them are delivered to and retained by the vendee, but the vendor refuses to deliver the rest ; the vendee cannot recover any part of the price as money paid, or money had and received, but must sue upon the contract. Miner v. Bradley, 22 Pick. 457. ' Eoberts v. Beatty, 2 Penn. 63. ' Walker v. Dixon, 2 Star. 281. ' Waldron v. Chase, 37 Maine, 414. * Davis V. Moore, 1 Shepl. 424. ' Packard v. Wood, 4 Gray, 307. 154 LAW OF SALES OF PERSONAL PROPERTY. he agreed to support her through life and to pay all her debts. A. stated, at the time the contract was made, that she had some money and notes, which she would keep, to avoid the necessity of calling upon B. whenever she re- quired small necessaries ; but that she considered the money and notes, so retained, as his property, the same as though he had taken possession of them ; and to this ar- rangement B. assented. The parties intended to have this contract reduced to writing at a convenient opportunity, but it was never done. B. immediately took possession of all A.'s property, except the money and notes, and paid her debts and supported her nearly three years, when she left his house and refused to return. She left the money and notes locked up in her trunk in his house, and he broke open the room and trunk where they were, and took possession of them. Held, in an action of trover for the money and notes, the plaintifi' could recover.' So where some of the goods remain in a bonded warehouse, the seller may retain them upon the purchaser's insol- vency, though a part have been delivered.- So, where a bill of sale and a receipt of payment were given for a quantity of shooks not then manufactured, and they were subsequently manufactured, and a part delivered ; whether such delivery of part operates as a delivery of the whole, depends on the intention of the parties, which is a ques- tion for the jury.^ So plucking a handful of half-grown grass, and delivering it to a purchaser in a field, upon a sale of the grass, with an agreement that the vendor shall cut it for the vendee at a proper time, is not a construc- tive delivery of the hay, as a chattel, which will pass a title to it as against third persons.^ § 33. Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, 1 Lamb v. Clark, 30 Vt. 347. » Gill V. Pavenstedt, Law Reg., Sept. 1868, p. 684— N. T. ' Pratt V. Chase, 40 Maine, 269. * Lamson v. Patch, 5 Allen, 586. DELIVERY. 155 within a specified time, and the seller delivers a part of them ; he cannot, before the expiration of the time, sue for the price of such part, because the vendee has the right of returning them in case the contract is not fully complied with. But if the vendee retains the part de- livered after the expiration of the specified time, he is liable to an action therefor, though the remainder be not delivered.' § 34. Where the vendee accepts a part of the property sold, but not within reasonable time, or certainly within the time agreed upon for taking the whole, such accept- ance does not take the case out of the Statute of Frauds.^ And the general rule, above stated, has been held not to apply to mere constructive delivery of a part of the prop- erty. Thus, where the purchaser of several articles, at the time of sale, writes his name upon one of them, in- tending to denote his having purchased it, and appropri- ated it to his own use ; this is equivalent to delivery of that article, but not of the others.'* » Under a contract, which was void by the Statute of Frauds, the de- fendant was to have from the plaintiff twelve thousand bricks, at the rate of four dollars per thousand, to be received at the plaintiff's kiln within one month. After the expiration of the month, the defendant received eight hundred of the bricks, informing the agent of the plain- tiff, who delivered them, that he would take the remainder on the follow- ing week, to which the agent assented. The defendant did not call for the rest of the bricks, nor did the plaintiff separate the requisite number from the kiln. Held, the plaintiff might still maintain an action for the price of the twelve thousand ; the new agreement being made certain by reference to the former one, as to quantity and price, and not within the Statute of Frauds. The bargain and sale was complete by delivery of a part of the property. The vendor was to do no further act till the ven- dee should call upon him. Hence, the property had vested in the latter. The case is the same in principle, as if the plaintiff had sold, from a kiln of one hundred thousand bricks, ten thousand to one person, the same number to a second, and the same to a third, and delivered one brick to 1 Oxendale v. Wetherell, 9 B. & C. 387-8 ; Waddington v. Oliver, 2 N. E. 61. » Damon v. Osborn, 1 Pick. 476. » Hodgson v. Le Bret, 1 Camp. 2-33. 156 LAW OF SALES OF PERSONAL PKOPERTT. § 35. Although, in general, a party who fails to fulfil his own contract cannot excuse himself, on the ground that the other party would not be bound to accept an im- perfect performance, yet it has been held that, where one contracts for the sale and delivery of a large quantity of goods upon their arrival at a certain port, and a part of them only arrive, he is not bound to deliver such part. The vendee is not bound to receive a part, and the obligar tion of the parties must be reciprocal.' § 36. Under this head, may properly be considered the legal effect of delivering a sample of the goods sold. The general rule upon this subject is, that delivery of a sam- ple, which is no part of the commodity itself, is not suf- ficient to take a case out of the^ statute. If it is a part of the commodity, this is held an execution of the bargain, and dispenses with any writing. The distinction is, that, in the latter case, the sample is taken for the vendee's own use, as part of the bulk, not merely to guide his judgment, but to give him possession of the thing itself It is a 2'ar< delivery.^ So the delivery of a sample, part of each in token of the whole ; in which case the whole would undoubtedly pass to the respective vendees. Damon v. Osborn, 1 Pick. 476. A. takes an assignment of property from B. to secure a debt, agree- ing to sell the property, and, after paying himself, to pay over the sur- plus to B. Having been paid in money and securities, A. verbally agrees to give up the goods, and accordingly does give them up, excepting a quantity of wine and vinegar. The wine was in a loft held by A. under a lease from B. A. agrees to come and surrender the lease and give up the key, but fails to do it, and B. takes possession of the loft and the wine without A. 's knowledge. Before the lease and key are delivered up, a part of the securities fail. Held, the facts showed a resale to B., and A. had no lien upon the wine and vinegar, because all the goods had been constructively delivered, and the actual possession taken of the wine was authorized by the contract. No demand of the key was necessary, because A. had agreed to deliver it; and he could not be allowed to take advantage of his own wrong. Parks v. Hall, 2 Pick. 206. 1 Eussel V. Nicoll, 3 Wend. 112. 2 Talver v. West, Holt, 178 ; Klinitz v. Surry, 5 Esp. 267. DELIVERY. 157 the commodity itself, is sufficient, though made in part alio intuitu.'' ' § 37. Delivery of goods sold may be conditional as well as absolute. Actual delivery does not per se transfer the actual property in goods. There must be a consummation of the contract.^ § 38. The usual condition of sale or delivery is payment of the price. And although such condition be not expressed in the contract, yet, upon a cash sale of goods, the vendor may refuse to deliver till payment. But delivery of the goods or their indicia without payment is a waiver of this condition, the property passes, and trover cannot be sus- tained by the vendor, though payment be not made after- wards ; unless, it seems, where the goods have been ob- tained by fraudulent contrivance of the vendee.' But where a sale is made on condition of payment upon de- livery, and the vendor allows the vendee to take a part of the goods without payment, this is not an entire waiver of the condition. Hence the vendee can maintain no action for non-delivery of the rest.^ • Sale of a crop of wheat by sample, the bulk not being ready for market, to be delivered at a railroad over which it is to be transported at the vendor's expense to K., thence to be taken by the vendee to his mill, weighed, compared with the sample, and, the price being thus as- certained, paid for. The buyer moved most of it to his mill, and, while moving the last lot, the station at R. was burned, with some wheat. The railroad receipts named the vendee as consignee. Held, the prop- erty was in the vendee from the arrival at E., if not from delivery to the railroad. Haxall v. Willis, 15 Gratt. 434. And this without fixing the price or ascertaining whether the warranty of correspondence with the sample was satisfied. lb. So in case of sale of an entire parcel of wheat, at the railroad station at the time, and there open to the vendee's inspec- tion. Haxall V. Barbour, 15 Q-ratt. 454, note. 1 Hinde v. Whitehouse, 7 B. 570. " Mason v. Lickbarrow, 1 H. Bl. 362; Marston v. Baldwin, 17 Mass. 611. See chap. 3. ' Western, &c. v. Marshall, 37 Barb. 509; Chapman v. Lathrop, 6 Cow. 110 ; Bucknam v. Nash, 3 Fairf. 476 ; Smith v. Lynes, 1 Seld. 41. ' Payne v. Shadbolt, 1 Camp. 427. 158 LAW OF SALES OF PERSONAL PKOPERTT. § 39. Where a vendee has agreed, instead of payment in cash, to give notes for the price, but the vendor delivers the goods without requiring such notes or annexing any condition to the delivery ; this is a waiver of the above agreement, and the property passes,' unless a condition is expressly proved.^ But, it is said, where there is a condi- tional bargain for the sale of goods, and an immediate de- livery, under the expectation that the stipulated security will be produced, or payment soon made, but no declaration that the delivery is conditional ; the sale will not be held absolute, because there is an understanding that the vendee will act honestly, and furnish the security as soon as he can have opportunity to procure it. If this rule were not adopted, auction and other sales must be much embar- rassed. Moreover, no one is wronged by it, unless the vendee obtain credit upon the strength of the goods, or sell them to an ignorant purchaser ; in which case, the vendor would be supposed to have delivered them for the purpose of trading.^ (But see s. 40.) § 40. Where goods are sold upon the conditions above referred to, and delivered without payment or security, but with an understanding that the condition is not waived ; a question may arise, either between the parties themselves, or, as has been suggested (s. 39), between the seller, and creditors of, or purchasers from, the buyer. And where the claims of such third parties intervene, it has sometimes been held a material inquiry, in reference to attaching creditors, whether their claims accrued before or after the goods came into the buyer's hands. Upon the ground that the credit might have been obtained upon the strength of the goods themselves, it has been some- times decided, that a creditor, whose debt was contracted after the delivery, should hold them by attachment, in preference to the seller, claiming to enforce the condi- ' Lupin V. Marie, 6 Wend. 77. ' Pitts V. Owen, 9 Wis. 152. ' Smith V. Dennie, 6 Pick. 266 | 2 Kent, 491. DELIVERY. 159 tion ; wMle the title of the seller would prevail over that of a creditor, who became such before the delivery, and who therefore would be placed in no worse condition by restoring the goods to the seller. With regard to a bond fide -purchaser of the goods from the original vendee ; the prevailing doctrine has been, that the goods could not be reclaimed from him by the original seller. A contrary rule, however, has lately been established in Massachu- setts, New Hampshire, and Connecticut. So in ISTew York ; in reference to the claim of a landlord upon the crop for rent, but not in case of a conditional sale of goods. And in Maryland a bond fide purchaser will hold the goods."' ' » The following may be cited as some of the leading cases upon the subject : A. ordered from the plaintiff a piano-forte, for exportation, to be de- livered at the house of the defendant, a packer, and paid for in ready money. The plaintiff's servant delivered the piano-forte at the defend- ant's house, and demanded the money. The answer was, that A. had given no orders for that purpose, and that the defendant was from home. The servant stated, that payment was to be made before delivery, and, upon that understanding, left the instrument. The defendant afterwards refused to restore it ; and shipped it for A. without payment. In trover by the plaintiff, held, the delivery to the defendant was only conditional ; he remained n, trustee for the plaintiff, had no right to deliver the in- strument to A. till payment, and was liable to this action. Loeschman v. Williams, 4 Camp. 181. November 22d, A. applied to the plaintiff to purchase goods. Before delivery, a memorandum was made in the plaintiff's book, that $150 must be paid down, and the balance of the price in the following spring. The same day, in the afternoon, a part of the goods were sent to the wharf appointed, and, on the day following, the rest, marked with the name of A. On the 23d, in the forenoon, A. called for a bill of the goods, and paid $75. The clerk thereupon referred him to the plaintiff, to know whether the whole $150 would be claimed. The plaintiff then came in, and during the conversation notice was given, that the property had been attached by a creditor of A., whose debt was incurred before the sale. The plaintiff thereupon remarked that it was no sale, because the agree- ' Deshon v. Bigelow, 8 Gray, 159 ; McFarland v. Farmer, 42 N. H. 386 1 Cragin v. Coe, 29 Conn. 51 ; Van Hooser v. Cory, 34 Barb. 9 ; Hall V. Hinks, 21 Md. 406; Steelyards v. Singer, 2 Hilt. 96; Wait v. Green, 36 N. T. 556. See chap. 20, a. 7. 160 LAW OF SALES OF PERSONAL PROPERTY. § 41. "Where there is a contract for a sale in futuro or on performance of a condition, and a further stipulation that ment had not been complied with. A. said he did not know that it was a sale. He also said, afterwards, that the attachment was invalid, be- cause the goods had been previously sold to a third person. Upon this representatiou, the plaintiff commenced an action of assumpsit against A. for the price of the goods, and caused them to be attached as his. This suit was not prosecuted, and subsequently, two and a half months after the sale, the plaintiff brings the present action of replevin against the attaching officer. The jury, in their verdict for the plaintiff, found a conditional delivery. Held, this was a right verdict, no bill of parcels having been made out; that the long delay in bringing this action, and the commencement of the suit for the price, furnished strong evidence of a waiver of the condition, and would have justified a verdict for the defendant, but were not conclusive; that, as the contract was at the first conditional, the plaintiff was not bound to show any rescission of it, or to return the $7-5 ; and that a new trial should not be granted. Marston V. Baldwin, 17 Mass. 606. The plaintiff sold goods to A., on condition of his furnishing a surety for the price. The captain of A.'s vessel, in which the goods were to be carried, afterwards called on the plaintiff, and inquired whether he had goods to be forwarded to A. The plaintiff replied that he had, and they would be ready when sent for. They were accordingly delivered to the vendee's order, nothing being said respecting securitj', either to the cap- tain or the drayman. While the goods were at the wharf, a part having been put on board the vessel, the plaintiff went to the wharf, and told the captain the goods should not be laden till security was furnished, and that until then he should consider them as his property. Held, the cap- tain was the agent of the vendee, who was therefore bound by his re- ceiving the goods, and thereby assenting to the plaintiff's declarations at the time ; and that the plaintiff should hold the property, against credi- tors whose claims accrued before the vendee came into possession. (It would be otherwise with regard to creditors who became such after his possession, and in consequence of a false credit thereby gained ; or bm& fide purchasers for valuable consideration from the vendee.^ Hussey v. Thornton, 4 Mass. 405. But upon the last point see p. 159. A. sold personal property to B., and delivered the possession, upon con- dition that the title should not pass, and that B. should not sell any part of it until payment in full. B. sold part and attempted to sell the rest. Held, A. might take po.ssession, if he could peaceably, of the part unsold. Shireman v. .Jackson, 14 Ind. 459. Goods were sold, on condition of the vendee's giving a note with a sufficient indorser for the price. The property was taken by the vendee, without objection from the plaintiff, the vendor, the clerk of the latter telling him, that, if the indorser named were not satisfactory, another DBLIVBRY. 161 in the meantime the vendee shall have possession for a particular purpose, and he takes possession accordingly ; one must be procured. The person named was rejected, and no other obtained. Held, the vendee gained no title to the goods ; that no express declaration of conditional delivery was necessary, provided such ap- peared to be the understanding of the parties.* Whitwell v. Vincent, 4 Pick. 449. Sale on credit, the vendee agreeing to give certain bills for the price. The goods were shipped by his order, and no objection made by the ven- dor, that the condition was not complied with. Held, the property was liable to attachment by the vendee's creditors. Carleton v. Sumner, 4 Pick. 516. The plaintiff sold personal property, on condition of the vendee's giving an indorsed note for the price. Delivery was made without ex- press reference to the condition ; the vendee kept the goods eight days, and they were then attached by his creditors (whether they were credi- tors prior or subsequent to his obtaining the property, qu.), the plain- tiff, in the meantime, having claimed neither the note nor the property; a neglect, of which no explanation was given on the trial. Held, these facts showed a waiver of the condition ; that the attachment must pre- vail ; and a verdict to the contrary be set aside as against evidence. The vendor might have insisted upon the condition one day after the sale, or two days, or any greater number, if the delay were satisfactorily ex- plained; and the question of reasonable time is for the jury. Smith v. Dennie, 6 Pick. 262. A. sold a horse to B., receiving a note for the price, with a written agreement that the horse should remain A.'s, until payment of the note. The horse was delivered unconditionally to B., who took it to his stable, claimed it as his own, and sold it to C, who paid value for it in good faith. C. was allowed to hold the horse against A. Wait v. Green, 35 Barb. 585. * In the same case it appeared, that the vendee sold the goods to one C, taking C.'s negotiable note for the price, and transferred this note by way of security to the defendant, a creditor, who had notice of the facts. The creditor, upon demand of the plaintiff, refused to deliver him the note. Held, while the note remained unpaid in the creditor's hands, the plaintiff could not maintain assumpsit against him for the amount, be- cause by bringing the action he affirmed the original sale. The first vendee having resold the goods, taking a negotiable note, the plaintiff might waive the tort and bring assumpsit against him for the proceeds. But the creditor had no concern with the sale by the first purchaser. He only took the note as security. No action would lie against him without a demand, and, after demand, none but trover. If he had sold the note, and if the note belonged to the plaintiff, assumpsit would lie. lb. 11 162 LAW OF SALES OF PERSONAL PROPERTY. the sale is not executed, nor the property changed, till the act is done, or the condition performed, although the pur- Opinion by Thayer, J. " Replevin for five hundred barrels of refined petroleum. On the 19th of April, 1867, the defendant entered into a contract for the purchase of five hundred barrels of petroleum from the plaintiffs. The contract, which was in writing, was in these words : " Phila., 4th mo. 19th, 1867. " Sold to D. L. Miller, Jr., agent, through J. K. Barbour, for account of National Befining and Storing Co., five hundred barrels refined pe- troleum in bond. Deliverable on cars at works at Pittsburgh, during the month of November, buyer's option with five days' notice to seller within the time, and to be paid for at the rate of twenty-five cents per gallon, packages included. Cash. " D. L. MiLLKB, Jb. "Accepted. David Kirk, " Supt. N. E. S. Co." This petroleum being in bond, the plaintiff, on the 27th November, 1867, obtained from the collector of internal revenue at Pittsburgh, aper- mit to transport it in bond to Philadelphia. On the 28th November, two hundred and fifty barrels of it were laden at the works of the plain- tiff, on the Alleghany Valley Railroad on the cars of the company, and on the 29th, the remaining two hundred and fifty barrels were laden at the same place on the cars of the same company. When the petroleum reached the junction of the Alleghany Valley Railroad with the Pennsyl- vania Railroad, the plaintiff obtained bills of lading for it from the Penn- sylvania Railroad Company, one of which was dated November 29th, and the other November 30th. By the terms of these bills of lading the pe- troleum was to be transported to D. L. Miller, consignee, at West Phila- delphia. The plaintiff retained possession of the bills of lading. On the 30th November the plaintiff' drew a bill on the defendant Miller, for the price of the petroleum ($5456). To this bill he attached the bills of lad- ing and the permit of the collector of internal revenue for the transpor- tation of the oil in bond to Philadelphia, and deposited the bills for col- lection with these papers annexed in the Pittsburgh Savings Bank. The cars of the Pennsylvania Railroad run directly to the bonded warehouse in Philadelphia, whither this oil was taken. One hundred barrels arrived there December 2d, and the other four hundred barrels December 4th. The draft which the plaintiff had drawn for the price of the petroleum, with the bills of lading and the collector's permit annexed, was presented to the defendant December 3d, and payment demanded and refused. On the 5th December the entry was passed by the collector of internal reve- nue at Philadelphia, in the name of the defendant, and on the 7th De- cember the defendant paid the freight. On the 4th and 5th December DELIVERY. 163 chaser gives his note for the price at the time of the agree- ment, which note is afterwards partly paid. Thus the the plaintiifs telegraphed to their agent in Philadelphia not to allow the defendant to get possession of the oil unless he should pay the draft. On the 7th Decemher, an agent of the plaintiff came to Philadelphia and en- deavored to have the entry in the bonded warehouse here made in their name, hut the collector declined to allow it because it had been previously entered in the name of the defendant. On the 21st December, the plain- tiff brought this writ of replevin against the defendant for the oil. The question at the trial arising upon these facts was whether the right of property in this oil was in the plaintiffs or defendant; the judge before whom the cause was tried instructed the jury that if they believed from the evidence that the delivery of the oil was not an absolute but a con- ditional delivery, to take effect only in case the defendant should pay for it on delivery, and if the defendant did not pay for it on delivery, then no right of property vested in him, but the oil remained the property of the plaintiffs ; and that the retention of the bill of lading by the plain- tiffs, and the presentation of the draft to the defendant accompanied by the bill of lading and permit, were evidence to show that the plaintiffs did not intend that the property in the oil should pass to the defendant unless he paid the price of it on receiving it ; that the contract of the defendant was to pay for the oil in cash ; that the plaintiffs might waive that con- dition, and that if they had waived it the verdict should be for the de- fendant, but that the lading of the oil on the cars was not a waiver of the condition of payment if the jury should find from all the evidence that it was the intention of the plaintiffs that the oil should not be delivered to the defendant unless he should pay the draft which was drawn upon him for the price of it. The jury found » verdict for the plaintiff for the value of the goods ($5125). The cases, both American and English, fully establish the principle that where goods are sold on a condition to be performed immediately, and the vendor makes an actual delivery upon the faith that the con- dition will be immediately performed, and then comes with reasonable speed and demands the performance of the condition and it is refused, no property in the goods passes to the vendee, and the vendor may maintain replevin for them. As between the vendor and vendee the question in such cases is whether the vendor waived the performance of the con- dition. If the goods have been delivered absolutely, the right of property passes ; if upon a condition, the vendee cannot claim the property with- out performance of the condition. Harris v. Smith, 3 S. & E. 20 ; Kose V. Story, 1 Barr, 190; Copland v. Bosquet, 4 W. C. C. E. 588. In Harris v. Smith, the defendant purchased goods at auction, for approved indorsed notes ; the goods were delivered to him upon the faith of his promise to furnish the notes, which he neglected to do, and it was held that he acquired no right of property by the delivery. The cases on this 164 LAW OF SALES OF PERSONAL PROPERTY. plaintiff, in the month of May, agreed in writing to sell one A., on or before September 1, a brick-pressing machine subject are very numerous. In Marston v. Baldwin, 17 Mass. 606, where the sale was for cash on delivery, and the goods were delivered, but the jury found that the vendor had not waived the condition, it was held that no right of property passed to the vendee. In Whitehall v. Vincent, 4 Pick. 449, goods were sold on condition that the vendee should give a note for the price, with a sufficient indorser ; the goods were taken away by the vendee, the vendor's clerk telling the vendee that if an indorser named by him should not be satisfactory, he must furnish another, which, however, upon the rejection of the one named, the vendor did not do; held, that the property in the goods was not changed. In Kussell v. Minor, 22 Wend. 659, where a delivery of a portion of the goods sold was made under an agreement that a note should be given for the whole, the delivery of the first parcel was held to be conditional, and that on delivery of the residue and refusal to give the note, replevin would lie by the vendor for the whole. Hussey v. Thornton, 4 Mass. 405; Smith v. Dennie, 6 Pick. 262 ; Hill v. Freeman, 3 Cush. 259; Coggill v. Hutford, 8 Gray, 547 ; Sargent v. Metcalf, 5 Gray, 366 ; Palmer v. Head, 13 Johns. 434, are to the same effect. In Leedom v. Phillips, 1 Yeates, 627, which was a nisi priuscase, before the Supreme Court, the sale was for cash, and the purchaser not being at home the goods were left for him. The court instructed the jury that two facts presented themselves for their consid- eration, 1st, Whether the goods were sold for cash to be paid on delivery ? and if so, 2d, Whether the plaintiffs by their conduct had waived the condition of the immediate receipt of the money ? " If," say the court, "one sells goods for cash, and the vendee takes them away without pay- ment of the money, the vendor should immediately reclaim them by pur- suing the party, and he may justify the retaking of them by force." These principles being well settled, it remains to inquire whether there was in this case any sufficient evidence to justify the jury in finding that there was here only a conditional delivery. Upon this point we think the evidence was ample to justify the jury in finding that the delivery was to be a conditional delivery, and was to take efi'eot only upon payment of the price, which was immediately demanded and refused. The defend- ant had agreed to pay cash for the oil. The plaintiffs, relying upon that undertaking on his part, placed the goods upon the cars and consigned them to him in Philadelphia. They took the precaution, however, not to send him the bills of lading, but retained them in their own posses- sion. These bills were dated respectively November 29th and November 30th. On the 30th November, the plaintiffs drew their bill on the de- fendant for the price of the oil. They attached to it the bills of lading and the collector's permit for its transportation to the bonded warehouse in Philadelphia. The bill, with the bills of lading and permit attached, were presented to the defendant and payment demanded on the 3d De- DELIVERY. 165 for $200, to be paid on delivery, and that A. might use it till that time. A. agreed to pay the plaintiff $200 on or cember. One hundred barrels of the oil had arrived at the bonded ware- house in Philadelphia on the day before (December 2d), and the remain- ing four hundred barrels arrived there on the 4th. It might well admit of doubt whether, inasmuch as the oil was transported from one bonded warehouse to another, and remained in the custody of the government, that there was at this time any delivery at all to the defendant ; but if we should regard the delivery at the bonded warehouse as a delivery to the defendant, then it is apparent that the price of the oil was demanded while it was in process of delivery and before its completion, for four hundred barrels of it did not reach the bonded warehouse until after pay- ment had been demanded and refused. On the other hand, if we are to regard the lading of the oil on the cars of the Alleghany Valley Railroad as a delivery to the defendant, the question recurs, was that a conditional' or absolute delivery to the defendant ? Did the plaintiff intend that the oil should go into the defendant's possession if he should refuse to pay in cash as he had promised ? Now what they did must be regarded in de- termining that, and the fact that they retained the bills of lading under their own control, and sent them with the draft and tendered them to the defendant when they demanded payment of the d/aft, is very strong evidence to show that they did not intend that the defendant should get possession of the oil unless he should perform his part of the contract and pay for it. Upon this question of intention the treatment of the bills of lading must have a controlling influence. Wilmshurst v. Bowker, 6 Bing. N. C. 541 ; Key v. Cottesworth, 7 Excheq. 595 ; Grover v. Bryan, 8 Howard, 429. The case of Grant v. Boulby, 2 B & A. 932, resembles the present case very strongly in some particulars. B., a merchant in England, sent orders for the purchase of corn to the plaintiffs in Russia, desiring them to draw on H. & Co., in London, for the amount, and chartered a ship and sent it to Russia to be freighted. Subsequently the plaintiffs informed B. that they had purchased a cargo for the ship, and would despatch it as soon as possible. The cargo was shipped, and the plaintiff by letter informed B. that they had shipped it on his account, and that they had forwarded an indorsed bill of lading to H. & Co., drawingupon them for partof the price and upon him, B., for the residue, and they inclosed an unindorsed bill of lading to B. and an invoice of the wheat, in which it was stated to be bought for his order and on his account. The bills of exchange inclosed in this letter were dishonored, whereupon the plaintiff's agent in London delivered the indorsed bill of lading to H. & Co. The agent of the plaintiffs in England gave notice to the agent of B., that he should retain the whole of the wheat for the plaintiffs. B. afterwards became desirous of having the wheat, and the master of the vessel delivered it to B.'s order, and not to H. & Co., pur- suant to the bill of lading. In an action brought against the ship-owners 166 LAW OF SALES OF PERSONAL PROPERTY. before the time mentioned ; and, in consideration of the making and delivery of the machine, gave the plaintiff his for not delivering pursuant to the plaintifiTs order, it was contended that the property in the wheat had actually vested in B. by the shipment. It was, however, held, that the property did not vest in B. absolutely, upon the shipment, but only subject to a condition that the bills were accepted, and that in default of acceptance it never did vest in him, and conse- quently that the plaintiffs were entitled to recover the value of the wheat at the time when It was delivered to B.'s order. "The question," said Parke, J., "in this case is whether the property in the goods shipped ever vested in Berkeley at all. That depends entirely on the intention of the consignors. It is said that the plaintiff, by the very act of shipping the wheat in pursuance of Berkeley's order, irrevocably appropriated the property in it to him. I think that is not the effect of their conduct, for looking to the letter of the 26th August, it manifestly appears that the property should not vest in Berkeley unless the bills were accepted. . . . The fact of their transmitting an unindorsed bill of lading to Berkeley, and an indorsed one to Harris & Sons, shows clearly that they did not intend that the property in the wheat should vest absolutely in Berkeley, but should he subject to a condition that the bills were accepted. As they were not accepted, Berkeley has not performed the condition on which the vesting of the property in him was to depend, and therefore it never did vest in him." Id. 938. In the case now before the court, the intention of the plaintiffs not to part with their property in the oil unless the price of it should be paid, is shown quite as strongly by their retaining the bills of lading in their pos- session, and tendering them when payment was demanded, as in Brandt v. Boulby , a similar intention of the vendors was evidenced by their transmit- ting to the vendee an unindorsed bill of lading and informing him that the plaintiffs had drawn upon him for the price. Indeed Brandt v. Boulby was a much stronger case for the vendees than the present case, for the goods in that case were loaded on board a ship chartered by the vendee, and the vendors informed the vendee that they had shipped the wheat on his account, and sent him an invoice with the unindorsed bill of lading. In like manner in Turner v. The Trustees, 6 Excheq. 543, a quantity of cotton was shipped at Charleston by M. & Co., on a ship belonging to B. & Co., merchants in Liverpool, who had ordered the cotton, and it was stated in the bill of lading that the cotton was free of freight, being owner's property. The consignors, M. & Co., also sent B. & Co., the merchants in Liverpool, an invoice stating that the cotton was shipped to the order of and for account, and at the risk of B. & Co. M. & Co., at the same time drew bills for the cotton on B. & Co., and retained the bills of lading under their own control. B. & Co. became Ijankrupt be- fore the arrival of the cotton. Held, that the property in the cotton did not vest absolutely in B. & Co., notwithstanding the delivery on board DELIVERY. 167 negotiable note, of even date with the agreement, for $200, payable on or before September 1, with interest from date, unless paid at the time. Each party bound himself to performance under a penalty. A. possessed and used the machine, from a time previous to September 1, till the fol- lowing February, when it was attached by one of his cred- itors, the note having been only in part paid. Held, no title had vested in A. The giving of the note was only primd facie evidence of payment, liable to be rebutted by contrary proofs, which were furnished by the facts of the case. The note was given for the money ; and the money was to be paid on delivery of the machine : of course the note was to be paid upon such delivery. Nor did it make any difference, that the contract provided for no return of the article ; because it was expected that the note would be paid, and, if not, the title would re-vest by operation of law.** of their ship, for by the terms of the hill of lading M. & Co. reserved to themselves a, jus disponendi of the goods. Of the same import are Van Castell v. Booker, 2 Excheq. 691, and Wait V. Baker, 2 Excheq. 1. Indeed it must be obvious that the application of a contrary principle to transactions of this character must wholly undermine the confidence ■which is the life of trade, and place the merchant wholly at the mercy of artful and dishonest men, or else compel him in self-defence to treat honest men as if they were thieves. We think the jury were properly instructed in this case, and that the verdict was in accordance with the evidence in the cause and the plain justice of the case. The motion for a rule for a new trial is refused. Refining, &c. v. MaWer, Legal Intelligencer, July 17, 1868— (Philadelphia) District Court. See, further, Dresser, &c. v. Waterston, 3 Met. 9; Hill v. Ereeman, 3 Cush. 259 ; Coggill v. Hartford, &c., 3 Gray, 547 ; in the latter of which cases the validity of a condition, even against bond fide purchasers, is es- tablished, and earlier cases, so far as they decide otherwise, overruled. See also Sargent v. Metcalf, 5 Gray, 306. " Sale and delivery of a wagon, on condition that the vendee shall take and use it, and become the owner of it upon payment of the price ; and, in case he does not make such payment, then to pay for the use of the 1 Eeed v. Upton, 10 Pick. 524. See Ayer v. Bartlett, 9 lb. 156. 168 LAW or SALES OF PERSONAL PROPERTY. § 42. It remains to consider another form of construct- ive delivery, made not by direct communication between the parties to the sale, but through the intervention of third persons. The topic will be considered in some other connections, more particularly under the head of Stop-page in transitu ; but requires, also, to be noticed under the general head of Delivery. Upon this subject it is the general rule, that, when goods sold are to be de- livered at a distance from the vendor, though a receipt is given to him, more especially if no charge is made by him for the transportation, t\iej primd facie become the property of the purchaser, as soon as forwarded by the vendor." ' Thus where goods are delivered to a carrier, wagon. Held, the vendee stood as lessee of the property, till the vendor demanded either the wagon or the price. Hence the vendor could not, without a previous demand, bring trover against an officer who had at- tached and sold the wagon as the vendee's property. Pairbank v. Phelps, 22 Pick. 635. In the same case, the vendor having, after the sale, de- manded payment, but subsequently received a part of the price ; held, he thus impliedly waived his demand for further payment at the time, and confirmed the sale, subject to the condition. lb. • A., a merchant at Naples, gave an order to B., at Birmingham, to send him certain goods, upon insurance being effected ; the terms, three months' credit from the time of arrival. B. marked the goods with A.'s initials, sent them by canal to Liverpool, and effected insurance upon them, declaring the interest to be in A. At Liverpool, the goods were delivered to the owner of a ship bound to Naples, and were damaged through his negligence. Held, the property In the goods vested in A., when they were forwarded from Birmingham, and that their arrival at Naples was not a condition of his liability to pay. Hence, in an action brought by A. against the ship-owner, judgment was rendered for the plaintiff. Fragano v. Long, 4 B. & C. 219. A., at Milwaukee, ordered of B., at Buffalo, a quantity of salt, with direction to ship the same by vessels to M., and to insure for the benefit of B. B. shipped a portion of it, giving A. the option of paying a cer- tain price in cash, or an advanced rate at sixty days. The vessel was wrecked. Held, not a conditional sale, but a constructive delivery at the time of shipment, and that the property vested in A. at that time. Kanney v. Higby, 4 Wis. 154. 1 Fragano v. Long, 4 B. & C. 223 ; Boyd v. Mosely, 2 Swan, 661 ; Hill V. Gayle, 1 Ala. 275; Madison, &c., Co. v. Whitesel, 11 Ind. 55. DELIVBRY. 169 to be forwarded to a consignee who has made advances on them, and who afterwards obtains a bill of sale of the A quantity of pig-iron, on tlie bank of a canal in Frederick County, under the care of one agent of the owner, was sold by another agent in Baltimore, who gave his receipt for the purchase-money. The purchaser wrote to the agent in Frederick, to ship the iron to his agent at another place. Held, a constructive delivery. Van Brunt v. Pike, 4 Oill, 270. The plaintiffs agreed to advance a firm funds for the purchase of wheat, which the firm were to make into flour, and forward to the plaintiffs, for sale on commission. A quantity of flour, on which advances had been made to more than its value, was shipped by the firm at Akron, con- signed to the plaintiffs at New York, and sent to a forwarding house at Cleveland, in the firm's canal-boats. Held, upon receipt by the house at Cleveland, the property and right of possession passed to the consignees ; that the consignors had no right to change its destination, and the con- signees might replevy it from an innocent party. Stafford v. Webb, Hill & Den. 213. A. agreed by parol to sell B. a quantity of flour of a particular brand. He bought the flour in Albany, and ordered it forwarded by railroad, deliverable in Boston to his order, but before its arrival gave B. a written order, making the flour deliverable to him. B. notified the carrier of this order, and paid the freight. The carrier took B.'s directions as to delivery, and when the flour arrived marked the ear containing it and other goods, and directed the same to be run upon a side track near B.'s warehouse for the purpose of delivery. Before such removal, the flour was attached as A.'s. Held, not attachable. Hatch v. Bayley, 12 Cush. 27. The defendants, merchants at Bristol, through a broker, contracted to buy of the plaintiffs, merchants at Rotterdam, ten tons of the best refined rape oil, to be shipped "free on board" at Rotterdam in September, 1857, at j£48 1.5s. per ton, to be paid for on delivery to the defendants of the bills of lading, by bill of exchange, to be accepted by the defendants, payable three months after date, and to be dated on the day of shipment of the oil. On the 8th of September, the plaintiffs (having on the pre- vious day advised that the shipment would be made), shipped on board a general ship, trading between Kotterdam and Bristol, five tons of the oil, and the master signed a bill of lading by which the oil was deliver- able " unto shipper's order," and the plaintiffs indorsed it specially to the defendants. On the same day, the plaintiffs inclosed in a letter to the broker the bill of lading, invoice, and bill of exchange drawn in accord- ance with the contract. On the night of the 9th, the ship with the oil on board was run down in the Bristol Channel, and the oil totally lost. The plaintiffs letter of the 8tb arrived at Bristol on the afternoon of the 10th, in due course of post, but after business hours. On the morning of the 11th, the broker, knowing of the loss, left with the defendants the 170 LAW OF SALES OF PERSONAL PROPERTY. goods, upon payment of their value above the advances ; such consignee will hold them against creditors of the consio-nor.' So delivery to the master or agent of a vessel passes the title.^ So a deposit of cotton, at a designated river landing, is a good delivery to the owner of a boat, whose custom it is to receive cotton in that way.^ So where it was agreed, that the goods should be delivered upon such boats as the purchaser might name, and the seller did so deliver them, and notified the purchaser thereof ; held, the delivery Avas complete, the title passed to the purchaser, and he became liable for the price.* It is said, in a late case, " It is no doubt true, as a general rule, that the delivery by the consignor to the carrier, is a delivery to the consignee, and the consignee incurs all the risk of the carriage ; and it is still more strongly so, if the goods are sent by a carrier specially pointed out by the consignee himself, for such carrier then becomes his bill of lading, invoice, and bill of exchange for their acceptance. In about two hours afterwards, the defendants returned the documents to the broker, on the ground that they were not liable to pay for the oil. In an action for not accepting the bill of exchange, and for goods sold and delivered, the jury stated, that in their opinion, according to mer- cantile usage, the risk of the loss of the oil was on the defendants. Held, the property passed to the defendants, when it was placed "free on board " in performance of the contract ; also, that it was a question for the jury, whether the plaintiffs so shipped the oil in performance of the contract to place it " free on board," or for the purpose of retaining a control over it, and continuing to be owners, contrary to the contract. Browne v. Hare, 3 Hurl. & Nor. 484 ; 4 lb. 822. A. and others, interested in mining, sent gold, by express, to be con- verted into coin and returned. While in the carrier's hands, A. sold to the plaintiff his interest, and gave a bill of sale of it ; and afterwards a creditor of A. garnished the carriers, who had no notice of the sale. The plaintiff having demanded of them the share sold to him ; held, the sale was valid against the garnishment, and the carriers, after notice, having delivered the gold to the attaching creditor, were liable to the plaintiif for the amount. Walling v. Miller, 15 Cal. 38. ' Schumacher v. Eby, 24 Penn. 521. ' Hall V. Kichardson, 16 Md. 396. » Fleming v. Hammond, 19 Geo. 145. ■ Hening v. Powell, 33 Mis. 468. DELIVERY. 171 special agent."' So, in case of an order to send goods by a carrier, without naming any particular one, delivery to a carrier is in law delivery to the vendee. He only can sue for any injury to the goods, and they are at his risk. The only remaining right of the vendor is that of stop- page in transitu.^ So, it seems, a delivery, by the order of a purchaser, to a particular stage-coach, to be sent direct, or left till called for, is a delivery to the party. So where there is a general order for carriage of the goods to a certain place ; and the conveyance adopted is the only one existing, or the usual one, or that by which other goods have been previously sent by the same vendor ; or where the vendee assents to the mode adopted, upon being informed of it : in all these cases, the goods are at the risk of the vendee during the passage, and an action lies for goods sold and delivered. The carrier is the ven- dee's agent to receive and accept the goods.^ Thus, where A., residing in "Wales, ordered goods from the traveller of B., residing in London, and no mode of transportation was prescribed ; it was held, that it should be presumed that they were to be sent in the most usual and conve- nient way ; and therefore, upon delivery to a carrier in London, a cause of action for the price arose there.''^ So, * Where the property sold is delivered to a warehouseman indicated by the buyer, the right of property vests in the buyer, although the ware- houseman may have a lien on the goods. So, although the seller take a receipt in his own name, unless his intention was to preserve the right of property in himself; more especially if the goods are marked with the initials of the vendee and the ship, and after acceptance of a draft drawn by him on the vendee for the purchase-money ; and the property is at the buyer's risk, without notice, unless by the contract he is to be notified of the delivery. Bradford v. Marbury, 12 Ala. 520; Hall v. Eichard- son, 16 Md. 396. So in case of delivery, to a warehouseman, with intent to pass the prop- 1 Per Lord Cottenham, Dunlap v. Lambert, 6C. &¥. 620. ■ ' Button V. Solomonson, 3 B. & P. 582. ' Whiting V. Farrand, 1 Conn. 60 ; Per Garrow, B., Anderson v. Hodgson, 5 Price, 635; Vale v. Bayle, Cowp. 294; Hart v. Sattley, 3 Camp. 528. * Copeland v. Lewis, 2 Stark. 83. 172 LAW OF SALES OF PERSONAL PROPERTY. ■where a merchant in the city is authorized by his corre- spondence and course of dealing with one in the country to send him goods without a special order, delivery to a carrier, though others are delivered at the same time, for which a special order was sent, vests the property in the consignee ; and, it seems, the vendor cannot maintain an action against the carrier for losing the goods.' So, where goods are purchased, selected, boxed, the name and resi- dence of the vendee marked upon them, and put on board a vessel appointed by the vendee, and at his expense and risk, to be forwarded to him ; the property in the goods passes to the vendee, although an invoice be not delivered, nor security given for the price, and though the receipt given by the master of the vessel to the vendor still re- main in his hands ; no agreement having been made that the goods should be retained till the security was given, and the receipt being a mere voucher, showing that the goods have been forwarded according to order, and being given after delivery, consequently not capable of control- ling its effect.^ § 43. But if goods are shipped, upon an agreement that erty, of orders to hold a pile of barrels for several purchasers, and new receipts by him and entries on his books accordingly, the number for each being specified, and the whole being sold, although no separation takes place. Horr v. Barker, 8 Oal. 603. A warehouse receipt, " deliverable on return of receipt," is intended to, and will pass the property, by bare delivery, without indorsement. Same v. Same, lb. 609. The general rule is held to apply, where goods are shipped io a creditor, in payment of his debt. Thus, A. and B. being largely indebted to the defendants, an agreement was entered into, that the latter should make advances to the former, to enable them to buy wool, and that they should ship to them such wool, and other property suiBcient to balance their account, including all claims that might subsequently accrue. Held, the defendants acquired a vested interest in the property, from its shipment, which no subsequent sale by A. and B. could divest. Chapman v. Kent, 3 Duer, 224. Morberger v. Hackenberg, 13 S. & E. 26. People V. Haynes, 14 Wend. 546. DELIVERY. 173 a bill stall be drawn on a third person for the price, which bill is drawn accordingly, but dishonored ; the title does not pass to the purchaser, and the seller may maintain an action against the owner of the ship for the act of the captain in delivering the goods to the buyer, after being forbidden so to do." " In June and July, A. ordered a quantity of corn from B in Russia, directing him to draw on C. for the price. A. chartered a ship from C. to transport the cargo. July 28, A. countermanded his order. August, 8, B. informed A. that he had purchased a cargo for the ship, and would send it as soon as possible, directed to the care of C, hoping he would approve this course, notwithstanding his having countermanded the order. The corn was shipped, and a letter written, informing A. of it, and that B. had sent an indorsed bill of lading to C, and had drawn upon C. for a part of the price, and on A. for the balance. B. inclosed an unindorsed bill of lading to A., together with an invoice, representing the corn as bought for his (A.'s) order, and on his account. The bills of exchange inclosed in this letter were dishonored. B.'s agent then delivered the indorsed bill of lading to C. October 2, A. renewed his countermand of the order. November 24, the agent of B. notified the agent of A. that he should retain the whole cargo for B. A. afterwards applied for the corn, and the captain delivered it to his order, instead of delivering it to C, conformably to the bill of lading. For this act of the captain, B. brings a suit against D., the ship-owner. Held, the property vested in A. upon shipment of the goods, conditioned upon acceptance of the bills of exchange, which not being accepted, the property never vested, and that B. should recover, not mere nominal damages, but the value of the cargo, at the time of delivery to A. Brandt v. Bowlby, 2 Barn. & Ad. 932. Action for the price of flour, consigned by the vendees to their agents in New Orleans, to be shipped to a firm in Boston, not named in the bill of lading, who had purchased of them, and on whom they had drawn for the price. Held, that the plaintiffs could make a valid attach- ment of the flour while in the hands of the New Orleans consignee, as the property was still in the defendants. Von Phul v. Powell, 17 La. An. 165. A. consigned goods to B. abroad, ordered a return cargo, and sent his own ship to bring it back. The return cargo was delivered to the cap- tain of A.'s vessel, B. stating it to be on A.'s account, as if his own property, and ordering that it be delivered to him. The return cargo exceeding in value that sent by A., B. drew upon him for the balance, sent the bills to his agent, with a blank bill of lading, and requested the agent, in case of non-acceptance by A., to indorse the bill of lading to C. The bills not being accepted, the agent accordingly indorsed the bill of lading to C. Upon arrival of the ship, C. demanded the cargo from the 174 LAW OF SALES OF PERSONAL PROPERTY. § 44. Althougli an indeterminate quantity of goods is ordered by a buyer, yet, when an amount within the lim- its prescribed is forwarded by the seller, with notice, in the mode prescribed ; the title thereby vests in the buyer; and, in case of loss on the passage, he may recover from the insurers, although the seller, after the shipment, sold the goods to another person. In such case, although no specific parcel of goods passes by the contract, the letter of the seller, giving information of the shipment, is an un- equivocal appropriation of the goods sent, and the buyer's insurance is an adoption of such appropriation." captain, but he delivered it to A., who deposited It with D. B. gave notice to D. to hold the goods for him, and D. consequently refused to redeliver them to A. A. brings an action of trover against D. Held, though the delivery of the cargo to the captain might have been condi- tional upon the acceptance of.the bills of exchange, it was in fact abso- lute, and vested the property in A. ; but that A., having got possession under a claim of property in the goods, could not have retained them for payment of freight. Judgment for the plaintiff. Ogle v. Atkinson, 5 Taun. 759 ; 1 Marsh. 323. " It is afterwards said, there was a reservation of the right of the ven- dor. This, however, is never communicated to the plaintiff, but only to the vendor's agent. That could not, therefore, affect the right of the plaintiff, which had before vested. It is similar to the mental reserva- tion of the Jesuits." Per Heath, J. * B. agreed to sell the plaintiff, by bought and sold notes, from five hundred to seven hundred barrels of oats, to be shipped by J. at T., and delivered at P. Soon afterwards, B. wrote to the plaintiif, that room had been engaged in the G. packet for about six hundred barrels on the defendant's account. The next day, the plaintiff sent instructions to his agent in London, to effect insurance for £400, upon oats sent per the G. packet from Y. to Southampton and P. J. shipped four hun- dred and eighty-six barrels, in compliance with the above agreement, in the G. packet for Southampton, and sent a bill of lading with a general indorsement to J.'s agent. The plaintiff insisting upon the vessel's going round to P., B. sold the oats to C. The G. packet having been lost, and the policy subsequently transferred by the plaintiff to B. ; held, the plain- tiff, at the time of effecting the policy, had an interest in the oats shipped on board the G. packet, and therefore the insurers were liable, though the ownership was subsequently changed. Concealment of the fact, that the packet was not bound to P., could not divest the plaintiff's property. He had the right to demand of B., either that the packet should come to DELIVERY. 175 § 45. But, where goods are ordered to be sent to a par- ticular place, but not by a particular carrier, compliance with tbis order is not of itself sufficient to sustain an ac- tion for tbe price of tbe goods. Thus the defendant or- dered certain goods from the plaintiff, to be sent to a par- ticular quay, and left till called for, but named no par- ticular carrier. It was not proved that the defendant had received and accepted the goods, though they were sent according to order, and the defendant agreed to pay for the carriage. In an action for goods sold and delivered, the plaintiff having been nonsuited ; held, there was no sufficient evidence in his favor to justify the court in taking off the nonsuit. A.'s agreement to pay for the carriage was held to be merely a part of the consideration and price of the goods.' P., or the oats be sent in some other way. The plaintiff insisted upon having these particular oats, and thereby acquired a legal interest in them. Sparkes v. Marshall, 3 Scott, 172. ' Anderson v. Hodgson, 5 Price, 630. 176 LAW OF SALES' OF PERSONAL PROPERTY. CHAPTER VIII. DELIVEKT IN KELATION TO CEEDITOES, ETC. 1. GENERAL PKINOIPLB ; — ■WHETHER WANT 0¥ DELIVERY IS CONCLU- SIVE, OR ONLY PRIMA FACIE EVIDENCE Or FRAUD; DISTINCTION BETWEEN ABSOLUTE AND CONDITIONAL SALES. 15. SALE OF PROPERTY IN POSSESSION OF A THIRD PERSON. 16. CHANGE OF POSSESSION MUST BE SUBSTANTIAL. 17. EXECUTION SALE. 18. PURCHASE, WITH THE GOODS AS SECURITY. 19. SUCCESSIVE SALES TO CREDITORS. 20. CREDITOR HAVING NOTICE OF A SALE. 21. SALE OF PROPERTY NOT EASILY SUSCEPTIBLE OF DELIVERY. 22. SUCCESSIVE SALES ; DELIVERY TO ONE PURCHASER. § 1. The general subject of fraudulent sales will be con- sidered bereafter, in treating of the circumstances which render a sale of personal property void or voidable. (See chap. 21.) It is proposed, in this connection, merely to speak of the necessity of delivery, or the effect of non-deliv- ery, in relation to creditors of the vendor." The general rule of law is, as was stated in the first chapter (pages 1, 2), that delivery is not necessary to complete the contract of sale, as between the parties ; but that it is necessary to avoid the effect of a subsequent sale by the vendor, or seizure by his creditors. The reason of the rule is, as stated in a very early and leading case,' that, where the donor continues in possession, and uses the goods as his own, by reason * Equity will treat a sale without transfer of possession, as other cases of constructive fraud, and hold it good to the amount of the considera- tion. Short V. Tinsley, 1 Met. (Ky.) 397. 1 Twyne's Case, 3 Co. 80 ; Worseley v. De Mattos, 1 Burr. 482 ; Vining V. Gilbreth, 39 Maine, 496. DELIVERY IN RELATION TO CREDITORS. 177 thereof he trades and traffics with others, and defrauds and deceives them ; and further, that such possession is evidence of a trust for the benefit of the donor, and " fraud 48 always apparelled and clad with a trust, and a trust is the covert of fraud." In another case, it is said, the re- taining possession of property sold indicates a fictitious transaction : 1. Because it is inconsistent to buy and not take possession of an article ; 2. Because the vendor hereby gains a false credit." ' § 2. The construction given to this doctrine in some cases has been, that continued possession by the vendor is fer se fraudtdent, or conclusive evidence of fraud, against creditors.' But it seems to be now well settled in Eng- land and for the most part in this country, that such pos- session is a mere badge of fraud, or a circumstance tending to show mala fides, the effect of which may be rebutted by other evidence." ' Although the general principles of the common law avoid all fraudu- lent contracts, the law of fraudulent conveyance is founded chiefly upon an early English statute — 13 Eliz. ch. 5 — which will be more particularly referred to hereafter. The provision in another important English statute (that of James), that, where the " order and disposition " of prop- erty sold remains with the vendor, he shall be regarded as still the owner, is a part of the bankrupt system, and not applied to other cases, even in England; nor in any case in Massachusetts (or probably other States). Shumway v. Eutter, 8 Pick. 447. ' In accordance with this view, where a statute of New York pro- vided, that, in all cases arising under the statute, the question of fraudu- lent intent should be one of fact, not of law ; it was still held, that, where there is no immediate delivery, upon a sale of personal property, nor any actual and continued change of possession, or satisfactory explanation of the want of it, the court was bound to direct a verdict for the creditor who disputed the validity of the conveyance, and the jury were not au- thorized to pass upon the question of intention ; that their only authority to do this is where fraud is alleged, notwithstanding a change of posses- sion. Stevens v. Whitmore, 19 Wend. 181. <= Bullis V. Borden, 21 Wis. 136 ; Mayer v. Clark, 40 Ala. 259. It is truly remarked by a late writer, that few questions in the law present a greater conflict of authorities than this ; and, although reason, analogy, ' Ludlow V. Hurd, 19 John. 218. 12 178 LAW OF SALES OF PERSONAL PROPERTY. § 2 a. The general rule is laid down, that a change of possession, in order to protect the vendee against creditors of the vendor, must be indicated by appearances to an ob- server ; and the creditors of the vendee are bound to see what others see, and judge and act upon it with that prudence which is required of men in business affairs.^ Also that, as against creditors, delivery must be actual, if possible, or, if the nature and bulk of the articles pre- clude, constructive.^ § 3. The cases upon this subject to be found in the books are very numerous. Some relate to absolute, and others to conditional, sales ; and in general it is to be ob- served, that while, in regard to the former, the form of the instrument implies an immediate taking of possession by the vendee, and the law therefore requires some ex- trinsic explanation of his failure to do so ; a mere mort- gage or conditional sale imports, jprima facie, that the vendor may keep possession till breach of condition, and consequently his continued possession raises no presump- tion of fraud." Upon the same principle, where there is and the current of modern authority support the principle laid down in ■ the text, it must be confessed, that there is a host of decisions in support of the opposite principle, and it still has the sanction of very sound, re- spectable, and learned courts. 1 Pars, on Contr. 442, n. ; and see 2 Kent, 515; 1 Smith's L. Cas. 1. * Assignment of the furniture and other personal property, in a tavern, as securiiy for a debt, with a proviso that the grantee should take posses- sion on failure of payment of any instalment, sell the property, &e., till which time the vendor might keep possession. Held good against credi- tors. Martindale v. Booth, 3 B. & Ad. 605. A purchaser took from the seller the following writing : " A. bought of B.," &c., — enumerating the articles and prices. "Received payment. B." The property was delivered, but returned to the seller, and afterwards attached as his. Held, the possession of the seller was not conclusive evidence of fraud, and, after a suggestion of fraud, parol evidence was admissible to prove the transaction a mortgage; that the instrument was not a bill of sale, but a bill of parcels, not stating the terms of the con- ' Stanley v. Bobbins, 36 Vt. 422. 2 Steelwagon v. Jeffries, 44 Penn. 407. DELIVERY IN RELATION TO CREDITORS. 179 an express agreement in the instrument, whether absolute or conditional, that the vendor shall keep possession, or a lease to him from the vendee ; as such possession thereby becomes consistent with the terms of the contract, the law does not, frima facie at least, consider it fraiidulent. Some of the leading cases, maintaining the invalidity of a sale without delivery as against creditors, are as follows : § 4. .A., being indebted to both the plaintiff and the defendant, March 27th, offered the defendant a bill of sale of his personal property, including furniture and stock in trade, as security. The defendant consenting to accept such transfer, only on condition that he might take pos- session and make sale of the property, after fourteen days, in case of non-payment ; A. agreed to this proposal, made a bill of sale, and delivered a corkscrew in token of posses- sion of the whole propertf , but continued in possession as before. April 17th, A.- died intestate, and the next day the defendant took possession of the goods and sold them. 'Eo letters of administration were taken out by any one. The plaintiff brings an action against the defendant as executor de son tort, and the question thereupon arose whether the bill of sale was valid. Held, inasmuch as it was to take effect immediately and not infuturo, the pos- session was inconsistent with the writing, and the latter therefore void.' tract, but resembling a receipt, although, unexplained, it would be suffi- cient to pass the property. Fletcher v. Willard, 14 Pick. 464. A. mortgaged to B. a horse, as security for a debt and future advances, and made a formal delivery, but remained in possession, and used the horse as his own ; and the transfer was not known to persons in the neigh- borhood. A. afterwards sold to C, bond fide, for valuable consideration, and without notice. Held, B. might reclaim the property ; that con- tinued possession was consistent with the nature of a mortgage until a breach, though not with that of a pledge. Lunt v. Whitaker, 1 Fairf. 310. 1 Edwards v. Harben, 2 T. K. 587, 594, n. ; Dewey v. Bayntun, 6 B. 257 I Keed v. Blades, 5 Taun. 212. It is said, that the case of Edwards V. Harben has been frequently referred to, and acted upon as good law in subsequent cases ; but, in a late ease, Lord Chief Justice Dallas stated, that 180 LAW OF SALES OF PERSONAL PKOPERTY. § 5. So A. sold furniture to B., which was contained in a house occupied by A. B. took a lease of the house from the owner, but received no possession of the furni- ture, and made no agreement that A. should continue to use it. A. afterwards removed to another place, took the furniture with him, and made additions to it of new arti- cles. The consideration of the sale was, that B. paid the debt due from A. to a creditor who attached the furni- ture. Held, the transfer was void against A.'s creditors for want of delivery.' § 6. So A. leased to B. a farm and cattle, under the agreement that B. should deliver him one-half the pro- duce and one-half the increase of the cattle, and, at the end of the term, cattle of equivalent value. B. remained on the farm several years, became a debtor to A., and, in payment of the debt, sold all his interest in the cattle, and agreed to manage the farm as A.'s servant. This last sale was a secret transaction, B. remaining as he was before, in order to prevent any alarm on the part of his creditors. Held, as to them the sale was void.^ § 6 a. So a father, residing with A., his daughter, and B., his son-iu-law, received from B., then in failing circum- stances, a bill of sale of the household furniture, and a few months after assigned it to A., all the parties con- tinuing to live together, with no change of possession other than that the name of B. was taken from the door. On an interpleader issue between an execution-creditor of it had been often dissented from ; and Mr. Justice Park said, that doubts had arisen with respect to the extent of the doctrine there laid down. On the other hand, the case is corroborated by the assent and support of Mr. Justice Lawrence. And it is said to have established the principle, never having been questioned, that, if a conveyance of chattels is condi- tional, or provides that the vendor may retain possession, such possession is not fraudulent against creditors. Long on Sales, 112 ; Reed v. Wilmot, 7 Bing. 583 ; Steward v. Lombe, 1 Brod. & B. 511 ; Steel v. Brown, 1 Taun. 382. ' Shumway v. Rutter, 7 Pick. 55. * Trask v. Bowers, 4 N. H. 309. DELIVERY IN RELATION TO CREDITORS. 181 B., and A., held, as there had been no actual delivery and change of possession, and no exclusive possession in the vendee, the sale w^as a legal fraud upon creditors, and in- valid as against them.' § 7. So A., having in the spring rented a farm from B. for the ensuing season, let the growing grass to C, to cut and make hay, allowing him one-half for his labor. C, having deposited most of the hay in a barn upon the land, purchased A.'s half of it, but left it in the barn. The farm was afterwards hired by D., who moved into the house in the ensuing autumn. A. remained on the premi- ses till the next spring, keeping a cow in the barn through the winter. In January the hay was taken and sold on an execution against A., and C. brings an action to recover damages for this taking. Held, he could not recover, the sale being void against creditors, for want of a change of possession.*" § 8. But when by the terms of sale an article is to re- main in the vendor's possession, for a specific time or pur- pose, as part of the consideration, and the sale is other- wise complete ; the vendor's possession will be considered as that of the vendee, even as against subsequent pur- chasers.' Thus, where certain household goods were con- veyed to the trustees of a marriage settlement, but the settlor remained in possession ; held, such possession was consistent with the nature and purpose of the deed, and did not therefore avoid it against a creditor.^ § 9. So, where A. consigned to B. a quantity of tobac- co, to be sold, and the proceeds applied in payment of a * Upon a sale of cattle, it is not conclusive evidence against the pre- sumption of fraud, arising from the seller's continued possession, that the purchaser had himself no farm or forage for them. Jennings v. Carter, 2 Wend. 446. 1 Steelwagon v. JeflFries, 44 Penn. 407. ■■' Cadogan v. Kennet, Cowp. 432, 620 n. ; 3 T. B. 618. s Hotchkiss V. Hunt, 49 Maine, 213. ♦ Seattle v. Bobbin, 2 Verm. 181. 182 LAW OF SALES OF PERSONAL PROPERTY. debt due B., and after arrival at the port of destination, but before any possession taken by B., the creditors of A. seized the property; held, by the House of Lords (re- versing the judgment of the Lord Ordinary and Court of Sessions), that the title of B. should prevail over that of A.'s ci-editors.' § 10. So A., occupying a farm of the plaintiiF under a lease, gave the plaintifi" a bill of sale of certain cattle, and delivered them upon the farm in payment of a part of the preceding, and the whole of the following year's rent ; A. to have possession of a part of the cattle, using them for working on the farm, and support them, allowing the plaintiflt' also to use them, whenever he (A.), had no occa- sion for their services. The rest of the cattle were to be pastured by A. for the plaintiff, at the customary price. The cattle being attached by a creditor of A., the plain- tiff brings an action against the officer. Held, possession by the vendor was only evidence of fraud, strong, but not conclusive ; and, under the circumstances of this case, the plaintiff was entitled to recover.^ § 11. So the plaintiff, having loaned money to A., sent his son to A. to procure a bill of sale of his property, which was accordingly given. The son took possession of the property. The lease, however, of A.'s house, was not as- signed, though the son remained in possession; but A. still continued to occupy it and to act as master, and no notice of the transfer was given to the laborers employed, who were hired by the son, but received orders in A.'s name. In an action by the plaintiff against creditors of A. for seizing the property, the jury found a verdict for the plaintiff, which the court refused to set aside.^ § 12. So a father gave to his daughter, who lived with him, and was of age, a female calf, whose dam was dead, on condition of her bringing it up. She accordingly 1 Hastie v. Arthur, 2 Bell's Coram. 199, n. ' Brooks V. Powers, 15 Mass. 244. " Benton v. Thornhill, 7 Taun. 149. DELIVERY IN RELATION TO CREDITORS. 183 brought it up by hand. It was fed on the father's farm, and, after it was grown up, its milk was used in his family, he making no charge for the daughter's board or the keeping of the cow, and she making none for her labor or for the milk. Held, there was a valid gift and delivery, as against creditors of the father.' § 13. Questions of this nature often arise in case of the bankrupiny of one or both of the parties. Thus, where A. gave a bill of sale to B., and became bankrupt before pos- session taken by the latter ; held, the assignees of A. might recover for the property against the assignees of B.^ § 14. But where A. gave a bill of sale to B., but re- tained and used the property till B.'s bankruptcy ; and six months after the sale, and with all practicable expedition, the assignees took possession ; and afterwards A. also be- came bankrupt : held, the assignees of A. could not re- cover on account of the property ; that although, by the terms of a conveyance, the vendee may take possession immediately, and yet delays for six months, such convey- ance is still valid against third persons, unless their claims intervene between the sale and possession taken." ' § 15. Where goods are sold, not being in possession of the vendor, but of a third person, who, being notified of the sale, consents to keep the property for the vendee, the sale is not fraudulent, though not accompanied by change of possession. Nor is it any proof of fraud, that the vendor, having authority from the vendee to sell or » And the general rule may be laid down, that, where a vendee takes possession at a time subsequent to the sale, but before the rights of credi- tors accrue by attachment or otherwise, he shall hold against creditors. Thus A. gave a bill of sale of a ship to B., who agreed in writing to re- convey on payment of a certain note. B. took possession eight months after the sale, after which a creditor of A. attached the ship. Held, B.'s title should prevail over the attachment. Bartlett v. "Williams, 1 Pick. 288. » Martriok v. Linfield, 21 Pick. 325. 2 Mair v. Glennie, 4 M. & S. 240. » Eobinson v. McDonnell, 2 B. & Al. 134. 184 LAW OF SALES OP PERSONAL PROPERTY. let the property, sold a part, let the rest, and received payment therefor.^ § 16. A change of possession, to render the sale valid against creditors, must be bond fide and substantial, not merely colorable. Thus, vs^here a publican, becoming in- solvent, assigned his furniture and stock in trade to Ma creditors, and a servant of the assignees was put in pos- session, but the debtor and his vi^ife carried on the busi- ness several weeks as before, having access to the till in which the servant deposited the money which he took from customers ; held, the sale was void against credi- tors.^ But where, after a sale, the vendor and vendee have joint possession of the property, the transaction is not fraudulent against creditors, unless they have also joint control of it. Thus, where one merely works about the shop in which the goods are, as an underworkman, this does not give him legal possession. The question is, who is at the head of the establishment. If a difficult one to settle, the possession is joint.^ § 17. Where goods are sold on execution, continued pos- session by the debtor is not fraudulent against creditors, because the transaction is in its nature notorious, and the purchase bond fide. The rule, being founded on these rea- sons, does not apply to an auction sale made by a sheriff by agreement of parties, without advertisement, or any legal precept to warrant it." ISTor does it render valid, 'against a subsequent execution, the continued possession of the execution debtor, if he with a clerk is allowed to proceed with the sales as before, keeping no account of ' Harding v. Janes, 4 Verm. 462. 2 Wordall v. Smith, 1 Camp. 332 ; Paget v. Perchard, 1 Esp. 205. But see Eastwood v. Brown, Ry. & M. 312. 3 Allen V. Edgerton, 3 Verm. 442. * Harding v. Janes, 4 Verm. 465; Kidd v. Kawlinson, 2 Bos. & P- 59; Watkins v. Birch, 4 Taun. 823; Guthrie v. Wood, 1 Star. 367; Joseph V. Ingram, 8 Taun. 838: Latimer v. Batson, 4 B. & C. 652; Batchelder v. Carter, 2 Verm. 168. DELIVERY IN RELATION TO CREDITORS. 185 the goods, but only of the moneys received. This is held a fraud both in fact and in law.' § 18. The question of fraud sometimes arises, where one person is enabled to purchase goods by the aid of another, giving the latter a claim on them as security ; or where one is the nominal purchaser, but with the funds of another. Thus, where A. loaned money to B. to purchase goods, taking a bill of sale of the goods as security, but B. remained in possession ; held, such possession was not fraudulent against creditors.^ So A., having purchased a public house, but being unable to procure a license, put B., an insolvent person, into the hoase as his servant. B. obtained a license, and A. furnished the money to pay for it. Held, by a majority of the judges, that the goods in the house, furnished by A., were not liable to be taken by B.'s creditors.^ But where one sells goods, taking a mortgage back, it has been held, that the mortgagor's continuing in possession is fraudulent against creditors. Therefore, where A. sold to B., taking notes and a mort- gage as security, but B. took and retained possession of the property ; held, the mortgage was void as against the creditors of B. ; that the transaction could not be treated as a sale, not to be perfected or completed till performance of a condition, but the seller's title accrued by the mort- gage, and was in no way aided by his prior ownership. The general ground was taken, that in Vermont it has been always held, according to the common law, that a' sale without change of possession is void against creditors of the vendor ; and this principle applies to a mortgage given back to the vendor at the time of sale.* § 19. It has been held, that, where a man conveys the same goods successively to two creditors, delivering pos- session to neither, and the subsequent grantee afterwards obtains possession, which the former takes from him; the 1 Parys, &o., Law Eeg. (Pa.), March, 1863, p. 312. » Bull. N. P. 258 ; Meggot v. Mills, 1 Ld. Eay. 286. 9 Dawson v. Wood, 3 Taun. 256. * Woodward v. Gates, 9 Verm. 358. 186 LAW OF SALES OF PERSONAL PROPERTY. latter grantee cannot maintain trespass, because, though both transfers are void against creditors, yet they both bind the vendor, and the former grantee has the elder title.' (See s. 22.) § 20. It seems, a creditor, vpith whose knowledge and consent a bill of sale is given, cannot avoid it on the ground of the vendor's retaining possession.^ § 21. Where the property sold is of a nature which does not easily admit of a change of possession, the rule more especially applies, that the retaining of possession by the vendor is not a fraud upon creditors. Thus A. mortgaged land, having upon it a windmill, which was not a fixture, a bargain and sale of the latter being inserted in the mort- gage. Held, a change of possession was not necessary to protect the mill from creditors of A.'' ' § 22. Somewhat analogous to the question, as to the effect of the non-delivery of goods sold upon the rights of a creditor of the vendor, is that arising from successive sales of the same property to different purchasers, and a delivery to one only. Upon this subject, the general rule is laid down, that, where the same thing is sold to two persons by transfers otherwise equally valid, he who first acquires possession becomes entitled to the property.' (See s. 19.) * On the foregoing subject, see Neil v. Lovelace, 8 Taun. 675; Storer V. Hunter, 3 B. & C. 368 ; Snyder v. Hitt, 2 Dana, 204; Bissell v. Hop- kins, 3 Cow. 166; Burrows v. Stoddard, 3 Conn. 166; Reed v. Jewett, 5 Greenl. 96 ; Mount v. Hendricks, 2 South. 738 ; Land v. Jeffries, 5 Rand. 211 ; Leadman v. Harris, 3 Dev. 146 ; Callow v. Thompson, 3 Yerg. 475; Haven v. Low, 2 N. H. 13; Neil v. Cheves, 1 Bai. 538; Sydnor v. Gee, 4 Leigh, 535; Hamilton v. Russel, 1 Cranch, 309; Rohertson v. Ewell, 3 Munf. 1 ; Shaw v. Levy, 17 S. & R. 99 ; Barnes v. Billington, 1 "Wash. C. 38; Chumarv. "Wood, 1 Halst. 155; Parnsworth v. Shepard, 6 "Verm. 521 ; Phettiplace v. Sayles, 4 Mas. 321 ; Collins v. Brush, 9 "Wend. 198; Dawes v. Cope, 4 Binn. 258 ; "Welsh v. Bekey, 1 Penn. 57 ; TJlmer v. Hills, 8 Greenl. 326 ; Kennedy v. Ross, 4 Const. S. C. 125. " Burnell v. Robertson, 5 Gilm. 282 ; Jewett v. Lincoln, 2 Shepl. 116. 1 Baker v. Lloyd, Bull. N. P. 258. * Steel V. Brown, 1 Taun. 381. 5 Steward v. Lombe, 1 Brod. & B. 506. DELIVERY IN RELATION TO CREDITORS. 187 § 23. And the same rule has been applied as between an attaching creditor of the vendor, and the vendee, with- out reference, it would seem, to any presumption of fraud arising from non-delivery." The same is the doctrine of the civil law. " Manifesti juris est, euro, cui priori traditum est, in detinendo dominio, esse potiorem." Cod. 3, 32, 15. "Ad vindicationem rei duobus separatim diverso tempore distractse non is cui priori vendita, sed cui, pretio soluto, vel fide de eo habita, prius est tradita, admittendus est." Voet. ad Pand. lib. 6, tit. 1, s. 20. A. and B. were general partners and part-owners with others of a brig. On February 21, the brig was at St. Croix, A. being on board, and the consignee of the ship. A creditor of the firm at that place pressing for payment of his demand, one C, by request of A., purchased the ship from him, and paid the debt. The brig was delivered to C, who sent her to sea as his property, and caused her to be documented in his name. Eighteen days before the sale by A., B. sold the brig at home to D. Held, C.'s title should prevail over D.'a because he first obtained posses- sion, and the eflfect of the transaction was the same as if A. had made a mortgage directly to the creditor, which would undoubtedly have had precedence of D.'s title. Lamb v. Durant, 12 Mass. 54. ' The plaintifiT residing at Boston, and being a creditor of one A., A., at Philadelphia, July 2, 1819, assigned to him, by a written instrument, for value received, a quantity of teas. No money was paid, nor any dis- charge given. The instrument was sent by mail, and reached Boston, where the teas were, July 5. Two hours and a half after the making of the assignment, the defendant, an ofiacer, attached the property, and took possession of it as belonging to A. The teas had been consigned to the attaching creditor, on the account, at the risk, and for the use of A. ; and the former had no notice of the assignment to the plaintifl: Held, the attaching creditor stood in the position of a purchaser for valuable consideration, and his title should prevail over the plaintiff's, because he first came into possession of the property. There was nothing in this case equivalent to a delivery to the plaintiff. Both he and A. supposed that the goods were at sea, but A. had no bill of lading or other docu- ment to deliver. If the property had been consigned to A., and he had received a bill of lading after his agreement with the plaintiff, and a third person had bought from A. for valuable consideration, without notice, and received the bill of lading indorsed ; such purchaser would have had a title against the plaintiff. Lanfear v. Sumner,* 17 Mass. 110 ; Fletcher V. Howard, 2 Aik. 115; Kicker v. Cross, 6 N. H. 572-3. * It has been said (Ricker v. Cross, 5 N. H. 572-3) that Lanfear v. Sumner is a case by itself, not reconcilable with Putnam v. Dutch, Port- land Bank v. Stacey, and other cases relating to ships, &c. 188 LAW OF SALES OF PERSONAL PEOPERTT. § 24. More especially will the title of the party who first obtains possession prevail, where the other transfer is to some extent executory ; and where there are technical objections to its taking effect, either as an absolute or con- ditional sale." * The joint owners of a ship agreed, in writing, to pledge it to one A. as security for advances, and that he might buy any part of it at a cer- tain rate, but made no delivery. One of the owners afterwards made a hon&fide transfer of his share. Held, such transfer should prevail over the claim of A. The agreement with A. did not pass an absolute title because made expressly as security and containing a provision for future purchase. Nor was it a mortgage, because there was no delivery, and the contract was executory, and the vessel was not in existence at the time. Nor was it a pledge, for want of delivery and continued posses- sion. The contract more nearly resembled bottomry, but could not take effect in this form, because the thing did not exist at the time, and the facts would not justify such a construction. Bonsey v. Amie, 8 Pick. 236. INCOMPLETE SALE. 189 CHAPTER IX. INCOMPLETE SALE; ACTS TO BE DONE BY THE SELLER BEFORE DELIVERY. 1. GENERAL DOCTRINE. 2. ITS VARIOUS APPLICATIONS ; SALE OF AN rNSBPAHATED PORTION OP A LARGER QUANTITY. i. SALE OF THE WHOLE OF CERTAIN PROPERTY, WITHOUT WEIGHING, ETC. 5. SALE OP A SINGLE ARTICLE. 7. DISTINCTION BETWEEN ACTUAL AND CONSTRUCTIVE DELIVERY ; AND EFFECT OF PAYMENT OP THE PRICE. 8. EXCEPTIONS TO THE GENERAL RULE ; QUESTION OP INTENTION ; SUBSTANTIAL COMPLETION OP THE SALE. § 1. Wb have already, in another connection (chap. 5, 8. 5), considered the distinction between executed and exec- utory sales, and, as a part of that general subject, the con- struction of contracts for the manufacture or completion of some article of personal property, which, when finished, is to belong to the purchaser, but does not vest in him by the mere making of the contract." As connected with • The following distinctions upon the suhject are found in recent cases : Where a contract is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risks, if nothing further remains to be done to the goods, although he cannot take them away without pay- ing the price. But, if anything remains to be done on the part of the seller, as between him and the buyer, such as weighing, measuring, or counting out of a common parcel, before the goods purchased are to be delivered, until that is done, the right of property has not attached in the buyer. Martin v. Hurlbut, 9 Mln. 142. No sale is complete, so as to vest in the vendee an immediate right of property, so long as anything remains to be done between the buyer and 190 LAW OF SALES OF PERSONAL PROPERTY. the topic of our present consideration — delivery— we now propose to illustrate the soniewhat analogous proposi- tion, applicable not solely or chiefly to cases of manufac- ture, but to simple sales, which seems well estabUshed by the authorities ; that, ichere anything remains to he done by the seller of goods, as between him and the purchaser, before delivery, the latter acquires no complete, present, right of property ; at least without affirmative proof of an intent that he shaU acquire such property."' The rule is held to apply, where cither the property or price is unsettled.^ seller in relation to the goods ; but a contract for the sale and purchase of goods may be an executed one, though something remains to be done by one of the parties ; as, the payment of the purchase-money. Beller t. Block, 19 Ark. 566. A memorandum of an agreement for the sale of "all the logs cut this season," made before the season was over, at a certain price as measured at the place of delivery, upon which one-fourth payment was to be made at the time of the agreement, and which showed that a portion of the logs of an average quality were to be detained sufficient to pay the stump- age ; was held to be an executory contract, and not a completed sale. Martin v. Hurlbut, 9 Min. 142. Under the (La.) Code, when goods are sold by weight or measure, the sale is not perfected, until the goods are weighed or measured; and the buyer must be notified when the weighing or measuring will take place, and a tender must be made to him, in order to throw on him the risk of the safety of his purchase. Seris v. Bellocq, 17 La. An. 146. • " Where there is a sale of goods generally, no property passes in them till delivery, because until then the very goods sold are not ascertained." Per Parke, J. Dixon v. Yates, 5 B. and Ad. 340. It may be remarked in this connection, that the seller has no claim upon the purchaser for services in relation to the property, rendered be- fore delivery. Thus, where there was a sale of wool, lying unsacked in three rooms, to be paid for on delivery, the quantity to be ascertained by weighing, but no agreement as to the party which should pay the ex- pense of sacking ; and the seller sacked the wool in sacks furnished by 1 Oilman v. Hill, 36 N. H. 311; Stone v. Peacock, 35 Maine, 385; Cook V. Logan, 7 Clarke, 142; Hanson v. Meyer, 6 E. 627; Dole v. Stimpson, 21 Pick. 384; O'Keefe v. Kellogg, 1& 111. 347; Messer v. Woodman, 2 Fost. 172; Pettis v. Kellogg, 7 Gush. 466; 20 Mis. 553; Waldo V. Belcher, 11 Ired. 609 ; Fagan v. Faulkner, 5 Pike, 161. See Gardiner v. Suydam, 3 Seld. 367. 2 Camp V. Norton,— 52 Barb., Amer. Law Eeg., May, 1869, p. 319. INCOMPLETE SALE, 191 § 2. This rule receives its most frequent application, in the sale of a specified quantity of goods, to be eventually separated from a larger bulk or mass, by enumeration, weight or measure, but not thus separated at the making of the contract. The facility or difficulty of separation is not regarded as a test of title, although it has been re- marked, that the difficulty of regarding any specific part of property in bulk as transferred to the vendee, without an actual separation, is greater in the case of liquids than of solids, because the particles which compose the former are constantly changing their relative position." ' Nor is the buyer, and then weighed and shipped it: held, the buyer was not bound to pay for the sacking. Cole v. Kerr, 20 Verm. 21. The rule, that no title passes to a specified portion of property till separated from a mass, applies io judicial sales. Stevens v. Eno, 10 Barb. 95. The rule in question does not involve the converse proposition, that the setting apart of the property sold, without other delivery, necessarily passes a title. Contract for the purchase of one thousand barrels, to be delivered at the mill of the purchaser at his request, at any time before a certain day, in good order. Held, no title passed till delivery, though the lot had been selected and set apart. Field v. Moore, Hill and Den. 418. So the employment of a person to measure and pile plank is not a de- livery of it, unless it is actually measured and piled. Everett v. Clements, 4 Eng. 478. In a late English case (Gilmour v. Supple, American Law Ecg., Feb. 1859, p. 245), Sir 0. Cresswell remarks upon this subject as follows : "It is impossible to examine the decisions upon this subject, without being struck by the ingenuity with which sellers have contended, that the property in goods contracted for had or had not become vested in the buyers, according as it suited their interest; and buyers, or their rep- resentatives, have with equal ingenuity endeavored to show that they had or had not acquired the property in that for which they contracted ; and judges have not unnaturally appeared anxious to find reasons for giving a judgment which seemed to them most consistent with natural justice. Under such circumstances it cannot occasion much surprise, if some of the numerous reported decisions have been made to depend upon very nice and subtle distinctions, and if some of them should not appear altogether reconcilable with each other." An English text- writer speaks of a "labyrinth of cases." Long, 268. • If a verbal contract is made, for the sale and delivery of certain 1 White V. Wilkes, 5 Taun. 176. See Barnes v. Bartlett, 15 Pick. 71. 192 LAW OF SALES OF PERSONAL PROPERTY. the rule affected by any agreement of tlie purchaser to pay rent or storage, or that the seller shall keep the prop- erty sold for his use and at his expense.' Nor by the pur- chaser's constituting a third person, who has possession, his agent, in reference to the property.' Nor by his re- ceivino- an order upon such third person to separate and deliver the quantity sold.^^ Nor by the transfer of such order conformably to a usage, by which a transfer before specified quantities of diflferent kinds of spirituous liquors, at agreed prices the property will not pass, and the sale is not complete, until the liquors are separated and set apart for the purchaser. Banchor v. War- ren, 33 N. H. 183. In the case of Whitehouse v. Frost, 12 E. 614, which was a sale of oil, Le Blanc, J., held, that the principle of an incomplete sale applies, only where something remains to be done, as between the buyer and seller, or for the purpose of ascertaining either the quantity or the price; and not where something merely remains to be done as between the purchaser and a third person in possession of the property, and upon whom the seller has given the purchaser an order, which order he has accepted (see Waldo V. Belcher, 11 Ired 609) ; more especially where the seller gave the purchaser a bill of parcels, stating that the property was to be at the purchaser's risk, and received a bill of exchange in payment. In reference to this case, however. Heath, J., asked (Austen v. Craven, 4 Taun. 644; White v. Wilkes, 6 Taun. 176J, " If ten tons had leaked out of the cistern, to whom should these ten tons be deemed to belong? And suppose a part of the oil were lost or burnt, who is to know whether it is the vendor's or the vendee's ?" So it is pertinently remarked : "If I agree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver until a selection is made.'' Per Bayley, B. GiUett v. Hill, 2 C. & M. 535. " Sale by A. to B. of two hundred and fifty barrels of pork, part of a lot, all of the same quality, having the same marks, and stored in one cellar of A. No separation was made. B. sold and delivered to C. one hundred barrels, and afterwards to D. the remainder, giving an order on A. therefor. A. consented to hold them on storage for D., but they were not distinguished from the rest. B. becoming insolvent, A refused to deliver them to D. Held, D. could not maintain replevin. Scudder v, Worster, 11 Cush. 673. I 5 Taun. 176 ; Eugg v. Minett, 11 E. 210. ' Eugg V. Minett, 11 E. 210. 5 Shepley v. Davis, 6 Taun. 617 ; Hanson v. Meyer, 1 E. 614-616. INCOMPLETE SALE. 193 actual separation passes the title.* Nor by part-paj^ment of the price.* ^ Although, in a doubtful case, non-payment would be a circumstance strongly favoring the executory character of the contract f and payment of the whole price is sometimes held to prove an executed sale.* E^or by an actual separation of a part of the quantity sold ; no title thereby passing to any part not thus separated.' llTor by constructive delivery of the part thus separated. And it has even been held that the title to such part did not vest in the purchaser, more especially if the seller had not lost control of it.° § 3. The distinction sometimes noticed, that a sale may be good between the parties, although invalid as to third persons, has no application to the kind of sale now under consideration. Indeed most of the cases turn upon the eflect of the contract, as between the seller and purchaser themselves ; being either actions, by the vendor, of trover for the goods, or of assumpsit for the price, predicated upon an actual transfer of title, and seeking to throw the subsequent loss of the property, by fire or otherwise, upon the purchaser, as the owner f or by the vendee, to recover back a deposit after such loss, claiming that it must fall upon the vendor.' The same rule, however, undoubtedly applies, and has occasionally been sanctioned, where credi- • One principal ground of the rule is, that in many cases the price cannot be ascertained till some further act is done. Messer v. Wood- man, 2 Post. 172; Lester v. McDowell, 18 Penn. 91. See 1 Dutch. 390. ' Shepley v. Davis, 5 Taun. 617 ; Hanson v. Meyer, 1 E. 614, 616. = Chapman v. Lathrop, 6 Cow. 110; Davis v. Hill, 3 N. H. 382; Pitch V. Beach, 15 Wend. 221. ' 5 Taun. 617; Dole v. Stimpson, 21 Pick. 384. • Kiddle v. Varnum, 20 Pick. 280. ' Rugg V. Minett, 11 E. 210; Hanson v. Meyer, 6 E. 614 ; Simmons v. Swift, 5 B. & C. 857. ' Pitch V. Beach, 15 Wend. 221 ; but see Merrill v. Hunnewell, 13 Pick. 213. ' Waldo V. Belcher, 11 Ired. 609. • Kugg V. Minett, 11 B. 210. 13 194 LAW OF SALES OF PERSONAL PROPERTY. tors, either of the seller or purchaser, in bankruptcy, or by attachment or execution, seek to hold the property after an incomplete sale. Such creditors may be said to stand exactly in place of their debtors ; their rights are no greater and no less.'' ' « The following are leading cases, illustrative of the rule stated in the text: A. sold to B. four barge-loads of oil at so much per barrel, B. furnish- ing the barges. After the barges were partially filled, both barges and oil were burned. Held, A. must bear the loss. Kochester v. Hughey, 56 Penn. 322. Bargain and sale of twenty tons of oil, from a stock consisting of sev- eral large quantities, in different vessels and at different places. The quantity sold was not separated from the rest, though the buyer con- tracted to pay a certain rent to the seller for storage. Held, the prop- erty did not pass. White v. Wilks, 5 Taun. 176. A quantity of turpentine was sold in casks, at auction, at so much per hundred weight, the casks to be taken at a certain marked quantity, ex- cepting the last two, from which the seller was to fill up the rest before delivery, and which, consequently, were themselves to be sold at uncer- tain quantities. The purchasers to pay a deposit at the time, and the balance within thirty days, upon delivery ; and to have the privilege of keeping the property in the warehouse of the seller for thirty days. The buyer employed the warehouseman as his agent. In relation to the tur- pentine. The warehouseman filled some of the casks from the last two, but left the bungs out, to give the custom-house officer an opportunity of gauging them. Before he could fill the rest, and within the thirty days, the turpentine was destroyed by an accidental fire. Held, those of the casks which had been filled had become the property of the vendee. Nothing remained to be done to them by the vendor ; but the vendee was merely to have them gauged, as necessary to a removal. The leaving out of the bungs, for the purpose of gauging, was done by the warehouse- man as agent for the vendee, the gauging being his duty, and not the vendor's. But, on the other hand, the casks not filled still remained the property of the seller. The contracts must bo regarded as distinct, in relation to the distinct lots purchased. The action, being for money paid and received, to recover the deposit, was sustained, as to the casks last mentioned. Eugg v. Minett, 11 E. 210. A., having one hundred and twenty barrels of molasses, of unequal quantity and value, sold one hundred of them to B., who requested that they, might remain in A.'s cellar, and they were not separated from the rest. B. sold the same to C, but, before they were selected and separated 1 But see Merrill v. Hunnewell, 13 Pick. 213. INCOMPLETE SALB. 196 § 4. As already suggested, the rule referred to, although most frequently applied to the sale of a part of a larger from the rest of the lot, they were burned. Held, there was no delivery, and that B. could not recover the pricg of C. Hunter v. Hutchinson, 7 Barr, 140. A., having a quantity of hemp in the hands of B., sold a part of it to C, payable by O.'s acceptance at a certain time, and fourteen days al- lowed for delivery. A. gave C. an order on B., to weigh and deliver the specified quantity to C. Within the fourteen Says, A. notified B. not to deliver the hemp to C, it not having been weighed, and no acceptance given in payment ; but B did deliver to C. A usage was shown, for the holder of an order to indorse it to his purchaser, and he again to another purchaser, and so on, without any weighing of the hemp till actually taken. Held, this usage could give the indorsee no greater rights over the goods than the indorser himself had ; that the sale to C. was incom- plete, and A. might maintain trover against him. Shepley v. Davis, 5 Taun. 617. A. had sixty-nine bales of cotton, marked &., at the store of B., and thirty, of the same mark, at the store of C, both in Brooklyn, New York. He sold sixty-six Q. bales to D., giving him the following pro forma bill of parcels: " Sixty-six bales, say 19,800 lbs., $12 per cwt. ; one per cent, off." D. paid at the time $1800, in part-payment for the whole. The cotton, lying at the store of C, was afterwards burned. D. demanded of A. an order for sixty-six bales ; but A. refused it, and gave an order for only thirty-six, which were weighed by A., and another bill of parcels de- livered to D., including the thirty-six, according to the weighmaster's bill, and thirty bales at a certain weight each, accompanied with the clause, "Deduct for supposed loss, one hundred and fifty." Thirty-six bales were delivered at the weighing. A. brings an action against D. for the price of the thirty bales. Held, the suit could not be sustained, as these bales never became the property of D. They not being identified in the agreement, nor specifically sold, the contract might have been ful- filled by delivering this number of bales, having the mark named, from any other place besides Brooklyn, or any other store in that city. So, if the agreement was construed as an engagement to sell the thirty bales at the warehouse of C, yet, not being weighed, the property did not pass. The delivery of the thirty-six bales, after the loss by Are, was no recogni- tion of D.'s claim to the rest. The only effect of such delivery and ac- ceptance, was to exonerate the vendor from his liability ^ro ianto, leaving the question open as to the rest of the property. Chapman v. Lathrop, 6 Cow. 110. A. contracted with B. for the purchase of two thousand pieces of wall- paper, gave his notes therefor, which were negotiated, received a receipt from B. in full, and took away one thousand pieces. It was agreed that the other thousand pieces should remain at B.'s store till called for by 196 LAW OF SALES OF PERSONAL PROPERTY, bulk or quantity, is not restricted to this class of cases ; but has been often adopted where the whole of certain A. ; but, before they were called for, B. executed an assignment for the benefit of creditors. Held, that A. did not acquire a title as against the assignee to the remaining thousand pieces, they not having been selected by A., or separated or set apart for him, but remaining in the store- building with other paper of the same description. Golder v. Ogden, 15 Penn. 528. Sale of fifteen of the best sheep in the flock of the seller, and a sum of money paid. The buyer was to go for the sheep and take them on a cer- tain day. They were not selected, he did not go for them at the time, and the seller resold them. Held, the former sale was incomplete. War- ren V. Buckminster, 4 Fost. 336; A quantity of hay was purchased by bill of parcels, and paid for, to he weighed out of the mow, at pleasure of the purchaser. Held, before weighing, the purchaser could not maintain trover for any part of the hay. The bill of parcels was a mere contract to deliver the stipulated quantity of hay. Davis v. Hill, 3 N. H. 382. A. agreed with B. to burn a kiln of bricks, for which he was to receive, when burnt, ten thousand bricks, not to bo taken by himself, but deliv- ered to him by B. Held, this was not a sale of a certain number of bricks, but a mere contract to sell them ; and that, there having been no actual or constructive delivery to A., he had no attachable interest in the property. It would have been otherwise, it seems, if A. had, before such attachment, demanded the stipulated number of bricks, and been directed by B. to take them, or if B. had in any way assented to his tak- ing them. Brewer v. Smith, 3 Greenl. 44 ; ace. Courtright v. Leonard, 11 Iowa, 32. So A. assigned to B., as security, nine arches of bricks, in a kiln con- taining a larger number, but these arches were not separated or specifi- cally designated from the rest. A. afterwards sold enough of the arches to leave less than nine, and the remaining number were attached by his creditors. Held, B. could not maintain trespass against the officer. Merrill v. Hunnewell, 13 Pick. 213. The plaintifls supplied money to the defendants, to purchase and de- liver to them grain, at a certain price, for a certain number of days. Held, until this grain was delivered to the plaintifl's, or separated and specifically sot apart for them, they could not maintain replevin there- for. Eosenthal v. Risley, 11 Iowa, 641. The defendant ordered a reaper of the plaintiff, a manufacturer, to be delivered to him at M., to the care of D. & Co. When he called for it at the time and place specified, he was shown the separate pieces of a large number of reapers, of identical form and size, and was told by D. & Co. that one was intended for him, and that they would put up one for him if he would take it ; but ho refused. Held, in an action for the price, INCOMPLETE SALE. 197 goods or merchandise is sold, but, either to determine the there was no such delivery of any machine as vested the title in the de- fendant, and the action could not be maintained. Ganson v. Madigan, 16 Wis. 144. The plaintiff agreed with A. to purchase from K. one hundred out of two hundred quarters of barley, which the plaintiff had seen in bulk and approved of; and he paid part of the price. It was agreed, that the plain- tiff should send sacks for the barley, and that A. should fill the sacks, take them to a railway, place them upon trucks free of charge, and send them to the plaintiff. The plaintiff sent sacks enough for a part only of the one hundred quarters ; these A. filled, and K. also endeavored to find trucks for them, but was unable to do so. The plaintiff repeatedly sent to A., demanding the barley. A. finally detained it, and emptied the barley from the sacks back into the bulk. Held, the property in so much of the barley as was not put into the sacks did not pass to the plaintiff.* Aldridge v. Johnson, 7 Ellis & B., 885. A. bought ten tons of railroad iron, upon a siding of the old portage road over the Alleghanies, from the vendees of the State, for which he paid, and received a receipt, and a written order on the State agent for the delivery of the iron, but never presented it, and, in consequence, the iron purchased was not separated and set apart from a larger quantity with which it was mixed. The Pennsylvania Railroad Company after- wards bought and removed the whole amount of the iron. In an action of trover and conversion, brought by A. against the company, held, the sale was incomplete, and did not pass any such title as would main- tain an action. Pennsylvania, &c. v. Hughes, 39 Penn. 521. In an action for goods sold and delivered, and goods bargained and sold, the proof was of a bargain for two thousand telegraph poles, and that the plaintiff had, at the time and place of delivery, two thousand one hundred and thirty of such poles, and notified the defendant that he was ready to deliver them and receive the price ; to which the de- fendant replied, admitting that the plaintiff had the poles, and said he would settle for them soon ; but, before anything further was done, the * But per Lord Campbell, C. J., Coleridge and Earle, J J., that the por- tion put into the sacks passed to the piaintifl'. Crompton, J., hesitating, on the ground that it did not appear quite clearly that, at the time when the plaintiff demanded the barley, he knew that any portion had been put into the sacks, and that, therefore, his assent to the particular appro- priation was doubtful. lb. A. having become bankrupt after he had emptied the barley from the sacks into the bulk, and the defendant, his assignee, having removed the whole together ; held, a conversion, by the assignee, of all the barley (if any), which, by the putting into the sacks, had become the plaintiff's property. lb. 198 LAW OF SALES OF PERSONAL PROPERTY. price or for some other purpose, is to be afterwards weighed, measured, or counted." poles were carried away by a freshet. Held, a nonsuit was rightly di- rected. Bailey v. Smith, 43 N. H. 141. A sale of lumber, to be taken and measured from a larger bulk, and to be an average lot, as to thickness and quality, is not complete, even as between the parties, until selected and measured. Ockington v. Eichey, 41 N. H. 275. A mere license, after the sale, for the purchaser to measure and take the lumber, may be revoked, and, for taking it after such revocation, the purchaser would be a trespasser. lb. Proof that, before the lumber was delivered, the seller was summoned as trustee of the purchaser, was charged for the lumber, and the same was thereupon delivered to the officer, and applied upon the purchaser's debt, is equivalent todelivery of the lumber to the purchaser himself. lb. = In the case of Crofoot v. Bennett, 2 Comst. 260, Strong, J., denied the applicability of the rule to cases of this description. He remarks; "If a flock of sheep is sold at so much the head, and it is agreed that they shall be counted after the sale, in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until they are separated, and their identity thus ascertained and determined." The weight of authority, however, is contrary to such a distinction. A vendee agreed to purchase all the vendor's starch, lying at a certain warehouse, at so much per hundred weight, to be paid for by a bill at two months. The starch was done up in papers, and the weight not as- certained, but to be determined afterwards, and fourteen days allowed for delivery. The vendor gave the vendee a note, addressed to the warehouseman, requesting him to weigh and deliver all the starch. The vendee having become bankrupt, held, that portion of the starch, which had not been weighed, did not pass to the vendee, but the vendor might reclaim it. Two things were necessary to the vesting of the property, viz., payment of the price, and the weighing of the article, upon which the amount to be paid depended. Whether, if the former of these acts remained unperformed, delivery of part would vest the whole, might he questionable. The warehouseman had no authority to deliver the starch till it was weighed, much less had the vendee or his assignees authority to take it, without consent of the former. Hanson v. Meyer, 6 E. 614. The defendant agreed to sell a quantity of lumber to the plaintiffs, and signed the following memorandum : " Sold Messrs. B. S. and C. L. N. load of Pine Creek lumber, within the neighborhood of 6000 feet of plank, at $15.50 and expenses, taking a note at six months, with inter- est." Held, the property in the lumber did not pass to the vendees, and, on a refusal to deliver the lumber, in pursuance of the contract, trover would not lie. Nicholson v. Taylor, 31 Penu. 128. INCOMPLETE SAIE. 199 § 5. So, also, the rule applies to the sale of a single arti- cle, although partially or constructively delivered, if by So, where one agrees to purchase and pay for lumber to be " manu- factured, run, and delivered at Pittsburgh, the sum of seven dollars per m. to be paid for and counted by the measurement at the place where the said boards and lumber are sold ;" the title to the lumber will not vest in him until delivery. Mitchell v. Commonwealth, 37 Penn. 187. Agreement for the sale of an ark-load of lumber. A part of the lum- ber was landed, but the landing of the rest was postponed for the pur- pose of having a measurement by the inspector. The vendor, having waited a day or two for the inspector, reloaded the portion which had been landed, and went away with the entire load. In an action of trover brought by the vendee, held the suit could not be sustained upon these facts. Something remained to be done between the vendor and veodee, and consequently the property had not passed. The lumber was to be assorted and measured, in order to ascertain the quantity. The loads contained different qualities, and at different prices. The contract was for a sale of the whole, and neither party was under any obligation to de- liver less on the one hand, or to receive less on the other. No evidence was offered, except the bringing of the present action, that the vendee was willing to accept and pay for that portion which had been unloaded, without having the rest. Nor was there any evidence that the vendor was willing to sell this portion alone. On the contrary, both parties in- tended to go on and complete the whole contract. Although the measur- ing and landing of a portion was part of the process of delivery, yet, till measurement of the whole, the vendor had not completely surrendered his dominion. A part-delivery passes to the vendee a property in the portion delivered, only where there is an actual change of possession, control, or dominion. In the present case, the vendor did not quit pos- session. Moreover, the vendee neither paid nor tendered the price, an act which he was bound to do without any demand by the vendor. Fitch V. Beach, 15 Wend. 221. Contract to sell a stack of bark, at so much per ton ; the purchaser to take and pay for it on a certain day. Afterwards, a part of the bark was weighed and delivered. Held, the portion unweighed did not pass, be- cause the weighing must determine the sum to be paid; and, even if it did pass, an action for goods sold and delivered could not be sustained, nor, it seems, an action for goods bargained and sold. Although the subject-matter of the contract was ascertained at the time of sale, — all the bark, — yet it was to be purchased at so much per ton. The concur- rence of the seller was necessary in the act of weighing, and he was not bound to deliver till this had been done. He might have discharged himself from any liability in case of accidental loss, by giving notice to the seller, that at a certain time he should weigh the bark. If the decla- ration had been framed upon the special contract, there must have been 200 LAW OF SALES OF PERSONAL PROPERTY. the terms of the contract something yet remains to be done to it by the vendor. § 6. So where an article manufactured by the seller is delivered to the buyer, but on condition to be taken back, if it prove unsatisfactory." an allegation and proof of a sale at so much per ton, that the bark weighed so much, and the price amounted to a certain sum. Simmons v. Swift, 6 B. & C. 857. The plaintiff sold to the defendant two hundred and eighty-nine bales of skins, stated to contain five dozen each, at so much per dozen. Ac- cording to a usage of traoe, it was the duty of the vendor to ascertain the number of skins by counting. Before this was done, the property was destroj'cd by fire. Held, the loss must fall on the plaintiff, and he could maintain no action for the value of the skins, either as for goods bargained and sold, or upon a count for not accepting bills of exchange according to agreement. The enumeration required was for the benefit of the vendor. Zagury v. Furnell, 2 Camp. 240. The defendant agreed to purchase from the plaintiff a quantity offish, at the rate of nineteen shillings per barrel ; to pay for inspection; and, if the plaintiff would deliver the fish upon a certain dock on Long Island, that he, the plaintiff, should not be bound to make up the wantage, upon inspection and repacking, estimated at three per cent. On the other hand, if the delivery were at a dock in New York, the wantage was to be made up by the plaintiff. The parties agreed upon an inspector, and the pliiintiff made his election to deliver the fish on Long Island. He put them upon the dock, but no one was ready to receive them, and they were not received. Held, under these circumstances, the plaintiff could not maintain assumpsit for goods sold and delivered. The parties in- tended that the inspection should precede a complete delivery. Till such inspection took place, the quantity was uncertain. Moreover, the con- tract said nothing of the quality of the fish, and contained no warranty; till the inspection, therefore, it could not be known whether those fur- nished were such as the defendant was bound to receive. The act of un- lading could not be considered a delivery. If the property were after- wards destroyed, the plaintiff could sustain no suit for the price, because the quality was left undetermined. It was further held, that, if the con- tract had been in writing, an action in this form would not lie, but there must be a special declaration. Outwater v. Dodge, 7 Cow. 85. « A parol agreement between A. and B., debtor and creditor, provided, that a buggy of A. should be valued by two men, to be selected, B. to take it at the valuation, and credit the amount, and, if the valuation should exceed the debt, to pay the excess. Before change of possession, an at- tachment, sued out by another creditor of A., was levied upon the prop- erty. Held, the agreement passed no right, legal or equitable, to the INCOMPLETE SALE. 201 § 7. But the rule in question has been held to apply, only where there is a mere constructive delivery and posses- property, and the attachment must be sustained. Calvert v. Sasseen, 4 Met. (Ky.), 245. The defendant offered the plaintiff a certain sum for a steam-engine, payment to be made, partly when taken, which was to be in two or three weeks, and the balance by a note. The plaintiff accepted the offer, and said to the defendant, " You consider the engine to be yours, as it is." The defendant answered, " Yes." The boiler was set in bricks in the shop of the plaintiff, and could not be removed till the bricks were taken away, which the plaintiff was to do. The following week, he accord- ingly removed them. The defendant was proved to have said that he had purchased the engine, and to have inquired what would be the cost of getting it carried to a certain place. The contract was not in writing, nor was any part of the price paid or secured. The defendant did not take the engine. Held, there had been no legal delivery, and the con- tract was void by the Statute of Frauds. An act remained to be done by the plaintiff, before the property was to be delivered, and therefore the title had not passed. Dole v. Stimpson, 21 Pick. 884. The plaintiffs, machinists in Connecticut, agreed to furnish one A. with a ponderous machine, weighing about eight tons, to be carted by them and put up in A.'s mill in Worcester. If it should work to A.'s satisfaction, he was to pay for it ; otherwise it was to be taken away. The machine was accordingly placed in a new mill, which had been prepared to match it ; but before being fully set up, or all the material parts furnished, it was put in operation for trial. A. was not satisfied with the experiment. The same day, it was attached as his property. Held, the property had not passed to A., and the plaintiffs might main- tain trespass against the officer. Under the circumstances, the plaintiffs could not have offered the article as complete according to contract; nor, had they refused to complete it, could A. have maintained trover against them, but he must have sued upon his contract. And the plaintiffs were sufficiently in possession to maintain trespass. By the contract, they had the right of going to the building to complete the work, without being trespassers. It is as if n watchmaker should put up a, clock, with an agreement that, if it should keep good time, the owner of the house would buy it. In such case, the former might maintain trespass against any one interfering with the property before a trial. Phelps v. "Willard, 16 Pick. 29. The following recent cases may be cited, as illustrative of the several propositions stated in the text. A chattel was sold by weight ; a part of the price paid as earnest ; an agreement made that the weight should be ascertained by a specified pair of scales, which were found to be out of repair j and the vendor refused 202 LAW OF SALES OF PERSONAL PROPERTY, sion, not where there is an actual one ; in which case, the materials and labor, subsequently expended by. him, pass to agree to any other means of weighing. Held, the contract was ex- ecutory, and the property did not vest. Neshit v. Bury, 25 Penn. 208. A. bought a quantity of cotton at an agreed price per pound, the buyer to pay storage, insurance, interest after ten days, deposit five dollars per bale ; deliverable thirty days from date, the cotton not being weighed at the time. Held, an executory contract ; that the title remained in the vendor, that the deposit was an advance towards the price, and, the cotton being consumed by fire, that it could be recovered back, Joyce V. Adams, 4 Seld. 291. A. and B., of Ohio, having already shipped one hundred and seventy- four sacks of wool to C. and I), of New York, sold it to E., by writtten contract, providing that it should be weighed in New York, that E. should pay thirty cents per pound for the wool, and sixty-two and a half cents for each sack ; that if, on presenting the order for its delivery to C and C, any of it had been sold by them, the amount sold to E. should be reduced to the balance which should remain unsold ; and that, in the event of non-delivery, A. and B. should forfeit and pay to E. $250, and refund to him what he had advanced as part of the price. Held, this contract was executory merely, and did not transfer to E. an absolute right to possession of the property. Chapman v. Kent, 3 Duer, 224. In this class of cases, a mere assumption of ownership or control by the purchaser will not be suiBcient evidence of a delivery. At most, it affords merely a presumption of delivery, which may be repelled by evi- dence showing that the title remained in the vendor. Williams v. Allen, 10 Humph. 337. A. bargained with B. for the purchase of all the corn in certain pens on the banks of Cumberland River, at one dollar per barrel; the quan- tity, not being known, to be ascertained afterwards by actual measure- ment. No time was fixed for the measurement or payment of the price. In this state of the contract, the corn was swept away by a flood ; A. having previously delivered B. a horse, some pork, and a small amount of money, towards the payment, and also assumed to be owner of the corn, and forbidden an oflScer to levy on it as B. 's property. On the other hand, at the time of the flood, B. applied to persons to assist in saving the corn, and called it his own. In an action by A. to recover the part purchase-money paid, held, the property in the corn was in B., who should sustain the loss, and A. was entitled to recover. lb. A. agreed to sell B. all the tobacco-stems which he should prize during the year, at a certain price per hundred pounds, and for storage, reserv- ing the right to send a certain number of hogsheads to his father. A. was to weigh and mark the stems as soon as they were prized, and then to require payment; but, for B.'s convenience, the stems were not marked and weighed until he was ready to take them away, and he paid storage. INCOMPLETE SALE. 203 to the purchaser by accession.'^ Thus, where a quantity of goods, agreed to be sold at a certain rate, is delivered, the sale is complete, though they are still to be counted, weighed, or measured, in order to determine the sum to be paid for them. The act of delivery shows that it is thereby intended to complete the sale. The measuring, &c., constitute no part of the contract of sale.* And these principles were applied in a case, where the seller was part- owner of a quantity of bricks, estimated at 370,000, and sold his share in the whole.^ So a contract to sell all the corn in a certain mill-house, at $2.50 per barrel, and a payment of a part of the money, vest the property in the buyer, so that he can sustain an action of trover for it, even though it was not measured out to him.' So a sale of stock running at large vests the general property in the purchaser, though there be no delivery ; and he can claim nothing by way of recoupment at the hand of the seller, if he fail to reduce the estimated number into his possession, and if there has been no fraud or misrepresen- A.'s factory was burned during the year, and in it were destroyed fifty hogsheads of stems which had not been weighed and marked, but which had been set aside for B., and been pointed out to B.'s agent. Held, the property in the stems had not passed to B., and the loss fell on A. Dixon v. Myers, 7 Gratt. 240. The owner of coal-pits, in process of burning, sold the charcoal which might be taken therefrom, at a specified price for each one hundred bushels, and agreed that he would complete the burning, and draw the coal to the vendee's place of business. He accordingly continued to have charge of the coal, until it was attached by his creditors, before it had been measured and delivered to the vendee. Held, the vendee acquired no jiroperty In the coal, even as between himself and the vendor. Hale V. Huntley, 21 Vt. 147. ' Under a contract for building a vessel, instalments of the price were paid, and the vendee put a watchman in charge before payment. Ex- ecutions being issued against the seller, he was unable to finish the vessel, and surrendered it to the purchaser. Held, the sale was good. Sand- ford V. Wiggins, 27 Ind. 522. 1 Sumner v. Hamlet, 12 Pick. 82 ; Everett v. Tindall, 5 Esp. 169. • Macomber v. Parker, 13 Pick. 175; 4 Greene, 138. ' Morgan v. Perkins, 1 Jones, Law, 171. 204 LAW OF SALES OF PERSONAL PROPERTY. tation, and lie was acquainted with the number and quality of the stock bought.' More especially that portion of an entire stock, which has been actually set apart, may vest in the purchaser. Thus where part of an entire cotton crop, sold, had been ginned, baled, and marked with the seller's initials ; held, sufficient to pass the title of this part, as against creditors.^ § 8. The rule above stated has been further qualified, as follows : Where any act remains to be done to goods con- tracted to be sold, — as, for instance, weighing or measur- ing, — and there is no proof of the parties' intention that the property should pass ; the title is not changed. But it is otherwise, where payment is not a condition prece- dent, and where the intention is that the sale should be complete.'^ Thus A., owning a quantity of timber lying • Delivery is held to raise a presumption of a complete sale ; and the effect of the circumstance, that the property is to be weighed, measured, &c., upon the question of intent, is for the jury. Cunningham v. Ash- brook, 20 Mis. 553. A. sold to B. twenty tons of shipstuff, to be paid for on delivery, and B. paid $200 towards the price. A. afterward sold to C. all the remain- ing shipstuff in the building, and made delivery of the whole, specifying the amount thereof belonging to B. While the employees of B. and of C. were setting apart the amount belonging to B., the defendant levied upon it on execution against A. Held, there was at least sufBcient evidence of a delivery to B., to be left to the jury. Cloud v. Moorman, 18 Ind. 40. Sale of sixty tons of hay, to be baled and delivered at =<- place named. By mistake, the vendor baled up two or three tons too much, and noti- fied the vendee of the excess, and asked him whether he would take it. He answered, that he would see about it, and paid the vendor two hun- dred dollars. Held, a question for the jury, whether there had been a delivery; and an instruction, which assumed that there could not have been a delivery, whatever might be the understanding of the parties, until the exact quantity contracted for was segregated and set apart to the vendee, was properly refused. Smith v. Friend, 15 Cal. 124. That the sale is incomplete is matter of proof, not requiring to he neg- atived in the declaration. The burden of proof is on the party who relies upon it. Camp v. Norton, 62 Barb.— Amn. Law Eeg., May, 1869; p. 319. ' Cockrell v. Warner, 14 Ark. 345. « Bush V. Barfleld, 1 Coldw. (Ten.) 92. « Kiddle v. Varnum, 20 Pick. 280; 1 Dutch. 390. INCOMPLETE SALE. 205 in a pond at the end of a canal, in charge of the canal su- perintendent, agreed to sell it to B., B. giving him the following instrument : " Eeceived of A. four shots white oak plank, &c., for which I promise to pay him $26 per thousand, board measure. The above timber delivered in the mill-pond," &c. A. gave B. a writing, as follows: " Received of B. $200, in part-payment for timber. The remainder to be paid in ninety days from surveying. Cancellage to be paid by B., when he takes the plank, &c., from the pond." A. further agreed, that B. might have a measurement made by the superintendent, and that he would abide by it. Before any measurement, B. became insolvent, and the property was attached by his creditors. A. brings an action against the otficer. Held, if there was a delivery, and if the parties intended to make the sale complete before ascertaining the measure, the property had passed to B., and the action could not be maintained.' So as against a trespasser, the title to prop- erty may pass before it has been measured and the price ascertained, if that clearly appear to have been the intent of the parties.^ § 9. So it is held, that, where the precise quantity of an article, the whole of which is sold for a fixed price, remains to be ascertained, only /or the satisfaction of the vendee, this act is no ingredient in the contract, though important as an unequivocal act of possession and ownership as to the whole property ; and the whole, therefore, passes to the vendee.' Thus, where a bill of sale was given of " all the coal, our property, now on the wharf of F. & Co., at $4.70 per ton for the egg and stove coal, and $4 for chestnut," with a written order to F. & Co. to deliver the same to the purchaser ; and F. & Co., subsequently, on payment by the purchaser of their charges for wharfage, &c., signed a 1 Kiddie v. Varnum, 20 Pick. 280 ; ace. Gilmour v. Supple, Amer. Law Reg. Peb., 1859, p. 239. 2 Sewell V. Eaton, 6 Wis. 490. ' Hammond v. Anderson, 1 N. E. 69 ; ace. Slubey v. Heyward, 2 H. Bl. 504. 206 LAW OF SALES OF PERSONAL PROPERTY. certificate of delivery of possession to the purchaser, at the foot of the order, the quantity of coal not being then ascertained: held, the sale and the purchaser's right of possession were complete.' So S. sold chattels to M., took a mortgage, and upon non-payment received back from M. the goods that remained, and also others, agreeing that an inventory should be taken, and that S. should keep of the new goods enough to make up the deficiency in the original stock as against M.'s creditors. Held, that im- mediately upon the delivery S. had a good title to those covered by the mortgage, the inventory relating only to the new goods.^ § 10. So, where the process of ascertaining the quantity has been substantially performed, the title passes, although a trifling additional act remains to be done, in order to complete the enumeration ; more especially if the vendee is in possession, and the remaining act is to be done by him. "^ « An agreement, that, when certain wood "is delivered in rank and order to be measured, it is then the property of B.," and that, when any part of it is delivered at any time, " in rank as aforesaid, B. is to meas- ure the same and receipt the value thereof;" vests the property in wood Bo delivered in B., before any measurement. Dexter v. Bevins, 42 Barb. 573. The plaintiff purchased certain timber growing upon land of A., felled it, and sold it to B. for so much per cubic foot ; B. to have liberty to convert the timber on the land. B. marked and measured the trees, and the number of feet in each was ascertained, but the whole contents were not added. B. having taken some of the trees, the plaintiff requested the servant of B. not to remove any more timber, till he knew who was to pay for it. Held, the whole property passed to B., and the plaintiff had no lien for the price. The plaintiff parted with his right to go on A.'s land, which became, in reference to the timber, the warehouse of B. It might be doubted whether the plaintiff had possession, as he had no interest in the land. The circumstance of B.'s removing a part of the timber showed a, license from the plaintiff. Nothing remained to be done by the latter to complete the sale. Tansley v. Turner, 2 Scott, 238 ; Williams v. Adams, 3 Sneed, 359. • Boswell V. Green, 1 Dutch. 390. • Sanborn v. Hunt, 10 Wis. 436. INCOMPLETE SALE. 207 § 11. But on tlie other hand it has been held, that where goods, agreed to be sold, were delivered to the So if timber, on being sold, is piled by itself, preparatory to shipping, and possession of the whole delivered ; the title passes, without any sub- sequent measurement. Tyler v. Strang, 21 Barb. 198. The plaintiff, having a quantity of apples, agreed in writing to sell the defendant his cider, at so much per hogshead, to be delivered at T. at a future time ; also to lend the defendant his empty casks for the cider, to be manufactured on the plaintiff's premises, and paid for before removal. The plaintiff pounded the apples, and delivered the juiee to a servant of the defendant, who proceeded to manufacture the cider. Before the pro- cess was completed, the cider and casks, some of which belonged to the plaintiff, were seized by the officers of excise, for being in an unentered place, and condemned in the Exchequer, as the property of the defendant. In Devonshire, where the parties lived, oider was proved to mean the juice of the apples, as expressed therefrom. The plaintiff sues for the price of the cider and casks. Held, the true construction of the agree- ment was for the sale of the juice, not of manufactured cider, and the delivery to the servant of the defendant vested a property in the latter. The defendant was bound by the agreement to enter the premises of the plaintiff. As he neglected to do this, the plaintiff was necessarily pre- vented, and therefore excused, from delivering cider at T., and he might recover, either as for goods sold and delivered, or bargained and sold. Studdy V. Saunders, 8 D. & R. 403. Where A. sold to B. a quantity of barley in a store-house, at a certain price per bushel, and it was to be weighed, or taken at the weight stated on A.'s books, as B. might choose, and A. afterwards presented a bill, stating the aggregate amount of the purchase-money, upon which B. made a partial payment, and acquiesced in the statement of the amount ; held, the quantity being thus ascertained, nothing further remained to be done, and the title to the barley had passed to B. Olyphant v. Baker, 5 Denio, 379. Action for 6000 bushels of wheat. Dickinson had in warehouse, in Wisconsin, two piles of wheat, containing 6249 bushels. Shuttleworth proposed to purchase 6000 bushels of wheat. The piles being shown him, he expressed a doubt whether they contained that quantity. Dickinson declared his opinion that they did, and agreed, if they fell short, to make up the quantity. A sale was then made at seventy cents per bushel, and a memorandum, signed by Dickinson, given to Shuttleworth; "Bought, &c., 6000 bushels of wheat, delivered on board, 70 cents, $4200," with an acknowledgment of payment. Also the following memorandum, signed by Dickinson : " Received in store 6000 bushels of wheat, subject to the order of John Shuttleworth, free of all charges on board." The wheat was left undisturbed in the warehouse. Shuttleworth sold the wheat to the defendant, assigning to him the above-named documents. 208 LAW OF SALES OF PERSONAL PKOPERTY. vendee, to be put in marketable condition, and paid for by weight, which was to be subsequently ascertained, this Dickinson soon afterwards sold the whole to a person under whom the plaintiflFs claimed. The defendants obtained possession of the wheat. Held, as there was a clear intention to pass a title to the plaintiffs, the action was maintainable. Kimberly v. Patchin, 19 K. Y. (5 Smith) 330 (in which the cases are largely reviewed). In January, 1858, C. agreed to sell to the plaintiff all the crop of oil of peppermint grown on his farm in that year, at 21s. per pound. In September, C. wrote to the plaintiff for bottles to put the oil in. The plaintiff sent the bottles, and C, having weighed the oil, put it in the plaintiff's bottles, labelled them with the weight, and made out invoices. Before he had completed the filling of the bottles, he sold and delivered several of them to the defendant. The plaintiff had for many years past bought of C. his crop, and it was usual for C, when the bottles were filled, to deliver them to a carrier to take to a railway station. Held, the action of detinue would lie. Langton v. Higgins, 4 Hurl. & Kor. 402. Trover for 1960 Spanish dollars. Fielding, at Buenos Ayres, remitted to Laycock & Co., at London, $4700, and advised the plaintiffs that 1960 of the number were designed for them in payment for goods. Laycock & Co. received the 4700 pieces, and pledged them all to the defendant, who sold them to the Bank of England. Held, that the letter of advice was a sufficient appropriation of $1960 to the plaintiffs ; the plaintiffs and defendant did not become joint tenants or tenants in common of the dollars ; and, although no specific dollars were separated for the plain- tiffs, as the defendant had converted the whole, this action would lie. Jackson v. Anderson, 4 Taun. 24. See also Pleasants v. Pendleton, 6 Band. 473. The plaintiff delivered to the defendant an unmeasured quantity of wood on board a flat-boat, to be paid for at a certain rate per cord. The defendant took the flat-boat in tow, but it was sunk during the towage, and all the wood was lost. Held, the defendant was liable for the wood. Bogy V. Rhodes, 4 Greene, 133. Where goods are delivered, and the purchaser takes immediate posses- sion, " the price and value of the goods to be ascertained by reference to the bills of purchase, and an inventory of said merchandise to be taken by the parties aforesaid ;" the delivery is complete, and vests in the pur- chaser the right of property. Keller v. Tutt, 31 Mis. 301. An agreement for the sale of all the wood standing on certain land, to be delivered on the purchaser's land and there measured, and to be paid for according to such measurement, vests the title in the wood in the purchaser upon the delivery on his land. Kichmond Iron Works v. Woodruff, 8 Gray, 447. In a late case, the following distinction is made. To constitute a per- INCOMPLETE SALE. 209 was a conditional delivery, and did not pass the property ; that it is wholly immaterial whether the remaining act is to be done by the vendor or vendee, it being sufficient that the vendor had an interest in the act to be done, and a right to be present at the doing of it ; and that the de- livery is made for a special purpose, and rather as if to a bailee than a purchaser." ' § 12. More especially will this rule be adopted in case of any fraud on the part of the purchaser.*" feet sale, the subject-matter must be defined; but weighing, measuring, or setting apart is not essential, except for the purpose of such defining, Leonard v. Winslow, 2 Grant, 139. Any kind of an article in bulk may be sold so as to pass the title. If the article is not manufactured or in existence, or, if manufactured, not selected from a lot of similar articles, the subject-matter is undefined, and no title passes, until either the article is manufactured, set apart, appropriated, accepted, or delivered. lb. * Thus A. contracted to sell B. a pair of fat cattle, at so much per quarter; B. to take them, prepare them for slaughtering and slaughter them, take the quarters to market, weigh them, and pay for the cattle the sum that the whole would amount to, at $7.60 per cwt. Immedi- ately after coming into B.'s possession, the cattle were seized on execu- tion by a previous creditor of B. Held, they were not liable to be thus taken. The vendor was not bound to deliver the property without pay- ment, and this could not be made till the price should be ascertained by weighing. If the vendee should have refused to slaughter the cattle, and put them to work instead, A. might have retaken them. So also, if he had refused to pay after weighing ; as the property did not pass till payment or a waiver thereof, and there could be no waiver till the price was known. *• A. agreed with B., who kept a carpet store, upon certain false pre- tences, to buy a quantity of carpeting and pay cash therefor. Acoordiag to usage, the carpeting was sent to his house in the roll, with the under- standing that the required quantity should be cut oflF, and the remainder returned, with payment for the part retained. The carpets were made, and put down in A.'s house, and there remained three weeks before the rest was sent back. In the meantime, A. pawned the carpets to C, an auctioneer, who was employed to sell the furniture, and bona fide made advances upon the carpets. A. then absconded. Held, B. might re- 1 Ward v. Shaw, 7 Wend. 404. 14 210 LAW OF SALES OP PERSONAL PROPERTY. claim the carpets from C. As the number of yards was to he determined before payment, no legal delivery had taken place. And even if the facts had shown such delivery, inasmuch as the statute of New York, provid- ing for the punishment of the offence of obtaining goods by false pre- tences by imprisonment in the State prison, constitutes the act a felony B. might on this ground regain his property, thus fraudulently obtained. Andrews v. Dietrich, 14 Wend. 31. DELIVERY — SALE OF SHIPS AT SEA. 211 CHAPTER X. DELIVEET— SALE 0¥ SHIPS, ETC., AT SEA. § 1. It has been already somewhat considered, how far the general rule of delivery is dispensed with, where prop- erty sold is of such a nature, or so situated, that it cannot well be delivered at the time of sale. There is a certain species of property, however, to which this exception is applied more frequently, and with greater propriety, than any other, and therefore deserving of special notice ; to wit, ships (and other property) at sea.'' § 2. Upon this subject it is laid down, that a transfer of a ship at sea is effectual by delivery of a bill of sale, subject to be set aside by creditors on the ground of fraud, in case the mortgagee (or vendee) neglect^ to take posses- sion upon her return, in reasonable time, or, as it is some- times said, with all possible expedition.*" He, however, " It has been contended that this rule (as to the sale of ships at sea) applies to ships only, being, with regard to them, a rule of necessity, in- asmuch as they are usually at sea. But it is now settled, that the same principle applies to a cargo as to a vessel, and to all cases of sale, whether the property be on land or water, where delivery is at the time of sale impracticable. Gardner v. Howland, 2 Pick. 602 ; 2 T. R. 485 j Bicker V. Cross, 5 N. H. 571, 572. In order to pass the title to a boat, as against a subsequent bond fide purchaser, an actual delivery or its equivalent must be shown. An oral sale, in consideration of the oral release by the vendee of a claim for ser- vices, will not pass the property. Veazie v. Somerby, 5 Allen 280. i" The plaintiff agreed to take a conveyance of a ship from one A., if he should conclude to execute such conveyance, and that the bill of sale should be left with B. for the plaintiff's use. On the 16th day of the month, a bill of sale was accordingly made, and delivered to B., and on 212 LAW or SALES OF PERSONAL PROPERTY. takes a title subject to any incumbrances incurred before notice of the sale ; as, for instance, tbat of hypothecation. The question, whether possession was taken in reasonable time, is for the jury. If the ship arrive at another port than that where the sale takes place, a notice forwarded by the vendee to the captain is equivalent, it seems, to taking actual possession.* ' the 19th the bill of sale and the ship were taken possession of by the plaintiff, as soon as practicable after the arrival of the latter at his place of residence. On the 18th, the ship was attached by creditors of A. Held, the plaintiff had a title which should prevail over the attachment. Buffington v. Curtis, 15 Mass. 628. - Upon this subject, the following remarks have been made by the court in Massachusetts; Personal property passes by grant, upon execution of a deed, and at common law actual delivery is unnecessary. By the English statute, 21 Jac. u. 19, a grant, without possession taken, does not protect the grantee as against the assignee of the grantor, in case of bankruptcy. But the English bankrupt laws were never in force in Massachusetts. By the construction of the above act, the sale of a ship and cargo abroad is good, though no immediate possession be taken, if the evidence of title is delivered, and possession taken as soon as the property comes within reach of the vendee. In Massachusetts, neglect of delivery may be a fact from which fraud is inferred. There is no distincticin between the effect of a grand bill of sale in England, and the common bill of sale in use in Massachusetts. Portland Bank v. Stacey, 4 Mass. 663. The court in Connecticut have also remarked, that ships at sea are com- monly delivered by indorsement and delivery of the bill of sale and other documents, evidential of right and ownership. So indorsement and de- livery of a bill of lading are a suflScient delivery of a cargo afloat. But neither is good against creditors, unless actual possession be taken with all possible expedition. A ship passes by delivery only, without any bill of sale. The law of the United States, requiring a register to be inserted in the bill of sale, affects the vessel only as an American ship, with certain privileges resulting from its national character. Ingraham v. Wheeler, 6 Conn. 284; Wendover v. Hogeboom, 7 John. 308. The same rule is applied to a mortgage, as to an absolute sale, of a ship. Thus a ship at sea, bound to a port in Massachusetts, was mortgaged in 1 Badlam v. Tucker, 1 Pick. 396 ; Joy v. Sears, 9 Pick. 4 ; Brinley v. Spring, 7 Greenl. 241 ; Ingraham v. Wheeler, 6 Conn. 284 ; Foster v. Cockerell, 9 Bligh, 376; Mair v. Glennie, 4 M. & S. 240; Robinson v. McDonnell, 2 B. & Aid. 134. See Winsor v. McLellan, 2 Story, K. 496. DELIVERY — SALE OF SHIPS AT SEA. 213 § 3. Delivery is not necessary to the sale of a share in a ship. The case is similar to that of a ship at sea, in which delivery is impracticable." ' another State, the mortgagor to have posseasion till default in paying certain notes. After her arrival in port, the ship was attached in a suit against the mortgagor and another part-owner. Subsequently to the at- tachment, and in reasonable time after the mortgagee's right to take possession accrued, his agent at the port of arrival gave notice of his claim at the custom-house, by a memorandum on the certificate of en- rolment, the ship being then in possession of the attaching oflScer. Held, the mortgagee had a good title ; that a mortgagee is not bound to follow the vessel from port to port, but may lawfully await her return to the port where she belongs, and where the transfer was made ; and that no- tice at the custom-house was equivalent to a demand, as an actual demand would be useless, because the ship was then in the officer's hands. The clause in the instrument, authorizing the mortgagor to keep possession, was not fraudulent, being consistent with the expressed trust, and giving him no false credit. Badlam v. Tucker, 1 Pick. 389. » A. and B. being part-owners of a ship, which lay at the port of Man- chester, A., at his house in Salem, a neighboring town, gives a mort- gage to B. of his share, by way of indemnity for B.'s liabilities on his account. One hour after this transfer was made, the ship was attached by creditors of A. Immediately upon her arrival at Salem, the port where she belonged, B. went on board and attempted to take possession, but afterwards allowed the officer to retain possession for several days. Held, the sale was valid to pass the property without delivery, which was impossible, as the vessel was situated at that time ; that the possession of the attaching officer was wrongful in its inception, and there was no laches on the part of B. sufficient to make it lawful, the law requiring strong circumstances to mature a wrong by suiferance into a right. Whether, if A. had continued to have possession jointly with B., the sale would be void, was doubted. Putnam v. Dutch, 8 Mass. 287. On the 11th of August, one-eighth of a vessel at sea, belonging to the port of Hyannis, was sold to a purchaser at Nantucket. On the 22d, she arrived at H., but without the vendee's knowledge, and on the 29th sailed on a new voyage. September 16th, she returned to H., and was attached the next day by creditors of the vendor. The vendee came from Nantucket by the first packet, after hearing of the arrival of the vessel, reached H. September 23d, and replevied her in the present suit. Held, judgment should be rendered for the plaintiff. The law did not require him to have an agent at H. to take possession ; and, as the sale was only of a share in the vessel, possession was comparatively unim- portant, as negativing fraud. Joy v. Sears, 9 Pick. 4. 1 Addis V. Baker, 1 Anst. 222. 214 LAW OF SALES OF PERSONAL PROPERTY. § 4. Where a ship at sea is sold by the owner at home and also by the master under an authority carried out by him ; the purchaser on shore is entitled to the proceeds in the master's hands. So, in case of a similar sale of goods, the master becomes an agent of the vendee, upon receiving notice of the sale.' > Gardner v. Howland, 2 Pick. 601, 602. TIME AND PLACE OF DELIVERY. 215 CHAPTER XL TIME AND PLACE OF DELIVERY. § 1. It has been held, that, where a purchaser of goods agrees to pay for them upon delivery at a certain time and place, in order to maintain an action for the price, the whole must be delivered or tendered accordingly. Part-delivery and acceptance, of some before and some after the time, are insufficient.^ But the rule seems now well settled, that, where one agrees to deliver property at a certain time and place, and delivers it at another time and place, without objection from the vendee, the latter is held to have waived all objection on this ground.^ Thus the defendant, having contracted with one A. to build for him certain machinery, and deliver it at a stipu- lated time, accordingly contracted with the plaintiff that the plaintiif should build the machinery and deliver it to A., and to pay him the plaintiff therefor a certain price. The property was delivered by the plaintiff to A. after the time agreed on, the delay having taken place at the request of A. Held, the defendant was liable for the price, if he assented to this delay, or, knowing of A.'s re- quest, did not expressly dissent." ^ • The plaintiff gave a bill of parcels of the machinery to a creditor, as security, but without delivery. Held, no title passed to the creditor, and 1 Davenport v. Wheeler, 7 Cow. 231. See Hipwell v. Knight, 1 T. & Coll. 415 ; Coslake v. Till, 1 Kuss. 376 ; Suydam v. Clark, 2 Sandf. 133. 2 Baldwin v. Parnsworth, 1 Fairf. 414 ; Smith v. Gugerty, 4 Barb. 614. » Flagg V. Dryden, 7 Pick. 52. 216 LAW OF SALES OF PERSONAL PROPERTY. § 2. A written contract of sale within the statute, by which the goods are to be delivered within a certain time, cannot be extended, as to the time of delivery, by a sub- sequent verbal agreement.' On the other hand, where a written contract for the sale specifies no time for delivery, in an action for not delivering them, the seller cannot show a parol agreement that they should be taken away imme- diately, or a usage, that, where the delivery is to be future, therefore the transaction was no bar to the present action. Nor was it any defence to the action, that, after delivery to A., the machinery was taken upon execution against the plaintiff; for A. might bring trespass against the officer, the officer call upon the creditors for indemnity, and they, in turn, sue out writs of scire facias upon their judgments against the plaintiff. It was further held, that a mortgage made by A., before delivery of the whole machinery, was no evidence of acceptance, being only a declaration by him, but not proof of a fact. Flagg v. Dryden, 7 Pick. 52. Anspaeh v. Heft, Legal Intelligencer (Phila.). Opinion by Strong, J. *' It is impossible to maintain that the goods delivered after June 30th were not delivered under the contract of March 17th, 1864. There was no other. True, they were not delivered at the time required by the contract, but the vendees accepted them, and thereby waived strict com- pliance with the stipulation as to time. If it be that time was of the essence of the contract, it was still in the power of the vendees to waive it. It was for their benefit. The act of Congress added the tax to the price when the articles were delivered after June 30th under a contract made before that date. This does not mean that the delivery is to be in conformity with all the terms of the contract. It means rather delivery in fulfilment or discharge of its obligation. An extension of time is not an abandonment of a contract. When the vendor in this case delivered the goods, he was discharging a duty which he assumed when he en- tered into the contract of March Hth. The subject-matter of the con- tract was the same in August as it was in March. The vendees had a right to the goods at the price then stipulated. They might perhaps have refused to receive them when offered after the appointed time of delivery, but having accepted them, it is not in their power to claim that they were not delivered under the contract. As the case was put to the jury the vendees were held liable for the extra duty paid by the vendor on the articles delivered subsequently to June 30th, 1864, and accepted by them under the contract of March, 1864. This was in strict con- formity with the act of Congress." ' Noble V. Ward, Law Kep. (Eng.), Feb. 1866, p. 116. TIME AND PLACE OF DELIVERY. 217 the contract must so specify." And where no time is fixed for delivery of goods sold, the law allows a reasonable time, in view of the bulk and character of the thing sold." If, upon demand by the vendee, no objection is made as to time, and no question asked by the vendor, his refusal to deliver is a breach of contract.^ * § 3. If no place of delivery is specified, the store, shop, farm, or warehouse, where the article is sold, made, grown, or deposited, is, in general, the place of delivery.' But when the goods are a subject of general commerce^ and bought to be reshipped, and the purchaser resides at the place of reshipment, and has a dock and storehouse, where goods have been before delivered by the seller ; a contract to sell " one boat-load of salt per week, and de- liver the same in good order to them," binds the seller to deliver at the dock of the purchaser.^ So, where tobacco • And the same rule is applied to the buyer. Thus the buyers of the new-mown and uncured hay on 150 acres had been employed by the owner to cut the grass, and continued to gather and stack it, when, eight days after the sale, it was attached for the seller's debts. Held, if any delivery was necessary, beyond a formal pointing out of the hay and telling the buyers to take it, they were using sufficient diligence to effect an actual removal. Chaffin v. Doub, 14 Cal. 384. • A. purchased three quarters of a vessel ; two quarters for himself, and the other quarter for B., by virtue of a prior agreement with him ; and took a bill of sale of the whole to himself, agreeing to convey to B. his share. B. demanded a bill of sale, but A. refused to give one. A. made out but did not tender a bill of sale, but his executrix, the plaintiff, after his death, and more than two years after the purchase, tendered it. Held, an action did not lie against B. for the price. Higgins v. Chess- man, 9 Pick. 7. A sale of a certain description of standing timber trees, to be taken off in a certain time, passes only those which are taken in that time. How- ard V. Lincoln, 1 Shepl. 122. • Greaves v. Ashlin, 3 Camp. 426. • 14 Cal. 384; Blydenburgh v. Welsh, Bald. 331 ; Langfort v. Tiler, 1 Salk. 113. See Lanyon v. Toogood, 13 M. & "W. 27 ; Fletcher v. Cole, 23 Verm. 114. ' 1 Pars, on Cont. 446 ; 2 Kent, 505 ; Goodwin v. Holbrook, 4 Wend. 386 ; 7 Barb. 472. • Branson v. Gleason, 7 Barb. 472. 218 LAW OF SALES OP PERSONAL PROPERTY. was contracted for, to be delivered in C, no particular place being designated; held, the place must depend on the un- derstanding of the parties or the usage of the .trade, and a delivery at a warehouse, where the vendee usually had his tobacco delivered, was sufficient.' So where corn was sold to a miller, but no place of delivery fixed ; a part being delivered at the mill, held, this was to be considered the place.^ § 4. The term delivery has usually received a liberal con- struction in favor of the vendor, with reference to time and place. Thus where A., having contracted with B. to deliver him pheasants on the 12th of October, sent them to the coach-office on that day, but they did not reach B. till afterwards ; held it was a compliance with the con- tract.^ So where an agreement for the sale of flax pro- vided, that it should be sent from St. Petersburg, not later than the thirty -first day of July, either for Hull or London, and, before this day arrived, the flax was sent from St. Petersburg in lighters, and put on board a ship at Cron- stadt, but the ship did not sail till after the day ; held, this was a sufficient compliance with the contract.* So, in ease of an agreement to sell certain produce, and deliver it at the house of the vendee within a few days ; in an action brought by the vendee for non-delivery, held, he must prove a demand upon the vendor, before commence- ment of suit, or at least that he was ready and willing to pay for the property at the place agreed.^ So goods were forwarded by the plaintiff from Whitewater, Wisconsin, to P. & W., at Mount Carmel, Illinois, upon the following order : " Forward us the following bill of nursery stock to Bridgeport, 111. Terms, our notes at six and twelve months. . . . All the above stock to be properly packed 1 Williams v. Adams, 3 Sneed, 359. « Field V. Eunk, 2 N. J. 525. • Honeywood v. Stone, 1 Chit. 142. * Busk V. Spence, 4 Camp. 329. ' Stone V. Case, 13 Wend. 283. TIME AND PLACE OF DELIVERY. 219 and delivered at the railroad depot in Whitewater, Wis., free ; freight and charges to be paid by us on delivery at Bridgeport, 111." Held, the vs^ords "delivered at, &c." meant merely that F. & W. were not to be at any expense for the packing of the goods or hauling them to the depot at Whitewater. Also, that the delivery which was to change the ownership was the one at Bridgeport, upon which the consignees would be able to 'comply with the condition of the sale by giving their notes.' § 5. With regard to the place of delivery, peculiar rights and liabilities grow out of the mode of transportation by ships. Thus it is held that* where a contract provides, that goods sold shall be upon interest, after a certain time from shipment, this is conclusive evidence that they are to be sent by water? And the seller is bound to adopt all reasonable measures for the safety of goods thus trans- mitted. Thus A., at one port, ordered goods from B. at another, to be sent by a common sea-carrier. The goods exceeded in value £5, and the carrier's liability was noto- riously limited to this amount. B. deposited the goods at the receiving-house of the carrier, with directions to forward them to their place of destination ; but they were not specifically entered and paid for accordingly. Held, B. had implied authority, and it was his duty, thus to enter them, and to pay any extra charge requisite for securing the carrier's responsibility ; and, not having done so, and the goods being lost, he could not recover the price of A.' § 6. Where the terms of sale, as to the time and place of delivery, are alternative, or contemplate a future election or notice on the part of the vendor, the law holds him to a strict liability. Thus A. sold to B. a quantity of fish, to be delivered at one of two places, at the option of the vendor. The fish were left at one of the places named, • Congar v. Galena, &o., 17 Wis. 477. « Whiting V. Parrand, 1 Conn. 60. » Clarlfe v, Hutchins, 14 B. 475, 220 LAW OF SALES OF PERSONAL PROPERTY. but no notice given to B., and consequently they remained there till they were spoiled. Held, the loss must fall upon the vendor, who was bound to have notified the vendee of the place of delivery.' So where there was a sale of a quantity of barley, with an agreement to deliver it along- side a sloop or warehouse at G. or K.,at the option of the vendee, in all April or sooner, and on April 29th the barley was brought into the dock at G., but four days after this were necessary to unload and deliver it to the vendee ; held, the contract was broken.^ So an agreement for the sale of goods provided, that, as soon as the vendor knew the name of the ship by which they were to be for- warded, he should inform the vendee of it. The vendor, residing in London, was informed of the name on the twelfth, but did not communicate it to the vendee, resid- ing at Hull, till the twentieth of the month. Held, the condition of the contract was broken, and the vendee not bound by it, though he had suiiered no damage from want of the above information.' So the plaintiff agreed with the defendant to purchase from him a ship then in course of building in Maine, to be "completed and delivered as soon as possible at F. village or B., either of these places, at the option of the purchaser." Held, this contract bound the defendant to notify the plaintiff when the vessel was completed, that he might make his election as to the place of delivery ; and that having, without such notice, sold the vessel to a third person, the defendant was liable to an action for damages. The law required him to give notice, because he had the best means of knowl- edge on the subject. Nor was the plaintiff bound to em- ploy an agent to observe the progress of the vessel. It was further held, the agreement having been made in December, 1832, the vessel launched in April, or the first of May, 1833, and the suit commenced in July, that the 1 Eogers v. Van Heesen, 12 John. 221. 2 Cox V. Todd, 7 D. i& E. 131. ' Busk V. Spence, 4 Camp. 329. TIME AND PLACE OF DELIVERY. 221 plaintiff had not waived any right by delay. He was not hound to make an election at the time of the contract, but when the ship was finished.' § 7. But where a contract for the sale of sugar pro- vided that it should be " free on board a foreign ship ; " held, the vendor was not thereby bound to deliver it into the hands of the vendee, or to transfer it to his name in the books of the warehouse where it lay, but only to put it on board a foreign ship, to be named by the vendee.^ And the vendor will not be bound by the terms of a no- tice given by mistake, and a deviation from which does not affect the substance of the contract. Thus A. agreed to sell B. fifty tons of St. Petersburg sound, clean hemp, at £59 per ton, to be shipped from St. Petersburg in June or July following, and information to be given of the name of the vessel as soon as known- If the vessel did not arrive by December 31st, the contract to be void. September 5th, A. gave notice that fifty tons had been shipped in the Lively. On the 20th of the same month, A. claimed the right (which, however, was denied by B.), of making up the deficiency, if any, from another ship. September 20th, the Lively arrived, bringing forty-four tons, twenty tons of which were delivered to B., the rest being shipped at St. Petersburg to other persons. Octo- ber 4th, the remaining thirty tons arrived in another ship. Held, the only material parts of this contract were the quantity, quality, price, time, and place of shipment and delivery, but it did not require that the hemp should be sent in one ship ; that, as the notice of September 5th was founded on a mistake, A. might supply the defici- ency in the quantity first sent by another vessel ; and that he was bound to deliver B. from the Lively only so much as was ascribed to the latter.^ 1 Spooner v. Baxter, 16 Pick. 409. 2 Wackerbarth v. Masson, 3 Camp. 270. » Thornton v. Simpson, 2 Marsh. 267 ; 6 Taun. 656. 222 LAW OF SALES OF PERSONAL PKOPEKTT. CHAPTER XII. ACCEPTANCE. 1. STATUTE OF FRAUDS BEQXJIRES AN ACCEPTANCE ; CONSTBUCTITE AC- CEPTANCE. 4. WHAT IS NOT AN ACCEPTANCE. 6. PART DBLITERT. 7. SALE BY SAMPLE. 8. SUIT FOR NON-ACCEPTANCE. 9. QUESTION IS FOR THE JURT. § 1. Formerly, a delivery of goods by the seller was lield sufficient to take the contract out of the Statute of Frauds. (See Statute of Frauds.) But it is now clearly settled, that, in order to satisfy the statute, there must be a delivery of the goods by the vendor, with an inten- tion of vesting the right of possession in the vendee ; and there must be an actual receiving and acceptance by the latter, with an intention of taking the possession as owner. The word accepted, in the act, imports that each party do something to bind the bargain. It lies upon the plaintiff to make out that there was such delivery and acceptance. And it must be an ultimate acceptance, such as completely affirms the contract. It is necessary that the vendee should no longer have it in his power to object to the quantum or quality of the goods." ' » The naked possession of goods for a short time, and acts of ownership in relation to them, such as loaning and offering to sell, do not anthonze a verdict of transfer, unless accompanied by some acquiescence or recog- nition on the part of the owner. Tompkins v. Haile, 3 Wend. 406. 1 Baldey v. Parker, 2 B. & C. 44; Phillips v. Bistolli, lb. 613; Tem- pest V. Fitzgerald, 3 B. & A. 680. Per Heath, J., Kent v. Huskinson, 3 B. & P. 235 ; Hanson v. Armitage, 5 B. & A. 659 ; Acebal v. Levy, 10 ACCEPTANCE. 223 § 2. And there can be no acceptance or actual receipt by a purchaser, unless there is a change of possession. Unless the seller divests himself of the possession, though but for a moment, the property remains in him.' § 3. But it is said, that, where a vendor of goods has ascertained and appropriated them, and the vendee has assented to such appropriation, the property passes to the latter; and that there is no case contradictory to this principle.^ Thus, if the buyer direct expense to be in- curred in reference to the goods, this is evidence of ac- ceptance.^ So if he deal with them as his own.^ Thus, where A. bargained and sold to B. in A.'s farmyard a stack of hay there standing, and B. afterwards sold part of it to C, who took it away without the knowledge and against the direction of B. ; held, these facts authorized the jury to presume a delivery to B. and an acceptance by him, which took the case out of the Statute of Frauds, and sustained an action by A. for goods sold and deliv- ered.* So A. ordered from B. a ruling-machine, to be manufactured by B., without any agreement as to the price. Upon completion of the machine, A. paid money on account, admitted it was made to.order, and requested B. to send it home to him, but refused to pay the price demanded. B. refused to deliver the machine without payment in full of this price, and gave orders for the com- mencement of a suit to recover it. A. agreed to make a settlement, if time were allowed him. Held, these facts showed an acceptance of the machine, and sustained a suit for goods bargained and sold.* So A. contracted with B., to deliver him certain manufactured articles of a Bing. 384 ; Kedington v. Eoberts, 25 Verm. 686. See Howard v. Bor- den, 13 Allen, 299. » Carter v. Toussaint, 5 B. & Aid. 859. ' Alexander v. Gardner, 1 Scott, 640. • Elmore v. Stone, 1 Taun. 458. • Chaplin v. Kogers, 1 E. 192. •lb. • Elliott V. Pybua, 10 Bing. 512. 224 LAW OF SALES OF PERSONAL PROPERTY, particular description, at a particular time and place. Articles corresponding to the specified quantity and de- scription, but not to the quality agreed for, were delivered at the time and pliice named. The purchaser used a part of the goods, and paid a part of the price without objec- tion, till a question was raised concerning payment. Held, the facts amounted to an acceptance, and a waiver of any claim for damages or a reduction of the price, on account of open and apparent defects.' § 4. But where one agrees for the purchase of goods abroad, and they are put on board a ship chartered by him, but he refuses to accept them ; this does not consti- tute a delivery and acceptance.^ So A. agreed with B. to make certain pew-panels for the latter, to be paid for on delivery. The panels were brought to the meeting-house while B. was absent from town. The building committee made objections to them, but they were left at the meet- ing-house, and piled separately from other lumber. Held, there was no legal delivery.' So the plaintiff sold a horse to the defendant. ISTo time was fixed for payment. The horse was fired in the presence and in the approbation of the defendant, but was to remain with the plaintifl' twenty days, and be no charge to the defendant. At the expirar tion of this time, he was sent to grass by order of the de- fendant, but entered as belonging to the plaintifi". Held, there was no acceptance, and an action for the price did not lie.* So A. agreed to buy a horse from B. for cash, and take hinj away within a certain time. About the end of this period, A. rode the horse, and gave directions as to his treatment, but requested B. to keep him longer, saying that he would at the end of this time take and pay for the horse ; to which proposition B. assented. Be- fore the horse was taken or paid for, he died. Held, there was no acceptance, and no action would lie for the price. ' Wilkins v. Stevens, 8 Verm. 214 ; aco. Ricketts v. Hays, 13 Ind. 181. s Acebal v. Levy, 10 Bing. 376. ' Woodbury v. Long, 8 Pick. 543. * Carter v. Toussaint, 5 B. & A. 855. ACCEPTANCE. 225 Tbe delivery and payment in this case were to be concur- rent acts. Hence the bargain was at first a mere con- tract, and, if A. had rode away the horse without pay- ment, B. might have had trover against him.' So, in an action by A. against B. for the price of a quantity of cider, it appeared that B. verbally contracted for the cider at his (B.'s) house. It was of good quality, and was sent by wagon to B.'s house, but he refused to take it in, and de- posited it in the neighboring warehouse of C. B. never notified A. of his refusal to receive the cider, nor did he send it back. Held, the action did not lie, for want of an unequivocal acceptance or a contract in writing.^ So A., residing in Yorkshire, ordered two chests of tea from B. in London. The teas were forwarded to a certain wharf, to be sent by sea. Goods, previously sold by B. to A., had been received for A. at this wharf. The vessel carry- ing the teas was lost, and no invoice was sent, till after the loss had been heard of. It was not proved, whether the bargain was verbal or written. Held, A. was not bound by a mere constructive acceptance.' So A. verbally ordered from B. a bale of sponge, at lis. per lb. The sponge was sent, but A. returned it, writing that he had examined the article, that it was worth only 6s., and he had therefore sent it back. Held, this letter was no accep- tance of the sponge, unless refusal to accept could be so construed ; that it was merely an affirmance of some order for some sponge, and the article was returned as soon as received and examined, as not being the kind wanted ; and, so far as appeared from the letter, it might have been sent only on speculation.** • By statute 9 Geo. 4, ch. 14, the seventeenth section of the Statute of frauds, requiring acceptance in default of a written agreement, is extended to executory contracts, or those relating to goods not yet in existence. ' Tempest v. Fitzgerald, 3 B. & A. 680. « Nicholle v. Plume, 1 C. & P. 272. » Hanson v. Armitage, 1 C. & P. 273, n. ; 5 B. & A. 557. * Kent V. Huskinson, 3 B. & P. 233. 16 226 LAW OF SALES OP PERSONAL PROPERTY. § 5. The question of acceptance often arises in connec- tion with a part-delivery of the goods sold. Thus goods to the value of .£144 were made to order, and remained in the possession of the vendor, at the request of the vendee, with the exception of a small part, which the vendee took away. Held, there was no sufficient acceptance of the residue of the goods.' So A. purchased of B., a trader, several articles, at distinct prices, each under £10, but the whole amounting to £70. A. marked with a pencil some of the articles, saw others measured, and helped to cut off others. He then requested that an account of the goods might be sent to him, which was done, together with the goods, but he refused to accept them. Held, the contract was an entire one, and within the Statute of Frauds, and that there was no delivery and acceptance, to take the case out of the statute, and sustain an action for goods sold. It was remarked by Bayley, J., upon the question what interval of time must elapse between the purchase of different articles in order to make the con- tract separate, that, if the purchaser went away after pur- chasing one, and returned soon enough to warrant the supposition that the whole was intended to be one trans- action, it would be held one entire contract. Holroyd, J., remarked, that the statute applies, where the contract, either at the commenceynent or conclusion, amounts to £10.' Thus A. built a wagon for B. B. employed a smith to affix the iron- work, who assisted A.'s men in doing It, and charged B. for his services. B. also employed a tilt maker to tilt the wagon. The wagon remainsd in possession of A. during these operations, and was left with A. to be finished, after they were completed. Held, that these facts did not show any acceptance of the wagon. In this case, B. procured the work to be done upon the wagon while it was in progress, and incapable of delivery. Had A.'s work upon it been done, and the workmen employed by B. merely finished the wagon, the case might have been different. But, under the circumstances, A. retained n lien upon it, and there was no evidence of any intention to deliver or accept. Hence A. could not sus- tain an action for the price. Maberly v. Sheppard, 3 Moo. & S. 438. ' Thompson v. Maceroni, 3 B. & C. 1. ' Baldey v. Parker, 2 B. & C. 37. ACCEPTANCE. 227 So the agent of A., a drysalter in London, called on B., a carpet-manufacturer at Kidderminster, for orders in his business. B. ordered a quantity of cream of tartar, and offered to take a quantity of lac-dye at a certain price. The agent said that this was too low, but he would write to A. on the subject, and, if B. did not hear from him in one or two days, his (B.'s) offer should be considered as accepted. A. did not write to B., but sent both the cream of tartar and the lac-dye. Held, the contract for the lac- dye was not complete, till the expiration of the time al- lowed to A. for deliberating upon B.'s proposition ; hence the order for the two articles could not be considered as a joint one, and acceptance of part was not an acceptance of the whole.' So, where A. agreed to purchase of B. one hundred sacks of good English seconds flour, at 45s. per sack ; and twenty-two sacks were delivered ; and A. then gave notice that the flour was unsaleable and bad, and that the vendor should take it away immediately, but did not return it : it was doubted whether there was an ac- cej)tance} § 6. It has been questioned whether a mere part-delivery involves the legal acceptance even of the part delivered. Thus A., residing in the country, ordered from B. in the city certain plough-castings, to be forwarded by canal. A portion of them only were sent, and those by land convey- ance, at a greater expense than would have been incurred in the mode agreed on. Held, B. could not recover the price of those sent, without proving an acceptance by A., and that this was a question for the jury. Clear evidence that the goods came to the hands of A. would be suf- ficient proof of acceptance, unless rebutted by showing a refusal and notice thereof. On the contrary, it was proved, that the property never came to A.'s possession. So, if a bill of the goods had been sent and received, this would sustain the action, unless A. had given express > Pride v. Lea, 4 B. & C. 156. 2 Jackson v. Lowe, 7 Moo. 219. 228 LAW OF SALES OF PERSONAL PROPERTY. notice of non-acceptance.^ But where A. verbally agreed to sell B. twenty hogsheads of sugar, from a larger quan- tity which he had in bulk ; and four hogsheads were filled, delivered, and accepted ; and A. then filled sixteen more, and requested B. to take them away, which he promised to do : held, the acceptance of the four hogsheads was an acceptance of part of the whole twenty ; that the property in the remaining sixteen passed, subject to a lien for the price, so that any loss would fall upon the vendee; and that A. might recover in an action for goods bargained and sold.^ § 7. The question of acceptance may also arise in ease of sale by sample. Thus A., a purchaser, verbally agreed, at a public market, with the agent of B., the seller, to purchase twelve bushels of tares, then in B.'s possession, being part of a larger quantity in bulk, to remain in B.'s possession till called for. A sample was offered to A., but he declined accepting it, having seen the tares upon B.'s land. The agent, upon returning home, measured the twelve bushels, and set them apart for A., to be delivered to him on demand. Pleld, if A. had once accepted, he could not object, though the goods should not conform to the sample; but he might make any objection at the time when they were tendered to him for acceptance ; and that in this case there had been no acceptance, and the action, for the price, did not lie. It was further held, that the measuring of the goods did not constitute an acceptance, whether done by the seller as part of the contract, or by his agent, in compliance with a request from A. ; for this would authorize the agent only to measure the goods, not to accept them.' § 8. Where a seller declares against a buyer for non- acceptance of the goods, it seems the question of accep- tance does not arise.^ ' Corning v. Colt, 5 Wend. 253. 2 Rohde V. Thwaites. 6 B. & C. 388. ' Howe V. Palmer, 3 B. & A. 821. * Acebal v. Levy, 10 bing. 384. ACCEPTANCE. 229 § 9. The question of acceptance is for the jury. Thus, by the conditions of an auction sale, the purchaser was to pay thirty per cent, upon the price on being declared the highest bidder, and the residue before the goods were re- moved. A lot was knocked down to A., and immediately delivered. He kept it three or four minutes, then stated that he had mistaken the price, and refused to retain it. No part of the price was paid. Held, it was a question for the jury, whether the seller had delivered and the buyer actually accepted the goods, with the mutual inten- tion of transferring the right of possession.' So to an action for the price of a fire-engine sold by the plaintiff to the defendant, the latter pleaded the Statute of Frauds. The plaintiff replied, an acceptance of the engine. The evidence was, that after the sale the defendant took a third person to look at the engine, and mentioned who would be likely to purchase it ; that he said to another person, " I know what I am going to do with it," and to another, " I have a concern in the engine." Held, it was a question for the jury, whether the defendant had treated and dealt with the article as his; and, if 60, judgment must be for the plaintiff.^ > Phillips V. Bistolli, 2 B. & C. 511. » Baines v. Jevous, 7 C. & P. 288. 230 LAW OF SALES OF PERSONAL PROPERTY. CHAPTEK XIII. PRICE AND PAYMENT. 1. NKCESSITT AND CERTAINTY OF A PRICE. 2. REASONABLE PRICE, WHEN IMPLIED ; PAROL EVIDENCE, ETC. 4. PAYMENT, WHEN IT MUST BE IN CASH. 5, 11. PAYMENT BY BILLS, ETC.; EFFECT UPON THE SELLER'S RIGHT OF ACTION. 9. PAYMENT BY OTHER SECURITIES. 10. SALE, IN PAYMENT OF A DEBT. § 1. A PRICE is one of the essential elements of the con- tract of sale. And the price must be certain, or capable of being made certain. If left to be fixed by the vendor or vendee, the sale is void. But it may be left to be set- tled by arbitration.' ' » " Pretium autem constitui oportet, nam nulla emptio sine pretio esse potest." But " id certum est, quod certum reddi potest." " Quoties sio composita sit venditio, quanti ille Eestimaverit, sub hac conditione staret contractus, et stet siquidem ille, qui nominatus est, pretium definierit, tunc omnimodo secundum ejus sestimationem et pretium persolvatur, et res tradatur, et venditio ad effeotum perducatur." — Just. 3, 24, 1. 1 Ayliffe's Civ. Law, p. 4, tit. 4; Brown v. Bellows, 4 Pick. 189; Shep. Touch. 224. See Dent v. Portwood, 21 Ala. 588 1 Milnes v. Grey, 14 Vet. 406. " If I sell my horse to you for so much as S. shall say, this is good if he does say, and, if not, void." Per Pollard, J., Yr. Bk. 14 H. 8, 17, b. As to the necessity and certainty of a price, see Cunningham v. Ash- brook, 20 Miss. 653; McCandlish v. Newman, 22 Penn. 460; Flagg v. Mann, 2 Sumn. 539. A price may consist of an indebtedness to the seller by note ; and the mere recital of this indebtedness in the instrument of transfer will not make the transaction a mortgage. Miller v. Baker, 20 Pick. 285. A fixed money price constitutes a sale, whether paid in cash or in goods. Picard v. McCormick, 11 Mich. 68. PRICE AND PAYMENT. 231 § 2. It is to be understood, however, thai, where an agreement for the sale of goods mentions no price, and the vendee accepts them, the law implies a reasonable price, or the general price at the time, and sustains the bargain ; for, otherwise, the vendee might keep the goods without payment. It has been doubted whether the same principle applies, where the contract is still executory, and the goods remain in the possession or under the control of the vendor." ■ If goods are sent with the price marked on them, and accepted; they are primd fade taken on these terms. Mitchell v. McBee, 1 McMul. 267. The defendants sent their agent to the plaintiff, with a written order for a load of rye, in which nothing was said about the price. The plain- tiff delivered a load to the agent, first naming his price, which exceeded the market price, with instructions to the agent to inform the defend- ants. The agent neglected to do so ; but, on returning to the plaintiff, stated that he had done it, and that they made no objection, and he ob- tained another load. Held, the plaintiff could recover the price men- tioned, as there was an apparent bargain and sale at that price, on his part bontjide, and which he had a right to rely on as a valid agreement on the part of the defendants ; if either party must suffer, it should he the party who employed the fraudulent agent. Booth v. Bierce, 40 Barb. 114. So an absolute transfer of a stock of goods, the price of part of the arti- cles being named, and the price of the remainder "to be ascertained by reference to bills of purchase and an inventory thereof," and, " if the merchandise so sold shall be more than sufficient to pay " the indebted- ness of the vendor to the vendee, " the balance to be applied to the ven- dor's indebtedness to" A. ; is a sale, and not an assignment. Keiler v. Tutt, 81 Mis. 301. A. bought from B. a mare, erroneously supposed by the parties to be with foal, agreeing to give for her the expected colt when four months old. The mare had no colt while A. possessed her, and he never paid B. A. kept possession of the mare nearly three years, when she was attached as B.'s. Held, the title to the mare passed to A., though he could not pay for her in the manner agreed upon. Even if B. might have re- scinded the sale, and insisted upon a return of the mare, yet, as he had not done so, a third person could not interfere. Keed v. Canady, 34 7t. 198. 1 Acebal v. Levy, 4 Moo. & S. 217 ; 10 Bing. 382. See Webber v. Tivill, 2 Saun. 121, n. 2; Beatly v. Scrivener, 8 Mon. 133; Eobinson v. Marney, 5 Blackf. 329. 232 LAW OF SALES OF PERSONAL PROPERTY. § 3. The further distinction is made, that a memoran- dum for the sale of goods is legally valid, notwithstand- ing the Statute of Frauds, though no price be named, if none were agreed upon. But if a written contract of sale mentions no price, and it is proved by parol evidence that a price was agreed on, the writing cannot he used as evi- dence of the agreement between the parties, and the vendor cannot recover upon a quantum valebant count. The law requires a note in writing of the bargain^ that is, of the whole bargain.' So a count, alleging a sale " at the then shipping price at G-., in Spain," is not sustained by a written agreement, which is silent as to the price. From such a writing the law would infer a reasonable price, by which is meant such a one as the jury would judge to be fair, but which may greatly differ from the current price.^ § 3 a. Where goods have been purchased for cash, which, by a custom of trade, means payment at about ten days after the purchase ; a delivery is qualified, and the prop- erty does not pass until payment, and a sale, by the vendee, of the bill of lading, with the bill of exchange drawn upon it, passes no better title. '■' § 4. "With regard to the payment for goods purchased ; in conformity with the general rule, which requires such payment in order to perfect a sale, a vendor is not bound, without special agreement, to receive anything for the * The condition of payment has been applied in favor of a surety for the vendee. A. sold B. a yoke of oxen, but required security for the price, and 0. became surety on the note given, with the understanding and verbal agreement with B., that B. should take possession of the oxen, but that they should be the property of C. till B. paid the note. B. re- tained possession till the note was due, when C. paid it. Held, that neither B. nor any creditor of his could maintain title to the oxen as against C, without payment or tender of the amount so paid by C. Burke v. Harrison, 6 Sneed, 237. ' Hoadly v. Maclaine, 4 Moo. & S. 340 ; Elmore v. Kingscote, 5 B. & 0. 583. * Acebal v. Levy, 10 Bing. 382-3. * Dous V. Dennistoun, 28 Barb. 393. PRICE AND PAYMENT. 233 price except cash. A bank check, in this respect, stands on the same footing with any other mere security ; inas- much as the purchaser may have no funds, or the bank may have good reasons for dishonoring the check. Hence, i£ a purchaser offer such check in payment, and the seller reSuse to accept it, and, in consequence, the goods are re- sold at a loss, the buyer is liable for the deficiency.* So, where payment is to be made in notes, the property does not vest in the vendee until the giving of the notes.' So where goods were sold, to be paid for by a bill drawn upon the agent of the vendee, and, at the maturity of the bill, the agent having no funds, it was renewed without notice to the vendee ; it was held, that this was no discharge of the latter, but he was still liable for the price of the goods, the agent standing in nature of a surety, and it being for the benefit of the vendee himself to have the bill renewed.^ So, where the vendee of goods accepted a bill of exchange for the price, which was negotiated by the vendor ; and the indorsee of the bill recovered judgment against the purchaser, but did not take out execution ; and the vendor himself took up the bill, and received a mortgage from the vendee as security, but derived no money therefrom : * Palls V. Gaither, 9 Port. 605. A broker sold to the defendant three hundred barrels of flour, on account of the plaintiff, at $8 per barrel, which was a fair price. The flour had not arrived at the time of sale, but was daily expected. The plaintiff, having been absent, upon his return offered to deliver the flour, but the defendant declined receiving it. He, however, said afterwards that he would take and pay for it, and gave orders that it be sent to his store. The flour was placed on the dock and ready for delivery. The defendant directed the plaintiff to send it to his store, saying, that he would draw his check in payment ; but the plaintiff refused to have the flour removed without payment in cash. Accordingly, it was neither delivered nor paid for, and was resold by another broker for $6.50 per barrel, the price having fallen since the former contract. Held, an action would lie for refusing to receive the flour, and to recover the difference between the two prices. Clarke v. Carter, 3 Cow. 84. » Congar v. Galena, &c., 17 Wis. 477. 2 Clark V. Noel, 3 Camp. 411. 234 LAW OF SALES OF PERSONAL PROPERTY. it was held, that these facts did not constitute a payment to the vendor, showing merely a judgment, without satis- faction.' So where goods sold were paid for by a bill of exchange, at one month from sight, given by the, banker of the vendee for an amount exceeding the price of the goods, the vendor paying the difference in cash ; and ihe bill was dishonored : it was held, that the vendor might recover the agreed price." ^ • Flour was purchased by A. in Wisconsin, on conditions, agreed upon betweep A., C, and the seller, that it should be shipped in the name and on account of C. to B., in Boston, to be delivered to A. on pay- ment of drafts drawn by the seller upon B. and discounted by C.j and was shipped in the name of C. to B., and a bill of lading made in C.'s name, who discounted such drafts, and sent the bill of lading and one of the drafts to B., who refused to accept or pay it. Held, that no property vested in A. as purchaser, or B. as consignee, until payment of the drafts ; that there was a sufficient delivery to C. within the statute of frauds ; that such shipment was no waiver of the conditions ; that C. was entitled to the flour as against a pledge thereof made by B. to D., to secure advances by him thereon ; and, after demand and refusal, might maintain trover for the flour against D. TJllman v. Barnard, 7 Gray, 554. With regard to the amount of the price to be paid, in case of an am- biguous agreement, the following cases may be cited : — Sale of merchandise by written agreement, at so much per load, to be taken by dock account, and paid for in cash, allowing two and one-half per cent, discount, within fourteen days from date ; to be taken on board, and the duty deducted. The duty to be paid by the vendee. Held, the discount was to be made on the sum paid the vendor only, without the duty. Smith v. Blandy, Eyan & M. 260. Goods shipped from abroad to a merchant in England are to be paid for on a demand of freight, by net weight, at the kings landing-scales, not by the weight specified in the bill of lading, unless there is an agree- ment to the contrary. And where a vendee paid freight according to the weight in the margin of the bill of lading, which was signed by the captain, with the reservation, "weights unknown;'' held, the mistake was of fact, not of law, and therefore the account was not concluded, and that the excess paid might be recovered back. Weight was held to mean net weight. The jury found a usage in favor of the above construction. Geraldes v. Donison, Holt, 346. Where goods are sold for so much, less a percentage for cash, payable 1 Tarleton v. Allhusen, 2 Ad. & Ell. 32. « Fry V. Hill, 7 Taun. 397. PRICE AND PAYMENT. 235 § 5. And a very common mode of payment, either by usage or express agreement, is by giving bills of exchange or other negotiable securities for the price. In relation to this form of payment, many cases are to be found in the books, usually involving the questions, as we have seen, whether the giving and receiving of such securities are equivalent to actual and final payment ; and whether and under what circumstances, after receiving and negotiating them, the vendor is remitted to bis original claim, and may maintain an action as for goods sold and delivered. The prevailing course of decisions upon these points is favorable to the rigbts of the vendor, not requiring him even to restore the securities before suing for the price.* Thus, where the purchaser of goods gave bills of exchange in payment, which the seller negotiated, but they after- wards came back into his hands ; and, in an action for the price, it appeared that the bills protested were in posses- sion of his agent : it was held, that the plaintiiF might recover without delivery of the bills ; although the de- fendant might have relief in equity, or pay the amount of the verdict into court, and move a stay of execution till the bills should be delivered up.* § 6. Upon similar ground, where a bill for the price is drawn and received by a mere agent of the seller ; it is no bar to an immediate action for the price, unless the agent has express authority thus to act.' at a certain day, this is a sale for cash on the day. Crooks v. Moore, 1 Sandf. 297. • More especially, an action lies for the price, if acceptance and pay- ment of a bill of exchange have been refused. Derickson v. "Whitney, 6 Gray. 248. ^ Thus the traveller of A., residing in London, called upon B., a debtor of A., in the country, for payment; and, being unable to obtain money from him, consented, upon the request of B., to take his acceptance for the amount. The traveller accordingly wrote an entire bill, except the name of A., the drawer, and forwarded it, accepted, to A., telling B. at ' Hadwen v. Mendisabal, 2 C. & P. 20; 10 Moo. 477. See also the numerous cases in New York. 236 LAW OF SALES OF PERSONAL PROPERTY, § 7. Under some circumstances, the seller may rescind the sale and reclaim the property, where a mere security is given for the price. Thus, where the vendee of goods agrees to pay for them on delivery, and gives a check, which he has no reason to expect will he paid, and which is accordingly dishonored ; this is a fraud, and no property the same time that he thought it would not be satisfactory to A. A. re- tained the bill, but did not sign it as drawer. The traveller had no authority to sign bills for A., but was in the habit of transmitting them in this way, to avoid the risk of loss. Before maturity of the bill, A. brings an action upon the original debt, to which B. pleaded specially the drawing and acceptance of a bill. Held, the above facts did not amount to the drawing of a bill, or sustain the defendant's plea. The traveller, having no authority to sign, consequently had none to make, the bill ; and, unless adopted by A., it could not be regarded as drawn by him. Vyse v. Clarke, 5 C. & P. 403. But, to an action for goods sold and delivered, the defendant pleaded, that as to £9, — part (tf the debt, — he, the defendant, accepted a stamped bill for £20 ; that there was no drawer to the bill ; that he accepted it in part for the debt in question, and in part for the accommodation of the plaintiff; that he delivered it to the plaintiff, who received it in paymeDt of the debt ; and that the bill was not due at the commencement of this suit. The plaintiff replied that the bill still remained in his hands, not having been negotiated or paid, and without any drawer. Held, the plea was good, and the replication no answer to it. Whether the plea would be good on demurrer, was doubted. Simon v. Lloyd, 3 Dowl. P. C. 813. * By agreement, the vendee of goods was to pay for them in cash, but he obtained possession from the servant of the vendor by means of a check, which he represented as equivalent to money, but which was dishonored, he having overdrawn many months. On the day of sale, the vendee gave to a prior creditor a warrant of attorney for a judgment against himself, upon which the goods were seized in execution. Held, it seems, that the vendor might regain his goods even by stratagem, no property having passed ; but that it was a question for the jury, as determining this right, whether the vendee at the time of the sale intended not to pay for them. Bristol v. Wilsmore, 1 B. & C. 514; 2 D. & E. 755. And the question has arisen, whether, in a case of this description, the seller may maintain an action for the price. Thus A. applied to B. to purchase goods, and offered in payment a recognizance of debt entered into by C, who was at the time in doubtful credit, paying only such debts as he chose to. B. hesitated to take the recognizance, but finally 1 Hawse v. Crowe, Eyan & M. 414. See chap. 20. PRICE AND PAYMENT. 237 § 8. But where a vendor receives a check in payment for goods, the price of which was not liquidated by agree- ment, and procures the money upon it, he is estopped to deny that the check was given in full satisfaction, and to make any further claim for the price, more especially after the lapse of several months. The proceeding is equivalent to an insimul computassent, or a compromise. In order to sustain any further claim, the check should have been re- jected, or notice given that it was received only as part payment. The buyer being concluded, the seller must be so also.* § 8 a. "Where the vendee pays for the goods by trans- ferring to the vendor forged- notes, knowing them to be forged, such sale will not be rendered absolutely void by such fraud, but only voidable.'' § 8 6. On acceptance of the vendor's draft for the price by the vendee, the title passes without delivery, and this notwithstanding the subsequent insolvency of the vendee before payment ; although the vendor may have a lien, or the right of stoppage in transitu.^ consented to do it, if C. or his wife so desired. Thereupon A. went away, and returned the next day, with the false statement that O.'s wife wished B. to take the recognizance. A few days afterwards, B., discovering the fraud, wrote to A. that he would have nothing to do with the recogni- zance, but that he (A.) must come and pay for the goods or be sued ; but there was no proof how this letter was sent, or whether it ever reached A. In the course of the same month, A. sent for a part of the property purchased, which had not been previously taken, but B. refused to deliver it, and sent back word, which A. received, that he had been deceived, and should bring a suit for the part already delivered, unless A. came and paid for It. Eleven months after the sale, B. brings an action for goods sold and delivered, sending back the recognizance by the officer who served the writ. Held, the action did not lie. It seems, the fact that the writ was made, and the suit therefore commenced, before giving up the recognizance, would be a sufficient bar. Norton v. Young, 3 Qreenl. 30. ' Davenport v. Wheeler, 7 Cow. 231. ■ Bell V. Cafferty, 21 Ind. 411. ' Hall V. Kichardson, 16 Md. 396. 238 LAW OF SALES OF PEKSONAL PROPEETT. %S c. If an assignee for benefit of creditors sells the per- sonal property, while still in the assignor's possession ; and it is purchased by the wife of the assignor, upon sixty days' credit, on a note with satisfactory security ; and the assignee permits the goods to remain in the possession of the purchaser for more than sixty days, without insisting on the terms of sale : the title passes.' § 8 (i. Where payment is made, according to agreement, by an "approved banker's bill," the buyer is entitled to notice of dishonor, though not a party to the bill.^ § 8 e. A bill of lading provided for payment of freight, " one-third in cash on arrival at Bristol, and two-thirds on right delivery of the cargo, by good and approved bills payable in London at four months, or cash, deducting usual interest at the option of the shippers." The ship arrived, the one-third was paid, and the consignee elected to pay the balance in cash. Held, the delivery and pay- ment of the balance were to be concurrent, and the mas- ter might refuse to deliver without such payment.' § 9. Payment is sometimes made by other obligations than negotiable securities. Thus, to an action for the price of a chattel sold to the defendant, it is a good plea, that upon the sale the vendor took a mortgage back, and upon forfeiture took possession of the article for the pur- pose of disposing of it, and that he might have done so and retained the amount due. Taking possession of prop- erty mortgaged is a satisfaction of the debt, if the former is equal in value to the latter. If fairly sold, and for a sum less than the debt, an action lies for the balance. The case is like that of a sale by the mortgagee of land, under a power. If the price equals the debt, this is thereby paid ; if less than the debt, an action lies for the balance ; if more, the surplus belongs to the mortgagor. A re-entry ■ Backentoss v. Speicher, 31 Penn. 324. • Smith V. Mercer, Law Rep. 3 Ex. 51; Amer. Law Bev., July, 1868, ^p. 684. ' Paynter v. James, Law Rep. (Eng.) June, 1867, p. 348. PRICE AND PAYMENT. 239 alone, without any sale, is payment, if the property is of sufficient value. In case of a chattel, the mortgagee gains an absolute title upon breach of condition.' § 10. "Where a creditor purchases goods from his debtor, to be paid for in cash, he may still claim to offset his de- mand to a suit for the price of the goods. The prior debt is treated as a virtual payment of the price.* ^ Thus A. ordered goods from B., to be paid for in cash ; but in pay- ment he returned to the agent of B. an acceptance of B. which had previously been dishonored. The agent at first refused the acceptance, but afterwards took it to B., who retained it in his possession. B. having become bankrupt, his assignees bring an action for the price of the goods against A. Held, the above facts were equiva- lent to payment, or a good ground for set-off, there being no fraud ; and that the action would not lie.' § 10 a. A bill of sale, absolute on its face, but given in consideration that the vendee should pay a debt of the maker, is founded upon a sufficient consideration.* So one taking warehouse receipts in discharge of prior indebted- ness may claim the protection of a bondjide purchaser.' § 11. Where a bought and sold note states that payment is to be made by bill, generally,, the vendor cannot be al- lowed to show that this means by approved bill. And if this construction is adopted, the expression must mean a • One who buys goods at a shop which has been occupied by his debtor, under the supposition that he is dealing with such debtor, but is informed before leaving the shop that another person has become the owner, and is selling on his own account, and makes no objection, but retains the goods ; cannot resist an action for the price, although the vendor ac- quired them by a conveyance fraudulent as to the creditors of the original owner, the purchaser himself being a creditor. Mudge v. Oliver, 1 Allen, 74. 1 Case V. Boughton, 11 "Wend. 106. « Eland v. Karr, 1 B. 375. See Pair v. Mclver, 16 E. 130. » Mayer v. Nias, 8 Moore, 27-5 ; 1 Bing. 311. « Hackley V. Cooksey, 35 Mis. 398. • Rice V. Cutler, 17 Wis. 351. 240 LAW OF SALES OF PERSONAL PROPERTY. bill to which there is no reasonable objection. Otherwise the vendor might reject it according to his interest or caprice, while the vendee would be absolutely bound.' But where, by the terms of an auction sale, the vendee is to give approved indorsed notes at six months ; it seems the vendor may disapprove and reject the notes ottered unless he knows, or has evidence furnished him, that they are good, and such as a prudent or discreet man would accept under the circumstances of the case." ' • Questions have sometimes arisen in regard to the ammtnt of the price to be paid, in case of misunderstanding between the parties as to quantity or other test of value. Thus the defendants sold to the plaintiffs at Liv- erpool a cargo of corn ; the bought and sold notes describing it as "the cargo per Prima Donna, now at Queenstown, as it stands, consisting of 1300 quarters Ibraila Indian corn, at the price of 30s. per imperial quarter; the quantity to be taken from the bill of lading, and measure calculated 220 quarters equal to 100 kilos. Payment cash, on handing shipping documents and policy of insurance." When the contract was made, the ship was at Queenstown waiting for orders, and neither the bill of lading nor policy of insurance was then in Liverpool. When they arrived, the defendant sent an invoice, calculating the price at 30s. on 1607 quarters, which was the quantity specified in the bill of lading, re- duced from kilos to quarters, at the rate stated in the note, and the plain- tiffs paid that price (less freight and interest) to the defendant, and re- ceived in exchange the shipping documents and policy of insurance. When the cargo was delivered, it was found to measure only 1614 quarters. There was no evidence to show how the deficiency arose, or that either party was aware of it, or had measured the cargo before the sale. The plaintiffs thereupon sued the defendant for the deficiency (53 quarters) at 30s. per quarter. Held, the parties had agreed by the con- tract to take the quantity as fairly represented in the bill of lading, and the price was to be paid on that footing, the purchaser taking the chance of the actual quantity turning out to exceed or fall short of that specified in the bill of lading ; and, consequently, the action could not be main- tained. Covas V. Bingham, 22 Eng. L. & E. 183. So the question maj- arise, whether a seller can retain a portion of the price paid him in advance. Thus a written contract was made for the sale of cotton, deliverable in thirty days, the buyers to pay storage, in- surance, and interest after ten days, and to deposit five dollars on a bale 1 Hodgson V. Davies, 2 Camp. 530 ; Guier v. Page, 4 S. & R. 1- ' Hicks V. Whitmore, 12 Wend. 648. PRICE AND PAYMENT. 241 with the sellers. Insurance in the names of the sellers. Before the lapse of thirty days, the cotton was destroyed by fire, the value of cotton having decreased. In an action to recover back the deposit ; held, the deposit was to be a part payment of the price, and to secure the seller against de- preciation in value ; that the property was to remain as security for the price to the extent of its value ; and that the seller might retain the deposit, to make up the difference between the amount received by him on the insurance and the contract price. Joyce v. Adams, -2 Sandf. 1. 16 242 LAW OF SALES OF PERSONAL PROPERTY. CHAPTER XIV. SALE ON CREDIT. 1. SALE PRESUMED TO BE FOR CASH. 3. CONTRACT OP SALE AND RETURN. 4. EXPIRATION OF CREDIT. 5. PAYMENT BY BILL, ETC. — ACTION FOR THE PRICE, TIME OF. 6. ELECTION AS TO CREDIT. 8. COMMENCEMENT OF SUIT. § 1. It has already been stated, that a sale of goods is presumed to be made /or casA, and that any other mode of payment can be claimed by the purchaser only by virtue of an express agreement f though, " if a vendor agrees to sell for a deferred payment, the property passes, and the vendee is entitled to call for a present dehvery, without payment.'" It remains briefly to explain the rights and duties of the parties, where such an agreement has been made.*" * Where, shortly before a claim for the price of goods sold became due, the seller wrote a letter, in answer to an application for further ex- tension, in which there was some reason to suppose the word not might have been omitted accidentally before " should feel willing," and the assent of other creditors also seemed to be made a condition ; the letter was held not to be an extension. Palmer v. Williams, 13 Gray, 338. The question of a sale on credit depends upon the usage of trade in the place of sale; which is a question for the jury. Porestier v. Bordman, 1 Story, 43. ^ It may be remarked, that a credit does not affect the claim itself, but only the time of payment. Hence, where the plaintiff brought an action of debt for goods sold, alleging that they were to be paid for on request; ' Per Wilde, C. J., Spartali v. Benecke, 10 C. B. 212, 216; 31 Ala. 160. See Mudd t. Turton, 4 Gill, 233. SALE ON CREDIT. 243 § 1 a. A sale of flour, the vendor drawing on the vendee therefor at one day after sight, is a sale on credit, because of the uncertainty when the draft will be accepted.' So a sale without any expectation of immediate payment ; with- out reference to the length of time for which payment is deferred.' § 1 b. Where no credit is agreed on, the property does not pass without full payment or actual delivery, and the pur- chaser will not be entitled to delivery, as matter of right, without payment. But a presumption of payment does not arise from the mere fact of delivery.^ See chap. 1. § 2. It is held, that, where an action for goods sold and delivered is resisted on the ground of an unexpired credit, this fact must be made out with perfect clearness, before the court will set aside the writ on motion.'' So if, after the sale of goods, the vendor voluntarily, without con- sideration, gives time for payment, or if the sale is not bond fide; notwithstanding a credit in the first instance, it is held that a suit may be brought immediately.* But it has been also held, that, where goods are sold on credit, no suit lies immediately for the price ; though they were purchased, not in the fair way of trade, but to be imme- diately resold at an under price, and with no intention of paying for them. If these facts proved fraud, no prop- erty passed to the vendee, and the vendor might maintain trover; but by bringing assumpsit he affirms the contract, of which the credit formed a part." under a plea, that the defendant was never indebted as the declaration alleges, and under the new rules of pleading, the defendant could not prove a credit unexpired at the commencement of suit. Knapp v. Har- den, 1 Gale, 47. 1 Hall V. Eichardson, 16 Md. 396. » Anstedt v. Sutter, 30 111. 164. » Bobbins v. Harrison, 31 Ala. 160 ; Welsh v. Bell, 32 Penn. 12. < Lamb v. Pegg, 1 Dowl. P. C. 447. ' De Symons v. Minehwich, 1 Esp. 430. ' Ferguson v. Carrington, 9 B. & 0. 59. 244 LAW OP SALES OF PERSONAL PROPERTY. § 3. Where goods are furnished on a contract of sde or return, and no time is mentioned, a reasonable time shall be allowed, taking into view the usual course of dealing in this particular trade. After the expiration of this time, the party furnishing the goods may recover the price in an action for goods sold and delivered.' See chap. 2. § 4. Where a certain time of credit is fixed, though in connection with other acts or events relating to the ven- dee, the vendor may bring an action at the expiration of the time, whether such acts have been done, or such events have happened, or not. Thus A. agreed to do cer- tain work for B. by a certain time, payment to be made on completion of the work. A. afterwards applied to C. to sell him goods, stating his contract with B., and de- siring C. to wait for payment, till the job should be com- pleted and payment made ; to which request C. assented. At the expiration of the time when the work was to be finished, C. demands payment, although it had neither been completed nor paid for. Held, C. might sustain an action for the price of the goods.^ § 5. Where payment for goods sold is made, or agreed to be made, by bill or note given on time, and such instru- ment is not given, or fails from any cause to be an efiectual security; the question often arises, whether the vendor may immediately maintain an action upon an implied contract for the price. Upon this subject, the cases are somewhat contradictory. Thus it is held, that, in case of a sale of goods, with an agreement to give a bill imme- diately, payable on time ; if the bill is neither given nor demanded, no action lies for goods sold and delivered be- fore the bill agreed for would become due. Till then, the contract is executory ; and the amount to be paid is not ascertained.' But, in another case, where the vendee of goods refused to accept a bill drawn for the purpose of 1 Bailey v. Gouldsmith, Peake, 56. ' Dana v. Mason, 4 Verm. 368. ' Hoskins v. Buperoy, 9 E. 498. SALE ON CREDIT. 245 payment, and the vendor brought an action, declaring upon the bill, and also for goods sold and delivered, before the credit on the bill would have expired ; it was held, that the plaintiff had the right to treat the bill as a nullity, and might recover on the latter count ; and that he need prove only a presentment to the vendee for ac- ceptance, without showing a protest or notice to the drawer.' And the distinction is made, that, where a debtor gives a bill or note on time for the debt, no action lies upon the debt till this time has expired. Otherwise, where the instrument is of no value, as where it is a bill drawn upon one having no effects of the drawer, and who refuses acceptance. In such cases, it is mere waste paper.^ ' * The following are some of the leading cases upon this subject. In ease of an agreement to pay for goods by a bill at two months, to be given after one month from the sale ; after the expiration of three months, the vendor brings a suit for the price. Held, the above agreement need not be specially declared on. Heron v. Granger, 5 Esp. 269; Miller v. Shawe, 4 E. 149. So upon a sale at two months' credit, to be paid for by a bill at twelve months ; it was held, that, at the expiration of fourteen months, an action for goods sold and delivered may be brought. Brooke v. White, 1 N. E. 330; Marshall v. Poole, 18 E. 98. But, upon an agreement to pay for goods by a bill at three months, which the vendee refused to accept ; it was held, that an action for goods sold and delivered does not lie before the expiration of the three months ; but only an action for non-acceptance of the bill. Also, it seems, even after the three months have expired, that the action must be brought upon the special contract. In giving judgment upon this case, Lord Alvanley stated it as his own first impression, that, where a special agree- ment is collateral, an action lies upon the general counts ; that the con- tract is for sale, with condition, that if the vendee give a bill at two months, he shall have two months' credit, and, the condition being broken, the vendor is remitted to his original action. But he yielded this opinion to the weight of authority the other way. Lee v. Risdon, 2 Marsh. 495 ; Button v. Solomonson, 3 B. & P. 582. So one discharged as an insolvent debtor afterwards agreed to pay for goods purchased before such discharge, partly in cash, and partly by bills of exchange. Upon non-performance of this agreement, held, indeb. » Hickling v. Hardey, 1 Moore, 61 ; 7 Taun. 312. * Stedman v. Gooch, 1 Esp. 5. 246 LAW OF SALES OF PERSONAL PROPERTY. § 6. Cases often occur, where the existence and duration of a credit are made to depend upon the election of one of the parties to the sale. Thus, in case of a sale on a credit of six or nine months ; the vendee not having paid at the end of six months, held, this was an election by him to pay at the end of nine, and no present debt existed till the expiration of the latter period.' So, upon a sale of goods on the following terms : " 7^ per cent, discount, bill at three months, 10 per cent, discount, cash in 14 days;" the jury having found that the buyer elected to purchase on credit, it was held that the vendor could not maintain an assiomp. did not lie, at least before the bills would be due. The declara- tion should be special. Campbell v. Sewell, 1 Chit. 609. So, upon an agreement to pay for goods sold in three months, by a bill at five months ; the vendee, at the end of the three months, does not give the bill, as promised, and the vendor brings an action against him for goods sold and delivered. Held, the transaction was in effect a credit for five months, and the action would not lie ; though a special action on the case might be brought, for not giving the bill. It was remarked, that the terras of the contract did not create a condition, upon the per- formance of which further credit was to be given ; but the giving of the bill was to be for the benefit of the vendor, that he might have a nego- tiable instrument, and the additional security of a third person ; that the case is unlike that of a sale, and taking a bill on time in payment, but without any direct agreement for a credit in paying for the goods ; in which case, upon dishonor of the bill, the vendor may sue immediately for the price of the goods. (Lord EUenborough, 0. J., dissented.) Mussen v. Price, 4 E. 147. In Hoskins v. Duperoy, 9 E. 498, it was held that a claim for goods sold, to be paid for immediately by » bill payable in two months, al- though no bill be given, does not constitute a present debt, on which to found a commission of bankruptcy. (This decision was predicated at least in part upon an express statute.) See Cox v. Cripps, 9 E. 604; Roberts, 1 Madd. 72 ; Henbest v. Brown, Peake, 54. Where goods are sold, under an agreement, either express or depend- ing on usage, that they shall be paid for by a note payable on demand, with interest after a certain time ; if the buyer neglect or refuse to give such note, an immediate action may be brought. Loring v. Gurney, 5 Pick. 14 I Rice v. Andrews, 32 Vt. 691. See Hobart v. Dodge, 1 Eairf. 156. 1 Price V. Nixon, 2 Kose, 438. SALE ON CREDIT. 247 action for goods sold and delivered within fourteen days, even though the sale was effected by means of a fraud on the part of the defendant, which would sustain an action of trover. The legal construction of the agreement was, that the defendant had fourteen days to elect, whether he would pay in cash at the expiration of that period, or by a bill. During the fourteen days, he was not liable to pay on request. The only difficulty would be, to deter- mine what should be the term of credit, if neither the cash were paid nor the bill given. But, the action being brought within the fourteen days, this question became immaterial.' So a sale of goods on a credit of six months, payment to be then made by a bill at two or three months at the option of the vendee, was held to amount to a credit of nine months. Hence a suit, commenced within six years from the expiration of nine months, was not barred by the Statute of Limitations. But Parke, J., thought, that the agreement was substantially to pay by a bill after six months, and, no bill being given, that the contract was broken, and the credit at an end.^ But, in case of sale of goods dn a credit of three months ; with an agreement, that, if the vendee should desire a longer time, the vendor would, at the expiration of three months, take a bill payable in three months more: three months from the sale having expired, and the vendee not giving the bill, the vendor may sue for the price of the goods.' § 7. "Where the vendor has the right of electing whether the sale shall take effect, the terms of payment not being complied with ; yet, if he affirm the sale, he is bound by such terms. Thus where, at an auction sale, a condition of which was, that there should be a credit of ninety days with good security, an article was struck off to the defend- ant, and he removed it a short distance in the room, but afterwards refused to take it or give security ; it was ' Strutt V. Smith, 1 Cromp. Mees. & R. 312. * Helps V. Winterbottom, 2 Barn. & Ad. 431. ' Nickson v. Jepson, 2 Stark. 227. 248 LAW OF SALES OF PERSONAL PROPERTY. held, that indebitatus assumpsit did not lie against him till the expiration of ninety days ; that the removal was merely an act which might amount to acceptance at the election of the vendor, but it would not justify the de- fendant in taking the thing without security ; but, even if the vendor so elected, the sale must be taken to have been under the special contract, and not to justify an action till the credit expired.' § 8. The inquiry often becomes important, whether a suit against the vendee was commenced before or after the expiration of the credit agreed upon. Thus, in case of a sale of goods on credit, a suit being brought for the price, the special memorandum showed that the bill was filed after, though the writ was issued before, the credit ex- pired. Held, the action was maintainable ; that the issu- ing of the writ was merely the process to bring in the party; the filing of the bill was the commencement of suit. It seems, if the defendant had been arrested before the credit expired, he would have had a right of action.^ 1 Parker v. Mitchell, 5 N. H. 165. * Swancott v. Westgarth, 4 E. 75. SALES AT AUCTION. 249 CHAPTER XV. SALES AT AUCTION. 1. WHAT CONSTITUTES AN AUCTION. 3. WHAT IS A BIBDING ; NATURB AND EFFECT OF BIDDINa AT AUC- TION. 6. RIGHTS AND LIABILITIES OF AN AUCTIONEER ; DEPOSITS ; RIGHT OF ACTION, ETC. 23. WHAT AVOIDS AN AUCTION SALE ; MISREPRESENTATION ; PUFFING, COMBINATION AMONG BIDDERS, ETC: § 1. "WpAT constitutes an auction, is a question which has sometimes arisen, but seems to be still somewhat un- settled." The statutory definition (st. 17 Geo. 3, c. 50 ; 19 ib. c. 56) is, a sale whereby the highest bidder is deemed the purchaser. § 2. At an auction sale, the vendor invited each bidder to put two sums upon a slip of paper, and, on comparison, the highest bidder to be declared the purchaser at the lowest of his sums, if exceeding the highest bid of any other person. Held, this was an auction, under st. 19 Geo. 3, c. 56, and the penalty incurred for selling without li- cense, though the purchase was never completed.' So an estate was set up for sale at auction, and an upset price stated. No bids being made, the agent, acting as auction- eer, gave notice to the company present, that he would sell the estate privately. Soon afterwards, some of them called him into another room, and made offers in writing, » It will be seen that some of the cases hereafter cited relate to real es- tate, but they are equally applicable to sales of chattels. 1 Uei V. Taylor, McOlel. 362 j 13 Price, 636. 250 LAW OF SALES OP PERSONAL PROPERTY. he agreeing that the highest above the upset price should be the purchaser, which was accordingly done. Held, this was an auction, within the meaning of the statutes (17 Greo. 3, c. 50, 19 ib. c. 56), and the expression, " any other naode of sale at auction, or whereby the highest bidder is deemed the purchaser ; " meaning by the last clause to give a definition of the word auction} § 3. What constitutes a bidding at auction, is also some- times a point of inquiry. Thus, the agent of the owner of an estate put it up at auction, first in a number of lots at certain prices. No bid being obtained, he offered it in a smaller number of lots at other prices. Still obtaining no bid, he withdrew the property. Held, this was not a bidding of the owner by his agent, which subjected the party to payment of a duty, for want of notice to the auctioneer of the agency. The upset price was merely the terminus from which a bidding commenced.^ § 4. A bidder at auction may retract his bid before the hammer is down. The auctioneer is the agent of the vendor only. The assent of both parties is necessary to make a binding agreement, but knocking down the ham- mer alone expresses that of the vendor. An auction has been properly called locus penitentice. A bid is a mere offer, not binding on either side till assented to. If it were otherwise, one party would be bound, and not the other. Upon these grounds, an action does not lie against a bid- der who has refused to complete his purchase, but who afterwards buys at a reduced price, to recover the differ- ence. "Where a memorandum in writing is necessary to bind the bargain, it seems, the bidder may retract at any time before the auctioneer makes such memorandum. But he must do it in so loud a tone as to be heard by the auc- tioneer.* ' TKalker v. Advocate, &o., 1 Dow, 111. 2 Cruso V. Crisp, 3 E. 337. ' Payne v. Cave, 3 T. K. 148 ; Eoutledge v. Grant, 4 Bing. 653 ; Cooke V. Oxley, 3 T. K. 663 ; Jones v. Nanney, McClel. 25. SALES AT AUCTION. 251 § 5. "Where tlie same person buys at an auction several lots for different sums, the contracts are separate in law and fact ; and, in a special action on the case for refusing to adhere to the conditions, cannot be consolidated into one.' Thus, where goods sold at auction were knocked down in several lots to one bidder, and his name written against them on the catalogue ; this was held to be a dis- tinct contract for each ; and hence a subsequent memo- randum of an agreement to purchase them required no stamp, the value of each lot being under £20, though the whole together exceeded this amount.'^ § 6. If an auctioneer deviate from the strict terms of the conditions, he must personally suffer the consequences ; being liable for the duties, and not entitled to maintain any action against the vendee: although, in case the auc- tioneer has fulfilled his duty, he may maintain an implied assumpsit against the vendor ; and the latter has a claim against the purchaser, upon the express agreement arising from the conditions of sale. Thus the plaintiff, an auc- tioneer, brings special assumpsit against the highest bidder at a sale of land, to recover money paid by him to the excise collector for the auction duty. The conditions of sale provided that the purchaser should pay the duty ; but, in consequence of the plaintiff's having neglected to set down the name of the defendant, the sale was not legally binding. Held, neither special assumpsit, nor an action for money paid, would lie. And, it seems, the plaintiff" could not recover the duty from the vendor.' § 7. Auctions are considered by the law as cash trans- actions. And, as in England the receipts from this source are applied to the dues of the army and navy, which must be punctually met, mere interest can be no adequate com- pensation for delay. Hence, where an auctioneer forfeits- his bond to the Crown, by neglecting to pay the duties at > James v. Shore, 1 Stark. 426; Emmerson v. Heelis, 2 Taun. 38. • Boots V. Dormer, 4 Barn. & Ad. 77; 1 Nev. & M. 667. ' Jones V. Nanney, 13 Price, 76. 252 LAW OF SALES OP PERSONAL PROPERTY. the time stipulated, the penalty hecomes ahsolutely due and is not a mere security to compel an account, to be sat- isfied by payment at a subsequent period.' § 8. An auctioneer has no right to rescind a sale with- out authority from the vendor. Thus an auctioneer, hav- ing sold a horse, upon the complaint of the vendee that he did not correspond with the advertisement, and would not draw, rescinded the sale. In an action brought by the owner of the horse against the auctioneer upon this ground ; held, the plaintiif was not bound to show any express agreement by the defendant not to rescind, but the burden was on the defendant to oiFer some excuse for doing it.^ § 9. An auctioneer is liable for the want of such care of goods intrusted to him for sale, as he takes of his own property ; not for unavoidable accidents.^ § 10. Where an auctioneer is notified that his principal does not own the property sold, he is personally liable, in an action for money had and received, to the true owner, for the proceeds of sale. Under these circumstances he becomes himself a quasi principal.'' § 11. Where an auctioneer delivers goods sold by him, without receiving payment in full, he is liable to the vendor for not giving an accurate amount of the proceeds.' § 12. Questions often arise, respecting the duty and liar bility of an auctioneer, in relation to a deposit made by the purchaser, conformably to the conditions of sale. § 13. Where a purchaser of property at an auction sale rescinds the bargain, in consequence of an objection to the title and the concealment of material facts, he may re- cover a deposit from the auctioneer, no proof being offered that it has been paid over to the vendor. And the auc- 1 Eex v. Christie, 2 Anst. 586. ' Nelson v. Aldridge, 2 Stark. 435. • Maltby v. Ciiristie, 1 Esp. 340. * Hardacre v. Stewart, 6 Esp. 103. » Brown v. Stadton, 2 Chit. 853. SALES AT AUCTION. 263 tioneer would have no right thus to pay it over till com- pletion of the sale." Thus an auctioneer received a de- posit from the vendee, in presence of the vendor, signed an agreement acknowledging the sale, and engaged to com- plete it ; hut, by reason of a defect iu the title, the sale was not completed. Held, the vendee might recover the deposit from the auctioneer, though paid over to the vendor before discovery of the defective title, and though the vendee had given him no notice against paying it over.^ § 14. So it is said, that, where an auctioneer receives a deposit; it seems, he is a stakeholder, and not the agent for both parties. He is liable, at all events, till the con- tract is completed. And his knowledge of the defective title is equivalent to an express notice not to pay over. The deposit is a conditional payment, and should not be parted with till the conditions are fulfilled. Hence he is liable to the vendee, although he has paid it over to the vendor ; more especially if, upon a demand from the ven- dee, he neglected to inform him that he had paid over the money to the vendor, and thus led the plaintiff to bring the suit.' § 15. If the title to an estate sold at auction is objected to, and the auctioneer refuses to return the deposit, and is compelled to pay the costs of a suit brought against him ; he cannot recover the amount from the vendor in an ac- tion for money paid, but must declare specially.^ § 16. Where a suit is brought against an auctioneer for a deposit paid him, he cannot file a bill of interpleader, if he insists upon retaining a commission or duty.'^ * With regard to the requisite evidence in an action to recover a, de- posit; upon a sale of houses at auction, according to certain particulars and conditions, one of which was, that an abstract of title be delivered 1 Burrough v. Skinner, 5 Burr. 2639. » Gray v. Gutteridge, 3 C. & P. 40. » Edwards v. Hodding, 1 Marsh. 377 ; 5 Burr. 2639. * Spurrier v. Elderton, 6 Esp. 1. » Mitchell V. Hayne, 2 Sim. & St. 63. 254 LAW OF SALES OF PERSONAL PROPERTY. § 17. With regard to the liability of an auctioneer to pay interest upon the deposit ; it is held to be no part of his duty to tender the money, which he received as a stakeholder, and is therefore not bound to return, till no- tified that the contract is at an end, and that his character as stakeholder has ceased. Hence, if the vendee pay to the auctioneer a deposit as part of the price, until the title should be made out ; the auctioneer is not liable for interest upon the amount, though four years have elapsed since the sale, no demand of payment having been made upon him.' So vs'here an auctioneer, as agent for the vendor, agreed to sell upon the terms of printed con- ditions, according to which the vendee was to pay down a deposit, and the duty, and the remainder of the price at a certain day, upon receiving a good title, and the vendor was to prepare and deliver to the vendee an abstract of title ; there being a defect in the title and a consequent failure of the contract, held, the auctioneer was not liable to pay interest upon the deposit and duty, unless the money had been demanded, or notice given him that the bargain was rescinded. It would be otherwise, if the auctioneer had not stated that he was agent for the vendor.^ § 18. Where an auctioneer does not disclose the name of his employer, he is personally liable to a vendee for not fulfilling the contract of sale.' within ten days, and another, that a deposit be paid the auctioneer, a purchaser of two houses paid the deposits, signed an agreement as pur- chaser, and took a receipt from the auctioneer, as for payment of a de- posit upon the auction sale of the premises named in the particulars, &o. The abstract not being delivered, the vendee brings an action against the auctioneer for his deposit, and offers in evidence the receipt and con- ditions of sale, but not the agreement signed by himself. Held, the evi- dence was insuiEcient to maintain the action. Curtis v. Greated, 3 Nev. &M. 449; 1 Ad. & El. 167. ' Lee V. Munn, 1 Moore, 481. ' Gaby v. Driver, 2 Younge & Jer. 549. ' Hanson v. Roberdeau, Peake, 120. SALES AT AUCTION. 255 § 19. An auctioneer may maintain an action for goods sold and delivered against a vendee, tliough the sale took place at the house of the vendor, who was also known to be the owner. An auctioneer has the possession, coupled with an interest, not a bare custody, like a servant or shopman. He has a special property in the goods, — a lien for charges, commissions, and duties. If he gives credit, it is at his own risk ; and in this he differs from a factor, who does not incur such liability, unless of the del credere class. So if the goods should be stolen, the auctioneer might maintain trespass or an indictment. In this case, the vendor, though owning the premises where the sale took place, gave actual possession of them to the auctioneer for this purpose, and not a mere authority. More especially, after taking and enjoying the goods, the defendant is estopped to deny that the auctioneer had a right to sell. Although it might admit of a question how far a notice from the vendor to the purchaser not to pay the auctioneer would be a bar to any suit by the latter.' § 20. An auctioneer may recover the price of goods sold, after accounting for it to his employer, though the vendee has a demand against the latter, a receipt for which he has handed to the auctioneer for the purpose of payment.* § 21. But where the vendee has a claim against the nominal vendor, and makes a settlement with him with- out having been forbidden so to do by the auctioneer, the • The purchaser of goods at auction handed to the auctioneer a receipt from himself (the purchaser) to, the owner of the goods, for a debt due from the latter. The auctioneer doubted whether to accept it, and, in the meantime, the purchaser drove off. The vendor declining to take the receipt in payment, the auctioneer paid him in money, and brings an action for goods sold and delivered, and money paid, against the purchaser. Held, the action was maintainable. Williams v. Millington, 1 H. Bl. 81. 1 Williams v. Millington, 1 H. Bl. 81. 256 LAW OF SALES OF PERSONAL PROPERTY. latter cannot sue for the price, although in fact the nomi- nal vendor was only a part-owner." § 22. Where goods are sold at auction upon credit, and the purchaser refuses to take them : the owner may main- tain an action against him in, his own name, before the term of credit has expired, for breach of contract; and the measure of damages will be the difference between the price agreed on, and the value of the property at the time of the defendant's refusal to take it. The amount of such difference may be determined by a re-sale at the vendee's risk. But the jury will not be bound by the result of a re-sale, if any other more satisfactory measure can be resorted to.' § 23. One of the most common grounds for avoiding a sale at auction, is that of some misrepresentation, made by the vendor or his agent, with regard to the property sold. Most of the cases on this subject relate to sales of real property ; but, the principles involved in them not de- pending at all upon this circumstance, they may properly be cited as equally applicable to sales of chattels."" » Goods belonging in part to A. and in part to B. were put up at auc- tion at the house of A. They were also entered at the excise in A.'s name, and the catalogue spoke of them as all belonging to him. C, who held an acceptance of A., purchased some of the goods, without notice that they belonged in part to B., and afterwards made a settlement with A. The auctioneer allowed C. to take the property, gave him no in- junction against making payment to A., and afterwards brings a suit for the price against C. Held, he could not recover either for the goods which belonged to A., or those which belonged to B. Also, that in case there had been no settlement between A. and C, the latter might set off in this action his demand against the former. Coppin v. Walker, 2 Marsh. 497. •■ An auction sale was made upon the condition, that any mistake in the description or particulars of the property should not annul the sale, but be matter of compensation. The proposals further set forth, that " plot marked A. cannot be identified by the vendor, because a certain person is dead, but it is presumed the vendee will be able to find it. They also spoke of " a substantial brick building " on the premises, and 1 Glrard v. Taggart, 5 S. & K. 19, 5S9. SALES AT AUCTION. 257 § 24. Upon this subject it is held, that, where a sub- stantial part of the property does not exist or caunot be found, and the representations in regard to it are maid jide and greatly exaggerated ; even a clause providing for com- ■pensation does not apply, but the sale is void, and the ven- dee may maintain an action to recover his deposit.'' § 25. In an action against an auction purchaser for not completing the sale, the printed conditions of sale cannot be contradicted by the verbal declarations of the auc- tioneer at the time, in order to disprove the charge of misrepresentation. Thus, where the conditions were, that the property was " free from all incumbrances," when in fact there was a charge upon it of £VJ per annum, which represented the property as estimated to rent at £35. It was proved that the above plot could not be found, that there was no substantial brick building, and that the property would not rent for one-half of JE35. Held, an action lay to recover the deposit. Kobinson v. Musgrove, 2 Moo. & R. 92 ; Dykes v. Blake, 6 Scott, 320, ace. » The particulars of an auction sale stated the property as held under the C. estate upon three lives, and one of the conditions was, that a mis- description or misstatement should not vitiate the sale, but merely be a ground for compensation. In an action to recover a deposit, it appeared that one life had dropped before the sale, and that the property was not held directly under the C. estate. Held, the defendant could not prove, in bar of the action, a declaration made by the auctioneer before the sale, that this life had dropped ; though he might prove that the plain- tiff before the sale had read the original lease. Bradshaw v. Bennett, 5 C. & P. 48. Auction sale of a public house. The particulars described the prem- ises, as held for an unexpired term at £55 rent, and, among other things, embracing a yard. By the conditions, the contract was to be completed on June 25th, and any error of description was to be a matter of com- pensation, to be settled by the award of arbitrators. In point of fact, the yard was not held under a lease, but by tenancy from year to year, at a farther rent of £10. The vendor obtained a lease of the yard for the same term with the other premises, at the farther rent of £8, dated June 23d, but executed long after June 25th. The yard was proved necessary to the enjoyment of the premises. Held, the provision for a compensation was inapplicable to the above variation from the con- tract, and that it authorized the vendee to rescind the sale, although there was no proof that the defect was known to the vendor. Dobell v. Hutchinson, 5 Nev. & M. 251 j 3 Ad. & El. 355. 17 258 LAW OF SALES OF PERSONAL PROPERTY. the auctioneer declared, but not to the vendee individ- ually ; held, no action would lie against the latter for not completing his purchase.' So the plaintiff brings an ac- tion for the price of certain growing crops sold to the de- fendant. The plaintiff purchased these crops at auction. The auctioneer sold, according to a printed paper, lot No. 6, being " ten acres of spring wheat," &c. Also, lot No. 15, " the keep of George's field until old Michaelmas day next." There was a memorandum at the bottom of the paper, as follows : " The keep of all the fields, &c., will be sold with the crops, except George's field." The auc- tioneer made a verbal declaration with respect to lot No. 6, that it was not spring wheat, and the keep was not to be sold. The lot was knocked down to the plaintiff, and his name written as the purchaser. The plaintiff then re- tired from the room with the defendant, and on his return gave notice that the defendant had purchased the lot, and the defendant, in presence of the plaintiff", requested to have his name substituted for the plaintiff's, which waa accordingly done. In an action against the defendant for not completing his bargain with the plaintiff, held, the written memorandum could not be controlled by the ver- bal declarations of the auctioneer, and, as the former was not fulfilled, the action could not be sustained.^ § 26. The most common ground of objection to auction sales, is the circumstance of the vendor's secretly employ- ing some one to bid on his own account, for the purpose of enhancing the price of the property. This is commonly called puffing. § 27. The prevailing doctrine on this subject is, that a sale at auction is avoided by the owner's employing a bidder. The leading case in which this principle is established is that decided by Lord Mansfield,^ in which the owner of a horse, sold at auction, directed the auctioneer not to sell 1 Gunnis v. Erhart, 1 H. Bl. 289. See Powell v. Edmunds, 12 E. 6 ; Slark V. Highgate, &c. 5 Taun. 792. 2 Shelton v. Levins, 2 Cromp. & .T. 411. » See Crowder v. Austin, 3 Bing. 368; 6 T. K. 642. SALES AT AUCTION. 259 it under a certain sum ; and it was held that no action could be maintained against the auctioneer for violating this direction, because it would be illegal to obey it ; al- though it would be otherwise, if the direction were not to fut up the horse under a certain sum. In this leading and often controverted case. Lord Mansfield remarked, upon the practice of employing bidders for the owner, that the frequency of such practice was no argument in its favor, for the same might be said of gaming, stockjob- bing, and swindling ; that the auctioneer may bid for a third person, but not for the owner.' § 28. In another case, the same principle is thus stated. "Where all the bidders at an auction, except the purchaser, bid for the vendor without notice, and the vendee is there- by induced to give for the property more than its value ; the sale is void in law and equity.'' And, in still another case, the same rule is stated thus, with slight qualification. "Where the owner of property, sold at auction, employs only a single person (it seems) to bid for him, up to a cer- tain' specified sum ; this avoids the sale, unless it was publicly announced at the time. If two persons are em- ployed, the sale is certainly void.' § 29. Upon the same subject. Lord Kenyon uses very strong language. He says, " The whole transaction is bottomed in fraud, — it is fraud from beginning to end." " The whole of Lord Mansfield's reasoning^ is founded on the noblest principles of morality and justice, and calcu- lated to preserve honesty between man and man." He further remarks, that, if this had been the first case, per- haps he should have hesitated; but "Lord Mansfield's comprehensive mind saw it in its true colors," &c.° ' • The plaintiff and B. were appointed, by the will of C, trustees to make sale of his lands. They were accordingly sold at auction, after 1 Bexwell v. Christie, Cowp. 395. » Bramley v. Alt, 3 Ves. Jun. 624. 3 Wheeler v. Collier, M. & M. 125. * Bexwell v. Christie, Cowp. 395. » Howard v. Castle, 6 T. K. 642. 260 LAW OF SALES OF PERSONAL PROPERTY. § 30. There are other cases, however, which do not rec- ognize the rule above stated in its full extent. Thus, in the case of Twining v. Maurice, Kenyon, M. R., says, "I do not say the doctrine in Bexwell v. Christie is wrong ; but everybody knows that such persons are constantly em- ployed."' So where a bill in chancery alleged, that per- sons were employed to, and did bid for the owner, in order fraudulently to advance the price above the real value of the property, but did not allege that there was no real bidder ; the Lord Chancellor remarked, that Bexwell v. Christie turned upon the fact that there was no real bid- der, and that the purchaser refused instantly to complete the contract. It was a trap-auction. " The reasoning goes large., and does not convince one. It would reduce every- thing to a Dutch auction., a bidding downwards. I feel public notice. D., the counsel of the plaintiff, bid £1750, and the de- fendant £1751. D. was a by-bidder, who declared that he did not want the land, and advised the defendant to purchase it. Held, if D. was em- ployed by the trustees as a by-bidder, and the defendant was ignorant of it before making the purchase, and if D. bid in order to enhance the price for the benefit of the trustees ; the sale was void. Moncrieff v. Golds- borough, 4 Har. & McHen. 281. At an execution sale, the debtor employed two persons to bid up to about $2000. The defendant became the purchaser, but refused to take the property, and it was sold again at his risk, and at a loss of about $400. In an action against the defendant to recover the amount of this loss, held, the sale was void. (But the jury found for the plaintiff $40.) Donaldson v McRoy, 1 Browne, 346. Property was seized under an extent by an agent of the Crown, to whom a bid was reserved by the conditions of sale. A puffer was em- ployed at the sale. On application by the Crown to enforce the contract, it was contended that the vendee could not object to the sale on this ground, because he did not come into court with clean hands, it being proved that he had colluded with the tenant who claimed the property, and had bid, not for the purpose of purchasing, but in order to obtain an abstract of title. Held , the employment of a puffer still avoided the sale | that the plaintiff did not want the aid of equity, but only that the rules of law should be applied to his case ; and the misconduct of the vendee did not preclude him from availing himself of the provisions of the law against puffing. Rex v. Marsh, 3 Younge & J. 331. I 2 Bro. 331. SALES AT AUCTION. 261 vast difficulty to compass the reasoning, that one man does not follow his own judgment, because others bid," &c. He proceeds to remark, that the acts of Parliament, which make certain exceptions from the auction tax, sup- pose that the owner himself bid, and require only a private notice to the auctioneer. The Lord Chancellor goes on to speak of the doctrines of the civil law and the schools of philosophy upon this subject. He further remarks, that it is always taken for granted, unless the contrary appears, that there is some person to bid for the vendor. And this practice is beneficial to the public. If it did not prevail, many articles would be sold, such as scarce and valuable books, which three or four persons only would divide among them, and obtain for much less than their real value.^ So, at an auction sale, a person bid privately for the vendor, the assignee of a bankrupt, to prevent a sacrifice. The vendee was not present, but a third person acted for him without previous authority, and the vendee afterwards ratified the purchase. The bid for the vendor immediately preceded that for the vendee. The former bidder was enjoined against exceeding the sum named, upon the ground that, if he went beyond this amount, he would be required to take the property. Under these cir- cumstances, as the vendee was not present at the sale, and could not have been influenced by competition to bid more than the value, he was held to stand in the situation of an assignee of the purchaser, who must make a strong case of fraud to avail him against the vendor, and specific performance of the sale was decreed against him.^ § 31. In one case, Sir William Grant questions Bexwell V. Christie, and regards the opinion as too broad for the facts of the case. He further remarks, that Howard v. Castle proceeds upon the ground of fraud ; that there was no real bidder, and there were several bidders for the vendor ; that in Conolly v. Parsons,' Lord Eosslyn doubts 1 Conolly V. Parsons, 3 Vea. Jun. 625, n. 2 Smith V. Clarke, 12 Ves. Jun. 477. 3 3 Ves. 625. 262 LAW OF SALES OF PERSONAL PROPERTY. whether there can be a fraud of this nature; and Sir ■William Grant expresses the qualified opinion, that, if bidders are employed, not in defence, to prevent an under- sale, but to take advantage of the eagerness of bidders to screw up the price, a court of equity would not justify the transaction. So, also, where there are several bidders for the vendor." ' § 32. While the law, in favor of a vendee, avoids a sale on the ground of secret measures used to enhance the price, it equally aims to protect the vendor, by discoun- tenancing any unfair attempt to obtain the thing sold for less than a fair price. Thus certain brokers mutually agreed, before an auction sale, that only one of them should bid for each article sold, and that all the articles purchased should afterwards be sold among them at a fair price, and the difference between this and the auction price equally divided. Held, this was an indictable con- • At an auction sale of land, a person bid for the vendor £75 per acre, upon private notice to the auctioneer. After a contest with bond fide bid- ders, the property was sold for over £101, and some days afterwards the vendee paid the duty. He was decreed to perform his contract, with costs. Bramley v. Alt, 3 Ves. Jun. 620. In an action of assumpsit for failure to complete the purchase of a horse, the defendant cannot under the general issue give evidence of an auction sale, and that the vendor employed puffers. There should be a special plea. Icely v. Grew, 6 C. & P. 671. It has been held, in South Carolina, that the employment of a bidder for the vendor is not illegal, although no notice be given, and the price be thereby very much enhanced. Thus, at a sale of land, there were bondfide bidders up to $18 or $20 per acre, after which the bidding was confined to the puffer and the defendant, who purchased the land at $44. The vendee was a good judge of the land, lived in the neighborhood, and was acquainted with the premises, while the by-bidder enjoyed none of these advantages. The latter also communicated openly with the owner. The property was an old family seat, which was sold with reluctance, and merely for the purpose of effecting a division, and for which, there- fore, the owner was held justified in securing a large price. Specific performance of the contract was decreed against the defendant. Jenkins V. Hogg, 2 Const. S. C. 821. > Smith V. Clarke, 12 Ves. Jun. 477. SALES AT AUCTION. 263 spiracy.' So, at an auction sale of a barge upon execution, the execution creditor stated publicly, that he built it for the execution debtor, who had never paid him. The credi- tor bid for the barge, and no one bid against him. The auc- tioneer declining to knock it down to him at the first bid, a friend of the creditor bid upon it, and the creditor then advanced one shilling, upon which the barge was knocked down to him, and he paid a deposit, as part of the price. The article was worth £150, and put up at £50, and the creditor's first bid was £52. The creditor brings trover for the barge, the auctioneer having refused to deliver it, and afterwards resold it for one hundred guineas. Held, under the circumstances, the plaintiff gained no property in the barge, and a verdict in his favor was set aside by the court.^ So the owner of an execution, upon which property was to be sold, agreed with other persons to pre- vent the usual competition at sales of this description, in order to leave a balance due upon the execution, and that he might thus seize other lands. The sale was consequently made for a mere nominal price. Held, it was void.^ So where, at an auction sale, the agent of the vendor, known as such, bid for the vendee, began to bid early, and was the only real bidder, except the purchaser ; held, a bill for specific performance could not be sustained by the vendee. That the circumstance above mentioned chilled the sale, and prevented the vendor from obtaining so high a price as he otherwise would. Nor did it make any difference that the persons in attendance regarded the agent as doing what the law would not allow ; because, though illegal, the practice was known to be a common one. But, on the other hand, the court refused to set aside the contract. 1 Levi V. Levi, 6 Car. & P. 239 ; Jones v. Caswell, 3 John. Gas. 29 ; Thompson v. Davies, 13 John. 112 j Doolin v. Ward, 6 Johns. 194; "Wilbur V. Howe, 8 lb. 444. See Ansley v. Carlos, 9 Ala. 973. ' Puller V. Abrahams, 6 Moore, 316. ' Troup V. Wood, 4 John. Cha. 228. 264 LAW OF SALES OF PERSONAL PROPERTY. upon a cross bill by the vendor, leaving tbe purchaser to his action at law.' ' • As to i\ie fraud which avoids an auction sale, see Trust v. Delaplaine 3 E. D. Smith, 219 ; Meech v. Bennett, Hill & Den. 191 ; McMinn v. Phipps, 3 Sneed, 196 ; Wooton v. Hinkle, 20 Mis. 290; Staines v. Shore, 16 Penn. 2C0 ; Plint v. Woodin, 13 Eng. L. & Eq. 278 ; National, &c. v. Loomis, 11 Paige, 431. In reference to the application of the Statute of Frauds to auctions, see Statute of Frauds. 1 Twining v. Morrice, 2 Bro. 326. LIEN. 265 CHAPTER XVI. LIEN. 1. LIEN OP A SELLER FOR THE PRICE ; FOUNDED ON POSSESSION. 4. DISTINCTION BETWEEN A LIEN AND A CONDITION. 6. HOW LOST OR FORFEITED. 8. AGAINST WHOM IT MAT BE ENFORCED. 10. EFFECT OF PART-DELIVBRT. 11. SALE ON CREDIT; SECURITY FOR THE PRICE. 13. WHETHER AFFECTED BY SUIT AOAINST THE PURCHASER. 14. BETWEEN PART-OWNERS. § 1. "When a contract of sale 18 completed by any of the methiods enumerated in the first chapter, the vendee ac- quires an absolute right of property, and a riffht of possession also, subject only to the lien of the vendor for the price, if this has not been paid. If the vendee tender the price, and the vendor refuse it, the former may then seize the goods, or have an action against the latter for detaining them. It has been very justly observed, in relation to the acts necessary to constitute a transfer of chattels, that what is sufficient as an acceptance, to take the case out of the Statute of Frauds, is not always sufficient to constitute a delivery of the possession. And what is sufficient to vest the property in the vendee, is not always sufficient to deprive the vendor of his lien for the price.' " * A lien is said to be neither jus in re nor jus ad rem, but a simple right of retainer. The right depends on contract, express or implied. And no such contract can be implied, where n party acts adversely to I Long on Sales (Am. Ed.) 265; Arnold v. Delano, 4 Cush. 38. See Matthews v. Hobby, 48 Barb. 167 ; Thompson v. Baltimore, &c., 28 Md., Amn. Law Beg., May, 1869, p. 318. 266 LAW OF SALES OF PERSONAL PROPERTY. § 2. It is said, the vendor of goods has no lien upon them for the price, corresponding to that of the vendor of land. The lien of the latter is a doctrine not found in the ancient common law, but belonging to equity, and transplanted from the civil law. There is no case, in law or equit^r, either in Great Britain or the United States, which holds, that, after a sale of goods and absolute de- livery to the vendee in person, the vendor can reclaim them for non-payment of the price.' § 3. The right of lien cannot exist without possession, notwithstanding an equity in favor of the party claiming it. It has been doubted, whether a mere constructive de- livery is sufficient to destroy this right ; and perhaps it is too much to say, that in every possible case it would. But, in general, it is immaterial, whether the delivery be actual or constructive. And a party having a lien does not lose it by parting with the possession for a particular purjDOse ; but the delivery must be with notice of such lien, and of an intention to retain it.^ Where there has those for whom he makes a payment. Meany v. Head, 1 Mas. 319; Allen V. Ogden, 1 Wash. 174. See Wilson v. Balfour, 2 Camp. 579; McCampbell v. McCampbell, 5 Lit. 98; Hayden v. Delay, Lit. Sel. Cas. 280; Gladstone v. Birley, 2 Meri. 404; Hollis v. Claridge, 4 Taun. 807; Chase v. Wetmore, 6 M. & S. 180. Lien is a tie, hold, or security upon things which a party has in custody, till payment of his debt. There can be no lien where the thing is annihilated, or possession given up voluntarily and without fraud. Ub. sup. So a party cannot claim alien against the government, because not subject to suit, nor strictly a debtor. Thus an innkeeper cannot detain horses used in carrying the mail. U. S. V. Barney, 2 Hall's Law Jour. 128. A lien is a personal right, and not assignable. Daubigny v. Duval, 5 T. R. 604. It is said to be the same at law and in equity. Oxenham v. Esdaile, 2 Y. & Jer. 493; Gladstone v. Birley, 2 Meri. 404. It cannot arise from a wrongful act. 2Selw. 1358; Madden v. Kempster, 1 Camp. 12. ' Lupin V. Marie, 6 Wend. 77. 2 Parks v. Hall, 2 Pick. 212; Clemson T. Davidson, 5 Binn. 398; Holly v. Huggeford, 8 Pick. 73; Nichols v. Clent, 3 Price, 547; Hey- wood V. Waring, 4 Camp. 291 ; Ex parte Meux, 1 Glyn & J. 116; Hall V. Jackson, 20 Pick. 198. LIEN. 267 been a delivery at the time of sale, and security given for the price, but with an agreement that the vendor shall have a claim upon the property till actual payment ; his lien is lost, and does not revive by his coming again into possession under the administrator of the vendee. Thus it was agreed between the vendor and vendee of a coach, that the former should have a claim upon it, if not duly paid for. Four bills of exchange on time were given for the price, and the coach was delivered. The vendee having died, and the bills being unpaid, his administra- tor sent the coach to the vendor to be repaired, and the latter refused to re-deliver it without payment. The ad- ministrator brings trover against him. Held, the agree- ment amounted to a mere license from the vendee to the vendor, which was personal to the former, and did not bind his representative. Hypothecation is unknown in England. Had the coach been taken from the vendee himself, the contract would have been a bar to any action by him.' So A. authorized B., as his agent, to sell logs belonging to A. ; the logs in every event to remain A.'s property till the price should be paid or amply secured. B. sold the logs, and allowed the vendee to take posses- sion without payment ; the latter agreeing that the lien of A. should continue till payment be made. Held, this sale was not binding upon A., because it varied from the authority given to B., inasmuch as a lien without posses- sion constituted at best an imperfect security, and proba- bly none at all.^ So one having a lien upon property de- livered it to a carrier on account and at the risk of his principal, though this was unknown to the carrier. Held, he could not stop in transitu and obtain a re-delivery to him, under a bill of lading from the carrier, given during the voyage.* § 4. A distinction is to be observed, however, between ' Harrison's Digest. » Cowan V. Adams, 1 Fairf. 374. » Sweet V. Pym, 1 B. 4. 268 LAW OF SALES OF PERSONAL PROPERTY. the mere lien of a vendor, whicli is destroyed by a de- livery, and a condition of payment annexed to the sale, which may continue in force, even against subsequent purchasers from the vendee, although recognized by the parties under the name of a lien. It is said, the doctrine, that the lien of a vendor until payment depends on pos- session, is applicable only to absolute sales. ^ § 5. It must be admitted, however, that the rule of law which requires possession in order to give a lien is often construed very liberally in favor of the vendor ; and that the distinction between an agreement for a lien and a conditional sale is very nice. Thus goods were sold and deposited in the warehouse of a third person for the pur- chaser ; but it was understood between the parties, that the purchaser was not to remove them till payment. Held, though the warehouse must be considered as the vendee's and he in actual possession, yet, " consistently with this, the vendor had, not what is commonly called a lien determinable upon possession, but a special interest, sometimes, but improperly, called a lien, growing out of the original ownership, independent of the actual posses- sion, and consistent with the property being in the vendee."^ So a sale of goods, stipulating that they shall be delivered as fast as wanted for manufacturing, that when manufactured they shall be warehoused, subject only to the vendor's order, and drawn out for the vendee, on certain payments being made, vests the property in the vendee on delivery, and gives the vendor a lien only on the goods warehoused.* So A. agreed to build an organ for B., and to iix it in a parish church for £768, to be paid by certain yearly instalments. " In the event of the said organ being erected as aforesaid, and the said sum of £768 or any part thereof not being paid at the time thereinbefore mentioned, then it was thereby agreed 1 Barrett v. Pritchard, 2 Pick. 515. « Dodsley v. Varley, 12 Ad. & Ell. 632. s Hewlet v. Flint, 7 Cal. 264. MEN. 269 that the whole sum or balance, with interest, should be- come payable to A., and might be recovered accordingly ; and in the meantime, and until the same should be paid, A. should have a lien on the said organ ; and, in default of either of such payments at the times mentioned, A. might either dispose of or remove the said organ, as he might think proper." Held, the property in the organ remained in A., until the instalments were paid.' So, in the autumn of 1825, C. contracted with A. and B., that they should cut all the pine timber on his land, fit for boards, which any prudent person would cut ; carry one quarter part of the logs to D., for C.'s share, and the other three quarters to the same place, to be sawed and delivered to C. ; who should remain owner of the whole, till satis- fied that his quarter was of the average .quality of the whole, and till paid his entire debt by A. and B. If they should fail to take the timber the next winter and spring, they were to pay the value of a quarter of what was left ; the timber to remain pledged for this part also. A. and B. did not cut the timber till 1827. Before reaching the place appointed, they sold it to E., being largely in debt to C. at the time. C. brings replevin. Held, C.'s lien embraced logs cut after the winter, and out of the bounds mentioned ; that A. and B. were special bailees, and had no power to sell, and the sale put an end to their title.'' So A. sent a ship for repairs to the yard of B., B. agreeing to find timber therefor, which he did, to the amount of £200. The ship being adv.ertised for sale, B. forbade the sale until he should be paid. The agent of A. assented to this requisition, promised payment from the purchase- money of the vessel, and gave authority to the auctioneer accordingly. C. purchased the ship ; B. immediately de- manded payment from him ; and he agreed to pay the auctioneer by a certain day. Held, until payment, he 1 "Walker v. Clyde, 10 C. B. (N. S.) 381. 2 Emerson v. Pisk, 6 Greenl. 200. 270 LAW OF SALES OF PERSONAL PROPERTY. could not have trover for the vessel.^ So an agreement was made between A., the owner of a saw-mill, and B., that A. should have a lien on all boards sawed for B., for the charges of sawing ; the boards to be removed a short distance from the mill, but the lien to hold till payment. Held, the lien was as effectual as if A. had actual posses- sion.^ So A. purchased goods of B., which by consent remained in B.'s store. While there, A. borrowed money of C, giving him an order on B. for the goods, which were removed to C.'s store, but afterwards, by A.'s order, carried back to B.'s store, where they were attached by B. and other creditors of A. C. brings an action against the officer, and recovers judgment, the facts showing a lien in his favor upon the goods.^ So A. had two pipes of wine in a Ijonded warehouse, in the name of B., who had secured the duties. A. sold to C, giving him a de- livery order, and C. agreeing to pay the duties. B. paid them, carried the wine to his cellar, and was repaid by A. C. never requested a transfer to his name, but took one pipe, and paid rent to B. Held, B., by request of A., might retain the other for the duties.* So where a policy- broker, having a general lien on the policy of insurance, parted with it, but afterwards came into possession of it again ; held, his lien was thereby revived.^ So A. sold to B. a yoke of oxen for a certain price, to be paid at a future time ; A. to hold them till payment. A. allowed the oxen to go into possession of B., who sold to C, and C. to D. for a valuable consideration, and without notice of the lien of A. Held, this lien still continued in force, and that A. might maintain trover against D., even 1 Norris v. Williams, 1 C. & M. 842. 2 Wheeler v. McFarland, 10 Wend. 318. See Mount y. Williams, 11 Wend. 77 ; Sumner v. Hamlet, 12 Pick. 76. 3 Jones V. Baldwin, 12 Pick. 316. « Winks V. Hassall, 9 B. & C. 372. 5 Whitehead v. Vaughan, Selw. N. P. 1376 ; Long, 263 ; Hartley v. Hitchcock, 1 Star. 408. LIEN. 271 before the period of credit expired." ' (See Conditional Sale and Conditional Delivery.) § 6. The lien of the vendor will cease, notwithstanding his actual possession, where he neglects to take the step for obtaining payment, which was provided for in the con- tract, omits to claim a lien in reasonable time, and delivers a part of the property. Thus A., at Bristol, sold goods to B., to be paid for by B.'s acceptance of A.'s draft. The goods were weighed and an invoice furnished, but they were left in possession of A. A. neglected to draw a bill. B. sold portions of the goods, and gave orders upon A. to the purchasers, upon which A. delivered them the quanti- ties sold. Afterwards, B. sold a specific portion to C. in London, receiving payment therefor, and giving C. an order upon A. to deliver the goods, which C. transmitted to A. On the fourth day from A.'s receiving the order, B. became bankrupt. A. then first refused to deliver to C, claiming a lien upon the goods for the price. Held, C. might maintain trover against A. ; that A. was bound to give immediate notice of his refusal to deliver the goods ; and (it seems) that after neglecting to draw a bill, deliver- ing samples to sell by, and answering other orders, there would be no lien, even though he had given immediate notice ; that after the sale the warehouse of A. became that of B.2 § 7. But where A. agreed to sell goods to B., who paid a sum of money to bind the bargain ; and the goods were • As to the maritime lien upon a ship, for supplies furnished her, which does not depend at all upon possession ; see Ingersoll v. Van Bokkelin, 7 Cow. 670; Lane v. Penniman, 4 Mass. 92; Lewis v. Hancock, 11 Mass. 72; Hodgson v. Butts, 3 Cranoh, 140. Lease of land from A. to B., A. to have a hold or lien on the crops till payment of the rent. Held, this agreement was merely executory, and gave A. no general or qualified property In the crops, till raised and de- livered to him. Brainard v. Burton, 5 Verm. 97. ' Tibbetts v. Towle, 3 Fairf. .341. 2 Green v. Haythorne, 1 Star. 447. 272 LAW OF SALES OP PERSONAL PROPERTY. packed in cloths furnished by B., and deposited in a build- ing of A.'s till B. should send for them, A. declaring at the same time that they should not be carried away with- out payment ; held, though the property in the goods passed to B., A. still retained a lien for the price.' So where constructive acts of delivery have taken place, but not the particular act which usage has established for transferring a title, the vendor may still retain a lien even against a purchaser from the vendee." Thus A. sold to B. a quantity of rum, lying in the warehouse of C. at L., and delivered him a marked and numbered invoice. B. accepted A.'s draft for the price, and sold and received payment for the rum from D. There was a usage at L., for the vendor to give the vendee delivery-orders, addressed to the warehouseman, who accepted such orders. But no order was given in the present case by A. to B., except for a small portion of the rum, which B. received. By permission of B., but without the knowledge of A., D. gauged and coopered the casks in the warehouse, and marked them with his initials. B.'s acceptance of the draft having been dishonored, held, under the circum- stances, A. had a lien on the rum for the price.^ § 8. In Maine it is held, that the usual contract lien upon timber, for the price of stumpage, attaches to the pro- ceeds in the hands of a bond fide purchaser for valuable consideration, having notice of the lien.* § 9. Where a vendee assigns the goods, not in the usual course of trade, but by way of indemnity against liabili- ties incurred for him ; the vendor has the same lien against " Supplies furnished to West India estates have been held to give a lien upon the produce of such estates, by virtue of a usage of the parties. Simond v. Hibbert, 1 Euss. & My. 719. 1 Goodall V. Skelton, 2 H. Bl. 816; Boulter v. Arnott. 1 Or. & M. 333 ; Townley v. Crump, 6 N. & Man. 608. 2 Dixon v. Tates, 2 Nev. & M. 177. ' Warren v. Bartlett, Maine, Law Kep., May, 1839, p. 14. LIEN. 273 the assignee, which, he would have against the vendee himself.' § 10. The effect of fart-delivery upon the vendor's right of lien has heen already incidentally noticed;* but the books furnish some cases, which have been decided chiefly or exclusively upon this particular point. It seems to be now settled, though formerly somewhat doubtful, that the seller's allowing the purchaser to take away a part of the goods without payment is not an entire waiver of the lien, if there be an intention to retain the rest. But it is other- wise, where delivery of a part of the goods is made in the progress of, or with a view to, the delivery of the whole." " Thus the plaintift' sold to one A. a raft of lumber, to be delivered at Albany, and paid for on delivery. A. agreed with the defendant to deliver the lumber to him, to be sold on commission. The plaintiff, having brought the raft to Albany, fastened it to the dock of the defendant, and informed the workmen employed there that it had been purchased by A. The men thereupon began to pile the lumber upon the dock. The plaintiff went away, and, upon his return some hours afterwards, found nearly the whole quantity had been piled. Having learned, while absent, that A. had absconded, he forbade the piling of any more, iipon this ground. During the piling, the de- fendant advanced money and goods to A. on account of the lumber. The plaintiff", having demanded it from the defendant, brings trover against him. Held, the action might be sustained. As the sale was of the whole raft, the plaintiff could not demand payment till the whole was ' See Pari-Delivery. •• While part-payment of the price destroys the vendor's lien only ^ro tanto. Feise v. Wray, 3 E. 93 ; Hodgson v. Loy, 7 T. R. 440 (see s. 10 a) ; the same rule applies where a proportional part of the goods is deliv- ered. Long, 264. The right of lien continues, though a part of the debt be barred by the Statute of Limitations. Spears v. Hartly, 3 Esp. 81. 1 Lupin v. Marie, 6 Wend. 77. 2 Long on Sales (Am. Ed.), 264. 18 274 LAW OF SALES OP PERSONAL PROPERTY. delivered ; hence there was no delay in demanding pay- ment, which raised any presumption of a credit. It was sufficient, for the purpose of preserving a lien upon the whole, for the vendor to be at the place of delivery, and demand payment when the whole was delivered.' So A. sold to B. his whole stock of goods, being a part at Con- cord, and a part at Portsmouth. The former portion was delivered, and the latter agreed to be delivered at C.,and accordingly sent there by a carrier from P. Before arrival of the goods, B. became insolvent, and one of his creditors, before delivery to him, attached them, with his consent. Held, the facts did not show a constructive delivery of the whole property, but A. retained a lien upon the part at- tached. The carrier was A.'s agent, and there was noth- ing to show that he had authority to deliver to B. Hence the fact, that the goods were attached with B.'s consent, was immaterial. They ■were in law still in A.'s § 10 a. Where goods are sold, but not delivered, and a part only of the purchase-money is paid, the right of pos- session remains in the vendor until the payment is com- pleted, and he may have trover.^ § 11. Where a sale is made on credit^ the vendor has no lien for the price. But, if the goods remain in his posses- sion till the credit expires, he may retain them till pay- ment.* More especially in case of an express agreement for such lien. Thus, upon the sale of a lot of mules, it was agreed that the seller should keep them a few weeks, and then deliver them to the purchaser on the execution ' This case would seem to fall quite as appropriately under the head of stoppage in iransitu, as that of lien ; but the court appear to have referred it wholly to the latter. 1 Palmer v. Hand, 13 John. 434. 2 Williams v. Moore, 5 N. H. 235. ' Minzeskeimer v. Heine, 4 E. D. Smith, 65. See p. 273, n. b. • Dixon V. Tates, 2 N. & M. 177; Bailey v. Adams, 14 Wend. 201. See Cutler v. Pope, 1 Shepl. 377. LIEN. 275 of his notes, with good security, for the agreed price. Held, the title to the mules vested in the purchaser on the day of the contract, subject to a lien for securing per- formance of this undertaking." § 12. Where a vendor takes a promissory note in pay- ment, and negotiates it, and the note is afterwards dis- honored in the hands of the indorsee, this does not revive the vendor's lien upon the goods. Thus A. gave B. a general authority to sell hay for him. A. advertised a sale, upon the conditions, that a certain deposit should be paid, three months' credit, with approved security, given for the remainder of the price, and the lots taken away within forty weeks after the sale. B. sold to C, taking his promissory note for the price. C. requested permis- sion of B. to cut a part of the hay, which was granted, and C. accordingly did cut and remove a part of it, but B. forbade his carrying away any more. B. indorsed the note given by C, and procured a discount of it at his banker's, who credited him with the amount, with the proper dediiction. The note was dishonored, and B. be- came bankrupt. The banker and C. entered into an agree- ment, that C. should sell him the remainder of the hay, receiving payment partly in money, and partly by a resto- ration of his own note. Within the forty weeks, the banker demanded the hay of A., who refused to deliver it. In an action of trover by the banker against A., held, 1. If A. had a lien upon the hay after the sale, though a note was given for the price, the removal of a part of the property did not extinguish such lien, delivery of part not being shown to be by way of delivery of the whole." But, 2. That A. had no such lien, because the note given by C, afterwards discounted, and still outstanding, was a • 0. asked permission to take only a part of the hay ; and herein the case differed from that, where there is a part-delivery, and still neither before nor at the time any intention appears to separate a part from the rest. (As in Slubey v. Heyward, 2 H. Bl. 504.) 1 Duncan v. Lewis, 1 Duv. 183. 276 LAW OF SALES OF PERSONAL PROPERTY. payment. The use that B. made of the money received for the note did not vary the principle." § 13. The question sometimes arises, how far a vendor waives his right of lien, by resorting to legal process against the vendee for recovery of the debt. Thus A. sold to B. a carriage, to be paid for partly in cash, on de- livery, and partly by bill at a date specified. B. neglect- ing to take the carriage, A. recovered against him in an action for goods bargained and sold, and also for cleaning the carriage. The carriage was afterwards taken by a shei'ift', on a process against B., with notice of A.'s lien, and A. brings an action against the sheriff" for thus taking it. Pleld, A. retained a lien upon the carriage till the judgment in the former action was paid. That action was for non-perfo7-mance of the contract, and the goods still remained in custody of the vendor. If it had been for goods sold and delivered, the case might have been dif- ferent. And, as between A. and B., if the latter suffered auj'thing from the detention of the carriage, after verdict and before payment, perhaps equity would interfere.'" ' It has been held in Vermont, that a lien is lost, though possession be retained, by taking a note, and giving a receipt for it as payment. Hut- chins V. Olcutt, 4 Verm. 649. The defendant sold a quantity of cotton in his warehouse to A. on a credit of six months, and an undivided por- tion of the same to B., taking his note at six months. The broker said the cotton might remain in the warehouse, till the room should be wanted for some other purpose. B., becoming insolvent, assigned his property to the plaintiff. The defendant refuses to deliver the cotton, till his note is paid or secured. Held, the plaintiff might recover against him. Barrett v. Goddard, 3 Mas. 107. i" A very valuable note upon the subject of lien, and more particularly upon the question by what acts this right is waived, .may be found in Mr. Metcalf's edition of Yelverton, 67 a. The doctrine, often inciden- tally advanced, that there can be no lien, where the debt due is a matter of express contract, is learnedly examined and successfully refuted. It 1 Bunney v. Poyntz, 1 Nev. & M. 229 ; 4 Barn. & Ad. 568. See Bailey v. Adams, 14 Wend. 201. ' Houlditch V. Desanges, 2 Stark. 337. But see Legg v. "Willard, 17 Pick. 140. See also Lloyd v. Holly, 8 Conn. 491 ; Jacobs v. Latour, 2 M. & P. 20; 6 Bing. 131. LIEN. 277 § 14. The question of lien sometimes arises between fart-owners of personal property, standing, with reference to each other, in the relation of vendor and vendee. The following case, while it involves several of the principles heretofore stated, is modified by the circumstance of this peculiar connection between the parties. § 15. A., B., and C, and others, were part-owners of a whale-ship. Their usual course of proceeding with the cargo, on the return of the ship, was as follows : The whalebone was taken and sold by B., and the ship's ex- penses paid from the proceeds. The blubber was deposited in a warehouse hired of C. by the ship-owners. The oil was then put in casks, and the share of each owner weighed and put by itself, with his initials on the casks. The warehouseman then delivered to each owner his share of the oil, unless the ship's husband gave notice that such owner had not paid his share of the expenses ; in which case his share of the oil was retained till pay- ment was made. On the arrival of the ship in 1825, the above course was adopted. A.'s share, amounting to twenty-nine tons, was stowed in casks, marked with his initials. C. debited A. in account with a portion of the warehouse rent. In January, 1826, A. became bankrupt. Twenty tons of oil had been previously delivered to him, is further stated (p. 67 i) that a lien is to be considered as waived only, 1. Where there is a special agreement, which is inconsistent with it, such as an agreement for credit, or where possession is gained for some other specific purpose. 2. Where the party has not possession, or has voluntarily parted with it. 3. Where he is guilty of laches in enforcing his right. A lien is not waived by the neglect of a party to state that he retains the property on that ground. Nor by his refusing to give up other goods, in connection with the property in question, on which goods he has no lien. So where A. had a lien upon certain goods, and purchased the same from » trader after bankruptcy, and, upon a demand by the assignee, refused to surrender them ; this was held to be no waiver of the lien — the lien was not merged in the purchase. White v. Gainer, 2 Bing. 23. Otherwise, where a party claims to retain the goods on an- other ground than that of lien. Boardman v. Sill, 1 Camp. 410, n. 278 LAW OF SALES OF PERSONAL PROPERTY. but the rest remained in the warehouse. In the same month, the ship's husband notified the warehouseman not to deliver the remainder, A.'s share of the expenses re- maining unpaid. The assignees of A. bring trover for the oil. Held, the other ship-owners had a lien upon A.'s share, which had not been divested ; that, in view of the previous usage of the parties, the appropriation to A. of a specific portion of the oil, by putting it in casks, &c., was not absolute, but qualified ; that the removal of the twenty tons made no diflerence as to the right of retain- ing the remaining nine, because these were considered as sufficient security for A.'s share of the expenses; that the debiting of the rent to him did not impair the lien, be- cause this must have been paid before the oil was taken away, or deducted from A.'s share of the proceeds of sale, in case the other owners were compelled to sell, for pay- ment of the expenses ; and judgment was rendered for the defendants.^ ' Holderness v. Shackells, 8 B. & C. 618. STOPPAGE IN TRANSITU. 279 CHAPTER XVII. STOPPAGE IN TRANSITU.* I 1. GENERAL NATURE OF THE RIGHT ; DISTINCTION BETWEEN, AND LIEN. 2. NOT A RESCINDING. 3. HOW EXERCISED. 4. AT WHAT TIME. 5. HOW AFFECTED BY DELIVERY ; NATURE OF THE DELIVERY ; CON- STRUCTIVE DELIVERY. 8. PARAMOUNT TO A LIEN AGAINST THE PURCHASER. 9. WHERE AN ACT REMAINS TO BE PERFORMED BY THE SELLER. 11. KNOWLEDGE OF INSOLVENCY; WAIVER OF THE RIGHT. 12. ARRIVAL OF THE GOODS AT THEIR DESTINATION ; ARRIVAL AT AN INTERMEDIATE POINT ; POSSESSION TAKEN BY THE PURCHASER. 16. DELIVERY TO CARRIER, WHARFINGER, ETC. 23. PRINCIPAL AND AGENT. 30. BILL OF LADING AND OTHER EVIDENCES OF TITLE. 40. PART-PAYMENT. 41. GOODS SENT TO A CREDITOR. § 1. Nearly connected with the right of lien, which was considered in the last chapter, is that of stoppage in ' The qualified effect of this right upon the question of mere title be- tween the parties is thus expressed in a very late case: " Unless the property passed, there would he no need of the right of stopping in transitu ; the only effect of the property passing, is, that from that time the goods are at the risk of the buyer. But it by no means fol- lows that the buyer is to have possession unless he is prepared to pay." Per Miller, J. Botton v. Kallway, Law Kep. (Eng.), August, 1866, p. 438. Por a most elaborate and exhaustive view of the law upon this subject, citing and analyzing all the authorities, and extending to the length of forty-five octavo pages ; see Holbrook v. Vose, New York Court of Ap- peals, opinion of Daveis, J. ; American Law Eegister, August and Sep- tember, 1865, pp. 603, 688. 280 LAW OF SALES OF PERSONAL PROPERTY. transitu. By virtue of this right, goods sold, whether on credit or not, and shipped or otherwise forwarded, may, in case of the vendee's insolvency,'' be stopped and taken possession of by the vendor at any time before their arrival at the place of destination, and going into the actual or constructive possession of the consignee ; unless the bill of lading has been assigned to a bond fide purchaser.' The chief points of difierence, between the two rights of lien and stoppage m transitu, are, that the former ceases when- ever the property sold passes out of the vendor's hands, that it may be exercised in all cases where the purchaser fails to make payment according to his contract, and that it does not usually exist where the sale is upon credit ; while the latter is designed to restore possession to the vendor after he has parted with it, applies only in cases of bankruptcy or insolvency,'' and is chiefly exercised * In Louisiana, the privilege granted to the vendor by art. 3194, 0. P., is not conditional, or dependent upon the solvency or insolvency of the buyer ; it is positive, without condition or limitation, as long as the prop- erty sold remains in the possession of the purchaser. Converse v. Hill, 14 La. An. 89. ^ It has been held, that the right can he exercised only where the pur- chaser becomes insolvent, not where he was so at the time of sale, though without the knowledge of the seller. Also, that a general inability to pay is not suflScient; but the party must have become subject to an in- solvent law, stopped payment, or shown a failure by some overt act. Kogers v. Thomas, 20 Conn. 53; Chandler v. Fulton, 10 Tex. 2. But see Hays v. Moville, 14 Penn. 48. In a very late case it is said, " It is sufficient that the vendee was in _ such circumstances as not to be able to meet his engagements." Per Sir John Eomilly, M. B. Schotsmans v. Lancashire, &c., Law Rep. (Eng.) Equ., March, 1866, p. 359. There must be a stoppage of payment. O'Brien v. Morris, 16 Md. 122. With regard to the parly by whom the right may be exercised, a- spe- cial authority from the consignor is not necessary. The authority of a general agent is sufficient ; and a stoppage made for the benefit of the consignor by a forwarding merchant at an intermediate port, to whom 1 Chandler v. Pulton, 10 Tex. 2; 38 Penn. 396; Atkins v. Colby, 20 N. H. 154; Stevens v. Wheeler, 27 Barb. 658. STOPPAGE IN TRANSITU. 281 where the sale is made expressly upon credit, because it is for the most part in such sales that the vendor parts with possession without payment. Stoppage in transitu is sometimes called an extension of the right of lien.' " It does not, like the latter, apply, where actual or construc- tive possession still remains in the shipper or his exclusive agent.^ § 2. As distiiiguished from still another method of pro- tecting the vendor ; stoppage in transitu is said to be a species of equitable lien^ provided to effect the purposes of goods are sent with directions to forward them, though not made until after such merchant had written to the consignee, advising him of the arrival of the goods, asking orders relative to them, and stating that he should " hold on to the goods until the consignee should order them away ; " is valid, if the consignor affirm the act. Chandler v. Pulton, 10 Tex. 2. And where the assignee of a hill of lading sues a commission merchant for the wrongful detention of goods, the consignor may be let in to defend the suit, on the ground that the goods were detained by virtue of his right of stoppage in transitu. lb. » The connection, and distinction, between the two rights of lien and stoppage in transitu, is well explained by Mr. Chief Justice Shaw. " A lien for the price is incident to the contract of sale, when there is no stipulation therein to the contrary. . . But conventio legem vincit ; and when a credit is given by agreement, the vendee has a right to the cus- tody and actual possession, on a promise to pay at a future time. He may then take- the goods away, . . . and if he does so, the lien of the vendor is gone. But the law, in holding that a vendor, who has thus given credit for goods, waives his lien, . . . does so on one implied condi- tion, which is, that the vendee shall keep his credit good. If, therefore, before payment, the vendee become bankrupt or insolvent, and the ven- dor still retains the custody of the goods, or any part of them ; or if the goods are in the hands of a carrier, or middle-man, on their way to the vendee, . . . and the vendor . . . can regain his,»ctual possession, by a stoppage in transitu; then his lien is restored." Arnold v. Delano, 4 Cush. 39. "• Lord Ellenborough calls it "a sort of jus postliminii." Coxe v. Harden, 4 B. 218. It is said to have grown out of the hardship, in par- ticular cases, of the rule, that goods consigned to a bankrupt, which ar- ' See White v. Welsh, 38 Penn. 396; Parks v. Hall, 2 Pick. 212; Kowley v. Bigelow, 12 Pick. 313 ; Hays v. Moville, 14 Penn. 48. 2 San Jose, &c., 2 Gall. 268. 282 LAW OF SALES OF PERSONAL PROPERTY. substantial justice, and not a rescinding of the contract. It is the act of one party, while a rescinding of the sale is the rive after the act of bankruptcy, are considered as part of the bankrupt's effects. Scott v. Pettit, 3 B. & P. 472, 473. The first case recognizing the right was Snee v. Prescot, 1 Atk. 245; in which Lord Hardwicke said, that the vendor may regain po.ssession by any means short of abso- lute violence. "By any means not criminal," is the expression of another eminent judge. Holt, 20, n. It is said never yet to have been decided, that bankruptcy is of itself a countermand of goods purchased. Per Lord Ken yon, Ellis v. Hunt, 3 T. K. 467. It was said by Parke, J. (in 1828), the right to stop in transitu has not been long known to the common law, perhaps not above seventy years, having been at that time transplanted from the courts of equity. (Long (on Sales, p. 387) says, the practice was unknown to the law as lately as the year 1690.) Yet it has since been established by such a variety of decisions, that it is now regarded with favor by the common law courts, as a right which they are always disposed to assist ; not pro- ceeding at all on the ground of the contract being rescinded by the, in- solvency or bankruptcy of the consignee, but as an equitable right, adopted for the purposes of substantial justice. It is n right conferred on meritorious persons, and imposes no hardship on any one. Tucker v. Humphrey, 4 Bing. 519 ; Per Lord Kenyon, Northey v. Pield, 2 Esp. 614, 615 ; Kowley v. Bigelow, 12 Pick. 313 ; Bartram v. Farebrolher, 4 Bing. 585. It seems, equity has now no jurisdiction in relation to this right; and it certainly will not enforce the right, where there has been a complete delivery, notwithstanding gross fraud in obtaining the goods. On the other hand, equity will not grant an injunction against the sale of a ship, on the application of one who has sold goods on board such ship, where he still retains the right of stoppage in transitu. Goodhart T. Lowe, 2 Jac. & W. 349; Conyers v. Ennis, 2 Mas. 236. In a very late case in chancery, involving the point of stoppage in transitu, the following order was passed, but the decision was subse- quently reversed. " The plaintiff is entitled to a lien for unpaid pur- chase-money, and for his costs, upon the cargo, &c., or the produce thereof, subject to freight, &c. Order inquiring as to amount of unpaid purchase-money, &c., and inquiring what has become of the cargo of flour, and if any part thereof has been sold, dealt with, or disposed of, otherwise than pursuant to the order of this court; and what has become thereof, and what it has produced, and by whom the proceeds have been received, and if not sold what is the value thereof?" Schotsmans v. Lancashire, &c., Law Rep. (Eng.), Equ., Mar. 1866, p. 359; Reversed, lb. 1867, p. 332. The case referred to was as follows : Goods were shipped on board a general ship, owned by a firm to which the purchaser belonged, and STOPPAGE IN TRANSITU. 283 nmtual act of both." After stoppage in transitu, the ven- dee may recover the goods, by complying with the con- registered in his name. By the hill of lading the goods were deliver- ahle at 6. to the purchaser or assigns. Three parts of the bill were handed to the agents of the seller, and the fourth retained by the master. Upon the insolvency of the buyers, held, before delivery at G., the goods might be stopped as in transitu; and, under Sir H. Cairns's act, the present action for damages was maintained against the buyers, their as- signees, and the railway company. Schotsmans v. Lancashire, &c., Law Kep. (£ng.) Equ., Mar. 1866, p. 848. * This, however, is not always the case. A sale may sometimes be re- scinded ex parte. (See Rescinding of Sales; also J 3, and n.) A vendee on credit failed before the goods reached him. On their ar- rival, he declined to take possession, refused to pay the freight, and re- quested A. to take possession on behalf of the vendor, which he did. The goods were then attached by the vendee's creditors. Afterwards, and as soon as he heard of the transactions, the vendor ratified A.'s proceed- ings. Held, the transaction was either a stoppage in transitu or a rescis- sion of the sale before the goods came into the vendee's possession, and therefore the attachment would not hold against the vendor. Cox v. Burns, 1 Clarke (Iowa), 64. Goods were consigned from London to A. at Sunderland according to order ; and a draft for the price, the invoice, and the bill of lading were forwarded. On arrival, A. was in difficulties, and desired that the goods should not be received from the wharf. But, in the absence of A., and without his consent, the goods were deposited in his warehouse. He after- wards knew of these facts, and took and kept the key of the warehouse. February 4th, A. wrote to the plaintiff, the vendor, returning the draft, unaccepted, and stating the circumstances as to the goods, and that a stoppage of his business was decided upon, and continued: "I immedi- ately sent for my solicitor to get his advice, amongst other things, as to whether I could not, under the circumstances, return the hemp to the wharf. He declared not; which placed me under the necessity of depriv- ing you of what I considered your right. I cannot say what dividend yet there is likely to be." " I return your draft, and, although it can be little satisfaction to you, must express my extreme regret that you are so unfortunately placed." On the 6th of February, the vendor applied to A. for the goods, and was referred by hini to his solicitor. On the 25th of February, A. made an assignment to the defendants for creditors, and delivered the key to them. The goods were demanded of the defendants, refused, and sold. Held, in an action of trover, that the property passed by delivery on board ship and the forwarding of the bill of lading ; that there was no valid rescission, which requires mutual consent ; that any expression of a wish to rescind, not communicated to the other party, was immaterial ; that the letter of 4th February, which was communi- 284 LAW OF SALES OF PERSONAL PROPERTY. tract and paying the price. And, on the other hand, the vendor may recover the price in an action for goods bar- gained and sold, if ready to deliver the goods on payment; the contract providing that payment should precede de- livery. So, it is said, stoppage in transitu does not render the delivery of goods conditional. Though this lien be en- forced, the goods strictly belong to the vendee ; and, if they are of more value than the lien, though this be for the whole price, the balance belongs to the vendee. It would be absurd to say that the vendor has a lien upon his own goods. On the above grounds, where a vendor is prevented by false pretences from exercising the right of stoppage in transitu, this will not sustain an indictment for obtaining the goods by false pretences.^ § 3. The right of stoppage in transitu, being an equit- able authority to repossess the goods sold, upon the in- solvency of the vendee, cannot be exercised in mere ca- price. There must be a positive exertion of the right. And it should be stated as done eo intuitu, and ad- versely."^ § 4. It seems, the right is not affected by lapse of time after the sale.* cated to the vendor, did not amount to an offer by A. to rescind, tut to an assertion that he could not do so ; and that there was no valid stoppage in transitu, for the natural transit was ended, and A. had treated the goods as owner whilst they were in his possession. Heinekey v. Earle, 8 Ell. & B. 410. See s. 3, and n. » But the right of stoppage in transitu, though adverse to that of the consignee, is not defeated by a communication from him to the vendor, revoking the order, declining to receive the goods, and requiring the master or any one having charge of them to deliver them to the vendor. Nayior v. Dennie, 8 Pick. 198. See s. 2, and n. 1 Hodgson V. Loy, 7 T. E. 445; Holt, 20, n. ; Jordan v. James, 5 Ohio, 98; Stanton v. Eager, 16 Pick. 474; Kymcr v. Suwercropp, 1 Camp. 109; Rowley v. Bigelow, 12 Pick. 313; People v. Haynes, 14 Wend. 565, 566 ; Buckley v. Purniss, 15 Wend. 142, 143. 2 Per Wulworth, Chancellor, People v. Haynes, 14 Wend. 563; Per Lord Ellenborough, 6 E. 380. " Buckley v. Purniss, 15 Wend. 137. STOPPAGE IN TRANSITU. 285 § 5. With regard to the state or position of the goods which constitutes a transitus; the rule of course applies in this as well as other connections, that a vendor may part with his property and dominion by a symbolical and constructive delivery, as well as a corporal touch.^ (See Delivery.) It is said that, in some of the earlier cases, particularly that of Hunter v. Peale (3 T. R. 466 n.). Lord Mansfield, who carried the doctrine of stoppage in transitu a great way, seemed to expect that, in order to put an end to this right, the goods must come to the ac- tual corporal touch of the vendee." But, in a subsequent case,^ Lord Ellenborough says, the question is, whether the party, to whose touch the property actually comes, be an agent, so far representing the principal, as to make the delivery to him a full and final delivery to the principal, and not a delivery merely to a person acting as a carrier or mean of conveyance.' Lord Kenyon remarks : " I once " On the other hand, formerly, actual corporal touch by the vendor was held requisite to a stoppage in transitu. But the modern doctrine is, that, after notice to the carrier of goods not to deliver them, he is liable in trover if he does deliver them. Such notice may re-vest in the vendor the property which was before in the vendee. Before notice, the vendee may maintain trover against the carrier ; after notice, the vendor. A claim for, and attempt to stop the goods, is all that the law requires.. Litt V. Cowley, 7 Taun. 169, 170; Mills v. Ball, 2 B. & P. 462; New- hall V. Vargas, 1 Shepl. 93. See s. 16. Where the captain of a ship receipts for goods, he should not sign a bill of lading till the receipt is given up. If the receipt is in the hands- of the vendor, who after the failure of the vendee demands the goods, and the captain refuses to give them up, on the ground that he has signed a bill of lading to the vendee; this is a conversion, though the vendor did not tender the freight, nor pay for the trouble of loading. So, though one of the vendors said to one of the vendees, after the failure, that he was sorry for it, but would do as other creditors did ; if this conversa- tion was unknown to the captain. But if the captain had said, " The goods are now on board, and I must take them to their destination," this would be no conversion. Thompson v. Trail, 2 C. & P. 334. 1 Jordan v. James, 5 Ohio, 98. 2 Dixon V. Baldwin, 5 B. 175. ' Bowe V. Pickford, 1 Moore, 528. 286 LAW OF SALES OF PERSONAL PROPERTY. said that a corporal touch was necessary to constitute com- plete delivery. I wish the expression had not been used. It says too much." But it is held, in general, that any act of ownership is all that is necessary ; such as payment for a warehouse. Upon the same principle, where the purchaser of wine lived in Norwich, and the wine was sent from London to Yarmouth, and there received by his agent ; and the vendee went there, tasted and took a sample of the wine : it was held that under these circum- stances the vendor might sue for the price, and his right of stopping was at an end. So a delivery to a commission merchant, by placing the goods to the vendee's account, is held sufficient. Though not a mere claim of the goods by the vendee.' So where a vendee is on the spot person- ally to select the goods, and has them laid aside, boxed, and directed ; it seems, the vendor can have no right to stop them on their way to his place of residence.^ So, where goods are delivered to the purchaser at a wharf, and he ships them there, the transitus is at an end.^ So the delivery by a carrier, of a part of goods sent by vendor to vendee, is primd facie a delivery of the whole, and puts an end to the right of stoppage in transitu.* The transitus continues until the goods reach the place of destination, unless sooner terminated by the act of the vendee. A de- livery, without fraud, to the vendee, of the goods or a part of them, or a delivery to his agent or to a bond fide purchaser from him, although not at the place directed by him at the time of the purchase, terminates the ven- dor's right."* § 6. But on the other hand it is held, that the vendor of goods has a general lien for the price while they remain in his possession, though there have been a part-delivery, ' "Wright V. Lawes, 4 Esp. 85 ; lb. 82. 2 Per Tracey, Sen., People v. Haynes, 14 Wend. 565. ' Noble V. Adams, 7 Taun. 59. • BeWB V. Gibbins, 4 Nev. & M. 64 ; 2 Ad. & El. 57. * Stevens v. Wheeler, 27 Barb. 658. STOPPAGE IN TRANSITU. 287 if tlie right of stoppage in transitu is not lost.^ So where goods remain in the warehouse of the vendor, rent-free, and he gives the vendee a delivery-order upon which a portion of the goods have been taken ; the vendor still retains the right of stoppage in transitu.^ So goods may be stopped in transitu, though carried in a ship named by the vendee.'* Thus, where goods were sold on credit at a foreign port, and shipped in a vessel of the vendee, con- signed to him, to be delivered at his port of residence, and the vendee became insolvent before payment, and before obtaining actual possession ; held, the vendor might exer- cise the right of stoppage in transitu, and this notwith- standing the vendor bought the goods on credit for the vendee, and took bills drawn by the master of the vessel upon the vendee ; or charged a commission, or received part-payment.'' But where goods are sold, to be paid for on delivery, and are put on board a ship appointed by the vendee, not for the purpose of being carried to him, or de- livered for his use, and at a place of his appointment, but to be shipped by the vessel in his name, and from his place of abode and business, to a third person ; the vendor has no right of stoppage after the goods are embarked."* • A fortiori, where they are shipped at the risk of the shipper. This point incidentally arose in an admiralty case, as follows. A., an Ameri- can citizen, made claim to certain goods captured in the ship Frances. The goods were shipped by a British house, consigned to A., but at the risk of the shippers, and captured by an American privateer. A. re- sisted the title of the privateer, on the ground that the property vested in him upon delivery to the master, he having made advances upon it. Held, A.'s claim was not valid. The Frances, 8 Cranch, 418 ; 9, 183. >• A., in England, chartered a vessel for a voyage to Eussia, to bring goods purchased from B. ; the captain contracting to go to Eussia and bring home a cargo, and A. agreeing that it should be equal to the ton- 1 Hanson .V. Meyer, 6 E. 614; 2 Smith, 670. ' Townley v. Crump, 5 Nev. & M. 606. ' Thompson v. Trail, 2 Car. & P. 334. * Newhall v. Varga^, 1 Shepl. 93. ' Kowley v. Bigelow, 12 Pick. 307. 288 LAW OF SALES OF PERSONAL PROPERTY. § 7. The following general principles have been laid down as to the eftect of constructive delivery upon the nage of the ship. B. shipped the goods on account and at the risk of A., and sent him invoices and bills of lading. A. having become bankrupt, the agent of B. demanded the goods of the captain before unlading, but he delivered them to the assignees of A. B. brings trover against the as- signees. Held, there was the same right of stopping the goods on board the ship before actual delivery as if they had been sent in a general ship ; and that the rights of the parties were the same as if B. had made a similar contract in Eussia for forwarding the goods by A.'s directions ; in which case these facts would not have constituted a delivery. It was remarked by the court, that, where the goods in question make up only one-half the freight, the right of stoppage, under such circumstances, is unquestionable ; and the fact that they constitute the whole freight does not vary the principle. Boghtlingk v. Inglis, 3 E. 381. But, in another case, A. hired a ship for three years, at so much a month, he finding stock and provisions, and paying the master, and having the whole control and disposal of the vessel. The ship had been one voyage to Alexandria, and the goods were put on board for another voyage to the place ; not to be conveyed from B., the vendor, to A., but that they might be sent by A. upon an adventure, for which he had bought them. Held, there was a delivery, and the right of stoppage was at an end. Powler v. Kymer, cited 3 E. 396. So A., residing at London, in the prospect of insolvency, procured goods from B. at Glasgow, and paid for them by a bill drawn upon a London house which he knew to be insolvent. The goods were shipped at Leith (the invoice and receipt from the ship-owners being made out to A.), and were delivered to C, a wharfinger in London, who afterwards received notice to hold them for B, A., having become bankrupt, brought trover against C. for the benefit of his assignees. Held, the receipt, made out to A., was a delivery of the goods to him, and termi- nated B.'s right of stopping in transitu ; and that the evidence of fraud on the pa,rt of A. was not strong enough to avoid the contract. Noble V. Adams, 2 Marsh. 366 ; 7 Taun. 59. So A., the general agent, in London, of B. & Co., of Paris, with power to export for them to such markets as he should think fit, pur- chased goods, in the name of B. & Co., from C. at Manchester and directed them to be sent to D., a packer, at London. The goods having arrived, A. had some of them unpacked and sent away, and the rest re- packed. Upon the failure of B. & Co., held, C. could not stop the goods in D.'s hands, the transiius being at an end. Leeds v. Wright, 3 B. & P. 320. So A., the plaintiff, consigned goods to B., at London, which were left at an inn in that city. Upon B.'s bankruptcy, his assignee, one of the defendants, went to the inn and put his mark upon the goods, but did STOPPAGE IN TRANSITU. 289 right of stoppage in transitu. ' Actual delivery puts an end to the right of stoppage in transitu. Gonsirxictive de- livery is a delivery for certain purposes only. Being a Jidion, it is so construed as to work equity ; and ia held so far a delivery as to make the carrier responsible to the vendee, but not to terminate the transitus of the goods in case of bankruptcy.' The general rule is not, it seems, that goods may be stopped after a merely constructive delivery, and that nothing but actual delivery vests a title indefeasibly in the vendee ; but that the transitus ends by delivery, actual or constructive, and the exception is only where a constructive delivery is made for the purpose of transport.^ In the case of Stubbs v. Lund,^ Parsons, C. J., puts the right of stoppage in transitu upon the ground of the destination of the goods, or final termination of the voyage. But in Bolin v. Iluffiiagle,* Rogers, J., calls this " a subtle distinction." § 8. The right of stoppage in transitu is paramount to any lien against the vendee. Thus it may be exercised to defeat an attachment or execution served upon the goods by a creditor of the vendee. An attachment operates only upon the interest of the debtor, but does not defeat the paramount right of a stranger. If it did, the right of stoppage in transitu would be of little practical value, be- cause an attachment of his property is often the first notice of a vendee's insolvency. The vendor's power of intercepting the goods is the elder and preferable lien, and not superseded by the attachment, any more than it would not remove them, they having been previously attached in a suit against B. Upon hearing of B.'s bankruptcy, A. countermanded the goods. Held, A. could not maintain trover, the transitus being at an end when the mark was put upon the property, and the marking by the defendant having the same effect as if done by B. himself. Ellis v. Hunt, 3 T, E. 464. 1 Oppenheim v. Russell, 3 B. & P. 50. = Bolin V. Huffnagle, 1 Kawle, 19 ; Brown on Sales, 506. » 7 Mass. 463. i « 1 Eawle, 9. 19 290 LAW OF SALES OF PERSONAL PROPERTY. have been by the general right of a common carrier to re- tain all his customer's goods for his general balance.' So the right is not impaired by the sale of the goods after attachment, by an order of court, under the Maryland act of 1839, c. 39. And the filing, by the Vendors, of a claim in the attachment case to the fund in court, is a sufficient exercise of the right of stoppage.^ § 9. Where goods are not deliverable without a further act of the vendor, the right of stoppage continues. Thus, where the property sold is part of an entire mass,^ — as, for instance, part of the liquid in a vessel, — the right of stop- page co-ntinaes, it seems, till a separation of the quantity sold. So where the goods remain to be sorted, numbered, and weighed, the right continues, notwithstanding a de- livery of part O'f them." ^ » The plaintiff went to the defendant's shop to purchase articles of plate. The price was agreed upon, but the goods were not to be delivered then, but were to remain to be engraved at the defendant's expense. They were accordingly delivered to an engraver, who was directed by both parties to return themi to the defendant. The price was paid, at the time of the agreement, in notes of A., a banlcer, whose house at that time was closed, and in consequence of A.'s bankruptcy was never reopened. The notes were not paid. The plaintiff brings trover for the goods. Held, while the goods remaiined to be engraved at the defendant's ex- pense, they were only in transitu, and there was no complete delivery to the plaintiff; and, as the defendant had not agreed to take the notes as payment, and run the risk of their being paid, upon a failure of con- sideration, the plaintiff ceased to have a claim to the goods, and this action would not lie. Under the circumstances, it seems, the defendant could not have recovered for goods sold and delivered, though perhaps he might as for goods iavgaiined and sold. Owenson v. Morse, 7 T. K. 64. Sale of ten ton* of flax, at so much per ton, out of a larger quantity, packed in mats of uncertain weight. The price was to be paid by an acceptance at three- months. A note was given for delivery on a certain 1 Blackman m. Pierce, 23 Cal. 508 ; 16 Md, 122 ; Morley v. Hay, 3 M. & K. 396; Buckley v. Furnjss, 15 Wend. 137? Smith v. Goss, 1 Camp. 282 ; Naylor v. Dennie, 8 Pick. 198 ; "Wood v. Yeatman, 15 B. Mon. 270; Aguirre v. Parmelee, 22 Conn. 478. ' O'Brien v. Norris, 16 Md. 122. 3 Austin v. Craven, 4 Taun. 464 ;: Wallace v. Breeds, 13 E. 525; Han- son T. Meyer, 6 E. 614 ; Bugg v. Minett, 11 ^ 210. See chap. 9. STOPPAGB IN TRANSITU. 291 § 10. But where the vendee re-sells the property, before separation of the particular part sold by the vendor, the former has not the right of stoppage in transitu, upon the bankruptcy of the second purchaser. =■ § 11. It seems there can be no stoppage in transitu, where the vendor knew that the vendee was insolvent at the time of sale.' But such insolvency must be known to the vendor, and he must have sold with such knowledge.' day, after which the rent of the building where the flax lay was charged to the vendee. The order for delivery was entered in the wharfinger's hooks. Allowance for tare and draft was to be made by the weight. Held, the vendor might rescind the sale upon bankruptcy of the vendee, and maintain trover against the warehouseman. The weighing was to be the act of the vendor as well as the vendee. The former must pay for and superintend it, and it could not be done without giving him notice. He also had the right to make a selection. The mats being of unequal quantities, the fraction of one might be requisite to make up the weight sold. Busk V. Davis, 2 M. & S. 397; 5 Taun. 622 n. A sale-note for fifty tons of oil was delivered by the broker of the vendor to the vendee, payable by a future acceptance. The vendee also received an order upon the wharfinger to deliver fifty tons out of a quan- tity of ninety. A usage was shown, in case of the sale of oil, to have the cooper of the vendor search the cask, and the mutual broker of the parties ascertain the quantity of soot, dirt, and water in each, for which allow- ance was made. The casks were then to be ^led by the vendor's cooper, at his expense. All this took place before delivery. Held, that, in the present case, the sale was not complete ; but, on the vendee's becoming bankrupt, the vendor might countermand it. Wallace v. Breeds, 13 B. 522. • A., having forty tons of oil in the same cistern, sold ten tons to B., and received payment. B. sold to C, taking his acceptance at four months, and giving him an order for delivery upon A., who accepted it in writing. The ten tons were never delivered, but still continued mixed with the rest in the cistern. Before his acceptance became due, C. be- came bankrupt. Held, there was a complete delivery in law by B. to 0., B. never having himself had actual possession, and nothing remaining to be done between him and C, though, as between A. and C, the oil was yet to be measured. A. was the common bailee of both the other parties. Hence, B. could not countermand the sale, nor stop the property as in transitu. Whitehouse v. Prost, 12 E. 614. See 32 Verm. 58. 1 16 Wend. 137. » O'Brien v. Norris, 16 Md. 122. 292 LAW OP SALES OF PERSONAL PROPERTY. Thus, where the sale took place in 1833, and the vendee had failed in New York in 1829, the vendor knowing this fact, hut not that he had remained insolvent ever since ; and the vendee afterwards transacted business in the country, and represented that he was largely interested in real estate ; and the vendor had previously sold him goods and been promptly paid, and was ignorant of Ms being much in debt, and of his securities having been pro- tested : held, no sufficient notice of insolvency to prevent the exercise of the right of stoppage.' Nor can the vendor exercise the right of stoppage in transitu, where, by some act subsequent to the original contract, he seems to have waived such right. Thus A. sold to B. a butt of wine, but did not deliver it. B. afterwards made a composi- tion with his creditors, and the price of the wine was by A.'s consent included in such composition, A. having also another claim against B. Before payment of the whole composition, B. demanded the wine, and, upon A.'s refusal to deliver it, brought trover against him. Held, A.'s un- dertaking bound him to deliver the wine, and the doctrine of stoppage in transitu did not apply. It was a sufficient consideration for A.'s promise, that he thereby obtained security for his whole debt. The right of stoppage, in- stead of being insisted on, was given up.' § 12. It is the general rule, that, where goods are sold to be sent to a particular destination named by the ven- dee, the right of the vendor to stop them continues until they arrive at that place of destination.' " The goods must have arrived at their original destination, or at the place directed as the place of delivery by the original consignee or the person in possession of the bill of lading."* So, if 1 Buekley v. Furniss, 15 Wend. 137. ' Nichols V. Hart, 5 C. & P. 179. " Per B^yley, J., Coalea v. Railton, 6 B. & C. 425 ; Stanton v. Eager, 16 Pick. 474. * Per Sir W. Page Wood, V. C, Coventry v. Gladstone, Law Eep. (Eng.) Eq., July, 1868, p. 50 (affirming, and citing, as leading cases. Whitehead v. Anderson, 9 M. & W. 618 ; Wentworth v. Outhwaite, 10 lb. a36). STOPPAGE IN TRANSITU. 293 a man be in the habit of using the warehouse of a wharf- inger as his own, and make that the depository of his goods, and dispose of them there, the transitus will be at an end when the goods arrive at such warehouse.'- So the transit ends upon the arrival of the goods at a point where they are subject to the order of the purchaser for further transportation.^ Or, on delivery at a wharf, though half a mile from the purchaser's place of business ; if it is the usual place of his receiving goods, and, upon the arrival of goods at that wharf, the purchasers thereof are in the habit of taking personal charge of them ; and if there is no lien for freight or charges." ^ But goods may be stopped in transitu, if deposited at the king's warehouse for duties, though they have been claimed by the vendee.'' * * Goods were attached at an intermediate place. The seller obtained a release from the attachment by obtaining a delivery, as indemnity, from the original consignee to a third person, to be forwarded by such third person. Held, the right of stoppage was barred. Wood v. Yeat- man, 15 B. Mon. 270. ^ But it is held that a demand of the property from the vendee, made before actual delivery to him, and while it is in the dustody of the cus- tom-house officers, is not sufficient to enable the vendor to reclaim it. The demand must be made of the carrier or middle-man, in whose cus- tody it is, at such time, and under such circumstances, that they may prevent its delivery to the vendee. Mottram v. Heyer, 5 Denio, 629. A., a merchant in New York, ordered B. to send him from England a cask of hardware. It arrived April 7th, when the bill of lading was de- livered to A., and the freight paid. On the 9th, the goods were entered at the custom-house, and carried from the ship to the public store. While there, and before the duties were paid, A. became insolvent, and B. de- manded of A. the goods. A. refused to deliver them, and removed them to his store. Held, the demand was not sufficient to revest the title in B. lb. A purchaser, to whom goods had been shipped, paid the freight, and gave his note for the price ; but, by reason of the loss of the invoice, the ' Tucker v. Humphrey, 4 Bing. 521 ; Kiehardson v. Goss, 3 Bos. & P. 127; Scott V. Pettit, lb. 469; Foster v. Prampton, 6 B. & 0. 109. » Hays V. Moville, 14 Penn. 48; Biggs v. Barry, 2 Curt. 259. ' Sawyer v. Joslin, 20 Verm. 172 ; ace. Wood v. Yeatman, 15 B. Mon. 270. * Northey v. Pield, 2 Bsp. 613 ; Mottram v. Heyer, 5 Den. 629. 294 LAW OF SALES OF PERSONAL PROPERTY. § 13. The question often arises, whether the arrival of goods purchased at an intermediate place, between the goods, upon their arrival, were stored in the custom-house, where they remained till the note fell due. This not being paid, and the purchaser becoming insolvent ; held, the right of stoppage was not lost. Dorath v. Broomhead, 7 Barr, 301. Trover, by assignees, for certain goods sent to A., a bankrupt, in Lon- don, from Manchester. The goods arrived in the office of the defend- ants, who were carriers, before A.'s bankruptcy, and remained there till they were removed by A.'s agent, to be shipped for the Continent, ac- cording to A.'s general practice in relation to goods thus consigned. A. had no warehouse of his own. Held, the iransitus was at an end on the arrival of the goods at the wagon-office, and that the plaintiffs were en- titled to them, notwithstanding a claim by the sellers to stop them. Eowe V. Pickford, 1 Moore, 526. A. shipped goods from Newcastle for London, to the order of B. Find- ing that B. was insolvent, A. applied at the defendant's wharf in Lon- don, where the goods bad in the meantime arrived, and where goods shipped for B. were usually landed and kept till sent for by him, tender- ing the freight and charges paid for the goods, and requiring delivery of them, which was refused, unless upon payment of a general balance due from B. to the defendant for wharfage. Held, it seems, that the iransi- tus was at an end upon the arrival of the goods at the defendant's ware- house, this being the usual place where B.'s goods were deposited and disposed of. Eichardson v. Goss, 3 B. & P. 119. March 16th, goods were sent, upon a previous order, from Manchester, directed to A., at the B. & M. inn, London. A. having left no direc- tions as to the goods at this inn, March 23d, they were sent to the house of B., the defendant, as the packer of A., to whom A. had given a gen- eral order that all his goods should be sent, A. having no warehouse of his own. March 11th, A. committed an actof bankruptcy. Upon their arrival, the goods were booked to A.'s account, and were unpacked by B., who was ignorant of the bankruptcy. March 31st, the consignors, and on the next day the assignees of A., the plaintiffs, claimed the goods. Held, there being no other place of delivery in this case than B.'s ware- house, the goods, when arrived there, had come to their last destination, and consequently were no longer liable to the right of stoppage in trans- itu, and that the plaintiffs should recover the value of them in trover. Scott V. Pettit, 3 B. & P. 469. See, also, Leeds v. Wright, lb. 320. A- purchased for B., with his (A.'s) own money, a quantity of flour at S., which was sent to London by water, reached the wharf April 12th, and was landed April 22d. The invoice was forwarded to B., and a manifest of the flour to a wharfinger in London, who was in the habit of delivering goods to the consignee when called for, and in the meantime keeping them in his vessel. If not called for, his practice was, upon the STOPPAGE IN TRANSITU. 295 two points of departure and of destination, puts an end to the right of stoppage in transitu. Upon this point it is held, that depositing goods at an intermediate point, with the vendee's agent, to be forwarded, does not determine the right.' The goods must be brought to some place ap- pointed by the buyer as their final destination, and not merely as a stage in their progress to such destination.' Thus A., residing at Guernsey, employed B. as his agent at Southampton, to ship all goods which should arrive at the latter place, directed to A. B. paid the carriage and wharfage, and selected the ship by which certain goods, purchased of C, were forwarded. A. having become in- solvent, both A. and C. were desirous that the goods should be stopped ; but B. claimed to retain them by vir- tue of a lien for a debt due from A. The jury found that the re-loading, after the goods were shipped for Guernsey, was for the use of the owner. Held, the transitus was not terminated at Southampton, but continued after the em- barking for Guernsey ; and that B. could not retain the goods.' So A. ordered a quantity of goods from B., who lived at a distance from him, to be forwarded to an inter- mediate place. The goods were accordingly sent, and, upon arriving at such place, were delivered to a carrier employed by A., and a part of them received at his resi- dence. Before the remainder reached A.'s residence, B. resumed possession of them on the ground of A.'s insolv- ency. Held, the transitus was not ended, because, although return of the vessel, to store them in his warehouse, to the order of the consignor. If the goods were to be delivered to order, he delivered them either upon a bill of lading or an invoice from the shipper. B. was in the habit of having flour consigned to him at the wharf, and of selling it either on board or as it lay in the wharfinger's warehouse. B. having become bankrupt, on April 17th, before any application by him, A. by an order claimed the flour. Held, he was entitled to stop it as in transitu. Tucker v. Humphrey, 4 Bing. 516. . — ^ ' Markwald v. Creditors, 7 Cal. 213 ; Blackman v. Pierce, 23 Gal. 508. « Atkins V. Colby, 20 N. H. 154. ■ NichoUs V. Le Feuvre, 2 Bing. N. E. 81. 296 LAW OP SALES OF PERSONAL PKOPERTT. the whole quantity was ordered and forwarded at once yet it became separated on the journey, and delivery of part did not pass an absolute title to the rest.' But it is otherwise when goods are delivered at a place where they will remain, until a fresh impulse is communicated to them by the vendee.^ Thus, P. & Co., residing at Bur- lington, purchased flour on credit, of G. H. & Co., at To- ronto, and ordered it shipped to their agents, F. & H., at Ogdensbnrg, who were in the habit of receiving P. & Co.'s flour, and forwarding it as directed by them. The bill of lading described F. & H. as consignees, but mentioned the flour as " to be forwarded to P. & Co., Burlington." The flour arrived by steamer at Ogdensbnrg, whence there was a railroad to Burlington. Neither the freight nor the duties having been paid, the flour was placed, subject to the provisions of the United States warehousing system, in a warehouse belonging to the railroad, but under charge of the owners of the steamboat, from which warehouse it could not be moved until the freight and duties were paid, or the latter were secured according to law ; neither would the flour have been forwarded from Ogdensbnrg until so ordered by F. & H. P. & Co. became insolvent, and P. & H., having been directed by their assignees to hold the flour for them, notifled the warehouseman to re- tain the flour until further orders. G. H. & Co. took the flour from the warehouse under claim of a right of stop- page, first paying the freight and giving the requisite cus- tom-house bonds, and the assignees replevied it. Held, G. H. & Co. could not stop the flour, and, having wrongfully taken it, acquired no lien thereon against the plaintifi's, by paying the freight or giving the bonds, which had become forfeited by the replevy and subsequent sale of the flour by the plaintiffs.' So A., living in London, on March 31st sent orders to B., a manufacturer at Manchester, for certain 1 Buckley v. Turniss, 17 Wend. 604; 15 lb. 1S7. ' 30 Vt. 49 ; 2 Grant, 309. « Guilford V. Smith, 30 Vt. 49. STOPPAGE IN TRANSITU. 297 goods, "to be sent to C, at Hull, to be shipped for Ham- burgh as usual," which accordingly came to C.'s possession. A. was in the habit of ordering goods from B., to be sent to C, at Hull, and thence forwarded to A.'s correspondent at Hamburgh. A. became insolvent in July, and, on Septem- ber 26th, committed an act of bankruptcy. Held, as the goods, upon reaching Hull, had so far gotten to the end of their journey, that they waited for new orders from the purchaser to put them again in motion, and communicate to them another substantive destination, without which orders they would continue stationary ; as between buyer and seller, the right of stopping in transitu was at an end, but that A. might agree, bondjide, and not in the way of voluntary and undue preference, to give up the goods to C, in the latter part of July ; and that, as evidence of the fairness of the transaction, the facts of A.'s having called a meeting of his creditors, taken legal advice, and been thereby encouraged to give up the goods, were proper for the jury, though they were shortly followed by bank- ruptcy, B., at the time they were given up, having pos- session of them as still in transitu.^ § 13 a. The distinction is made, that delivery to an agent, as such, is a delivery to the principal, if the former is his agent for that purpose ; and, if the former is clothed with a general and unlimited power to receive the goods and alter their destination, the transit ends when they reach his hands, as between vendor and vendee. But if an agent be clothed only with specific and limited au- thority to forward goods to a particular destination, the transitus is not at an end, until they have reached the place named by the buyer to the seller, as such destina- tion.=^ » July 12th, A. sold B. eleven skips of cotton twist, then lying at the defendants' station at S., to be delivered for B. at C. station. On the 22d three were delivered and paid for, but B., objecting to the weight 1 Dixon V. Baldwin, 5 E. 175. • Pottinger v. Hecksher, 2 Grant, 309. 298 LAW OF SALES OF PERSONAL PROPERTY. § 14. The question of stoppage often arises, where pos- session is taken by the vendee before the place of desti- nation is reached. § 15. Where a man orders goods to be delivered at a particular place, it has been held, that the iransitus con- tinues until they are delivered to the consignee at that place, or till the journey's end ; but that must be under- stood of a delivery in the ordinary course of business ; for if the consignee, before the goods reach their ultimate destination, postpones the delivery, or is allowed to do any act of ownership, or anything which is equivalent to taking actual possession of them, the transitus is at an end. Thus, if the vendee meet the goods on the road, and take possession of them, this is constructively the end of the journey, and the right is at an end.' But other cases hold, that, although the vendee has come into pos- session of the goods, if the proposed voyage is not com- pleted, the vendor has still the right of stoppage in tran- situ.^ Thus, before arrival of the ship, containing goods purchased, at the port of destination, the vendee became insolvent ; and, as soon as they arrived, his assignees took aild quality, declined to take the rest. August 17th, four more were sent to C. station, and an invoice of the eight was sent to B., with a sug- gestion that four had been forwarded, and the remaining four lay at D. station, waiting his orders. B. immediately returned the invoice, and wrote to A., declining to take any more. September 1st, B. sent to the defendant, at D. station, an order to deliver the remaining four to B. They were accordingly sent to C. station, and taken by B.'s carman to his mill, but by his orders immediately returned ; and the eight were re- turned by him to D. station to the order of A. A. sent them back to C. station, but B. refused to interfere with them, and they there remained until B.'s bankruptcy, October 19th, when A. claimed them. Held, in trover between B.'s assignees and the defendants, A.'s right of stopping the goods had not come to an end. Bolton v. Lancashire, Law Eep. (Eng.), August, 1866, p. 431. 1 Per Bayley, J., Poster v. Frampton, B. & C. 108; Buckley v. Furniss, 15 Wend. 137. Per Lord Alvanley, Tappenden v. Kandall, Q. & P. 461 ; Jordan v. James, 5 Ohio, 98. 2 Hoist V. Pownal, 1 Esp. 242. STOPPAGE IN TRANSITU. 299 possession of them. The ship was afterwards ordered out on quarantine. Held, during quarantine, the vendor might stop the goods as in transitu ; that a consignee cannot claim the goods by virtue of his possession, unless such possession were obtained on completion of the voyage ; that he cannot be allowed to go out to sea, to meet the ship ; for upon the same principle he might meet her when leaving her port of departure." ^ ' § 16. The same question often arises, where the goods have been put into the hands of a carrier. Upon this point, the law has been stated as follows : § 17. Actual delivery into the possession of a consignee or vendee vests in him the absolute property. So also, de- livery to a servant or correspondent authorized to receive the goods, which is equivalent to a delivery to the vendee himself. The question is, in all cases, whether the re- ceiver is an agent, so that delivery to him is a full, effec- tual, and final delivery to the principal, as distinguished from delivery to one who is virtually a carrier, or means of conveyance to or on account of the principal, in the mere course of transit, in which case the right of stoppage continues till actual possession by the vendee or the end of the journey.^ It never has been held, that goods while in the hands of a carrier or wharfinger are to be con- sidered as finally delivered, unletss such party is actually " It has been suggested, that, in relation to the point above considered, there is a distinction between carriage by sea and carriage by land. In the former case, the master, by signing the bill of lading, agrees with the consignor to deliver the goods at the destined port ; but in the latter there is no such agreement. Consequently, in the former case, the con- signee cannot demand them before arrival at the port named. The sound- ness of this distinction, however, has been since questioned. Hoist v. Pownall, 2 Bos. & P. 461, n. ; Abbott on Ship. 374; James v. Griffin, 2 M. & W. 633. ' Hoist V. Pownall, 1 Esp. 240. ' Bolin V. Huffnagle, 1 Eawle, 9; Buckley v. Furniss, 13 Wend. 137. See Boyd v. Mosely, 2 Swan, 661 ; Aguirre v. Parmelee, 22 Conn. 473. 300 LAW OF SALES OF PERSONAL PROPERTY. the agent of the vendee. And those cases have all turned on attempts to defeat a general body of creditors.' § 18. The question, whether the vendor having got possession of the goods can keep them, is very different from that, whether he can recover them from the middle man. It seems, an action does not in ail cases lie against a carrier who after notice delivers to the vendee ; more especially where the goods are sent by water, and the master signs a bill of lading to deliver to the vendee. But it is otherwise where notice not to deliver is given by the vendor to a wharfinger, and no demand made by the ven- dee, and the wharfinger admits himself a stakeholder.'^ § 19. The original delivery of goods to a carrier vests the property in the vendee, but it is liable to be defeated by his subsequent insolvency.'' ^ * The doctrine of stopping goods in transitu is said to be bottomed on the case of Snee v. Preseot, 1 Atk. 248. On this all the other cases are founded. Ellis v. Hunt, 3 T. K. 467. In that case Lord Hardwicke said, that, if goods were delivered to a carrier to be conveyed to A., and while the carrier was upon the road, and before actual delivery to A. by the carrier, the consignor hears that A., his consignee, is likely to be- come a bankrupt, or is actually one, and countermands the delivery, and gets them back into his own possession again ; trover will not lie by the assignees of A. ; because the goods, while they were in transitu, might be 30 countermanded. ^ The purchaser of certain hogsheads of sugar, being notified by the carrier of their arrival, took samples from them, and for his own con- venience, as he was in the habit of doing, desired the carrier to keep them in his warehouse till further orders. While they remained there, he became brnkrupt. Held, they were no longer in transitu, and the vendor could not hold them against the assignees of the purchaser ; that, from the time of his taking samples, and agreeing with the carrier to keep the goods, the latter became his warehouseman ; he ceased to be a carrier, and became a mere bailee j and the goods were as much in the purchaser's possession as if they had been in his own warehouse. Foster V. Frampton, 6 B. & C. 107. Goods, forwarded by the vendor by a water-carrier, were deposited in 1 Bartram v. Farebrother, 4 Bing. 585. See Wenger v. Barnhart, 55 Penn. 300. » Mills V. Ball, 2 B. & P. 461, 462. » lb. 463. STOPPAGE IN TRANSITU. 301 § 20. The right of stoppage in transitu cannot be im- paired by proof of an account due from the consignee to the warehouse of the latter for the accommodation of the vendee, to be delivered as he should want them. Held, the transiius was at an end, thouglj the carrier claimed a lien on the goods. They had reached their destination, until some new order was given respecting them. The office of carrier had been changed for that of warehouseman ; and, for the pur- pose of stowing these goods, the warehouse was the vendee's. Allan v. Gripper, 2 Cromp. & Jer. 218. A. ordered goods from B. abroad. B. shipped the goods on account and at the risk of A., and took from the captain bills of lading, making the goods deliverable to his (B.'s) own order. One of the bills he sent, unindorsed, with an invoice, to A., advising him at the same time that he had drawn for the amount, and doubted not the bill would be honored, and close the account between them. The other bill of lading was sent, indorsed, to C, B.'s agent. The captain delivered the goods to A., who transferred them to D., on account of a prior debt, and delivered him the bill of lading unindorsed. C. brings trover against D. for the goods. Held, upon shipment, the property vested in A., subject to the right of stopping in transitu; and the delivery by the captain to A. vested it in him absolutely, though the captain might be liable to B. A. might have insured the goods ; or, if uninsured and lost, the loss must fall upon him. Indorsement of the bill of lading to C, it seems, was made only to enable him to take possession of the goods in case of A.'s bankruptcy, not to transfer the property. Or even if this last was the object, still the delivery to A. gave him a paramount title. Coxe v. Harden, 4 E. 211. The vendor of goods abroad informs the vendee that he has chartered a ship on his account, and forwards to him an invoice, expressing that the goods are for the vendee's account and risk, together with a bill of lading, which states that delivery is to be made to order, &c., "he pay- ing freight for said goods, according to the charter-party." He also informs the vendee that he has drawn bills upon him at three months for the value of the cargo. The goods were delivered to the captain of the ship, and the vendor's agent obtained possession of them under an- other bill of lading, and refused to surrender them without immediate payment. This the vendee refused, but offered acceptances at three months. Held, the property had vested in the vendee, subject to a con- dition subsequent and to the right of stoppage in transitu ; and that, as the agent obtained the goods wrongfully, the vendee might have trover against him, without tendering freight to him or the captain. Particular stress was laid on the terms of the invoice, " at the account and risk " of the vendee. Walley v. Montgomery, 3 E. 685. A., residing at Lisle, applied to the plaintiff, a ribbon-weaver, for rib- bons. The defendant having recommended A., the plaintiff delivered the defendant goods, to be forwarded to Lisle. These goods, with others 302 LAW OF SALES OF PERSONAL PROPERTY. the carrier ; of a usage for the carrier to retain goods for a general balance due him ; and of public notice, and special notice to the consignee, of such usage. It is said even an agreement with the consignee in favor of such a lien would make no difference as to the consignor. An assignee of the consignee must hold subject to the 'right of stoppage ; and, like such assignee, the carrier claims under the consignee. It is true, that if, in consequence of anything happening to the goods at their place of deposit, a third person acquires a right to them before the prop- erty vests in the vendee, the vendor cannot stop them without satisfying such right. But he is not boiind to bought of C, were sent, May 12th, to D., the defendant's correspondent at Ostend, with directions to send them to the order of A. Upon receipt of the goods, May 29th, D. wrote to A. an acknowledgment thereof, stating that the goods awaited his directions. June 12th, A. stopped payment. August 13th, A. consented to C.'s taking hack his goods. But not having fulfilled some engagement with the defendant, and being largely indebted to him, the defendant countermanded the order to D., as to delivery, by letter of May 31st, and directed an alteration of marks, and a delivery to his order, which was accordingly made, and the goods disposed of to satisfy the defendant's debt. Held, the defendant, after regaining possession of the goods, stood, in relation to them, as he did originally ; that they were in his hands to he conveyed, and were con- sequently liable to stoppage. Stokes v. La Riviere, 3 B. 397. A part of certatn goods sold were landed by the carrier upon the wharf of the vendee. The latter having become bankrupt, the carrier re-loaded the goods, and carried the whole to his own premises. The goods were sent in different barges, and a part unloaded from each. The vendee took no possession of this portion, nor was it weighed, so that the freight could be ascertained. Held, the property must be considered as in course of delivery, not actually delivered ; that to put an end to the right of stoppage in transUu, there must have been such a delivery as to extin- guish the carrier's lien upon the whole property, which was not the case here ; that the carrier had a special property till the whole freight was paid or tendered, or till by some act he assented to a delivery without such payment or tender, and that the vendor might recover of the carrier in trover. It was remarked by the court, that the defendant attempted, as against the assignees of the vendee, to deny that there was a delivery, so as to retain his own lien ; and, as against the vendor, to set up a de- livery, so as to extinguish his right of stoppage. Crawshay v. Eades, 1 Barn. & C. 181. STOPPAGE IN TRANSITU. 303 satisfy rights acquired under the vendee, if he interpose his claim before the goods are in a situation which gives the vendee a complete dominion. Whether legal process, in favor of a creditor of the consignee, would prevail over the right of stopping in transitu, may be somewhat doubt- ful. It may be doubted whether this right could be con- trolled even by an express agreement with the consignor for a general lien ; such lien being against the policy of the law. The case is very different from that of the in- dorsement of a bill of lading, whereby the right of stop- page is divested ; for in this case the vendor by his own act enables the vendee to gain a credit upon the goods. Stoppage in transitu is a common law right. If not, the action of trover could not be founded upon it. The right arises from the ancient power and dominion of the con- signor over his property, reserved at the time of delivery to the carrier. There is a privity of contract between the consignor and the carrier. This appears from the consid- eration, that, if the consignee cannot be found, or refuses to take the goods, the carrier may demand payment from the consignor. Upon these grounds, the consignor's an- cient power is paramount to any agreement between the carrier and consignee. The carrier must suiFer for his own laches in giving credit to his employer.* § 21. If a man living abroad or at a distance order goods to be sent to A., his packer, in order that A. may hand them on to him ; A. is a mere middle man with re- spect to the right of stopping in transitu.^ § 22. Substantially the same principles have been adopt- ed, where goods remain in the hands of a wharfinger, or other depositary, which have been stated as applicable to carriers. Thus A. purchases goods from B., to be sent to C, a wharfinger, and by him forwarded to A. Held, the goods were in transitu, and liable to be stopped, while in 1 Oppenheim v. Eussell, 3 B. & P. 42. « Ellis V. Hunt, 3 T. K. 464. 304 LAW OF SALES OF PERSONAL PROPERTY. the hands of C So where a wharfinger at Exeter paid the freight and charges up to that place, but was not authorized to meddle with the goods, being only one of the hands, by which they were to be forwarded to Iforth Taunton, their ultimate destination ; held, the wharfinger was merely a middle man, and delivery to him did not end the right of stoppage in transitu in case of bank- ruptcy.^ So, a ship having arrived from abroad, twenty days from arrival were allowed by law for payment of the duties, after which time the goods were removed from the ship to the king's cellars, and, at the end of three months, sold, and the surplus proceeds paid to the owner. Held, in case of the consignee's insolvency, the agent of the con- signor having demanded the goods the day before the three months expired, and they being afterwards sold for the duties ; the surplus proceeds were rightfully paid over to the agent, and that the assignees of the vendee could not maintain assumpsit against him. Till payment of duties, the goods were quasi in custodia legis, and remained subject to the right of stoppage in transitu.^ So goods were forwarded by railroad, and while in transitu the vendor informed the company that he claimed to stop them. The company then delivered them to the ware- housemen and forwarders, who were not authorized by the vendee to receive them, but to whom the company were in the habit of delivering goods, to be forwarded or stored till called for and the freight paid, the warehouse- men paying the freight in the first instance. Held, the possession of the warehousemen was that of the company, and, therefore delivery to them was not a delivery to the vendee and an end of the transit.* So A., residing in E., Vermont, purchased goods of B., in New York, to be for- warded by railroad to R. Immediately on their arrival, and before they were placed in the warehouse of the com- 1 Smith V. Goss, 1 Camp. 282. • Mills V. Ball, 2 Bos. & P. 457. » Northey v. Field, 2 Esp. 613. * O'Neil V. Garrett, 6 Clarke, 480. STOPPAGE IN TRANSITU. ' 305 pany, A. having in the mean time become insolvent, C, a creditor of A., caused the goods to be attached, and to be taken directly from the cars and removed from the rail- road. The officer paid the freight and retained possession until B. demanded the goods of him. Held, B.'s right of stoppage had not ceased at the time of the attachment, or of the demand.' And the vendor holds, by his right of stoppage, in preference to creditors of the vendee who at- tach the property in the hands of the warehousemen ; and this, although but for the suit it would have fallen into the hands of the vendee.^ But where A. sold to B. a quantity of tallow, upon a wharf, at so much per hundred weight, and on the same day gave him an order upon the wharfinger to weigh, deliver, transfer, and re-house the quantity sold ; and the wharfinger gave B. an acknowl- edgment of transfer to the account of 0., and that C. was to pay the charges from such a date ; which acknowledg- ment B. transferred to C. ; and, B. having become bank- rupt, A. notified the wharfinger not to deliver the tallow to B.'s order: in trover, by C. against the wharfinger, held, the wharfinger kept the tallow as agent for C, and could not defend against the action on the ground of A.'s right to stop in transitu.^ § 23. Questions of stoppage in transitu have frequently arisen,' in cases involving the mutual rights and duties of principal and agent. It has been doubted, whether there is any distinction in this respect between a factor and a vendor ; and remarked, that, if the right were confined to vendor and vendee, it would nearly put an end to its ap- plication in Great Britain.^ § 24. Where goods are sold to an agent, upon his own credit, and the principal becomes bankrupt, the agent may » Kitchen v. Spear, 30 Vt. 545. « O'Neil V. Garrett, 6 Clarke, Iowa, 480. » Hawes v. Watson, 2 B. & C. 540. * Preise v. Wray, 3 B. 93. See Pennell v. Alexander, 24 Bng. L. & Eq. 132. 20 306 LAW OF SALES OF PERSONAL PROPERTY. stop them in transitu, and change their direction adversely to the bankrupt. In such case there is held to be no privity between the vendor and the principal; and the principal and factor are not considered to stand precisely in that relation. Although not purchaser and seller for all purposes, yet the latter pledges his credit for the former vrho is not liable to the original vendor, unless the goods come to his use, and he fail to pay the factor for them.' But if the agent give a new direction to the goods, in furtherance of the principal's usual course of business, the goods will pass to the assignees of the latter, as being in the order and disposition of the bankrupt.'^ § 25. And in general a factor cannot stop goods in transitu. His lien is lost by letting them go out of his possession.'* * A., a trader in England, gave an order to B., abroad, to ship to him certain goods. B. purchased the goods on his own credit, not naming A. to the vendor, and shipped them at cost, with the addition of a com- mission. A. became banlsrupt, having previously accepted bills in part payment drawn by B. for the price. The agent of B. procured the bill of lading from a brother of A., who had possession of it. In an action of trover brought by the assignees of A. against the agent, held, B. was so far a vendor, in relation to A., that he had the right of stopping the goods in transitu, and, having come lawfully into possession of the prop- erty, had a lien upon it till fully paid. 3 E. 93. I" By the some means, a factor also loses his lien (technically so called) upon the principal's goods. Agreement between A., a manufacturer, and B., a merchant, in Great Britain, that B. would ship goods manu- factured by A. to A.'s customers in the United States, pay the shipping charges, and make advances on goods shipped. A. authorized an agent of B., i^ the United States, to collect debts due A., and remit the money to B., who was to credit A. accordingly. Money to be sent at B.'s risk, but drafts at A.'s. A., having received an order from a customer, for- warded the goods to B., who sent them to the purchaser. The latter accepted a part, but refused the rest. In a trustee process against A., and the purchaser as trustee ; held, B. had no lien upon the goods in the supposed trustee's hands, or the money due from him. B. made his re- 1 Preise v. Wray, 3 E. 98. • Hawkes v. Dunn, 1 Tyr. 413 ; 1 C. & J. 519. » Sweet v. Pym, 1 E. 4 ; Freise v. "Wray, 3 E. 100. STOPPAGE IN TRANSITU. 807 § 26. And the same rule applies to an acceptor of bills for the price of goods sold, although acting in concert with and under the authority of the party from whom the goods were ordered, and receiving the bills of lading from the consignee after his bankruptcy.* § 27. A consignee, considered as a factor, cannot defeat the consignor's right of stopping in transitu, by a pledge of the bill of lading. The proposition sometimes stated, that the indorsement of a bill of lading operates like that of a bill of exchange, is held to apply to an absolute sale of the goods." And a pledge of the bill of lading, though mittances of goods, not to his agent, but to a purchaser from A., and would have had no right to detain, open or sell any part of them. Hall V. Jackson, 20 Pick. 194. See 8 Cranch, 418; 1 Wash. 178; 8 Pick. 73. - B., a trader in London, ordered goods from D., a correspondent in Dantzic. D. to draw for the price upon F. at Hamburgh, who had agreed to accept bills, in consideration of receiving a commission. The bills of lading and invoices to be sent by D. from Dantzic to P., and P. to send them to B. F. accepted the bills, and forwarded bills of lading, made to the order of the shippers, and unindorsed, to B. ; who received them, with the invoices and letter of advice, five days after committing an act of bankruptcy. F. also becoming bankrupt, D. took up the bills drawn upon him. Held, F. had no right of stoppage in transitu, being a mere surety ; and that the general agent of F. at London, having ob- tained the bills of lading from B. after his bankruptcy, under an agree- ment to sell the goods and apply the proceeds to the bills drawn against them, could not retain the property against the assignees of B., either in respect to F., or a stoppage on account of D., who, after his possession and after trover brought by B.'s assignees, approved by letter of his re- ceiving the bills of lading and goods : because there was no adverse stop- page in transitu, but the goods were obtained by agreement with B. after his bankruptcy, even if the defendant could be regarded as agent for the shippers at the time, by relation. Siffken v. Wray, 6 E. 371 ; Haille v. Smith, 1 B. & P. 563. ' Goods were consigned on the joint account of A. the consignor and B. the consignee, with a bill of lading to deliver to B. or his assigns, which B. indorsed and delivered to C, on condition of his making ad- vances.' C. did not comply with this condition, but claimed to retain the goods as security for prior advances. Held, A. might stop the goods in transitu; that B., as a factor, could not have pledged, though he might have sold, even the goods themselves ; hence he had no power to pledge the bill of lading; and that C, in the exercise of reasonable caution, should have inquired for the letter accompanying the bill of lading, 308 LAW OF SALES OF PERSONAL PROPERTY. accompanied' by a promise of the officer of the ship to de- liver the goods, does not defeat the right of stoppage.' § 28. Where the vendor and vendee stand in the rela- tion of principal and factor, and the latter is in advance to the former, has accepted bills drawn by him, and paid part of the freight ; the vendor has still the right of stop- page in transitu.'' And, on the other hand, where the factor of a vendee has the bill of lading, indorsed to order, and is under acceptances for the vendee on general ac- count ; the vendor may still stop the goods, before they come to the hands of such factor." It is said, if a factor has received the proceeds of goods sold, he has a lieu to the extent of his indemnity ; but he has no rights, prior to possession, in respect ta the consignment, except those pertaining to his character as factor, and necessary to efl'ect the object of the consignment. ISo mention being made of any security for advances, the factor has a lien only on. the property in his possession ; and, if circum- stances change, so tlxat the factor cannot perform his du- ties as such, his assignee is not entitled to claim the ben- efit of a consignment, made as matter of personal confi- dence, and which the assignee could not execute. The assignment of the bill of lading is made to enable the factor to receive the goods, and carry them to the account of the principal ; and the vendor is required only to do all in his power to stop the goods, in order to sustain an action.i' which would have shown in what relation B. stood to A. Newsom v. Thornton, 6.E, 1,7. * The vendee and his factor being both bankrupt, the messenger, under the commission of the latter, went aboard the ship upon her arrival, ami seized the cargo. The agent of the vendor had previously notified the captain to deliver the cargo to him ; which the captain had agreed to do. Held, trover would lie in favor of the vendor against the assignee of the factor. 6 M. & S. 349. 1 Coventry v. Gladstone, Law. Kep. 6 Eq. 44; Amn. Law Kev., Oct. 1868, p. 109. 2 3 T. K. 119, 783 ; Kinlock v. Craig, 4 Bro. P. C. 47. » Patten v. Thompson, 5 M. & S. 349. STOPPAGE IN TRANSITU. 309 § 29. If goods are bought by one person for another, to be sent abroad, upon the failure of the latter they may be stopped, previous to reaching their destination.' § 30. It is said, that a hill of lading indorsed, and re- maining in the hands of the original consignee, cannot interfere with the vendor's right to stop the goods before they arrive into the possession or under the control of the consignee, if he become bankrupt or insolvent.' Upon this point, however, there seems to be some conflict of authorities, the decision in each case being modified by its own peculiar circumstances.^ Thus, where goods are shipped upon credit, in a foreign port, in a vessel belong- ing to the consignee, and the master signs a bill of lading to deliver them to the consignee, the traiisitus is at an end, and there is no right of stoppage.' ^ But, in another " The defendant, a commission agent, purchased goods of the plain- tiffs at Manchester for one A., informing the plaintiffs that they were to he sent to Lisbon. A. had no warehouse at Manchester, and the goods were delivered to the defendant, to be forwarded as above mentioned. A. having failed, held, the plaintiffs might stop the goods in the hands of the defendant, because they were in transitu till their arrival at Lis- bon. Coates V. Railton, 6 B. & C. 422. The plaintiff claimed certain goods, as the seller of them, from the de- fendants, to whom the goods were delivered, to be forwarded to the de- fendants' correspondent, A., of Lisle. Upon the insolvency of A., the defendants withdrew the goods from the hands of B., of Ostend, to whom they had sent them in a course of conveyance towards and for A., at Lisle. The defendants insisted, as against the plaintiffs, that, upon the delivery of the goods to them for B., the property was vested in B., in whose right, but for their own benefit in account with B., they claimed to detain the goods. Held, the transitus was not at an end, and the plain- tiff recovered. Stokes v. La Riviere (cited in Bohtlingk v. Inglis), 3 E. 381. ■• It was remarked, in this case, that the master was a special agent of the vendee, delivery to whom was such to the latter ; not a carrier, or middle-man. He was under the control of the vendee, and might be » Tucker v. Humphrey, 4 Bing. 622. See Berndston v. Strang, Law Eep. 4 Equ. 481; Amn. Law Rev., April, 1868, p. 479. 2 See Walter v. Ross, 2 Wash. C. C. 283 ; 1 Pet. 386 ; Gurney v. Beh- rend, 25 Eng. L. & Eq. 128. « Bolin v. Huffnagle, 1 Rawle, 9. (Huston and Smith, Js., dissented.) 310 LAW OF SALES OF PERSONAL PROPERTY. case, a quantity of flour, purchased by the plaintiif, was loaded in a general ship, and the master signed three bills of lading for delivery to the plaintiff or his assigns, but the bill expressed that the shipment was on account and at the risk of the shippers. A day or two after the ship- ment, and before the invoice, bill of lading, or letter of advice was sent to the consignee, the shipper, finding himself on the verge of insolvency, re-sold the flour to the defendant, of w^hom he purchased it on credit. The ship- per was indebted to the consignee, and intended that the latter should apply the net proceeds of the property on account ; but this intention was never communicated to him, nor the consignment made at his request. Held, the vendee had acquired no vested interest in the flour, and the owner might countermand it at any time before actual delivery to the plaintifli".' So a vendor may regain pos- session of the goods sold, by taking a bill of lading from the captain to whom they have been delivered. Thus goods purchased by A. from B. were delivered, on board a ship chartered by A., in Russia. By a Russian ordi- nance, where goods had been delivered in this way, the vendor might regain possession of them by legal process upon the bankruptcy of the vendee, and retain them till payment of the price. B., learning that A. was insolvent, applied to the captain to sign bills of lading to his (B.'s) order, which was done, without issuing any legal process. Held, this proceeding was a substantial compliance with the Russian law, and that the captain was bound to de- liver the goods in England to the order of B., not to the assignees of A.^ dismissed by him. The vendor had no control over the goods after de- livery to the master, and no connection with him. On the other hand, the master could have no claim against the vendor, and, in this respect, differed from a carrier, who may claim freight from the vendor, if the vendee fails, or refuses to receive the goods. The circumstances showed an actual delivery. 1 Walter v. Boss, 2 Wash. C. C. 28a. * Inglis V. Asherwood, 1 E. 515. STOPPAGE IN TRANSITU. 311 § 31. Where a consignor of goods advised his principal of his intention to make a consignment, put them on board a general ship, and delivered a bill of lading to the master, to be sent to the consignee ; held, that the prop- erty hereby vested in the latter, so that he had no right to countermand the goods, though the vessel had not left her port of lading.' But where goods v^ere sold free on board the vessel, and, upon shipment, the agent of the vendor tendered a receipt, which the mate, in the captain's absence, refused to sign, and the next day signed a bill of lading to the vendee ; held, the right of stopping in tran- situ continued.' § 32. After assignment of the bill of lading for valuable consideration, the vendor's right of stoppage is at an end ; such assignment being equivalent to a transfer of the goods themselves.* ' So although the original vendee ob- • A bill of lading given before the goods are put on board is fraudulent, and even a bonS, fide indorsee of it gains no title to the property. Osey V. Gardner, Holt, 405. So indorsement of a bill of lading without con- sideration passes no title to the goods. Waring v. Cox, 1 Camp. 869. The question, as to the effect of such indorsement upon the right of stop- page, seems to have received its first elaborate discussion in the case of Lickbarrow v. Mason, which was successively argued in the King's Bench, the Exchequer Chamber, and the House of Lords. The King's Bench, to which the case was sent back, adhered to their original judg- ment against the right, and this has ever since been considered as law. See 2 T. E. 63 I 1 H. Bl. 357, 2, 211 ; 5 T. K. 367, 683 ; 6 E. 20. A., a merchant at Liverpool, sent orders to B., a merchant at Charles- ton, to ship, on A.'s account, a cargo of cotton, on board a vessel of A.'s. B. thereupon purchased cotton from time to time, and shipped it accord- ingly. The master of the vessel executed to B. a bill of lading, stating that the cotton was to be delivered at Liverpool, " to order, or to my assigns, paying for freight, for the cotton nothing, being owner's property." B. indorsed the bill of lading, "Deliver the within to the Bank of Liver- pool, or order." B., not having sufficient funds of A. to pay for the ' Summernill v. Elder, 1 Bin. 106. 2 Buck V. Hatfield, 5 B. & A. 132. ' Lickbarrow v. Mason, 4 Bro. P. C. 57; Kiddle v. Varnum, 20 Pick. 280; Warren v. Sproul, 2 Marsh. 535; 5 T. R. 367; 6, 131; 2, 63 ; 2 H. Bl. 211. 312 LAW OF SALES OF PERSONAL PROPERTY. tained it by fraud ;'• or though the consideration of the sale was payment of an antecedent debt.^ So where the vendors of goods, sold for cash but not paid for, have actvially delivered them on board of a ship of a common carrier, under the contract of sale, without notice of own- ership, or that the price has not been paid, and without taking receipts or a bill of lading ; they cannot after- wards reclaim them as against bond fide indorsees of the vendee's bill of lading for the goods, who have made ad- vances upon them — at any rate, without ofi'ering to pay such advances.^ And indorsement and delivery of a bill of lading have the effect of passing the goods to the in- dorsee, if done bond fide, for consideration, and without collusion ; although the indorsee know that the original cargo of cotton, drew bills on A. for the amount, and wrote to A., in- forming him of the drawing of the bills, and desiring him to insure the cotton. B. sold the bills he had so drawn to the bank at Charleston, and delivered to the bank the bill of lading so indorsed, as a security for the payment of the bills, which were ultimately dishonored, and taken up by B. A. became bankrupt before the arrival of the vessel. Held, that B. had never parted with the property in the cotton to A., notwithstand- ing the delivery on board the vessel of A., because B. had, at the time of the delivery, reserved to himself a^'as disponendi, and preserved his rights as unpaid vendor; which the captain acknowledged, by signing the bill of lading. Turner v. Trustees, &c., 6 Eng. L. & Eq. 507. A. ordered goods from B., a firm at Calcutta, through C, their agent in England, and received an invoice with notice that B. had drawn on him for the price at six months. On calling at C. 's oflSce, A. was met by C.'s messenger, who handed him the bill and the bill of lading annexed to it. A. accepted the bill, and afterwards deposited the bill of lading with D , as security for an advance, with a policy upon the goods effected by A. in his own name, C. having insisted upon retaining the original policy, because it included other goods. A. having become bankrupt, B. and C. claimed the goods, relying upon a custom of East India merchants to retain bills of lading until the acceptances were paid. Held, such custom was merely exceptional, and not in the usual course of business, and D. was entitled to retain the goods. Coventry v. Gladstone, Law Eep. (Eng.) Equ., December, 1867, p. 492. 1 Dows V. Greene, 32 Barb. 490. 2 Lee V. Kimball, 45 Maine, 172. ^ Blossom V. Champion, 28 Barb 217. STOPPAGE IN TKANSITU, 313 vendor has received payment only in future acceptances. In such case, the latter has no right of stopping in transitu. It would be otherwise, if the vendor had expected or agreed that he should be paid before any assignment of the bill of lading. So if the assignee of the bill of lading had known the vendee to be insolvent, and that he had not accepted the bills, or was not likely to pay. The true criterion as to the effect of such indorsement is, whether the assignee knew of such circumstances as ren- dered the instrument not fairly and honestly assignable.' He need not be ignorant that the goods are unpaid for ; but, only of any such facts or circumstances as would afford him reasonable grounds of belief that the vendee could not fairly and honestly make the assignment.' § 38. More especially will a transfer of the bill of lading put an end to the right of stoppage, where there has also been a part-delivery of the goods." § 34. Upon the ground above stated, where a vendee fails to give the security which he promised, but obtains a bill of lading of the goods, which he indorses to a third person, and the indorsee brings trover against the wharf- inger of the vendor, having possession of the property ; the insolvency of the vendee is no defence to the action, unless it was known to the plaintiff.' ^ ■ B. ordered goods from A. abroad, to be paid for at a future time. Bills of lading were signed by tbe captain of the ship, and one of them sent to B., who, before arrival of the vessel, sold the goods and indorsed the bill of lading to C. After arrival of the ship, and delivery of part of the goods to the agent of C, B. became insolvent, not having paid A. Held, a delivery of part of the goods was that of the whole, and that A. had no right of stoppage in transitu. Slubey v. Hey ward, 2 H. Bl. 504. ^ Goods were purchased on credit, and shipped by the vendor on board of a vessel, whose master gave a bill of lading for their delivery to the consignee or his order. Before the vessel reached her port, the bill was indorsed to A., who advanced cash upon it. After she arrived, and be- 1 Cuming v. Brown, 9 E. 606 ; Vertue v. Jewell, 4 Camp. 31 ; Tucker V. Humphrey, 4 Bing. 522. ' Chandler v. Fulton, 10 Tex. 2. ' HoUiday v. Mann, 2 Carr. & P. 509. 314 LAW OF SALES OF PERSONAL PROPERTY. § 35. Indorsement of the bill of lading by the vendor to a third person, while the goods remain in transitu^ will authorize such third person to stop and bring an action for them. Thus the vendor of goods, having ascertained, while they remained in the hands of the wharfinger, that the vendee had stopped payment, indorsed the bill of lading to the plaintiff, without consideration, and directed him to take possession. The plaintiff accordingly de- manded the goods, but delivery was refused. Held, at the time of such demand, the right of stoppage in transitu was not at an end, and that the plaintiff' had a sufficient special property to maintain trover.' § 86. Where the bill of lading has been indorsed only as security, the vendor has still the right, or quasi right, of stoppage, subject to the actual claims of the assignee against the purchaser. Thus, where the vendee of goods indorsed the bill of lading, in consideration of an advan.ce of money by the indorsee ; it was held, that the vendor had still an equitable right of quasi stoppage m transitu; subject however to the right of the assignee to be repaid his advances. Eurther, that such assignee is bound to repay himself from other property of the vendee in his hands. If he does not, but retains the goods sold for this purpose, the vendor himself acquires a lien on such other property for the price of the goods.^ So, where a con- signee, to whom the bill of lading was indorsed in blank, assigned it as security for acceptances less in amount than the value of the goods ; and the vendee and assignee then fore A. demanded the goods, they were replevied by the vendor, on an allegation that the vendee had agreed to pay for the goods on delivery, hut had become insolvent, and had not paid for them. Held, that A. was a bond fide purchaser ; that the seizure of the goods by virtue of the writ constituted no bar to his right to the delivery of the goods ; and that, on a libel in rem, the vessel was responsible to him, irrespective of the suit between the vendor and vendee. The Mary Ann Guest, 1 Blatch. 358. 1 Morison v. Gray, 9 Moore, 484. * Westzinthius, 2 Nev. & M. 644; Chandler v. Pulton, 10 Tex. 2. STOPPAGE IN TRANSITU. 315 entered into an agreement to become partners in relation to the goods, which agreement showed that the consignor had not been paid : the vendee having become bankrupt, held, the vendor had still the right of stoppage in transitu, and that the assignee could not maintain trover against him for the goods/' » W- shipped at Leghorn twenty-three casks of oil, on account and by- order of L. at Liverpool, and forwarded to him bills of lading. Before arrival of the oil, L. indorsed the bill and deposited it with H., who advanced money upon it, having before done the same upon other goods of L. deposited with him. Upon arrival of the oil, L. having previously become bankrupt, and W. not being paid, the agent of W. claimed it from the ship-master, B. B. delivered the oil to H., who afterwards .sold the goods of L. and the oil of W. The debt from L. to H. was paid hy the proceeds of L.'s goods. H. paid his own debt, and deposited the net proceeds of the oil with a stranger, to await the issue of an arbitration in reference to all controversies between W. and the assignees of L. The award was referred to the opinion of the court. Held, W. had no right to take possession of the oil at the time when his agent claimed it, upon the insolvency of L., because H. had the right of property and posses- sion, by indorsement of the bill of lading; and W. had no right of pos- session, even after satisfaction, of the lien of H. But, in equity, the transfer to H. was a mere pledge or mortgage, and therefore W., by the attempted stoppage in transitu, acquired a right to the goods in equity, subject to the lien of H. against the assignees of L. "Westzinthius, &c., 5 Barn. & Ad. 817. The following cases present peculiar circumstances, under which the right of stoppage in transitu has been allowed, notwithstanding an in- dorsement of the bill of lading : A., residing at Boston, having ordered certain goods from B. at Liver- pool, B. shipped them in a general freighting vessel, which was consigned to B. and designated by A. A bill of lading was obtained by B., by which the goods were to be delivered to A. B. withheld the bill of lading from A., and afterwards inclosed it with an invoice in a letter to his (B.'s) agent, with directions to deliver it to A. only on condition of his paying for the goods. There was a balance due from B., independently of these goods. Before their arrival at Boston, A. became insolvent, and assigned his property to the plaintiff for benefit of creditors, agree- ing to indorse and deliver the bill of lading to the plaintiff, when re- ceived. The bill of lading was received by A. after the assignment, handed to the plaintiff without indorsement, and indorsed after this suit was commenced. Upon arrival of the goods, the defendant, as agent of " Salomons v. Nissen, 2 T. K. 674. 816 LAW OF SALES OF PERSONAL PROPERTY. § 37. There are other documentary evidences of title, as to which the question arises, whether possession hy the vendee will put an end to the right of stoppage in tran- situ. It has been held that the right is not barred by the mere possession of (m invoice, which is only a mercantile name for a bill of parcels or shop-bill.' So a shipping note does not amount to a bill of lading, which is exactly like B., being also owner of the vessel, obtained possession of ttiem; and the plaintiff brings trover against him. Held, the action could not be main- tained, but that B. had the right of stoppage in transitu as against the plaintiff, although at the time of assignment the latter supposed there was a balance due A., at the execution of the orders for shipment of the goods. The plaintiff must be held to stand precisely in the situation of A. himself, and not as a bonS, fide purchaser, claiming under a bill of lading, without notice of any lien, set-off, or adverse claim. He could not claim under the indorsement, because this was not made till after commencement of suit. Nor did the agreement to indorse make any dif- ference. The vendor intended to prevent such indorsement by inclosing the bill of lading to his own agent, to be delivered only on payment or security. Nor was the plaintiff a purchaser without notice. There was no advance of money, credit, or dealing on the strength of the goods. He knew of the vendee's insolvency, and that the vendor was a creditor and had the right of stoppage; and this was sufficient to put him upon inquiry. Stanton v. Eager, 16 Pick. 467. A., a merchant in England, sent goods to B. in Quebec, for sale on his account. Before making a sale, or ascertaining the proceeds of the goods, B. shipped to A. three cargoes of timber, to credit in account. Two of them arrived, and against the third, while yet in transitu, B. drew a hill of exchange for the amount of it. In the meantime, A. dishonored the bill and failed, having previously received and indorsed the bill of lading. Held, B. under these circumstances retained the right of stoppage in transitu, although the mutual accounts between the parties had not been adjusted, and, his agent having notified the indorsee of the bill of lading of his claim, though having received no specific authority to do so, that B. might maintain trover against the ship-owner, who had delivered the goods to the indorsee. The case might have been otherwise, had B. sent his cargoes in return tor the goods previously forwarded to him by A. But, as a bill was specifically drawn to meet the third cargo, B. was not bound to show, that upon a final settlement A. would be indebted to him. Wood V. Jones, 7 D. •& R. 126. » Tucker v. Humphreys, 4 Bing. 522; Hammond v. Anderson, 2 Camp. 243. But see De Wolf v. Gardner, 12 Cush. 19. STOPPAGE IN TRANSITU. 317 a bill of exchange, and passes the property by indorse- ment, not by delivery alone. But a shipping note is not indorsable.* Hence, where the vendee of goods gave to a third person a shipping note of them, and a delivery order on the wharfinger to deliver the goods upon their arrival ; held, they were still subject to stoppage in transitu. But where a vendee of goods lodged an order to deliver them with the wharfinger, who transferred them in his books to the name of the vendee ; held, the wharfinger must hold as agent of the latter, and the right of stoppino- in transitu was gone. So a delivery note lodged with the wharfinger is held to pass, the property, though no transfer be made in the books.^ § 38. When goods are sold by A. to B., who, before delivery to him, resells to- C, with notice to A., who con- signs them to C, A. will have- no right of stoppage in transitu? ' And it has been said,^ that there is no case, in which, after a resale of goods, and payment of the price, or money advanced on the credit of the goods by the second vendee, there has been a stoppage in transitu ; and that under these circumstances the law will not sanction such stoppage. Thus a vendor delivered to the vendee a bill of parcels for goods lying in a public store, and an order on the keeper for their delivery ; and the vendee re-sold them for valuable consideration to a bond fide pur- chaser. Some suspicious circumstances attended the trans- action, which, however, were left to the jury. Held, there was no right of stoppage in transitu, and the court would not presume fraud nor grant a new trial.' But in other cases it is held, that a resale by, and payment to, the first purchaser, does not destroy the right of stopping in tran- situ. And this doctrine is based upon the general prin- 1 Akerman v. Humphery, 1 Car. & P. 53. ^ Lucas V. Dorrien, 7 Taun. 278. » Eaton V. Cook, 32 Verm. 58. * Lickbarrow v. Mason, 6 E. 84, n. ; Hunn v. Bowne, 2 Caines, 38. ' Hollingsworth ?. Napier, 3 Caines, 182. 318 LAW OF SALES OF PERSONAL PROPERTY. ciple of law, that one who has not the property and right of possession in goods cannot sell them ; hence, if the original vendor chooses to retain or stop them in transitu, the second vendee is in no better situation than the first.' ' § 39. But if the first vendor of goods does anything which can he construed as sanctioning a resale by his vendee, this destroys his right of stopping in transitu} * « Goods imported from Europe were entered at the custom-house, and sold, while on shipboard, to a railroad company, on credit, secured by the mortgage bonds of the company. With consent of the vendors, the goods were placed on board of boats for transportation to Milwaukee, which boats, the carriers having given bonds to the government, had been made into government bonded warehouses. The agent of the com- pany entered the goods on its behalf, for transportation to Milwaukee, and gave bond for their delivery to the collector of that place. The carriers receipted for the goods as marked with the name of the company. Before receipt of the goods by the carriers, the company by its agents pledged the goods as security for a loan, by giving the original bill of sale, on which was the vendor's acknowledgment of the receipt of the price in the notes and bonds of the company, and also an order to the company's engineer at Milwaukee directing him to deliver the goods to the pledgee's order. This order was not accepted until after the goods were stopped. The carrier's receipt was also indorsed over to the pledgees. The company having become insolvent, while the goods were in course of transportation, the notes remaining unpaid and not then due; held, the vendors had a right of stoppage in transitu, both against the railroad company and their pledgees. Holbrook v. Vose, 6 Bosw. 76. •> Sale of a specific quantity of oil then in existence, to be at the ven- dee's risk. The place where the oil was, and the ship which was to carry it, were named. There was a complete transfer to the vendee, and pay- ment was made. The vendee sold to A., with an order to the vendor to deliver to him, upon which the vendor indorsed his acceptance. Held, the vendor thereby attorned to the sale, and became the bailee of A., and the right of stopping in transitu was at an end. Whitehouse v. Frost, 12 E. 614. Supra, chap. 9, s. 2, n. A. sold to B. timber lying at his (A.'s) wharf for bills on time. The timber was then marked by B., and small parts of it sent to two different places by A. Before maturity of the bills, B. sold the whole to C, who paid B. for it. C. gave notice to A., who said " it was very well," and C. then, in presence of A., marked all the timber lying at A.'s wharf, 1 Craven v. Ryder, 6 Taun. 433 ; Dixon v. Yates, 5 Barn. & Ad. 338. » Hawes v. Watson, 2 B. & C. 343. STOPPAGE IN TRANSITU. 319 § 40. When goods are purchased and paid for by the order, note, or accepted bill of a third party without the indorsement or guaranty of the purchaser, the vendor has no right of stoppage in transitu.^ But a vendor may stop the goods in transitu, notwithstanding a part-payment by the vendee. If it were otherwise, this right would be lost by payment of any part of the price, however small ; or even of mere earnest. Nor is he bound to refund the part- payment, or to pay freight." So, where bills have been given in payment, but not expressly accepted as such, it is held that the vendor may stop in transitu.^ But it is also and afterwards that part which had been sent away. Before maturity of the bills, B. failed. Held, A. could not reclaim any part of the prop- erty, as being in transitu. Stoveld v. Hughes, 14 E. 308. A. sold to B. a quantity of cotton, taking his note at sixty days, and retaining possession of the cotton. B. informed C, that he had cotton for sale in A.'s store, and C. thereupon called on A. and requested to see it. A. ordered his clerk to exhibit the cotton, having a mark upon it. C. examined the cotton on account of D., and purchased it of B., who took D.'s notes, which were subsequently paid, and gave an order upon A. for delivery. The order was not immediately presented, nor any notice given to A., in whose possession the property was allowed to re- main. B. afterwards became insolvent. A. placed B.'s note, together with the cotton, in the hands of E., as security for money borrowed. The day before maturity of the note, C. produced to A. the order for de- livery given by B,, bearing date long previously, and demanded the cot- ton, but A. refused to deliver it. B.'s note having been protested, B. purchases the cotton, and D. brings an action of trover against him. Upon the trial, A. testified that he did not consider the property as left for storage. Held, as the cotton was first given to the defendant to sell on account of A., after the insolvency of B., then deposited as a pledge, and afterwards sold | the defendant stood in the same position that A. would have done. The sale being on credit, there was no lien, and no right of stoppage in transitu against an innocent purchaser. (Kent, J., dissented; upon the ground that there was no delivery, nor any applica- tion for delivery, till after the insolvency of B. ; that the defendant had as good an equity as the plaintiff, and, having possession besides, his title must prevail.) Hunn v. Bowne, 2 Caines, 38. ' Baton v. Cook, 82 Vt. 58. » Hodgson V. Loy, 7 T. K. 440 ; "Wiseman v. Vandeput, 2 Vern. 203 ; Newhallv. Vargas, 1 Shepl. 93; Jordan v. James, 6 Ohio, 98. ' Owenson v. Morse, 7 T. K. 64. 320 LAW OF SALES OF PERSONAL PROPERTY. held, that, where the vendor receives payment by a bill of exchange, drawn by the vendee, he has no right of stop- page, unless the bill is dishonored. If it were otherwise the right of property would be in abeyance till the bill became due.' § 41. Where a debtor consigns goods to his creditor, he has no right of stoppage in transitu, on account of the in- solvency of the latter, because he loses nothing thereby — it is a mere appropriation of his own funds. This right exists only where the property has not been paid for.^ Thus, whei'e A. was indebted to B. on balance of accounts, including bills of exchange still running, which were ac- cepted by B. for A. ; and A. consigned goods to B., to meet this balance : held, the property became vested in B. by the shipment, and, upon B.'s insolvency before pay- ment of the bills, A. had no right of stopping in transitu? § 42. Where money is transmitted on a special account, and for a special purpose; upon the bankruptcy of the party to whom it is sent, the other may stop the money in transitu. Otherwise, in case of a general remittance from debtor to creditor.* § 43. With regard to the persons by whom this right may be exercised, it is held, that, where the vendor is an alien enemy, but the sale is justifiable under a license, he has the right o-f stoppage in transitu? Thus, where a British merchant receives from the Crown a trading li- cense, to send his ship in ballast ta the port of an enemy, for the purpose of there receiving and loading a cargo, and importing it to England ; inasmuch as the act of the purchaser is thus legalized, the sale is legalized also, as it respects the vendor. Hence he has the right of stopping 1 Per Park, J., lb. 618; Davis v. Eeynolds, 1 Star. 115; Wolley v. Montgomery, 3 E. 585. 2 Clark V. Mauran, 3 Paige, 373 ; Stanton v. Eager, 16 Pick. 475 ; Wood V. Roach, 1 Yeates, 177. ' Vertue v. Jewell, 4 Camp. 31. * Smith V. Bowles, 2 Esp. 678. See Chapman v. Certe, 12 Gray, 141. ' Penton v. Pearson, 15 E. 419. STOPPAGE IN TRANSITU. 321 the goods in transitu after their arrival at a British port, the vendee having become insolvent, and also to employ an agent there for that purpose. It was remarked by Lord Ellenborough, that the Crown does not give any man a roving commisson, to steal from or defraud even enemies of their property. If it authorizes the subject to purchase from the enemy, it must be taken to authorize the enemy to sell. There is an obvious distinction be- tween this case, and that of an alien enemy's bringing a suit for the price of goods sold. In the latter case, the goods have already become the property of the vendee ; but here, the law merely forbids him to take them with- out payment.' 1 Fenton v. Pearson, 15 E. 419. 21 322 LAW OF SALES OF PERSONAL PROPERTY. CHAPTER XVIII. WARRANTY. 1. GENERAL PEINOIPLB ; THE CIVIL AND THE COMMON LAV; OATEAT EMPTOR ; FEAUD, CONCEALMENT, PATENT DEJECTS, A SOUND PRICE, ETC. 4. SALE OF ARTICLES MANUFACTURED AND SOLD FOR A CERTAIN USE. 5. APPARENT VALUE OP THINO SOLD MAT BE RECOVERED. 6. WORDS NECESSARY TO A WARRANTY — REPRESENTATION, WHETHER SUFFICIENT; INTENTION OF PARTIES; A QUESTION FOR THE JURY. 10. PAROL WARRANTY IN CASE OF A WRITTEN SALE ; WARRANTY BE- FORE OR AFTER THE SALE. 11. WORDS OF DESCRIPTION, WARRANTY BY. 14. SALE BY SAMPLE. 22. SALE OF PROVISIONS. 25. BREACH OP WARRANTY. 29. REMEDY IN CASE OF WARRANTY; ACTION, DEFENCE, RESCINDING, DECLARATION, EVIDENCE, DAMAGES, ETC. 38. WARRANTY OP TITLE. § 1. The following general principles have been laid down upon the suhject of the warranty of chattels.' § 2. By the civil laic, every man is bound to warrant the thing that he selleth, albeit there is no express warranty;' • See Am. Law Rev., July, 1868, p. 636. See also Clark v. Oliver, 3 Allen, 336; Mas3. Gen. Sts. ch. 49, a. 116, as to warranty by stompmj. In reference to the parties to a warranty, a warranty of bank stock by an agent does not bind the principal. Smith v. Tracy, 36 N. Y. 79. Upon a question of warranty or no warranty, the fact that the seller was an executor, is proper for the consideration of the jury. Drake v. Baines, 8 Jones, 122. See p. 326, n. a. ^ The rule of the civil law is, caveat venditor, and the seller is liable for any latent defect. Chancellor Kent remarkl,'that, if it were res^n■ tegra, he should be overcome by the reasoning of the civilians. Dig. hi'- WARKANTT. 323 but the common law bindeth him not, unless there is a war- ranty in deed or law.' Thus, by the civil law, if there is 1, tit. 2, ch. 13, n. 1 ; Wright v. Heart, 18 Wend. 453 ; Seixas r. Woods, 2 Caines, 55. " By the civil law an implied warranty was annexed to every sale, in respect to the title of the vendor ; and so too, in our law, a purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose. But, with regard to the goodness of the wares so pur- chased, the vendor is not hound to answer; unless he expressly warrants • them to be sound and good, or unless he knew them to be otherwise, and hath used any art to disguise them, or unless they turn out to be different from what he represented to the buyer." 2 Bl. Comm. 452; Cro. Jac. 474; 1 Rolle's Abr. 90; ¥. N. B. 94; 2 Roll. Rep. 5. See s. 38. " With regard to the quality or goodness of the article sold, the seller is not bound to answer except under special circumstances, unless he ex- pressly warranted the goods to be sound and good, or unless he hath made a fraudulent representation or used some fraudulent concealment concern- ing them, and which amounts to a warranty in law. The common law very reasonably requires the purchaser to attend, when he makes his contract, to those qualities of the article he buys, which are supposed to be within the reach of his observation and judgment, and which it is equally his interest and his duty to exert." 2 Kent, 478. "If there be an intentional concealment or suppression of material facts in the making of a contract, in cases in which both parties have not equal access to the means of information, it will be deemed unfair deal- ing, and will vitiate and avoid the. contract." 2 Kent, 481. > The principles thus enunciated by the English and American com- mentators are undoubtedly adopted as the prevailing general rules of English and American law ; in many of the United States, however, with much qualification, and everywhere subject to great uncertainty as to their applicability to the various cases which arise in the courts. It has been truly remarked by a distinguished American judge (Gibson, C. J., Law Rep., Feb. 1840, p. 301), that the decisions relating to warranty are anomalous, and no precise principle is to be extracted from them. Thus it has been held tha^ the maxim caveat emptor applies only where the property is exhibited. Sands v. Taylor, 5 John. 404. Or the buyer has opportunity to examine it. Per Pollock, C. B., Emerton v. Mathews, 5 Law Times, N. S. 681 ; Am. Law Reg., Feb. 1862, p. 234. ' Eagan v. Call, 34 Penn. 236 ; Co. Lilt. 102 a ; Benger v. Corwin, 5 Zabr. 257; Beirne v. Dord, 2 Sandf. 89; Taymon v. Mitchell, 1 Md. Ch. 496; Joslin v. Ca*ghlin*26 Miss. 134; Wetherill v. Neilson, 20 Penn. 448. See Presbury v. Morris, 18 Miss. 665. 324 LAW OF SALES OF PERSONAL PROPERTY. any error, either as to the substance of the thing sold, or any of its essential qualities, without which it would not be the thing which it purports to be ; the sale is void. As where metal is sold for silver bullion, which proves to be gold or brass ; or where plated are sold for silver candle- sticks. But by the common law the sale is said to be valid under similar circumstances, unless the article was so situated that it could not be seen and examined. By the civil law, moreover, there is an implied warranty not only that the thing sold is free from defects which ren- der it unfit for its intended purpose, but also from those which reduce its value below that of a sound article. In the former case, the vendee may return the thing sold, and rescind the sale by a redhibitory action to recover the , While other cases decide, that the only exception to the rule is where an examination at the sale is morally impossible — as where goods are sold before they arrive or are landed ; that a mere difficulty of examining is not sufficient. Hyatt v. Boyle, 5 G. <& J. 110. And, that " where both parties know or might discover the facts, and there is no misrepre- sentation, the law provides no remedy." Junkins v. Simpson, 2 Shep. 367. Where the contract does not specify the goods, but only the quality of the goods to be delivered, there is no warranty that they shall be of that quality ; and a breach is not of warranty but of contract. Eicketts v. Hays, 13 Ind. 181. When value is a material fact, it raay be made the subject of warranty. Picard v. McCormack, 11 Mich. 68. See p. 331. But false assertion of value is not technically either /raiirf or mistake which entitles to relief, where both parties had the same opportunity of inspection, and there was no warranty or concealment of facts which the seller was bound to communicate. Kockafellow v. Baker, Law Eeg.— Pa.,— March, 1863, p. 313. In reference to quantity; a bill of sale of gunny-cloth, specifying the invoice weight, is not a warranty that the actual weight is substantially the same with the invoice weight; and evidence that such is the under- standing among dealers in that article in the place of sale is inadmissible. Kice V. Codman, 1 Allen, 377. See pp. 3^8, n., 329. There may be an implied warranty as to place. Thus a sale of 1170 bales " of gambier, now on passage from Singapore, and expected to arrive in London, viz. : per Eavenscraig, 805 bales ; per Lady Agnes Duif, 365 bales;" implies a warranty that the goods are on passage. Gorrissen v. Perrin, 2 C. B. (N. S.) 681. WARRANTY. 325 price f while in the latter he might sustain an actio esti- matoria for the difference in value between the article sold and a sound article of the same kind. In either of the above cases, the vendor may clear himself from all liability by an express stipulation to that effect, unless he is chargeable with knowledge and concealment of the defect.' « Compensation for the injury sustained by a purchaser, in consequence of defects in the thing sold, can only be recovered, in Louisiana, by a redhibitory action, or by the action quawd- minoris. Eichardson v. John- son, La. An. E. 389. Even the civil law recognized a distinction between aai. express war-- ranty, and what was termed mida laus or simplex commendatio. 1 Pars, on Contr. 464. As an occasional citation from this admirable code is made- in the pres- ent work ; and as the common law, in reference more especially to the subject of sales, upon those points in which it has chiefly differed from the civil law, seems to be steadily approximating towards the latter : the following remarks of distinguished English judges miay pertinently be introduced : " The Eoman law forms no rule, binding in itself, upon the subjects of these realms ;, but, in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it proves to be supported by that law, the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries in Europe."' Per Tindal, C. J., Acton v. Bell, 12 Mees. & W. 324. " The opinions of the great lawyers collected in. the Digest afford us very great assistance in tracing out any question of doubtful principle; but they do not bind us." Per Blackburn, J., Applieby v. Myers, Law Kep. (Eng.) December, 1807, p. 659. The common law rule of caveat emptor has been more distinctly re- jected in the States of Louisiana and South C&rolina than any others. Melancon v. Eobichaux, 17 Louis. 101 ; Huntington v. Lowe, 3 An. K. 377 ; Barnard v. Teates, 1 N. & McO. 142 ; Eose v. Beattie, 2 lb. .539; Carnochan v. Gould, I Bai. 179. But see Wood v. Ashe, 1 Strobh. 407; The maxim of the civil law, that "a sound article is warranted by a sound price," has never been adopted in Pennsylvania. So in Virginia. Mason v. Chappell, 15 Gratt. 572; Weimer v. Clement, 37 Pfcnn. 147. 1 Poth. on Obligns. No. 18 ; Poth. Con. of Sale, No. 34, 182 ; Seixas v. Wood, 2 Caines, 48 ; Swett v. Colgate, 20 John. 196 ; Voet. on the Pand., b. 21. tit. 1, s. 4; Waring v. Mason, 18 Wend. 432, 433. See ss. 4, 11. 326 LAW OF SALES OF PERSONAL PROPERTY. § 3. But, as lias been stated, by the common law, where upon the sale of chattels there is neither warranty nor fraud, the vendee purchases at his peril, and can maintain no action for a defect of quality, nor resist an action for the price." ' Although the law requires truth and good faith in dealings, and these forbid a false representation, made knowingly, or the fraudulent concealment of ma- terial facts exclusively known to the party who conceals them ; yet, where both parties know or with ordinary care might discover the facts, and there is no misrepresentation, more especially in case of acceptance, the buyer is his own insurer, and the law provides no remedy.'' And fraud » More especially, where there is an express warranty in one particu- lar, it will not be implied in another. Barnes v. Blair, 16 Ala. 71. Thus an express declaration, by a vendor of slaves, that he warrants nothing but the title, precludes any implied warranty of soundness. Boinest v. Leignez, 2 Rich. 464. Officers of the law are held responsible neither for the title nor quality of goods sold by them, unless in case of warranty or fraud. Worthy v. Johnson, 8 Geo. 236. As in case of sale by an administrator. Prescott v. Holmes, 7 Eich. Equ. 9. Or an execution sale. Hensley v. Baker, 10 Mis. 157 ; Corwin V. Benham, 2 Ohio N. S. 36. See p. 822, n. a. i> Even warranty Is held not to apply to defects of which the buyer has notice. Marshall v. Drawhorn, 27 Geo. 275; Lindsey v. Liindsey, 34 Miss. 482. See Athey v. Olive, 34 Ala. 711 ; Sewatter v. Ford, 34 Miss. 417; Wade v. De Witt, 20 Tex. 898; Blythe v. Speake, 23 Tex. 429; Kearsly v. Duncan, 1 Head, 897. See p. 833. But the defects must be apparent to an ordinary observer examining with a view to trade ; and not require skill to detect them. Birdseye v. Frost, 84 Barb. 367. Not only the existence, but the extent of the defect must appear. Fisher v. Pollard, 2 Head, 314. Parol evidence, that the defect was obvious, or that the seller disclosed the unsoundness, is admissible, notwithstanding the warranty may be in writing. Fisher v. Pollard, 2 Head, 314. It must be a defect perfectly obvious to the senses, and the consequences of which may be accurately estimated, so that no purchaser would suppose 1 Gihon V. Levy, 2 Duer, 176; Dean v. Mason, 4 Conn. 428; Seixasv. Wood, 2 Gaines, 48; Perry v. Aaron, 1 John. 120; Defreeze v. Trumper, 1 John. 274. WARRANTY. 327 must be proved, not presumed." ^ Thus, if a man sell wine that is corrupted, or a horse that is diseased, and no that the seller intended to warrant against them. Hill v. North 34 Term. 604. Where the defect complained of, so far as it was visible, was known to the purchaser or his agent ; but the seller represented that it did not injure the horse in the slightest degree ; and the purchaser or his agent did not believe and had no reason to believe the defect to be anything more than a mere blemish ; and the testimony tended to prove, that it was a real unsoundness at the time of sale : held, this was one of those equivocal defects that a warranty might well be considered as taken to guard against. 34 Verm. 604. A. sold a horse to B. for $130, and took a due-bill, representing that the horse was sound, and agreeing that B. might try hlra, and return him if not satisfactory, and have back his bill. B. tried the horse, and then, with full knowledge of a certain defect, said the horse was satisfactory, and did not offer to return him. Held, there was no warranty, and B. should have returned the horse, if not satisfied. Van Allen v. Allen, I Hilt. 524. The proof was, that at the time of the trial the horse was worth the price paid, and there was no proof what he would have been worth with- out the defect. Held, even if there was a warranty, the buyer had proved no damage, and therefore must pay the due-bill. lb. • If a party makes a contract with another, whom he knows to be laboring under a delusion materially affecting the contract, and suffers him to be operated upon by that delusion, the contract is void. Hill v. Gray, 1 Star. 434. So, if the seller practise any intentional deception to disguise latent defects, this is a fraud for which he is liable to an action. Schneider v. Heath, 8 Camp. 506. The rule of caveat emptor does not apply in case of fraud. Otts v. Alderson, 10 S. & M. 476 ; Irving v. Thomas, 18 Maine, 418. See chap. 20. And the reason for the rule, that a general warranty does not extend to visible defects, ceases, when the vendor successfully uses art to conceal them. Thus, in an action for false warranty and fraud in the sale of a horse, where the plaintiff on one occasion observed a lameness in the 1 Fitch V. Carpenter, 43 Barb. 40 ; Williams v. Ingram, 21 Tex. 300 ; MeUuire v. Kearney, 17 La. An. 295; Junkins v. Simpson, 2 Shepl. 367; Taymon v. Mitchell, 1 Md. Ch. 496 ; McCurdy v. McFarland, 10 Mis. 377; Dillard v. Moore, 2 Eng. 166; Hudgins v. Perry, 7 Ired. 102 ; Otts V. Alderson, 10 S. & M. 476 ; Richardson v. Johnson, 1 La. An. R. 389; Henderson v. Ward, 1 Wms. 432; McCrea v. Longstreth, 17 Penn. 316; Mulvany v. Eosenberger, 18 lb. 203; Margetson v. Wright, 5 Moo. & P. 606 ; Liddard v. Kain, 9 Moo. 356 ; 2 Bing. 183 ; Pearce v. Blackwell, 12 Ired. 49. 328 LAW OP SALES OF PERSONAL PROPERTY. warranty ; it is at the buyer's peril, and his eyes and taste ought to be his judges in that case.^ And the general rule is held to apply alike to things of marketable value, and those of mere fancy.^ So the law presumes every dealer in articles brought to market to know all the cir- cumstances usually attendant on such cargoes. Hence horse, which the defendant remarked was slight and temporary, ard caused by weariness and exposure to the cold ; the court rightly instructed the jury, that the plaintiff was not precluded from recovering, unless such lameness indicated that the horse was unsound, and not merely laboring under a temporary infirmity. The defendant, in his plea to the count on a general warranty of soundness, having alleged, that the horse was not otherwise unsound except that he was lame, and his lameness was obvious to the sight, and the pl-aintiff saw and knew it; the replication traversed the plea, and further alleged the horse to be otherwise unsound. The defendant requested the court to instruct the jury, that, if they were sat- isfied that the facts set up in the plea were true, it would be their duty to find, on that issue, for the defendant, although he gave the warranty: which request was refused. Held, the defendant could prove nothing under the plea, which he could not prove under the general issue, and the charge, being applicable to both issues, was correct. Chadsey v. Greene, 24 Conn. 662. But, although it is the duty of the vendor to disclose to the vendee such intrinsic defects in the property sold, as materially affect its nature and condition, which lie especially in the knowledge of the seller, and which the purchaser cannot by the exercise of proper diligence discover; yet the law does not require him. to disclose " the fullest extent of that un- soundness," by describing particularly the different stages and symptoms of the disease, and all the circumstances attending it. Armstrong v. Huffstutler, 19 Ala. 51. Nor is he bound to disclose a past unsoundness, which he believes has ceased to exist. McEntire v. lIoEntire, 8 Ired. Eq. 297. The general rule applies to an alleged warranty of quantify, as well as quality. Thus a quantity of hay and grain was sold by estimate, the hay being cut but not weighed, and the grain not thrashed, and it was ex- pressly stated, in the receipt given, that the estimate was " not guaran- teed to be accurate, but the articles are sold, for the sum named, be the quantities more or less than estimated." Both parties had equal means of knowledge as to quantities. Proof was made that the quantity sold was less than the estimate. Held, that, in the absence of fraud and warranty, the purchaser could not recover back any part of the price paid. McCrea v. Longstreth, 17 Penn. 316. See pp. 324, u., 329. 1 Fitzh. N. B. 94 0. * Dean v. Mason, 4 Conn. 428. WARRANTY. 329 the ignorance of a purchaser upon this subject is no ground for a refusal to accept the article sold.' So evidence is not admissible of a custom or usage, by which the mere sale of a particular article implies a warranty of its goodness. Thus a purchaser of crockery ware was not allowed to prove a usage in New York, by which the exhibition of the invoices in sales of that article constitutes an under- taking that it is good and merchantable, although there was some contradiction in the account given by the seller as to the place where and the persons from whom he ob- tained the property.^ So, where A. agreed to sell B. a quantity of prime bacon, which B. examined and weighed, and paid for by a bill of exchange at two months, and, before maturity of the bill, B. gives notice to A. that the bacon does not conform to the agreement ; in a suit upon the warranty, A. cannot be permitted to prove a usage for purchasers to reject the article purchased at the time when it is examined.* ' "While, on the other hand, a written eon- tract for the manufacture of retorts cannot be controlled by proof of custom, that, in the absence of express agree- ment, founders do not warrant their castings against latent defects ; and, in case of apparent defects, shall be entitled to have castings returned to them in reasonable time, and to replace them with new ones.^ So a guaranty of the quantity of a cargo sold is not a warranty that the whole • But, it being customary in the pimento trade for the seller to declare when the article was sea-damaged, a sale, without such declaration, raises an implied warranty that it was not sea-damaged* Jones v. Bowden, 4 Taun. 847. As to evidence of usage to explain a descripiioriysee Hart v. Hammett, 18 Verm. 129 ; Lewis v. Peake, 7 Taun. 153 ; Atterhury v. Pairmaner, 8 Moo. 32. Evidence is admissible, that, by the usage of the trade, a "hale " of gambler means a package of a particular description. Gorrissen v. Perrin, 2 C. & B. (N. S.) 681. • Sands v. Taylor, 5 John. 405. ' Thompson v. Ashton, 14 John. 316. » Teates v. Pim, 2 Marsh. 141 ; 6 Taun. 446. • Whitmore v. South Boston, &c. Law Eep., Jan. 1862, p. 177 ; Mass. 330 LAW OF SALES OP PERSONAL PROPERTY. is sound.' (See pp. 324, n., 328, n.) iN'or does a sound, fair, and merchantable price raise an implied warranty against a latent defect, or that the article is merchantable, or fit for all the purposes to which it is usually applied ; if the seller sell the thing for such as he believes it to be, without fraud. Though, when the purchaser pays what would be an inadequate price if the article was sound, it is a cir- cumstance to which the jury may look, in connection with other proof, in determining whether or not he was advised of the latent unsoundness."^ But the words "in ■ A sale of all the merchantable logs in a certain lot, made without inspection by either party, is no warranty that any particular log is mer- chantable ; therefore, after the buyer or the person selected by the parties to scale the logs has accepted one, he cannot afterwards complain that it is not merchantable. Leonard v. Davis, 1 Black, 476. Agreement to deliver a quantity of iron, made at A., for a sound price. Iron was delivered which was made at A., and which the seller believed good, but on trial it proved positively bad. Held, a fulfilment of the contract. Kirk v. Nice, 2 "Watts, 367. A. bought of B. a slave, and agreed to give for him a certain sum , which was a full price for a sound slave, but there was no proof of a warranty. The slave, at the time, had the scrofula, and was constitutionally diseased with it, but there was no proof that B. knew of the disease, or represented the slave to be sound. Held, B. was entitled to recover the full price, though the slave was worthless. Otts v. Alderson, 10 S. & M. 476. The defendant sold to the plaintiff a quantity of flour, made of grown wheat, and therefore unfit for ordinary bread, and unprofitable for making starch. The flour was sold as E. S. B. flour, meaning E. S. Beach's brand, and it was really, according to the weight of the testi- mony, of this description. The flour was also merchantable, and fit to be used for some purposes, being good for hard or ship bread, and more than usually valuable to make paste for paperhangers. Some witnesses, however, thought that it was not merchantable, nor good for any pur- pose. The plaintifi' was a manufacturer of starch, and had several times purchased flour of the defendant to be used for this purpose, but there 1 Jones V. Murray, 3 Mon. 84. 2 Parkinson v. Lee, 2 E. 314 ; Mixer v. Coburn, 11 Met. 559 ; McKin- ney v. Fort, 10 Tex. 220; Behinger v. Corwin, 4 Zabr. 257. And the agreed price may be recovered, though the article is of no value. Deifen- dorff V. Gage, 7 Barb. 18. See s. 5 ; Armstrong v. Huffstutler, 19 La. 510; Walton v. Cody, 1 "Wis. 420; Long v. Hickingbottom, 28 Miss. 772 ; Mete. Yelv. 216. WARRANTY. 331 merchantable order," in case of an executory contract, in- volve an agreement that the articles shall be of merchant- able quality. Thus in case of an agreement to deliver all the corn grovs^ing on certain land, a tender of unmer- chantable corn, with merchantable, is no fulfilment of the contract, but the seller is liable to an action for dam- ages ; being the difference between the value of good corn and the contract price, the sum advanced, and interest.* l^or does proof of a warranty, that each piece of goods sold shall be of a certain value, arise from the fact, that this is the price at which the vendee was to take the property. It being very truly remarked that, if so, warranty would be universal, unless there were a stipulation to the contrary.^ For upon a sale — as, for instance, of hemp — in bales, is there an implied warranty that the interior agrees with the exterior. If there is fraud, the vendor is not liable, un- less proved to be privy to it.^ Such a sale is not a sale by sample." And the law appears to be well settled, that a was no evidence that he did so in the present instance. Held, the de- fendant was not liable, as upon an implied warranty. Wright v. Hart, 18 Wend. 449 ; Hart v. Wright, 17 lb. 267 ; Dean v. Mason, 4 Conn. 428. * The vendee of hemp, sold in bales, opened and examined several of them, and had the power of doing so with the rest, but did not open them. The hemp contained in the bales which were not opened did not correspond with that in those which were opened. The interior was not only different from the exterior, but contained a large quantity of tow. The vendee opened and worked some of the bales, and offered to return the rest. The price paid was $210 per ton, but the real value only $160. A letter, accompanying the invoice, spoke of the first quality hemp, the same as sold to you. The vendor also represented it to others, to whom it was offered for sale, as first quality. But he also told the vendee that he must examine well for himself. The vendee disavowed charging the vendor \i\lh. fraud, but brought an action against hira, alleging both de- ceit and a warranty. Held, this was not a sale by sample, nor was there an implied warranty. 19 Wend. 159. Upon a sale of tobacco, a bill of parcels was given as follows : " 24 1 Hamilton v. Ganyard, Amn. Law Keg., Feb. 1862, p. 236 (N. Y.) ' Snell V. Moses, 1 John. 96. ' Salisbury v. Stainer, 19 Wend. 159. 332 LAW OF SALES OF PERSONAL PROPERTY. false assertion by the vendor, as to the value of the prop- erty sold, or the amount of future income from it, where there is neither a warranty as to the value, nor a misrep- resentation of any fact respecting the property, which is kegs of tobacco, branded Parkin, at 4 months, weighing, &c., at 13J cents." The seller received the tobacco on commission, and guaranteed the sale. The sale took place at his counting-room, where the tobacco was. It was bitanded conformably to the bill, and not examined by either party, before or at the time of sale. The pnioe was that of mer- chantable tobacco, and the brand a favorite one, varying in price from 8 to 13^ cents. The tobacco proved to be in part unsound; none of it was resold, and the buyer offered to return the bad portion, and pay for the rest. In a suiit brought for the price, held, there was no implied warranty of quality, but the seller's agreement was fulfilled by the brand. Hyatt V. Boyle, 5 Gill & J. 110. In an action of assumpsit, the declaration alleged, that the defendant agreed to sell and deliver to the plaintiff eighty-nine casks of lime of good quality, but that he delivered that number of casks, which were unmerchantable and of little value. There was also a count for money had and received. The casks were proved to contain a mixture of sand and stones, which was of no value, and could not be usedas lime; but there was no warranty, nor any evidence of knowledge on the part of the defendant. He was master of a coaster, and received the casks of one A., at Thomaston, to carry on freight to Boston, and there sell them on A.'s account, but made no disclosure of his being an agent. The plaintiff sold some of the casks, and did not return the rest. A bill of parcels was given of eighty-nine casks of lime, at ten shillings per cask, and the casks were branded by an inspector of lime. Held, no action could be sustained upon the first count, nor would money had and received lie, because the casks were of some value, and not returned. But the court suggested that a new declaration might be filed, upon which the plaintiff might recover. Conner v. Henderson, 15 Mass. 319. See Hen- derson V. Seevy, 2 Maine, r39. Where a slave is sold' for a sum of money, which is a sound and full price for a good and honest slave, and he proves to be bad and dishonest, which the vendor knew, no action lies for a fraudulent concealment. But where the vendor gave a receipt " in full payment" for a slave, and warranted him sound in body and mind, and a slave for life, and also gave an order upon the sheriff, who had him in custody, to give him up, and, on arrival at the jail, it was found that the slave had cut his throat, and he soon died: in a suit to recover back the price, held, the intention of the parties was, that the slave should be delivered ; the agreement was for a living and sound slave, and, if he had cut his throat before the con- tract was made, the action was maintained. Fleming v. Slocum, 18 John. 403; Franklin v. Long, 7 Gill & J. 407. WARRANTY, 333 not mere matter of opinion, forms no substantive ground for relief in law or equity. A naked assertion as to value does not imply knowledge, but must be understood by the vendee as mere matter of judgment or opinion; and the vendee is as competent to form a judgment as the vendor. Where a fact is equally known to both parties, the law presumes that each relies on his own judgment. The cir- cumstance, of the vendor's having offered the property for less than the price obtained, perhaps implies that he does not think it worth this price. But, where no inquiry is made about such offer, he is not bound to disclose it.' And even a warranty does not extend to defects which are visible, and require no skill to detect them ; as where a negro was sold, having a defect in his left arm, which made it thin and crooked, and was plainly visible, and which the seller offered to exhibit."^ So, where one pur- - But where a slave, having a disease not to be observed by an un- skilful eye, though the «ff«cts of it might he easily seen, is warranted sound, such defect is covered by the warranty. Jordan v. Foster, 6 Eng. 139. The following cases illustrate the general doctrines above stated; Where, in an action by a vendee, the body of the declaralicm merely states a premise, in the old form of assumpsit, though it further alleges in the breach that the defendant, contriving to injure the plaintiff, did not perform his undertaking, but craftily and subtlely deceived the plaintiff, in selling an unsound article, but contains no substantive allegation of fraud; evidence of fraud is not admissible, although the sale was of deer- aHns, which proved to be not merchantable, damaged, worm-eaten, mil- dewed, and rotten. Dean v. Mason, 4 Conn. 428. A. transferred to B. stock in a turnpike company, which, at the time, appeared by the books to have been fully paid up, by a credit of interest on the amount before paid in, according to a resolution of the directors. This resolution was after the above transfer repealed, and the stock- holders were call-ed upon to pay in the amount before allowed for inter- es.t. B. accordingly paid in the amount to the company on the shares transferred to him, and briags an action against A. to recover that amount. Held, the suit could not be maintained, as there was neither 1 Speiglemyer v. Crawford, 6 Paige, 254; Sims v. Klein, Bree. 234; Anderson v. Hill, 1 Sm. & M. 679. See p. 324, n. ^ Schuyler v. Buss, 2 Caimes, 202^ 6 Eng. 139. See p. 326, n. b. 334 LAW OF SALES OF PERSONAL PROPERTY. chases an article on inspection, though he neither examines nor tries it, and the seller affirms that it is worth much more than the real value, and that he has been offered twice the amount of such value, no action lies for such affirmation, there being neither fraud nor warranty.' But it is held to be a fraud to sell a horse nearly blind for a sound price, knowing and not declaring his blindness, al- though the purchaser examined the horse ; it appearing that the defect could not be discovered at first view.^ § 4. It is said, the exceptions, if any, to the common law rule as to warranty, are, that, if a manufacturer sell his own articles, ordered, with notice to him, for a particular use, there is an implied warranty that they are fit for such use ; in the sale of provisions for domestic consumption, that they are not unwholesome and deleterious ; and, in case of an order for a certain kind or quality of goods, that those furnished are of such kind.' That some judges fraud nor warranty. The receipt, given by A. to B. for the money, was fairly to be understood as stating that thirty-five dollars had been paid upon each share. But B. knew in what manner it was paid before he bought. He was not misled as to the facts. And A. was not to be held chargeable with any subsequent risk. Cunningham v. Speer, 13 John. 392. The defendants requested the plaintiffs to exchange a quantity of Bur- gundy wine, which, about a year before, they had bought from the plain- tiffs, for a quantity of Champagne wine. The plaintiffs consented, and the exchange took place. When received by the defendants, the Bur- gundy was of the first quality; but, when returned to the plaintiffs, it was sour and fit only for vinegar. The defendants neither made any rep- resentation, nor were guilty of any fraud, in relation to the wine re- turned. Held, the plaintifl's could not maintain an action for the value of the Champagne, or to recover damages for the bad quality of the Bur- gundy. La NeuviUe v. Nourse, 3 Camp. 351. * The exceptions are sometimes thus enumerated: 1. In the sale of provisions. 2. Where there are fraudulent representations by the vendor. 3. Where goods are sold by sample. Getty v. Kountree, 2 Chand. 28. See Moore v. McKinlay, 5 Cal. 471. A contract, to buy " twenty-five bales of French walnuts, to arrive per 1 Davis V. Meeker, 5 Johns, 354. 2 Hughes V. Eobertson, 1 Mon. 21S. WARRANTY. 335 in recent Englisli cases have gone thus far, and even far- ther ; holding to an implied warranty that the thing is merchantable or fit for some purpose. But Chancellor Kent thinks this is not the common law or law of N"ew York ; though perhaps, if the article is of no value either to the vendor or the vendee, this would be a good defence to a suit for the price ; not however on the ground of war- ranty, but a failure of consideration.' And it has been held, that, under an agreement to furnish manufactured goods, however low the price, the articles must be mer- chantable. Thus, where a publican agreed with a brewer to take all his beer of him, the latter was held bound to supply him with beer of a fair, merchantable quality.^ The same rule was applied in a late case, where whiskey sold for barter in Africa was colored with logwood.^ And the principle is elsewhere laid down, that, where a vendor of manufactured articles is himself the workman, there is an implied warranty that they are executed in workman- Helen E. Miller," is executory, and an implied engagement that the article shall be merchantable. Cleu v. McPherson, 1 Bosw. 480. Goods sent upon a general or special order, the note for which is by the course of dealing or special agreement to be given before delivery, are impliedly warranted to correspond to the order or be merchantable. Brantley v. Thomas, 22 Tex. 270. , A bill of parcels, designating merchandise sold as of a particular kind, imposes no obligation as to quality, but only as to kind. Gunther v. At- well, 19 Md. 157. But the distinction is elsewhere made, that in sales on inspection, and where the vendee's means of knowledge are equal to the vendor's, the law does not presume an engagement that the thing sold is of the spe- cies or kind contemplated by the parties ; otherwise, if the article be such, that the vendor is presumed to have superior knowledge in regard to it, as in the case of a sale of wheat. Lord v. Grow, 39 Penn. 88. By St. 19 & 20 Vict. u. 60, a. 5, a sale of goods for a specified purpose implies a warranty of fitness for such purpose. 1 Per Walworth, Chr. 18 Wend. 453, 454. « Laing v. Fidgeon, 6 Taun. 108; Holcombe v. Hewson, 2 Camp. 391; 3 lb. 286. ' McParlane v. Taylor, Law Eep. 1 H. L. Sc. 245; Amn. Law Bev., Oct. 1868, p. 106. 336 LAW OF SALES OF PERSONAL PROPERTY. like manner. Otherwise, if lie is the seller only."' But it will be seen that this distinction is not fully sustained (/ * A manufacturer, selling a steam boiler, impliedly warrants that it is of sound material and good workmanship. Beers v. Williams, 16 111. 69. The rule is held more peculiarly to apply, in case of executory contracts to furnish articles for a specidc purpose, especially to manufacturers; in- asmuch as the purchaser has not an opportunity of inspecting or testing them. Getty v. Kountree, 2 Chand. 28. Thus, where a manufacturer agrees to deliver a pump intended to ex- haust water from a mine, there is an implied warranty, that in form and structure it shall be suitable fur the purpose. If defective, the purchaser may sue for damages ; or, if sued for the price, he may set off his dam- ages, and thus recoup. lb. But the sale, by a manufacturer, of a threshing machine, was held not to imply a warranty. Misner v. Granger, 4 Gilm. 69. And see Camac V. "Warriner, 1 Com. B. 356; Shepherd v. Pybus, 3 Man. & G. 867; Chanter v. Hopkins, 4 Mees. & W. 399. In which last case, Lord Abinger remarked, that " it was the ordinary case of a man, who has had the misfortune to order a particular chattel, on the supposition that it would answer a particular purpose, which he finds it will not." See Beals V. Olmstead, 24 Verm. 114. In the sale of molasses in barrels, at the market price, to a grocer, tO' retail, where the quality of the molasses is not examined (the barrels being present at the sale), there is no implied warranty that the molasses is fit for the purpose for which it is purchased. Humphreys v. Comline, 8 Blackf. 508. Sale of a flat-boat, sunk, for a price less than half that which was usually paid for first-rate boats of equal size. The seller carried half a load on the boat to the place of destination safely. Held, there was no implied warranty, that the boat was fit for the purposes for which it was purchased. Burns v. Fletcher, 2 Cart. 373. The plaintiff sold to the defendant, without warranty or fraud, "old potash kettles," at one cent per pound. They were bought to melt and make into stove castings ; but, upon breaking them up, it appeared that only half of the iron, by weight, was suitable for this purpose ; but the plaintiff was ignorant of the defect. It was also set up as a defence, that there was a custom of the defendant, though not a general custom, to de- duct from the weight of iron purchased by him that which upon trial was found unsuitable for use; but not that theplaintiff had notice of such custom. It also appeared, that by agreement the plaintiff was to receive in part payment the note of one A.; but that the defendant refused to deliver it, upon demand, for the reason above stated, the amount of the note exceeding the sum which he claimed that he was bound to pay. 1 Cousin V. Paddon, 2 Cromp. M. & R. 550. VTAKRANTT. 337 by the weight of authority." Upon the general subject, Best, C. J., remarked : " Reference has been made to cases Held, the plaintiff might recover the whole price. Stevens v. Smith, 21 Verm. 90. "Where the plaintiff purchased claret for exportation to the East In- dies; it was held that there was an implied warranty that it was suit- able for this purpose. Williamson v. Alanson, 2 B. 446. Where a manufacturer contracts to deliver a manufactured article at a distant place, and the article when delivered to the carrier is merchant- able, the purchaser is bound to accept it, if only deteriorated to the ex- tent that it is necessarily subjected to in its transit. Bull v. Robinson, 28 Eng. Law & Eq. 586. In an action upon a note, the defendant pleaded, that the note was given for the price of a threshing-machine purchased of the plaintiff, a machinist, carrying on that business, and also that of a foundry ; that the machine was received, and the note given before the machine was tested ; and that it did not answer the purpose for which it was intended and purchased. Held, the pleas did not show a defence, in that they did not allege an express warranty, nor facts sufficient to show an implied warranty ; not averring that the plaintiff was the manufacturer of the machine, nor that he furnished it for a particular purpose. Misner v. Granger, 6 Gilm. 69. Delivery of sheep, the party taking » bond for an annual amount of wool, and the delivery in five years of the same number of sheep. Held, there was no implied warranty that the sheep were fit for the intended use. Williams v. Slaughter, 3 Mis. 347. Although the various cases upon this subject are not wholly reconcil- able ; yet perhaps an approach to the settled doctrine may be, that, if the purchaser buys upon his own judgment, the seller is not responsible, though the thing be unfit for the intended purpose. Brown v. Edging- ton, 2 Man. & Gtr. 279. And more especially in case of a mere sale, it may be doubted whether the implied warranty extends further than that the thing is fit for use, generally, though not for the particular use in question. Shepherd v. Pybus, 3 Man. & Gr. 868. * The more sound distinction has also been made, that, if a party un- dertakes to manufacture an article known by a certain description, which description expresses that it shall produce a certain effect ; if the article is a known and ascertained one, there is no implied warranty that it shall produce such an effect. Otherwise, if the description is intended to apply to a machine, generally. Ollivant v. Bayley, 5 Ad. & Ell. 289. Where the contract was, to deliver bar-iron, to be made of Centre County metal ; it was held, that the seller was not liable for the bad and unmerchantable quality of the iron. Kirk v. Nice, 2 Watts, 367. 22 338 LAW OF SALES OF PERSONAL PROPERTY. on warranties of horses ; but there is a great difference between contracts for horses and a warranty of a manu- factured article. No prudence can guard against latent defects in a horae ; but by providing proper materials, a merchant may guard against defects in manufactured ar- ticles. The decisions, however, touching the sale of horses turn on the same principle. If a man sells a horse gener- ally, he warrants no more than that it is a horse ; the buyer puts no question, and perhaps gets the animal the cheaper. But if he asks for a carriage horse, or a horse to carry a female, or a timid and infirm rider, he who knows the qualities of the animal, and sells, undertakes, on every principle of honesty, that it is fit for the purpose indicated."" So, where copper sheathing was ordered for the purpose of sheathing a vessel, and the sellers were to manufacture it, and it proved wholly worthless for this purpose ; they were held liable on an implied warranty. In this case, a third person introduced the plaintiff to the defendants, as " in want of copper for sheathing a vessel," and one of the defendants said, "we will supply him well."' So, where one undertakes to procure a crane-rope, which he is informed is to be used for raising pipes of wine from a cellar ; there is an implied warranty, that the rope shall be suitable for that pui'pose, although the party con- tracting is not the manufacturer, more especially if he rep- resent himself to be a rope-maker, and examine the prem- ises in order to determine the size of the rope required.^' - Where goods sold are retained by the purchaser ; in an action for goods sold and delivered, evidence is inadmissible, on the part of the de- fendant, of their value for a special use. The defendant is liable for the value of the articles, for any use, at the time and place of delivery. Boa- ton V. Keed', 13 Gray, 530; •> The most recent leading cases upon the subject considered in s. 4 are as follows : Where goods are ordered and supplied, or manufactured for a particu- lar purpose, there is an implied warranty that they are reasonably fit 1 Jones V. Bright, 5 Bing. 633 ; 3 Moo. & P. 155. » Brown v. Edgington, 2 Mann. & G. 279 1 2 Scott, N. 496. WARRANTY. 339 § 5. The principle, that a vendor is not answerable for defects in the thing sold without warranty, has been ex- and proper for that purpose; especially as between the manufacturer and purchaser. Overton v. Phelan, 2 Head, 445 ; Pisk v. Tank, 12 Wis. 276. Or a warranty against latent defects growing out of the process of manufacture. Though not a latent defect in the quality of the material used in the manufacture, unless the manufacturer is shown or is to be presumed to have actually known of such defect. Hoe v. Sanborn, 21 N. r. (7 Smith), 552. As where engine-builders, for a fair price, built an engine and boiler to go into a saw-mill for a special purpose ; and solely by reason of the unsoundness of the boiler, though unknown to them, it exploded. They were held liable on an implied warranty, not only for the imperfection of the boiler, but for damages done by the explosion to the surrounding machinery. Page v. Ford, 12 Ind. 46. So in case of a contract to manufacture and deliver steam boilers to run the engines in a rolling mill, the boilers must be free from all such de- fects of material and workmanship, whether latent or otherwise, as would render them unfit for the usual purposes of such boilers. Rodgers v. Niles, 11 Ohio (N. S.) 48. The plaintifi's having agreed with the East India Company to convey troops to Bombay, the defendant undertook to supply the plaintiflFs with troop stores, "guaranteed to pass survey of the East India Company's officers." Held, this express warranty did not exclude the implied war- ranty, that the stores should be reasonably fit for the purpose for which they were intended. Bigge v. Parkinson, 7 Hurl. & Nor. 955. The general rule applies to a ship. There is a warranty against secret defects in the materials used. Thus where the contract was for the making and delivery of a ship, and the ship was made and delivered, and imme- diately sailed ort a foreign voyage, and it was found, upon examination at one of the ports at which she arrived in the course of that voyage, eight months after her delivery, that the planks on her bottom were very much split, and she had leaked much in the course of her voyage, and had met with no disaster or strain, suflieient to account for the dam- aged state of her planks j it was held sufficient evidence that the vessel was improperly built, and not reasonably fit for use. Cunningham v. Hall, Sprague, 404. But upon the sale of a specific article, then present and subject to exam- ination, no warranty of its quality or fitness for a particular use will be implied, though the seller is aware that the article is purchased specially for such use. And an express warranty excludes any other — as where a yoke of oxen were sold, expressly to do the work on a farm. Deming V. Poster, 42 N. H. 165. And a person who sells a manufactured article is not responsible for its defective operation, unless he is the manufacturer. So if a vendee 340 LAW OF SALES OF PERSONAL PROPERTY, tended so far, as to enable him to recover, in an action against the vendee, the apparent value of the article at has directed how a machine should he constructed, the vendor is not liable for its defective operation. Nor if he has only sent for the ma- chine to the manufacturer, at the request of the vendor. Nor for the want of parts of the machine, which the vendee said he would add him- self, if needed. Archdale v. Moore, 19 111. 565. The plaintiff ordered " Cbappell's fertilizer," stating the purposes for which he wanted it. Held, the only implied warranty was, that the article sold was " Chappell's fertilizer ;" not that it was fit for these pur- poses. Though it would have been otherwise if he had ordered "a fer- tilizer " (generally) fit for certain purposes. And that the article did not produce the effects advertised as those of " Cbappell's fertilizer," does not prove it a mere Imitation. Mason v. Chappell, 15 Gratt. 572. The defendant sent to the plaintiff, the patentee of " Prideaux's patent self-closing valve," and who carried on business under the name of " The Smoke Prevention Company," the following written order: "Please prepare us a smoke-preventing valve ;" giving the dimensions of the fur- nace door to which it was to be applied. A circular had been previously sent to the defendant by the plaintiff, to the effect, that the article would consume smoke and effect a considerable saving in fuel. The plaintiff accordingly sent one of his valves, but it was of no use for the purpose designed. No fraud was imputed to the plaintiff. Held, in an action for the price, that no warranty could be implied of fitness for the purpose proposed, but the plaintiff was entitled to recover the price. Prideaux V. Bunnett, 1 C. B. (N. S.) 613. The defendants wrote to A., a partner of the plaintiff, on March 29th : " We propose to make you eighteen or twenty-two retorts in dry sand, with two heads each, like the one furnished you in February last, weigh- ing about 3O0O pounds each, for $100 each." A. replied: "You will please make for me eighteen retorts, as per memorandum and terms in yours of March 29th, and directions given by myself and B." Held, no implied warranty that the retorts should he fit for any special purpose, and that no such warranty could be added to it by parol ; but the words, " like the one furnished you in February last," applied to the quality of workmanship, as well as to the size, shape, and exterior form. Whit- more V. South, &c., 2 Allen, 52. The production of garrancine being known as the only purpose for which spent madder can be used ; the defendant bought of the plaintiffs a boat-load of spent madder, and it proved insufficient therefor. In an action for the price, it was held that the jury were to find whether the article could reasonably be said to be spent madder, but not whether it was fit to make garrancine. Turner v. Mucklow, 1 Hurl. & Colt. 859. Contractors to furnish machinery "adapted to, and suitable for, a boat that will drive her from twelve to fifteen miles an hour," do not under- WARRANTY. 341 the time of sale, though no price was expressly agreed upon. Thus where A. sold B. a bowsprit, apparently sound, but which, after being used, proved to be rotten ; it was held, that A. might recover the apparent value of the article at the time of sale.' And, a fortiori, where goods are sold for a definite price, without warranty, either express or implied, or fraud ; the vendor may re- cover the full price, although the value of the article is lessened by defects.^ § 6. "With regard to the words necessary to a warranty ; the word ivarrant, or any other particular phraseology, is not necessary to constitute a warranty. It is sufficient, if there be a representation of the state of the thing sold, or a direct, positive, unequivocal, and express affirmation of its quality and condition, being part of the consideration of the sale, and showing an intention to warrant or make good the quality of the thing sold, and so understood and relied upon, instead of a mere recommendation or expres- sion of an opinion, leaving the buyer to understand that he must still examine and judge for himself; more espe- cially if the subject is within the particular knowledge of the vendor ; and the question is for the jury, under the advice of the court." ^ Whether the words amount to a take to furnish machinery that would propel her " as she was " at that speed, hut only machinery adequate to propel a boat of her size at that speed. They are not liable for her sufficiency for the machinery after it is put in. Pisk v. Tank, 12 Wis. 276. ' The case of a mere jtidgment or opinion, in regard to a thing sold, is ' Bluett V. Osborn, 1 Star. 384. ' Smalley v. Hendrickson, 5 Dutch. 371. » Weimer v. Clement, 37 Penn. 147 ; "Warren v. Van Pelt, 4 B. D. Smith, 202; Blakeman v. Mackay, 1 Hilt, 266; Chapman v. Mureh, 19 John. 290; Oneida, &c. v. Lawrence, 4 Cow. 440; Peake on Evi. 228 McFarland v. Newman, Penn., Sept. 1839, Law Rep., Feb.- 1840, p. 301 Osgood V. Lewis, 2 Har. & G. 495; Hillman v. Wilcox, 30 Maine, 170 Otts V. Alderson, 10 S. & M. 476 ; Seixas v. "Woods, 2 Caines, 56; Whit- ney V. Sutton, 10 Wend. 411 ; Adams v. Johnson, 15 111. 345; Foster v. Caldwell, 18 Verm. 176; Buckman v. Haney, 6 Eng. 339; Beals v. Olra- Btead, 24 Verm. 114 ; Taymon v. Mitchell, 1 Md. Ch. Dec. 496 ; Bryant 342 LAW OF SALES OF PERSONAL PEOPERTT. warranty, is a question of fact, on which the decision of a justice will not readily be disturbed.^ The question is, not whether the seller intended to, but whether he did, warrant.^ A party will be bound by an express warranty, distinctly made at the close of a negotiation, though he may, in the course of the previous conversation, have stated the truth on the same point.' Thus the words, " I promise you the horse is sound," it seems, are a warranty of soundness.'' So a representation, that flour sold in barrels is superiine, or extra superfine, and worth a shil- ling a barrel more than common, with an assurance to the agent of the buyer that he may rely upon such represen- tation, is a warrant}', without proof of a scienter.^ So, where one sold a slave, and gave the following writing, "I state that I have sold her as a sound and healthy negro ;" this was held a warranty, being an agreement for soundness, and something more than a mere affirmation.' So the declaration of the vendor of a horse, that it was not lame, and that "he would not be afraid to warrant it," was held to amount to a warranty.' So where a horse was purchased to use in harness, and the vendor said, said not to be analogous to the description, in a policy of insurance, of a ship, as neutral or American. The policy is a special contract, in which the whole agreement is precisely stated. No question is ever made, but that the assured knew and meant to be understood to mean that the ship was of that character. 2 Caines, 56. Evidence is held admissible, of a special local custom, to prove a representation to be a warranty. Wetherill V. Neilson, 20 Penn. 448. V. Crosby, 40 Maine, 9 ; Sweet v. Bradley, 24 Barb. 549; Rogers v. Acker- man, 22 Barb. 134; Henson v. King, 3 Jones, 419; Kandall v. Thornton, 43 Maine, 226; Humphreys v. Comline, 8 Blackf 608; Tyne v. Causey, 4 Harring. 425. But see Andrew v. Boughey, Dyer, 75. ' Blakeman v. Mackay, 1 Hilt. 266. » Smith V. Justice, 13 Wis. 600. • Deming v. Foster, 42 N. H. 165. * Chapman v. Murch, 19 John. 290. ' Carley v. Wilkins, 6 Barb. 557; Sprigwell v. Allen, AUeyn, 91,aoo. « Vanada v. Helm, 2 J. J. Marsh. 129. ' Cook V. Moseley, 13 Wend. 277. WARRANTY. 343 "he was all right ;'" or an affirmation in a bill of sale, or a verbal affirmation at the time of sale, that a jack is a good and sure foal-getter.^ So where the vendee said, " If the oysters were not good he did not want them ;" to which the vendor replied, that " he cut holes in the ice and took them out fresh," and the vendee then said that " he did not want them if they were not fresh :" held, a warranty.^ So where the following conversation took place between the parties to a sale ; — the plaintiff, pur- chasing a mare of the defendant, said, " She is sound, of course?" " Yes, to the best of my knowledge." "Will you warrant her ?" " I never warrant— I would not even warrant myself:" this was held to be an express warranty, being a representation made by the vendor at the sale."^ So where one gave a bill of sale of a female negro, con- taining the clauses, " grant, bargain, and sell," " covenant to warrant and defend," and " being of sound wind and hmb, and free from all disease ;" this was held to be not mere description, but the averment of a fact, amounting to an express covenant or warranty of soundness, and broken, by the negro's being subject to fits.= So the de- * So where the seller of a mare refused to warrant her, but said to the buyer, "If the mare was not all right, she was not his;" it was held a question for the jury, whether this was an agreement to take back the mare upon the condition named. Foster v. Smith, 37 Eng. L. & Eq. 218. A dentist made a set of teeth, delivered and received payment for them, and inserted in a receipted bill the words, "Warranted for one year; and if, on trial, they cannot be made useful, the teeth to be re- turned, and the money refunded." Held, there was no latent ambiguity in the words made useful, which authorized the introduction of parol evi- dence to explain them ; but if the purchaser, by a fair and proper trial, according to his own knowledge, and the instructions of the dentist at the time of delivery, could not make them useful to himself, he might return them within the year and recover back the price. Davis v. Ball, 6 Cueh. 505. ' Smith V. Justice, 13 Wis. 600. • Lamme v. Gregg, 1 Met. (Ky.) 444. » Blakeraan v. Mackay, 1 Hilt. 266. * Wood V. Smith, 4 Car. & P. 45. ' Cramer v. Bradshaw, 10 John. 484. 344 LAW OF SALES OF PERSONAL PEOPERTT. fendant agreed to sell the plaintiff " Scott & Co.'s 75 barrels mess pork at 53s. per barrel." It was proved that mess pork cured by Scott & Co. brought 2s. 6d. more than any other kind ; and witnesses connected with the trade were allowed to testify to the proper construction of the con- tract. Held, the contract imported a warranty that the pork was cured, not merely consigned, by Scott & Co., and that the above testimony was rightly admitted ; that the plaintiff relied, for the quality of the article, upon the character of the persons mentioned ; and the case was like that of the picture of a particular artist, which must have been painted by him, not merely have hung in his studio. And it was further held, that the declaration in this case, alleging that the pork was not of the kind agreed for, but of an inferior kind, and not the pork of Scott & Co., was sufficient, without alleging the legal effect of the contract, as importing that the article should be mamifadured by Scott & Co. Also, that the measure of damages was the difference between the invoice price and the amount pro- duced by resale.' § 6 a. A horse was sold as sound in all respects, except having the colt-distemper. It was proved that the horse had a defluxion from the nose ; but the vendor assured the purchaser that this was only an ordinary distemper, to which colts are subject, and had continued only a few days. It was further proved, that the horse had shown some symptoms of this disease during the whole time — ten or twelve months — that the vendor had owned him ; and the evidence was very strong that he had the glan- ders, an incurable disorder. It was also proved, that the person of whom the vendor purchased passed him off as a glandered horse, or refused to say that he was not such; that the vendor was informed by a third person, what was the true disease, and said himself he feared it was, or would be, worse than the distemper. Held, though no particular form of words is necessary to a warranty, yet that the naked averment of a fact is 1 Powell V. Horton, a Scott, 110. WARRANTY. 345 neither a warranty nor evidence of one, but may be taken into consideration with other circumstances, and the jury must infer from the whole case that the vendor actually, not constructively, consented to be bound for the truth of his representation, the question being for the jury ; and that a positive averment, at the time, of a material fact, cannot be taken as part or parcel of the contract.' § 7. Though a warranty, as will be seen, must either be upon the sale, and one of its terms, or, if subsequent, must be express, and founded upon some new consideration ; yet, if the vendor offers to warrant when the parties are first in treaty, this shall be held a warranty, though the sale take place some days afterwards.'' And a mere affir- mation will be more especially construed as a warranty, where this construction is favored by the previous com- munication between the parties. Thus, where the plain- tiff told the defendant, upon a proposal to exchange horses, that he would not thus exchange, unless the defendant would warrant his horse to be sound, and the defendant thereupon said, " He is a sound horse, except the bunch on his leg ;" this was held a warranty of soundness, sub- ject to the exception mentioned.' § 8. Contrary to the tenor of the above decisions, it has been said, that all the cases of an affirmation's being an implied warranty relate to the title only, not to the quality, of the thing sold.'* "Various declarations are made by • Declarations as to the amount of wool that certain sheep would yield, and the time in which the vendee could pay for them, and whether he would have wool left after paying, are mere speculations as to the future, and cannot import a warranty. Otherwise, of declarations that the sheep were young and healthy. Bryant v. Crosby, 40 Maine, 9. ' McFarland v. Newman, Penn , Sept. 1839, Law Keporter, Feh. 1840, p. 301. See Edwards v. Marcy, 2 Allen, 486. ' Hogins V. Plympton,ll Pick. 100; Wilmot v. Hurd,ll "Wend. 584; Lysney v. Selby, Ld. Eay. 1120. See p. 350. ' Eoberts v. Morgan, 2 Conn. 428 ; Whitney v. Sutton, 10 Wend. 411. * Per Thompson, J., Wilson v. Marsh, 1 John. 604. And see Weth- erill v. Neilson, 20 Penn. 448 ; Borrekins v. Bevan, 3 Eawle, 23 ; Hen- shaw v. Kobins, 9 Mete. 88. 346 LAW OF SALES OF PERSONAL PROPERTY. buyer and seller, during a negotiation, which may be ethically wrong, but of which the law takes no cognizance, The plaintiffs, by written contract made on the 3d of April, sold to the defendants in New York a quantity of English linseed oil, " to arrive per ship Mareia from London, sailed on or about the 15th March, ult." Held, the statement in the contract, as to the time of sailing, was a mere representation, and not a warranty ; and, being made without fraud, that the defendants were bound to accept and pay for the oil, although the vessel did not sail until the 26th of March, and her arrival in port was delayed thereby. And therefore, that evidence, showing that the spring trade in oil had ceased when the vessel arrived, and that the oil would be subject to deterioration by being kept until the fall trade should com- mence, was not admissible in behalf of the defendants, in an action brought against them on the contract. Hawes v. Lawrence, 4 Comst. 345. A bill of sale of a horse, stating that he is " considered sound," is not a warranty. Burdit v. Burdit, 2 Marsh. 143. The distinction between warranty and mere representation has perhaps been more strongly and uniformly adhered to in Pennsylvania than in any other of the United States ; it being there held, that, though no par- ticular form of words is necessary to a warranty, the seller must actually, not merely by construction, consent to be bound for the truth of his rep- resentations. Jackson v. Wetherill, 7 S. & R. 480; McFarland v. New- man, 9 Watts, 56. The following remarks, though more immediately applied to the sub- ject of insurance, may yet be considered as partially applicable to sales: " There is a distinction between a representation and a worrawiy. The latter is a condition or contingency, which is inserted in, and makes part of, the policy itself, or, at least, must be written on the margin of it. A warranty must be strictly and literally performed, and nothing tanta- mount is sufficient ; and it is immaterial for what purpose the warranty was introduced, or whether the party had any view at all in introducing it ; for the meaning of a warranty is to preclude all inquiries into the materiality or substantial performance of it. But a representation is only a state of the case, and not a part of the written instrument, but col- lateral to it, and entirely independent of it; and it is enough that a rep- resentation be substantially performed, though if it be false in a material point, it will avoid the policy." 2 Wms. Saun. 200 b, u. 1. Warranty, on a sale of coal-dust, that it "had no dust of soft bitu- minous coal mixed with it." The purchaser proved that he stated, that he bought the dust for the purpose of making brick, and that soft coal-dust would not answer that purpose, but would destroy or injure the brick. In an action as upon a warranty, and not for fraud, held, there was no implied warranty that the dust was suitable for bricks, and the measure WARRANTY. 347 for the reason that it is the common understanding of mankind that they are to be disregarded.'" A distinc- of damages was the difference between the value of the article sold and that as which it was warranted. Milburn v. Belloni, 22 How. (N. Y.) 18. If, in a contract for construction of a vessel, it is agreed that she shall be covered with pine plank, and that the builder shall see " that she is just right in all respects ; ' ' the latter agreement is qualified by the former, and the purchaser assumes the risk of defects which are naturally inci- dent to pine plank, and were not known to the builder, and could not have been discovered by him by the exercise of reasonable care and skill. And there is no implied warranty against such defects. Cunningham v. Hall, 4 Allen, 268. In an action for breach of warranty of a yacht, it appeared that A., the plaintiff's agent, having entered into negotiations for a purchase of the yacht, told B., the defendant's agent, that he must have the masts overhauled or examined by a shipwright. B. subsequently wrote, "I have had a good overhaul at the masts, and find they are all as sound as ever." A. then wrote to the defendant, offering SOOOl. for the yacht, and observing that the plaintiff would probably have to spend 6001. in repairs. Thedefendant wrote in reply, declining to take less than 3500i., and saying, " You must, I think, be under some very great error in thinking that 500/. would be required to be spent. Beyond the usual painting, caulking, &c., and perhaps a little repair to the copper, I don't really think there are any necessary repairs. Personally I know her seagoing qualities, and how thoroughly sound she is and tight in every part." In a subsequent letter the defendant said, " Her masts have been examined, and found as sound as When put in." After some further correspondence, the plaintiff bought the vessel for 3375i., and a bill of sale was executed in accordance with " the merchant shipping act, 1854." Held, assuming the representations in the letters were some evidence of a warranty, it was competent for thedefendant to prove, by what passed between the parties both before and after the letters, that no warranty was contemplated. Stucley v. Bailey, 1 Hurl. & Colt. 405. An executory contract was made, to purchase a crop of tobacco, then growing, at a certain rate per pound, to be paid on deli very of the tobacco, well cured and boxed, and in good condition. Held, not an express warranty, and that a breach of the condition was a mere non-compliance with the contract to deliver merchantable tobacco. Eeed v. Randall, 29 N. Y. (2 Tiffa.) 358. A. stated to B.'s agent, that he had for sale some wool, partly from his own farm, partly purchased from others, and offered to sell it to B., giving its amount at 2300 stones, 100 stones more or less. He after- wards wrote to the agent, that two of the small clips had been sold, but > Per Metcalf, J., Humphrey v. Haskell, 7 Allen, 498. 348 LAW OP SALES OF PERSONAL PEOPERTY. tion is taken, between that which in view of all the cir- cumstances is mere puffing, and a warranty;' and between a warranty and a simple affirmation not intended and understood as such by the parties, a fact to be found by the jury;^ and between mere expression of opinion and warranty.' And the distinction has been taken between express warranty and mere affirmation, that where, for example, an animal sold is wan-anted sound, no knowledge of unsoundness on the part of the seller is necessary to charge him ; otherwise, if there is a mere representation, or a warranty " as far as he knows." * Or " to the ex- tent of belief, &c." ° Or an answer by the vendor, given in reply to a question as to the soundness of a horse, that " he thought he was" sound.^ And where the seller re- fers to any document, or to his belief only, no action is maintainable, without proof that he knew he was repre- senting a falsehood. Thus, if the seller of a horse refer for his age to a written pedigree, and also state that he knows nothing about it except from this source, he is not liable, though the pedigree prove untrue. But, if he knew it to be untrue, he would be liable, although he had ex- pressly declared that he would not warrant it to be true.' that another of about 550 stones was promised to him, and would go with the rest of his wool. The agent then wrote, that B. desired him to " offer you for your wool, 16«. per stone." A. in writing accepted, and shipped to the designated place of delivery, 2542 stones of his wool. B. refused to accept them, and A. sued him for non-acceptance. Held, the statement of quantity, in the conversation, was merely an expression of A.'s opinion, and should not be regarded as embodied in the subsequent contract ; and A. should have judgment. Mackdonald v. Longbottom, 1 Ell. & E. 977. ' Mason v. Chappell, 15 Gratt. 572. 2 Bond V. Clark, 35 Vt. 577. ' French v. Griflan, 3 C. E. Green (N. J.) Amn. Law Keg , Sept. 1868, p. 703. * Case V. Boughton, 11 Wend. 106. 5 Hubby V. Stokes, 22 Tex. 217. « Lindsay v. Davis, 30 Mis. 406. ' Peak on Evi. 228 1 Dunlop v. Waugh, Peake, 123 ; Wood v. Smith, 5 Moo. & E. 124. WARRANTY. 349 § 9. A similar distinction has been applied, where the defendant sold the plaintiff a horse, " to be taken as he is, sound or unsound." It was there held, that the seller was not liable for the unsoundness of the horse, though he knew and concealed it at the time of sale. Otherwise, if in connection with the expression sound or unsound the seller makes any misrepresentation ; . as where the horse was thin, and had a bunch upon his neck, both arising from disease, and the seller represented that the thinness was caused by a long journey, and the bunch by bleeding.* And the same principle has been applied to the sale of property with all faults. Thus, where a ship was thus sold, having latent defects, known to the seller, but not to the purchaser, nor discoverable by any attention on his part, the seller was held liable to an action.^ This decision was overruled, however, in a subsequent case,' as not applica^ ble, except where there is some artifice used to disguise ; and this last case is said never to have been questioned.'' And the same rule ia said to apply to the sale of a horse " with all faults ;" the contract not being avoided by any misrepresentation ignorantly made by the seller, though it is otherwise if he state what he knows or believes to be false. And in general it is said, that this expression does not constitute a warranty, against such faults as are con- sistent with the thing's being what it is described to be.' § 10. A warranty may be verbal.* But where there is a bill of sale, or a written agreement respecting a sale, no action can be maintained upon a mere parol warranty.^ Thus, in an action by the purchaser against the seller of a ship, sold by bill of sale, evidence is not admissible, to support the allegation of a parol warranty, that the de- ' West V. Anderson, 9 Conn. 107. ' Hellish V. Motteaux, Peake, 115. ' Baglehole v. Walters, 3 Camp. 154. ' Pickering v. Dowson, 4 Taun. 784. > Long (Amer. Ed.) 207, 208. " Lindsay v. Davis, 30 Mis. 406. ' Mumford v. McPherson, 1 John. 414 ; Wilson v. Marsh, lb. 503. 350 LAW OF SALES OP PERSONAL PROPERTY. fendant, after execution and before delivery of the bill of sale, in reply to a question of the plaintiif, said, in sub- stance, that the ship was completely copper-fastened ; or that the defendant advertised her as composition-fastened, complete for coppering ; though the advertisement might have been evidence in an action for deceit.'^ And, as has been already suggested, a warranty, whether verbal or written, must be a part of the sale f made before or at the time of sale. A warranty made after the sale is void for want of consideration.'^ And representations made a month before the sale are too remote to be given in evi- dence.^ Though where the 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 :" this was held competent evidence of a warranty at the time of sale." Thus the defendant, having sent his horse to Tattersall's to be sold b}' auction, on the day previous to the sale saw the plaintiff (with whom he was acquainted) examining the horse, and said to him, bond fide, " You have nothing to look for, I assure you ; he is sound in every respect." To which the plaintiif replied, " If you say so, I am satis- * A warranty made after a sale upon a new consideration, or upon one distinct from that of the sale, is valid and obligatory. Thus A. agreed to deliver fruit-trees to B.,in time to enable B. to deliver them elsewhere before they should be frozen ; but the delivery was so late, that B. ob- jected to take them ; whereupon A. verbally represented that they would not freeze, or, if they should, they would come out alive in the spring, after being buried in a certain manner. Held, this warranty, being based on the consideration of inducing B. to take the trees after time, was valid and binding. So, although prospective in its operation. AlsoJ that it was for the jury to determine, whether the statements of A. were only a prediction or expression of opinion, or a warranty. Congar v. Chamberlain, 14 Wis. 258. ' Mumford v. McPherson, 1 John. 414. « Bloss v. Kittridge, 5 Verm. 28; Eoscoria v. Thomas, 3 Qu. B. 234; Towell V. Gatewood, 2 Scam. 22. See p. 345. ' Burton v. Young, 6 Earring. 233. * Bryant v. Crosby, 40 Maine, 9. »• Tuttle V. Brown, 4 Gray, 457. WARRANTY. 351 fled ;" and desisted from his examination. The horse was put lip the next day at auction, without a warranty, and the plaintiff bought him, being induced, as he said, by the defendant's assurance of soundness. Held, in an action for a breach of warranty, that there was no evidence to go to the jury of a warranty, the representation not being made in the course of, or with reference to, the sale.' So a written instrument, signed, stating that a sale has been made, and describing the property, price, and terms of credit, is the contract of sale ; and a warranty cannot be proved, by representations in prior letters, not referred to in the contract.^ And, on the other hand, in an action upon a warranty contained in a receipted bill, the defends ant cannot, for the purpose of proving want of considera- tion, show a previous verbal sale without warranty at the same price.^ § 11. It is said, however, in qualification of the general rules above stated, that there is an implied warranty, that the thing sold is in specie that, as which it is purchased ;'^ that words of description constitute a warranty that the thing sold is of the kind and quality described ;* and, if a misdescription, although not made fraudulently, is so far material, that it probably constituted the inducement to purchase in the mind of tke vendee, it avoids the contract.* Thus the sale of " Manilla hemp " involves a warranty that it is merchantable.'' So, where there was an advertisement ' "Upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described, whether the description be more or less particular and exact." Per Shaw, C. J., Winsor v. Lombard, 18 Pick. 57. ' Hopkins v. Tanqueray, 26 Eng. h. & Eq. 254. ' Eandall v. Ehodes, 1 Curt. 90. -' Davis V. Ball, 6 Oush. 50o. * Borrekins v. Bevan, 3 Eawle, 23 ; Steel v. Brown, 19 Mis. 312. ' Hogins V. Plympton, 11 Pick. 100. • Plight V. Booth, 1 Bing. N. C. 376. ' Jones V. Just, Law Eep. 3 Q. B. 197; Amn. Law Bfev., July, 1868, p. 688. 352 LAW OF SALES OF PERSONAL PROPERTY. of good Caraccas coffee, and the plaintiff purchased a quan- tity of the article, and after examination shipped it to Spain, not knowing, however, the difference between this and other kinds of coffee ; and the coffee was in fact the growth of some other place than Caraccas: held, the ad- vertisement was equivalent to a warranty that the article was of the kind described.' So where, at an auction sale, the article was warranted to be " Manilla indigo," but was really Prussian blue, chromate of iron and potash, so skil- fully compounded as to deceive experts ; the seller was held liable, although the purchaser was a druggist and actually examined the article.^ So where a bill of parcels was given for " four pictures, views in Venice, Canalette;" the question of warranty as to the artist was held to be for the jury. The case was distinguished from that of Jendwine v. Slade (see s. 12), upon the ground that the artist was there an old painter, and from the nature of the case the mention of his name must have been mere matter of opinion, and so regarded by the purchaser.' So where a ship was advertised as copper-fastened, but to be sold " with all faults, without allowance for any defects whatsoever ; " it was held that the seller was still liable for the truth of the description, copper-fastened ; as if a sil- ver service were sold " with all faults," and proved to be plated.* So a sale of turnip-seed, warranting it to be "good, white, round turnip-seed," which the seller could warrant ; was held a binding warranty.' So goods entered in an invoice, as " scarlet cuttings," must conform to this known mercantile description." So, the plaintiff having agreed to sell to the defendant a quantity of oil, described as foreign refined rape oil, but warranted only equal to samples, and having delivered oil which was not foreign • Bradford v. Manly, 13 Mass. 145. » Henshaw v. Robins, 9 Met. 89. • Power V. Barham, 6 Nev. & M. 62. • Shepherd v. Kain, 5 B. & Aid. 240. » Wood V. Smith, 6 M. & K. 124. « Bridge v. Wain, 1 Stark. 604. WARRANTY. 353 refined oil, but whicli corresponded with the samples; held, the defendant was not bound to accept it, as he was entitled to foreign refined rape oil, and the statement as to samples related only to the quality of the oil.' So, where the plaintiff gave to the defendant the following writing: "Sold A. 2000 gallons prime quality winter oil," and subsequently a bill of parcels ] the contract of sale was held to be effected by the former instrument. Even if the terms were merely terms of description, they consti- tuted a material part of the contract, and a warranty, if so intended ; and a declaration, alleging that the defendant undertook to sell " a good and superior quality, to wit, prime quality winter oil," was held to be no variance from the agreement proved.^ So, on the sale of fancy articles, the agents of the owner falsely stated that they were French goods, new and in good order, and just imported from France. Held, such representations were not mere puffing ones, nor mere representations as to value, nor statements as to condition, which simple inspection could detect ; but were material, as the goods were a fancy arti- cle, depending in a great degree for their value upon the fact that they were French, just i-mported and new, and consequently fashionable and saleable.^ So it is said, although, if a horse is sold without warranty and without inquiry by the purchaser, unsoundness, restiveness, or un- fitness for use, is no ground of action against the seller, because the law presumes that a proportionally low price was paid ; yet, if the purchaser apply for a carriage horse, or one Jit to carry a lady^ or a timid and feeble rider, the seller, who knows the qualities of the horse, impliedly warrants that the animal is suitable for these purposes." § 12. But, on the other hand, mere description has been held not to involve a warranty f more especially, unless it 1 Nichol V. Godts, 26 Eng. L. & Eq. 527. ' Hastings v. liovering, 2 Pick. 214. » Holman v. Dord, 12 Barb. 336. * Long (Amer. Ed.), 205, 206. ' Hotchkiss V. Gage, 26 Barb. 141. 23 854 LAW OF SALES OF PERSONAL PROPERTY. be express, definite, and specific ; nor where the purchaser has opportunity of knowing that it is incorrect. § 13. Thus printing the name of a painter, opposite that of an old picture, in a catalogue, was held not to constitute a warranty that the picture was painted by him.' (See s. 11.) So the seller of " superior, sweet-scented Kentucky leaf tobacco " is not liable, if the tobacco was Kentucky leaf, though of a very low quality, ill-flavored, unfit for the market, and not sweet-scented.^ So, where the defendant agreed in writing to ship the plaintiff a quantity of " good, fine wine," acknowledging the receipt of payment there- for; it was held, that this instrument did not constitute a warranty that the wine was. of any particular quality, being too indefinite in its terms, and not itself the con- tract of sale, but recognizing a prior sale ; and that the defendant might prove by parol evidence what were the terms of such sale, and the plaintifi:''B own selection of the wine.' So -where the defendant sold certain wood to the plaintiff, who also purchased it of him, as brazilletto, and a fair price was paid for wood of this description ; but the article sold proved to be of a different quality and of little or no value ; and the agent of the plaintifl' saw the wood when it was unloaded and delivered, and did not know or discover that it differed from the description in the bill of parcels ; nor did the defendant, who was a mere con- signee, know of the difference : it was held, that the plain- tiff could not maintain an action as upon a warranty.-* So it was held, that, upon the sale of a jewel, affirming it to be a bezoar stone, when in fact it was not ; no action lies against the vendor, unless the declaration allege, either that the defendant knew this fact, or warranted the 1 Jendwine v. Slade, 2 Esp. 672. See Winsor v. Lombard, 18 Pick. 61. 2 Fraley v. Bispham, 10 Barr, 320. » Hogins V. Plympton, 11 Pick. 97. * Seixas v. Woods, 2 Caines, 48. WARRANTY. 355 stone."' So where the defendant sold to the plaintiff cer- tain paints, for good Spanish brown and white lead, and for a full price, and the paints proved to be bad and of no value, but the kegs had never been opened since the de- fendant purchased them ; it was held that the defendant was not liable to an action.^ So where the plaintiff sold to the defendant an article, which was invoiced, adver- tised, and purchased as barilla ; and the sample exhibited corresponded with the bulk ; and the defendant used it in the manufacture of soap, and then, ascertaining that it was not barilla, but kelp, an article resembling barilla, but of little or no value, offered to pay for such part as he had used and return the remainder : in a suit brought by the vendor for the price, held, there was no warranty, but a mere expression of opinion, and the action would he.' So a receipt as follows : " Received of, &c., £10, for a gray, four year old colt, warranted sound in every re- spect ;" is a warranty only of the soundness, not the age of the colt.* So the purchaser of a lot of lard-grease (so called in the bill of sale), examined a portion of it before the sale, and declined to examine the balance. A large part of the article delivered turned out to be of an infe- rior quality, some of it not being lard-grease, but a mix- ture of grease and potash. Held, it was error to charge the jury, that the proper inquiry was, whether the article delivered was lard-grease ; and, if they found it was not, the purchaser was entitled to damages.** So the plain- " The case of the bezoar stone is perhaps not law now in England, cer- tainly not in this country. Bradford v. Manly, 13 Mass. 139. ' In reference to the local doctrines which have prevailed, upon the effect of description as an implied warranty; conformably to the general tendency of the law of warranty in that State, it has been held in Penn- sylvania, that no warranty Is to be implied, even though the defect arise ' Chandelor v. Lopus, Cro. Jac. 4. 2 Holden v. Dakin, 4 John. 421. ' Swett V. Colgate, 20 John. 196. * Budd V. Fairmaner, 8 Bing. 51. » Carson v. Baillie, 19 Penn. 375. 856 LAW or SALES OF PERSONAL PROPERTY. tiff, having heard that the defendant had harley to sell, went to his counting-house, when his agent produced a sample which he said was " seed-barley," offered by A. to the defendant at 39s., and said, if the plaintiff would take it at 405., he might have it. The plaintiff looked at the barley, said it was a good sample of seed-barley, and agreed to buy it. At the plaintiff's request, the defendant wrote to A., saying that he would accept it, and asking what sort it was, as it would do well for seed. The plain- tiff afterwards sold it to B. under a warranty in writing as " Chevalier seed-barley." It turned out that it was "barley-big," a species of barley unfit for malting pur- poses ; and B. recovered damages against the plaintiff for breach of warranty. Held, there was no warranty by the defendant that the barley was " seed-barley ;" that the con- tract was satisfied by delivery of barley fit for sowing ; and, if " seed-barley " meant barley fit for malting purposes, that ought to be shown by clear and irresistible evidence.'' from adulterations, which produce, so far as they extend, u. change in specie. Jennings v. Gratz, 3 Eawle, 169. In New Tork, as appears from cases cited aboTe, the doctrine of im- plied warranty by description has been distinctly rejected. As where peachum wood was sold for Brazil wood (Seixas v. Woods, 2 Caines, 48) ; a white substance, containing but little lead, for white lead (Holden v. Dakin, 4 John. 421); and kelp for barilla (Swett v. Colgate, 20 John. 196); ace. Moses v. Mead, 1 Denio, 378. We may close this branch of the general subject with the following somewhat nice, though doubtless accurate, distinction between descrip- tion and express warranty : " Two things have been confounded together. A warranty is an ex- press or implied statement of something which the party undertakes shall be part of the contract; and though part of the contract, yet col- lateral to the express object of it." But a departure from the description is " a non-compliance with a contract which a party has engaged to fulfil ; as if a man offers to buy peas of another, and he sends him beans, he does not perform his contract; but that is not a warranty; there is no warranty that he should send him peas ; the contract is to sell peas, and if he sells him anything else in their stead, it is a non-performance of it." Per Lord Abinger, Chanter v. Hopkins, 4 Mees. & W. 399. - Where the sample of cotton sold was "long-staple Salem" cotton; 1 Carter v. Crick, 4 Hurl. & Nor. 412. WARRANTY. 357 1 14. Somewhat analogous to the warranty arising from description of the property sold, is that implied from the exhibition of a sample. It is held, that a sale by sample implies a warranty that the bulk shall correspond with the sample.' So a sale by sample implies a warranty, though the vendee require the vendor to test its correct- ness by procuring a second sample." It is said, the exhi- bition of a sample must, in all fair dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood, and used for the conve- nience of trade. That there is not some unknown and in- visible defect, arising from natural causes, or previous management by some former dealer, the seller may not be presumed to affirm. But he does affirm that it is the same, generally and specifically, with the sample exhib- ited.' Or, as is elsewhere said, strictly speaking, a sale by sample is not a warranty of quality, but an agreement of the seller to deliver, and of the buyer to accept, goods of the same kind and quality as the sample.* But, whether the production of a sample is a warranty that the bulk and the bulk, " Western Madras," an inferior article, and requiring dif- ferent machinery to manufacture: held, not a compliance with the con- tract. Azemar v. Casella, Law Rep. (Eng.), December, 1867, p. 675. Upon a treaty for the sale of hops by sample. A., the proposed buyer, asked B., the seller, if any sulphur had been used in the growth or treat- ment of them, adding that, if so, he would not ask the price. B. untruly, but without fraud, replied, that no sulphur had been used. After the hops had been inspected, weighed, and delivered, A. discovered that sul- phur had been used in the cultivation of a portion of them,— 5 acres out of 300. The whole growth, however, was so mixed, that it was impos- sible to separate the portions. A. having contracted entirely on the faith of the representation, held, the representation amounted to a condition, and A. might repudiate the contract. Bannerman v. White, 10 C. B. (N. S.) 844. 1 Brantley v. Thomas, 22 Tex. 270; Oneida, &c. v. Lawrence, 4 Cow. 440; Andrews v. Kneeland, 6 Cow. 354; Sands v. Taylor, 5 John. 404 ; The Monte AUegre, 9 Wheat. 616 ; Beirne v. Dord, 2 Sandf. 89. » Gallagher v. Waring, 9 Wend. 20. ' Bradford v. Manly, 13 Mass. 139. * tiunther v. Atwell, 19 Md. 157. 358 LAW OF SALES OF PERSONAL PROPERTY. corresponds therewith, or whether the sample is shown to enable the vendee to judge of the quality of the article, the vendor is bound, either that the article shall equal the sample exhibited, or be saleable, and of the description contracted for.^ Hence, where goods are sold by sample for a certain price, and goods of an inferior quality fur- nished, the vendor can recover only the real value of them.^ But the words per sample in a sale note are no part of the description of the thing sold, but a mere collateral agree- ment that it is of a certain quality, the breach of which is matter of defence to an action by the vendor. The words are equivalent to a warranty that the article con- forms to a small parcel which is exhibited. Hence, in an action for the price, they need not be set forth in the dec- laration."' » The defendant called upon the plaintiff at his store, with the sample of cloves in a paper, and asked him if he wished to purchase the article. A witness, who was present, examined the sample, and found it to be of the best Cayenne cloves. The defendant subsequently said that it was a sample oi fair cloves. A bill of parcels was given, of cloves, generally, and the same day the casks of cloves purchased were removed to the store of the plaintiff. The price was that of the best quality of cloves. The sample exhibited was not taken from the casks, but out of an open barrel, from which the casks, not being full, were filled up; but the de- fendant did not know this fact. Immediately after the sale, the market price fell, and the plaintiff made no attempt to sell the cloves. Sixteen months afterwards, on an application to purchase, he opened the casks, which proved to contain a mixture, to the amount of one-third, of a kind of cloves worth one-fifth or one-fourth less than those exhibited. There- upon he offered to return them to the defendant. Held, the bill of par- cels was designed merely to show a purchase and payment of the price; that it was not the only legal evidence of the contract, being usually general in form, and not descriptive of the whole agreement, and, in this instance, presenting an instance of latent ambiguity; that the exhi- bition of a sample was designed to save the necessity of examining the whole bulk of the property, and amounted to a warranty that the bulk was of the same kind, and essentially the same quality, and perhaps equally sound and good. In this case, the ground of complaint was not ' Oneida, &c. v. Lawrence, 4 Cow. 440. ' Germaine v. Burton, 3 Stark. 32. > Parker v. Palmer, 4 B. & Aid. 387. WARRANTY. 359 § 15. It is held that a veudor is not exempted from his liability upon a warranty, implied from the exhibition of a sample, by the fact that he is a mere agent, and generally known as a commission merchant. To set up this defence, he ought to disclose the name of his principal.' So that an agent or broker, with power to sell, and no express re- striction as to the mode, may sell by sample or with war- ranty, whether the principal reside abroad or in the same city. The latter is presumed to know the condition of the goods, and bound to send a fair sample. If the prop- erty is so situated that it cannot be seen in bulk, the bro- ker is allowed to sell by sample for the convenience of trade, although this mode be not' conformable to general usage.^ And if a broker has no authority to sell by sam pie, still the sellers cannot affirm the sale, and get an in- creased price on account of the warranty, and keep it, and then claim that they did not authorize the warranty. But, in an American case,^ the opinion was expressed, that warranty by sample is an innovation upon the common law ; that the doctrine is not applicable to the sale and resale of products or manufactured articles through con- signees and commission merchants ; that, in the absence any deterioration, but a specific difference in the plants; as if tea should be sold in this way, and the bulk proved to be Souchong, while the sam- ple was Hyson. Bradford v. Manly, 13 Mass. 139. So a case was sold with its contents, and described in the bill of par- cels as " one seroon of indigo." At the time of sale, the purchaser drew out, from a hole in the side, specimens for examination. The greater part of the contents was a diflFerent substance from indigo, and the rest of an inferior quality; the contents resembling burnt clay, colored like indigo, and there being at the end of the seroon from seven to ten large pieces of leather and bones. Held, this was a sale by sample, and the purchaser might maintain assumpsit against the seller. Williams v. Spafford, 8 Pick. 250. 1 Waring v. Mason, 18 Wend. 425. * Andrews v. Kneeland, 6 Cow. 354. ' Bromer v. Lewis, 19 Barb. 574. * Waring v. Mason, 18 Wend. 425. 360 LAW OF SALES OF PERSONAL PKOPERTY. of fraud, the rule ought not to apply to them so strictly, as to the grower or manufacturer of the article sold ; that, if an article is purchased from the manufacturer, the law implies au undertaking similar to that of a mechanic who contracts to do work, viz., that the thing shall be made skilfully or in a workmanlike manner ; and in case of a purchase, or agreement to purchase, without opportunity of inspection, as where the buyer is at a distance from the place of contract, the agreement may be considered as executory, and, if the thing does not correspond with the representation made by the vendor, the purchaser is not bound to receive it ; but that, it seems, in all cases, where the vendee has opportunity of inspection, and there is no fraud or warranty, although a sample is exhibited, the maxim caveat emptor applies ; — and to this rule the sale of cotton is not an exception. So in a late case it is held, that, if manufactured goods are sold by sample, by a mer- chant who is not a manufacturer, and both the sample and the bulk contain a latent defect : there is no implied warranty against the defect, and evidence is inadmissible of a contrary usage ; and, if such sale is made through a commission merchant, who is not authorized to sell ou credit, he must account to the consignor for the price, without deduction for such defect.^ § 16. Parol evidence is admissible of a sale by sample, though the broker, through whom such sale was effected, entered it in his books without mentioning it as such ; it not being signed by the broker, nor any bought and sold note delivered by him to either party.^ But, where goods are sold by a written contract, which describes their quality, without reference to a sample ; in a suit for not accepting or paying for the goods,, the vendor will not be permitted to prove that they corresponded with a sample exhibited at the time to the vendee, who was a skilful per- ' Dickinson v. Gay, 7 Allen, 29. ' Waring v. Mason, 18 Wend. 425. WAKRANTY. 861 son.' So where, at or after a sale of goods, a specimen is exhibited to the purchaser, but the written agreement of sale describes them as of a particular denomination ; this is not a sale hy sample, but involves an implied warranty that the goods are merchantable and of the denomination mentioned.' § 17. In case of a sale by sample, to which the goods do not conform, the vendee is not bound to accept and pay for them, though the vendor is willing to allow the dif- ference of value, and though under such circumstances there is a prevailing usage for the vendee to accept and pay for the goods.* ^ But where goods sold are inferior to the sample which was exhibited to the purchaser, the latter cannot rely upon such inferiority, without return- ing the goods.^ And it is held, that, if a purchaser by sample does not examine the goods promptly, but pro- ceeds to sell them from the packages for several weeks, without notice ; he thereby waives the warranty." § 18. The general principle applies as well to an exec^^- tory as an executed contract, that a purchaser buying by ■ Sale of sugars at auction, by sample. On examination, the bulk was found different in color from the sample, and less valuable. The seller nevertheless required the vendee to accept the sugars, upon the ground of a usage, which was proved, for purchasers to receive an article sold by sample, notwithstanding its inferiority, if there were no fraud, upon an appraisal by sworn brokers. The sale took place in April. The sugars had been landed in the West India docks in the November preceding, at which time the samples were taken. By subsequent exposure to the air, the samples had grown whiter, which change rendered them more valu- able for the retail trade, though not for the sugar baker. A purchaser at auction has no means of knowing at what time samples have been drawn, being informed merely that the sugars lie in the docks. Held, under these circumstances, no action could be maintained for the price. Hibbert v. Shee, 1 Camp. 113. 1 Tye V. Pinmore, 3 Camp. 462. ' Gardiner v. Gray, 4 Camp. 144. ' Hibbert v. Shee, 1 Camp. 113. * Grimaldi v. White, 4 Esp. 95. ' Muller V. Eno, 3 Duer, 421 ; reversed, 4 Kern. 598. 362 LAW OF SALES OF PERSONAL PEOPERTT, sample has the right of comparing the bulk therewith, and, unless allowed to do so, may avoid the bargain." § 19. The article of cotton is one peculiarly subject to the application of the foregoing principles. Every sale of packed cotton is, by usage, a sale by sample, and -per se a warranty. The vendee has the power of examining this article only externally and superficially, and the interior only to a small extent. The instruments with which samples are taken are in general from eight to twelve inches long, and the samples taken from, about four inches. Any damage to the bulk could not be discovered without opening the bales, and this must be done with great expense and trouble. Hence the rule of caveat emptor does not apply. ^ But though, in case of a sale by sample of cotton in bales, there is an implied warranty that the bulk corresponds with the sample ; the mere ex- hibition of a sample is held not sutficient per se to con- stitute a warranty ; but it is a question for the jury, whether such was the intent of the parties.*"^ * The defendant agreed to purchase of the plaintiff a quantity of wheat. The bought note states, that " the corn is sold according to a sample, and to be paid for in banl^ers' bills, if required." It was the usage of the market to sell by sample, subject to the purchaser's inspection and ap- proval of the bulk of the property. A week after the contract was made, the defendant applied to see the bulk. The plaintiff' replied, that he would either send for a bushel on the spot, or send hi"i a load the next day for inspection, but declined showing the bulk, because it was in an- other warehouse, and he did not like to lei him into his connections. Four days afterwards, the plaintiff' informed the defendant that the wheat was ready for him on production of the bankers' bills. The price of wheat having in the mean time fallen, the defendant repudiated the contract. In an action against him for not taking the wheat, held, the defendant had a right to inspect the whole quantity at any proper and convenient time after the contract, and, as the plaintiff did not allow such inspec- tion, this action could not bo sustained. Lorimerv. Smith, 2 D. & E. 23. <> Declaration, upon a warranty of cotton, that it was warranted to be "good merchantable cotton, free from dirt and all filthy matter." The plaintiff' offered evidence, that the defendant produced a sample of good, 1 Boorman v. Jenkins, 12 Wend. 566. 2 Oneida, &c. v. Lawrence, 4 Cow. 440 ; Rose v. Beattie, 2 Nott & MoC. 538; Waring v. Mason, 18 Wend. 425. WARRANTY. 36g § 20. In order to raise a warranty from a sale by sam- ple, it is necessary that the sample should be so used be- tween the buyer and seller, as to express or become a part of the contract ; that the sample should amount to and take the place of an express averment, by the seller, of the condition and quality of the goods sold.' And, as al- ready suggested, a sale by sample, with a warranty that the bulk conforms thereto, is no warranty of the quality of the bulk, any further than that it is taken in the usual way from the bulk, and that the bulk conforms to it. Thus a sale of hops by sample, with a warranty that the bulk corresponds with the sample, does not imply a war- ranty even that the hops are merchantable, although a merchantable price be paid ; nor render the seller liable for a latent defect, unknown to him, which renders the hops unmerchantable ; it being well known in the trade that such a defect might exist, and therefore the pur- chaser being bound to claim an express warranty, in- stead of taking a sample from the bulk and exercising his own judgment upon the quality.' And the same rule still more strongly applies, where the only variance be- tween the sample and the bulk consists in a defect always incident to the article sold, and which does not render it unmerchantable or unfit for its ordinary uses, or mani- merchantable cotton, free from dirt, &c., as alleged ; and stated that it was "good, upland cotton, and that the sample was true," or that it was "prime upland, Georgia cotton." Held, no variance. Oneida, &c. v. Lawrence, 4 Cow. 440. Cotton was sold by bill as " Georgia upland." Samples were presented, with the declaration that they were drawn from the bales in the ware- house of the vendor, that they were "good upland cotton," and true samples. The vendee had no opportunity to inspect the cotton. The bulk having proved foul and damaged, being packed with a mixture of water, stained and in part rotten ; held, the vendor was liable for breach of an implied warranty as to the quality. lb. 1 Gunther v. Atwell, 19 Md. 157. ' Parkinson v. Lee, 2 E. 314 ; Hargous v. Stone, 1 Seld. 73. Fraley v. Bispham, 10 Barr, 320. 364 LAW OF SALES OF PERSONAL PROPERTY. festly inferior to, or dift'erent from, the sample; and where there is also an actual, though partial examination of the bulk. In such case, the purchaser is presumed to have known the nature and condition of the article sold. Thus, where the plaintiff", proposing to sell the defendant a quantity of Southern wheat, for the purpose of examina- tion, put his arm down into the bulk, and took out a sample, according to the usual mode of purchase ; and the sample did not differ from the bulk in any other respect, than that the latter, like all Southern wheat, had become heated, and thus lost its vegetative quality and its power of malting : held, in an action for the price of the wheat, that there was no warranty against the defect above mentioned, and therefore no defence to the action.' So the mere ex- hibition of a sample, at the time of the sale, is held not per se to make a sale by sample, so as to imply a warranty. It must appear that the parties contracted solely in refer- ence to the sample, and that the sale was intended by the parties as a sale by sample. And where the buyer relies upon a usage to warrant in this mode ; such usage must be proved to be a general one. Thus, in a suit on an al- leged warranty of blankets, it appeared that samples were seen and examined by the purchaser, who afterwards bought several bales unopened. Held, evidence was not competent, of a custom among dealers in that community to sell in that manner, and make compensation, in case the blankets should prove inferior to the samples.^ § 21. While in private transactions sale by sample raises an implied warranty ; there is no warranty m judi- cial sales, or in sales at auction, made in the usual mode. Thus, in case of sale by the marshal under an order of court, or by an auctioneer under the marshal, neither of these parties can thus enter into a warranty.^ "■ * Declaration for non-delivery of 100 chests of tea from the ship S., 1 Sands V. Taylor, 5 John. 395. 2 Beirne v. Dord, 2 Sandf. 89 ; 1 Seld. 95. s The Monte AUegre, 9 Wheat. 616. WAKRANTT. 365 § 22. It has been sometimes held, that, from a regard to health and life, the case of provisions constitutes an ex- ception to the general rule of caveat emptor, or against any implied warranty of quality, and this, even though the buyer has had opportunity for examination, unless the defect is palpable, or actually known to him, or the seller knows that the article is designed for other uses than food.' Thus it is stated by Blackstone, in general terms, that, in contracts for provisions, it is always implied that they are wholesome.' ^ And the following quaint state- ment of the law is found in the old reporters : " If a man sell victuals which is corrupt, without warranty, an ac- tion lies, because it is against the commonwealth."-' " If sold by the defendants to the plaintiff at a fixed price, with the nsual averments that plaintiff was always ready and willing, &e., and that all conditions precedent were fulfilled. Equitable plea, that the tea was bought and sold upon a sample which the defendants believed to be a sample of the said tea from the said ship, and that by the said contract the defendants agreed that the tea in the said 100 chests should be equal to the said sample ; that the said sample was not a sample at all of the said 100 chests, but was a sample of a totally different tea ; and that the defendants afterwards discovered that there had been a mistake respect- ing the said sample, and forthwith, and before the plaintiff had in any re- spect altered his position on account of the said contract having been made, gave notice of such mistake to the plaintiffs, and that the defend- ants would, on account of the said mistake, treat the contract as void ; and that the contract was entered into solely through the mistaken belief of both parties that the said sample was a sample of the 100 chests, and would not have been entered into but for the said mistake. Held, upon demurrer to an equitable replication, that the plea was bad, because it failed to show that a court of equity would have granted a simple relief in favor of the defendants against their liability to deliver the tea from the ship S. Scott v. Littledale, 8 Ell. & B. 815. See further, as to sale by sample. Hey worth v. Hutchinson, Law Eep. 2 Qu. B. 447 ; Amn. Law Eev., July, 1868, p. 648; Addison, Contr. 214. • There is an implied warranty, that corn sold is fair and merchanta- ble. Babcock v. Trice, 18 111. 420. ' "Wright V. Hart, 18 Wend. 449. ' 3 Bl. Comm. 164. > Koswel V. Vaughan, Cro. Jac. 197. See 9 Hen. 6, pi. 53 ; 7 Hen. 4, pi. 15;llBdw. 4, pi. 6. 366 LAW OF SALKS OF PERSONAL PROPERTY. I come to a tavern to eat, and the taverner gives and sells me meat and drink corrupted, whereby I am made sick, an action lies against him without any express warranty, because it is a warranty in law.'" And the general rule is more stringently applied, where the sale is made for a sound price, and the article sold and marked as of good quality, according to law. Thus, in the month of January, the defendant sold to the plaintiff, for eight dollars per barrel, which was a sound price, and for the purpose of exportation, a quantity of beef, as good cargo beef, marked and branded with the name of A., the inspector, according to law. When exposed for sale in the West Indies, in the following April, the beef proved to be tainted and un- saleable, while other beef in the same cargo was sweet and good. It appeared tliat this condition of the beef resulted from pouring in the pickle when warm, which was an un- usual practice. Held, the defendant was liable to an ac- tion ; that the object of the law, in requiring beef to be sorted, salted, and packed for exportation, was to raise its credit, increase the demand, and preserve health; and therefore the law furnished no justification for doing these acts improperly.^ So corn is not in good merchantable order, unless well ripened and of intrinsically good quality, as well as clean, dry, and well packed.^ So, when wheat is sold in the stack, there is kn implied warranty that it is merchantable.* So where the plaintiff bought of the de- fendant a diseased heifer, saying he should kill it the next day, the defendant, having reason to know its condition ; held, there was an implied warranty.' So upon a sale of so many barrels of potatoes and onions, at a certain price, to be delivered from a vessel then in transit from N^ew York to Xew Orleans, without guaranty, except as to the number 1 Year Book, 9 Hen. 6, 53 ; 1 Eolle's Abr. 90 P. pi. 2. « Bailey v. Nichols, 2 Root, 407. » Hamilton v. Ganyard, 34 Barb. (K. Y.) 204. ♦ Fish V. Roseberry, 22 111. 288. * Divine v. McCormick, 50 Barb. 116. WARRANTY. 367 of barrels ; the vendor has no right to deliver barrels partly empty, or containing decayed matter. He is bound to deliver merchandise of the species sold, though not of the best quality, or in the best condition." ' § 23. But, on the other hand, some modern judges have expressed themselves in strong language with regard to the departures from the common law of recent cases upon this subject.* And it is distinctly held, that it is not im- plied that provisions are wholesome, but often the con- trary. The rule applies to these as well as other articles, that a purchaser cannot have a remedy equivalent to that upon an express warrant}^, unless there have been some artifice. And more especially the action for deceit lies, only where there has been an affirmation wilfully false, or some artifice is proved, or taken to be proved, either directly, ■ Hylton V. Symes, Legal Intelligencer, Phila. Opinion by Thayer, J. " This was an action on the case to recover damages for injuries sustained by the plaintiff In consequence of the delivery by the defendant to the plaintiff of ten gallons of impure alcohol. The plaintift' (who was a manufacturer of bitters), purchased of the defendant ten gallons of alco- hol. The defendant, it was alleged, furnished ten gallons of alcohol of a quality so impure and unfit for the purpose for which it was intended — which was the manufacture of bitters — that when used it spoiled sixty gallons of the decoction into which it was poured by the plaintiff. The declaration, which was for carelessly and negligently delivering ten gal- lons of impure alcohol, would probably have been bad on demurrer, but an action of assumpsit undoubtedly lies under some circumstances upon an implied warranty that the article sold shall be fit for the purpose for which it is purchased. Where the vendor sells the article for a specified purpose, and under circumstances which fairly give rise to the warranty, an action for the breach of it lies. The case having been tried on the merits we do not feel disposed to disturb the verdict on the ground of any defect of form in the declaration. The damages found by the jury, were, however, in the judgment of the court, excessive and unwarranted by the evidence in the cause. The rule for a new trial will therefore be made absolute unless the plaintiff shall file a remittitur damna for so much of the verdict as exceeds the sum of one hundred dollars.'' 1 Lanata v. O'Brien, 13 La. An. 229. ' 12 John. 468. 368 LAW OF SALES OF PERSONAL PROPERTY. or by presumption from the circumstances and nature of the contract, and the situation of the parties. Thus a salesman, who sells, in a public market, meat which is afterwards found to be unfit for human food, but which he had no means of knowing, or reason to suspect, was other than good and wholesome meat, is not liable to an action upon an implied warranty, or for money had and received ; nor is he liable, though the market is within the city of London, to an action upon the st. 14 & 15 Vict. c. 91, § 52.' As where a butcher purchased a carcass of beef, exposed for sale in Xewgate market, of a meat salesman there, without express warranty of soundness ; and, upon cooking the meat, it appeared to be unfit for human food, becoming black and having a very bitter taste, and was returned. The defect did not appear when the meat was raw, and there was no evidence that the salesman knew or had reason to suspect the character of the meat.'' So a contract, at a price certain, for all the wheat one may raise on his farm, involves no implied warranty as to the quality or quantity of the wheat.^ But the important distinction is made, that artifice is sufficiently proved, where a victualler sells meat as fresh to his customers, at a sound price, which is stale and defective, or un- wholesome from the state in which the animal died. The offer to sell is a representation of soundness, unless the contrary be expressed ; and knowledge is presumed from the seller's being engaged in the trade.' And, in » A. sold to B. twenty-five barrels of beef, branded according to law, "Palmoutb, Mass., Cargo No. 3 beef, S. Bird, D. Insp." The price was $6 per barrel, the current price of good and wholesome beef. A. resided at Boston ; B. at Bath, Maine. B. afterwards sent abroad four of the barrels, not knowing their quality. By the accidental bursting of a barrel in lading, and upon subsequent examination, it was discovered that twenty-one of the barrels did not contain a sufficiency of pickle and 1 Emmerton v. Mathews, 7 Hurl. & Nor. 686. • Emmerton v. Mathews, Amn. Law Reg., Feb. 1862, p. 231 ; 5 Law Times, N. S. p. 681 ; 7 Hurl. & Nor. 586. ' Davis v. Murphy, 14 Ind. 158. WARRANTY. 369 accordance with this view, it is held hy an ancient author- ity, that, if I have an article which is defective, whether victuals or anything else, and, knowing it to be defective, I sell it as sound, and so represent or affirm, an action for deceit will lie. But, although the thing be defective, if the defect is unknown, though I represent or affirm it to be sound, no action lies, unless there be a warranty. So the qualified doctrine has been held, that the law im- plies a warranty of the soundness of provisions, only where they are exposed for sale, or sold for immediate consump- tion, not for merchandise."'^ But, in the former case, as has been seen, the knowledge of the seller may be proved by the circumstances of the case, and, being a question of fact for the jury, will be conclusively established by a ver- dict against him. Thus the plaintiflF declared against the defendant, that the latter sold him a quarter of beef as good and sound ; that it was not good and sound, but bad and unwholesome. It was proved, that the animal ate, salt, that they were not packed according to the hrand, and were un- wholesome and unfit for use ; of all which B. immediately gave notice to A. The four barrels sent abroad, at the price of $16 per barrel, were returned to B., and an entire loss. A. was merely an agent for the owner of the beef, and ignorant of its quality, but he did not notify B. of his being an agent. The bill was made out in his (A.'s) name, the note was made payable to him, and, up to the time of trial, B. was still ignorant who was the principal. In an action brought by B. against A. upon these facts, held, it could not be sustained. With respect to the kind, quality, state, and quantity of the beef, the vendor undertook to have full faith in the brand, and represented that, for anything he knew, the brand was truly applied, and there had been no change in the article. But knowledge on his part was expressly negatived. Emerson v. Brig- ham, 10 Mass. 197. * A party, who brought the carcase of a pig from a butcher, and sold it to the plaintiff, was held not liable for the diseased condition of the flesh. Burnby v. Bollett, 16 Mees. & W. 644 ; (in which all the law is said to be examined and collected, per Pollock, C. B., Amn. Law Keg., Feb. 1862, p. 235.) ' Per Popham, Dyer, 75 ; Jones v. Murray, Monr. 84 ; Moses v. Mead, fiDenio, 617; Hyland v. Sherman, 2 E. D. Smith, 234; Goldrich T. Ryan, 3 lb. 324. 24 370 LAW OF SALES OF PERSONAL PROPERTY. shortly before it was slaughtered, many peas and oats, and was killed to prevent its dying in consequence" of eating them ; and that persons who ate of the beef were made very sick, and a servant of the plaintiflt' was sick two weeks. A verdict being returned for the plaintiff, it was held, that this settled the fact of the defendant's knowl- edge, and that the concealment of the unsoundness was equivalent to a suggestion of soundness.' § 24. In an action on the case, for knowingly selling to the plaintiff unwholesome meat, as and for good and whole- some meat, the declaration need not allege that the plain- tiff had paid for the meat, nor any special damage." § 25. The question, what constitutes a breach of war- ranty, is of course to a great extent embraced in the fore- going inquiries, relating, generally, to warranty itself. The precise point of a breach has more frequently arisen in reference to horses, than any other species of property. § 26. In case of a secret malady, warranty or fraud is necessary to make the -seller liable.' Unsoundness is a mixed question of law and fact.* "Where a horse is war- ranted sound, any slight disorder, not likely to affect his permanent value, and from which he recovers, is no breach of such warranty ; as for instance a cold, which may be cured v^nth ordinary care, so as not to be liable to return. A horse, under such circumstances, is said to be no more unsound than- a man would be. So a horse could not be called lame, if he merely had a thorn in his foot, upon the extraction of which he would no longer limp. But any disease, though as yet in its early stage, which is perma- nently injurious to the constitution, and of a nature to render probable future attacks of the same kind, is a breach of such warranty. So any injury or disease, which, though temporary, affects the value of the horse or his 1 Van Bracklin v. Fonda, 12 John. 468. « Peckhara v. Holman, 11 Pick. 484. » Lindsay v. Davis, 30 Mis 406. « Washburn v. Cuddihy, 8 Gray, 430. WARRANTY. 371 fitness for service, more especially if latent. If a horse be warranted perfect, and want either a tail or an ear, the vendor is not liable, unless the vendee is blind ; because the defect is one plainly obvious to the senses.* But if a horse be warranted sound, and want the sight of an eye, the vendor is liable, because the discernment of such de- fect is often a matter of skill. So if a horse having a visible splint is sold with warranty, the vendor is liable, in case he becomes subsequently lame from this cause.*' ■ But a vendor of cloth will be liable upon a warranty that it is of a certain length ; for the length can be ascertained only by measurement. A warranty that a fire-engine, sold and delivered, would perform as well as any other in the Western country, is not violated, because the war'- ranted engine is inferior to others in that country much larger and more costly, if the inferiority be evident to a common observer. Connersville v. Wadleigh, 7 Blackf. 102. ' A horse sold was warranted sound and six years old, with condition, that unless returned in two days he should be considered sound. Held, this condition did not apply to the age of the horse, and that the buyer might return him ten days after the sale, on discovering that he was twelve years old. Buchanan v. Parnshaw, 2 T. E. 745. Bee S Bsp. 271. Contract : " Bought one red horse, six years old, for one hundred and twenty-five dollars, which I warrant sound and kind." Held, the war' ranty did not apply to the age. Willard V. Stevens, 4 Post. 271. The doctrine stated by Blackstone (3 Comm. 166), that a warranty cannot extend to things in futuro, as e.g. the future soundness of a horse, seems to be unfounded in principle, and has been distinctly overruled. Eden v. Parkison, Doug. 735 ; Liddard v. Cain, 2 Bing. 183 ; Long, 203. Very nice questions often arise, as to what constitutes unsoundness in a horse. The h^bit of roaring was formerly held not to render a horse unsound. But a contrary doctrine was held in a later case, upon the testimony of a skilful person, that this habit is produced by a narrowness of the windpipe, and frequently by sore throat or inflammation, and unfits the animal for rapid motion. It has been held that crib-biting is not unsoundness. But, in a late case, cribbing, afl'ecting the health and condition of a horse, so as to render him less able to perform service and of less value, is held unsoundness. "Washburn v. Cuddihy, 8 G-ray, 430. 1 Burton v. Young, 5 Harring. 233 ; Bolden v. Brogden, 2 Moo. & E. 113; 3 Bl. Comm. 165 ; Butterfield v. Burroughs, 1 Salk. 211 ; Marget- son V. Wright, 5 M. & P. 606 ; 7 Bing. 603 ; 8 lb. 457 ; 1 M. & S. 622 ; Kornegay v. White, 10 Ala. 255; Robarts v. Jenkins, 1 Fost. 116. 372 LAW OF SALES OF PERSONAL PROPERTY. § 27. With regard to the construction of a warranty, as joint or several ; where a person employed to sell two And it falls within the term of vice. Broennenburgh v. Haycock, Holt, 630. A cough is unsoundness, if permanent. So the strangle or mort du chien. So a bone spavin in the hock. So an extraordinary convexity of the cornea of the eye. So a nerved horse is unsound. A splint is not one of those patent defects which are excluded from the warranty of soundness, because it may or may not produce lameness. Any infirmity, or congenital mal- formation, which renders the animal less fit for present service, has been held to be unsoundness. Bassett v. Collis, 2 Camp. 623 ; Onslow v. Eames, 2 Stark. 81 ; Broennenburgh v. Haycock, Holt, 630; Dickenson V. Pallett, 2 M. & K. 299 ; Margetson v. Wright, 8 Bing. 454 ; Shillitoe V, Claridge, 2 Chit. 425; Brown, 311 ; Watson v. Denton, 7 C. & P. 85 ; Best v. Osborne, K. & M. 290; Elton v. Brogden,4 Camp. 281; Holliday V. Morgan, 1 Ell. & B. 1. An allegation, that a horse had the glanders at the time of sale, is sus- tained by evidence that he then had the seeds of that disease, which after- wards developed into the disease itself. Woodbury v. Eobbins, 10 Gush, 520. See Gadsden v. Kaysor,.9 Kich. Law, 276. In the sale of a horse, the fact of his being diseased while a colt raises only a slight presumption of unsoundness. Staines v. Shore, 16 Penn. 200. Disease or unsoundness existing at the time of warranty, and the cause of subsequent death, is a breach of warranty. Murphy v. Grain, 12 Tex. 297. See Brown v. Jones, 24 Ala. 463^ Buford v. Gould, 35 Ala. 265. Proof that the horse balked, after seven weeks from the time it was sold, with a warranty that it was true to harness, is not admissible. Smith V. Swarthout, 15 Wis. 550. But evidence that the horse a few days after the purchase proved to be balky, is evidence that he was balky at the time of sale. Finley v. Quirk, 9 Min. 194. In reference t» soundness, the distinction is taken, that, though the disease must be in a formed state, evidenced by symptoms, and this extends to all cases of fever having no fixed law for their commencement ; it does not apply to chronic cases, such as rheumatism. Crouch v. Cul- breath, 11 Rich. Law, 9. But " organic " is not a proper term of distinction. Stephens v. Ghgp- pell, 3 Strobh. 80. A warranty, that cattle will " work evenly on the yoke," is broken, if they will not so work when driven by a person of ordinary skill in the management of oxen. Wooaruff v. Weeks, 28 Conn. 328. Goggles in sheep is unsoundness. Joliff v. Bendell, By. & M. 136. There is no legal distinction between the sale of a horse with warranty and an exchange with the same warranty ; and, if the right of returning WARRANTY. 373 horses, belonging to two different persons, A. and B., sold them at an entire price, with warranty ; it was held that the warranty of each must be regarded as several, and hence the vendee could not maintain assumpsit against A. for the unsoundness of his (A.'s) horse, declaring as upon the sale of one only. If the other horse had been unsound, this would have been a breach of warranty ; but there would have been no pretence for charging A.' § 28. In reference to the subject-matter to which a war- ranty shall be applied ; to a declaration upon a contract for selling to the defendant " a certain cargo of good mer- chantable Gallipoli oil, then being the cargo of the vessel F., the said cargo consisting of L. K. 240 casks, contain- ing 901 salines and 9 pignatelles, at £54 per imperial ton," the defendant pleaded, that the casks, containing the oil for which the plaintiff declared, were not well seasoned, and proper to contain good merchantable Gallipoli oil, according to the terms and within the true intent of the agreement declared on, but were badly seasoned, and unfit and improper to contain oil. Held a bad plea. It was said by the court, that the subject-matter of the contract was the oil, not the casks. The condition of the latter went only to a part of the consideration. N^o other de- fence could be made to the action, than by proving the oil furnished to be not good, merchantable, Gallipoli oil. If it were otherwise, a defect in a single cask, or even the slightest defect, would be sufficient to defeat the action. The ease would be different, if the article itself were ren- dered unmerchantable by the bad condition of the vessel containing it, as for instance in the case of wine badly corked ; but then the declaration must specifically allege the injurious consequences. This plea takes issue on what is merely a description in part of the thing contracted for. the horse is superadded, the right to rescind the contract is unquestion- able. Miller v. Grove, 18 Md. 242. > Symonds v. Carr, 1 Camp. 361. 374 LAW OF SALES OF PERSONAL PROPERTY. The contents were not merely accessory to the casks, bnt, on the contrary, the latter formed no part of the contract, and were not the subject of warranty. Even if all the casks were defective, and a small leakage from each, bnt no deterioration of the bulk, this would only go to a part of the consideration. The case was held to be like a sale of bales of cotton, where the bales merely prove unsound.' § 29. The general subject, oi suits and defences growing out of warranty, is one of great importance. It involves many distinct topics, upon some of which the decisions are by no means reconcilable. Thus a warranty may be fraudulent or otherwise. A purchaser may bring an action upon the warranty, as upon a subsisting contract ; or may set it up as a defence to a suit for the price, even though brought upon a bill or note ; or may seek to rescind the sale for breach of warranty, by returning the property, and suing for a return of the purchase-money. The gene- ral subject, in some of these aspects, will be hereafter con- sidered — chapters 19, 20 — under the titles of Rescinding and Fraud. It requires, however, to be also treated in the present connection. § 29 a. Where, in a sale, there is no warranty or fraud, though the goods do not correspond to the order, or the buyer's reasonable and just expectations as to the quality of the goods are disappointed ; still, if he receives them without objection, he is liable for the price." ^ He must either return or notify the buyer to take them, in order to maintain an action for their unfitness, or resist a suit for the price.' Thus, where the plaintiff contracted with the defendant for a quantity of beer, intending to export ' "Without a return, the vendee cannot defend as to the whole value, unless the article be intrinsically worthless, though doubtless he may have an abatement for breach of warranty. Jemison v. Woodruff, 34 Ala. 143. ' Cower V. Van Dadelszan, 4 Scott, 453. 2 Goodhue v. Butman, 8 Greenl. 116. 2 Fisher v. Samuda, 1 Camp. 190; Gronnig v. Mendham, 1 Stark. 267. WARKANTY. 375 it to Gibraltar ; and discovered that the beer supplied was unfit for this purpose, in July, but neglected to notify the defendant till December, when it was too late for the de- fendant himself to export it : it was held that the plaintiff could not maintain an action for the bad quality of the beer.' § 30. It is the prevailing rule, that breach of warranty may often be set up as a defence to a suit for the price,* even though secured by bill or note.' Thus, in case of a sale with warranty, and a bill of exchange given for the price, if the seller knew of a defect in the goods, and the buyer tendered them back, but the seller did not accept them ; to an action on the bill, the breach of warranty is a good defence.^ So in an action on a note, given for goods sold with warranty, and sold again by the vendee after discovering that the warranty had been broken ; the partial failure of consideration arising from such breach may be pleaded in defence.^ And where the plaintiff sells the defendant several articles, and warrants them to be of a certain quality, taking three notes for the price, two of which are paid ; in an action upon the third note, the de- fendant may show a breach of warranty as to one of the articles, either in bar of the action or mitigation of dam- ages. The law does not authorize the construction, that • To an action for the price, a breach of warranty may be pleaded in defence, either by a principal, or by an agent who does not disclose his principal. Dukes v. Nelson, 27 Geo. 457. ' In a suit on a note for the price of a horse, Containing the words "but should the beast prove unsound, a deduction to be made by two disinterested persons," proof of a warranty of soundness is admissible. This clause only provides a remedy for a breach of the warranty, and pre- cludes either party from demanding a return of the horse. Cross v. Pear- son, 17 Ind. 612. 1 Fisher v. Samuda, 1 Camp. 190 ; Gronnig v. Mendham, 1 Stark. 257. * Lewis V. Cosgrave, 2 Taun. 2 ; Franklin v. Long, 7 Gill & J. 407 ; Parker v. Pringle, 2 Strobh. 242. See McCrea v. Marshall, 1 La. An. E. 29. 2 Beall V. Pearre, 12 Md. 550. 376 LAW OF SALES OF PERSONAL PEOPERTY. the consideration of each article was rateably contained in each note, and therefore the plaintiff entitled to recover upon each the proportional price of the article which proved good.' § 31. A vendee may sue upon an express warranty without offering to return the chattel warranted.^ So, although a purchaser may set up a warranty in defence to a suit for the price, in mitigation of damages ; yet the law does not require him so to do ; and, if he omits to take this course, he may afterwards bring an action upon the warranty.' So where a purchaser with warranty pays a note given for the price, after notice of a breach of war- ranty ; he may still, under some circumstances, recover damages for such breach. Thus, in case of sale with war- ranty, and a note given for the price, the purchaser paid the note, after notice of a breach of warranty, but before ascertaining the amount of damages thereby sustained. Having resold the article with warranty, and a claim having been made upon him by the second purchaser, though not yet substantiated ; it was held that he might sustain a suit on the warranty.* So, where the purchaser of a horse with warranty afterwards informed the seller that the horse was unsound, and the latter said, if it was 80, he would take him back and return the price ; it was held that the purchaser might still sue upon the war- ranty."' § 82. Where there is either a sale with warranty, or by express agreement the vendee is allowed to restore the thing sold ; a mere offer to return is sufficient, though not ■ But, in an action against the seller of a horse for false affirmation, the plaintiff cannot recover the expense of keeping, previous to an offer to return the horse. West v. Anderson, 9 Conn. 107. 1 Judd V. Dennison, 10 Wend. 612. ' Ross V. Barker, 30 Mis. 385. ' Cook V. Moseley, 13 Wend. 277. * Boorman v. Jenkins, 12 Wend. 566. • Payne v. Whale, 7 E. 274. WARRANTY. 377 accepted, to rescind the bargain. But, if the sale is abso- lute, and followed by no agreement or assent of the vendor to take back the thing, the contract still remains open. And, in such case, the vendee's only remedy is a suit upon the warranty, unless it can be proved that the vendor knew of the unsoundness, and the former oflFered to return the article in reasonable time.' § 33. Or substantially the same principles may be thus stated in another form. Although a sale be made with warranty, the buyer may forfeit his claim, founded upon such warranty, by his own conduct or neglect. It will be seen hereafter, that for certain causes, one of which is some- times held a breach of warranty, the buyer may rescind the sale. (See Rescinding.) He may, however, elect to affirm the sale, retain the property, and seek his remedy upon the warranty itself. And the distinction seems well established, that, in order to sustain an action upon a war- ranty, it is not necessary for the vendee to return or offer to return the article." But it is otherwise, where he dis- affirms the contract, and sues to recover back the price.'^ • And the same rule applies, where the breach of warranty is made a defence under a discount (or set-off) law. Parker v. Pringle, 2 Strobh. 242. ■■ Where the vendor of property makes a fraudulent misrepresenta- tion concerning it, and thereby induces the vendee to purchase, but the latter, after discovering the fraud, uses and disposes of part of the prop- erty as his own ; he cannot recover back the price from the vendor. Nor does it make any difference, that, after thus using the property, the plain- tiff discovered some incidents to the fraud before unknown. Campbell V. Fleming, 1 Ad. & £11. 40. The plaintiff and defendant entered into a contract, by which the de- fendant was to deliver the plaintiff certain steers, the note of a third person, and a horse, and in return to receive a horse of the plaintiff and a note which the plaintiff held against him. The plaintiff^ represented ' Thornton v. Wynn, 12 Wheat. 183 ; Kowley v. Bigelow, 12 Pick. 307; Seaver v. Dingley, 4 Greenl. 306 ; Hyatt v. Boyle, 5 Gill & J. HO; Milton V. Rowland, 11 Ala. 732 ; West v. Cutting, 19 Verm. 536 ; Getty v. Rountree, 2 Chand. 28. ' Boorman v. Jenkins, 12 Wend. 566 ; Waring v. Mason, 18 Wend. 425; Franklin v. Long, 7 Gill & J. 407. 378 LAW OF SALES OF PERSONAL PROPERTY. § 33 a. Upon the point, whether, in case of express war- ranty, and actual receipt of the thing sold, or, in other words, an executed sale, the buyer, at his election, may return the property and recover back the purchase-money as upon a rescinded contract ; the highest authorities are directly in conflict. In Massachusetts, in the case of Bry- ant V. Isburgh (13 Gray, 611), Mr. Justice Metcalf thus traces the course of decisions, and states the now settled law upon the subject, in that State: "The precise question in this case is, whether a purchaser of personal property, sold to him with an express warranty, and taken into pos- session by him, can rescind the contract and return the property, for breach of the warranty, when there is no fraud, and no express agreement that he may do so. It appears from the cases cited for the plaintifl', that in the English courts, and in some of the courts in this country, he cannot ; and that his only remedy is on the warranty. But we are of opinion, that, by the law of this common- wealth, as understood and practised upon for more than forty years, there is no such ditference between the effect of an implied and an express warranty as deprives a pur- chaser of any legal right of rescission under the latter, which he has under the former ; and that he to whom property is sold with express warranty, as well as he to his horse as sound ; but it was unsound, and he knew the fact. The de- fendant agreed to pasture the steers for the plaintiiFone week. Finding the horse unsound, the defendant returned it, refused to deliver the steers, and commenced an action against the plaintiff for selling an unsound horse. The present suit, being trover for the steers, was commenced be- fore the above-named action. Held, the defendant might have treated the bargain as void on the ground of fraud, by returning the plaintiff's horse and his own note, or, if the latter were cancelled, the amount of it in money; and might then have maintained trover for his own horse and the note of the third person ; and that the plaintiff would thus have lost all title to the steers. But the law would not allow the defendant to compel even a fraudulent seller to bring an action for his own property; and, by commencing an action against the plaintiff, he treated the con- tract as still subsisting, and would be entitled to recover damages for the breach of it. Judgment for the plaintiff. Kimball v. Cunningham, 4 Mass. 602. WARRANTY. 379 whom it is sold with an implied warranty, may rescind the contract for breach of Avarranty, by a seasonable re- turn of the property, and thus entitle himself to a full de- fence to a suit .... for the price .... or to an action .... to recover back the price." The learned judge pro- ceeds to notice the cases which favor this view, notwith- standing an early (/ic/wm to the contrary. "Until 1831, the law of England .... was supposed to be as we now hold it to be here The doctrine .... prevents circuity of action and multiplicity of suits, and, at the same time, accomplishes all the ends of justice."' On the other hand, in the case of Thornton v. "Wynn (12 Wheat. 193), Mr. Justice "Washington says : " If the sale be abso- lute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action upon the war- ranty, unless .... the vendor knew of the unsoundness, and the vendee tendered a return of it in reasonable time." And, in accordance with this view, in the case of Street v. Blay (2 B. & Ad. 462), Lord Tenterden states, as settled law, that, "where the property in the specific chattel has passed to the vendee, and the price has been paid, he has no right, upon the breach of the warranty, to return the article and re-vest the property in the vendor, and recover the price as on a consideration which has failed, but must sue upon the warranty, unless there has been a condition in the contract authorizing the return, or the vendor has received back the chattel, and has thereby consented to rescind the contract, or has been guilty of a fraud, which destroys the contract altogether." And it is held in a late case in Illinois, that, where a vendor of chattels, having a title, sells with warranty as to quality, and a consideration is given, and possession is taken under the sale, the vendee must rely on the warranty to recover for any loss resulting from defects covered by it. And the ' Ace. Curtis v. Hannay, 3 Bsp. N. P. 83 | Stark. Evi. part 4, p. 645. Bee also 2 Kent, 480. 380 LAW OF SALES OF PEESONAL PROPERTY. vendee, without the concurrence of the vendor, cannot re- scind the sale so as to re-vest the title in the vendor. Therefore a notice of the defect, or an offer to return the property, is unnecessary in order to recover damages. Though damages for a breach of warranty may be recov- ered in an independent suit, or be set off in an action on the contract for the sale of them.' In ISTew York, a simi- la,r decision is made.^ The same general rule is recognized by a very recent case in Vermont.^ § 34. Although, in general, no return of the article sold is necessary to a suit upon the warranty ; it is otherwise, where such warranty is conditioned upon a return. Thus where, at an auction sale, the auctioneer declared it was to be on the usual conditions, which conditions were printed and put up under the auctioneer's box, and one of them was, that, where there was a warranty of a horse sold, in case of any defect the horse must be returned be- fore the evening of the second day after the sale ; this was held sufficient notice to charge a purchaser, and deprive him of an action for breach of warranty, the horse not having been returned within the time stipulated." * • As stated in the text, it has heen often denied that, after accept- ance of an article sold with warranty, the vendee can return it and recover back the purchase-money, or resist an action for the price, upon the ground of a breach of warranty ; unless this privilege was ex- pressly reserved by the contract, or else the vendor was guilty of fraud. A distinction, not very intelligible, has been made, in this respect, be- tween the purchase of a specific chattel, and an executory contract, by which the vendee orders goods of a certain quality from the manufac- turer. It is to the latter of these two cases alone that the principle above stated is held applicable. It would Seem that the true question must be, whether the thing has been received and accepted, or whether the pur- chaser has had opportunity to examine it. He may treat the property as his, so far only as is necessary to give it a fair trial, without losing the • Crabtree v. Kile, 21 111. 180. Ace. Addis, on Contr. chap. 7, s. 2. » Kiernan v. Kocheleau, 6 Bosw. 148. But see Eenaud v. Peck, 2 Hilt. 137. 3 Houghton V. Carpenter, 40 Verm. 588. ■• Mesnard v. Aldridge, 3 Esp. 271. WARRANTY. 381 § 35. Although a false warranty often involves fraud or deceit, yet, in order to recover for breach of warranty, the action must be expressly founded thereupon, and not upon right of returning it. But if the article, when returned, is in a worse state than it would have been if returned immediately upon discovery of the defect, the vendee cannot defend against an action for the price. Breach of warranty, it seems, may always be given in evidence in miti- gation of damages, or, if the thing be of no value, in defence to the ac- tion. And an omission to return the article sold for an unreasonable length of time, though raising a strong presumption that it corresponded with the contract, will not be a bar to an action upon the warranty, if a breach is distinctly proved. Street v. Blay, 2 B. & A. 456 ,- Curtis v. Hannay, 3 Esp. 88; Weston v. Downes, 1 Doug. 23, 24, n. ; Towers v. Barrett, 1 T. R. 133; Payne v. Whale, 7 E. 274; Hasten v. Butter, 7 E. 479; Emanuel v. Dane, 3 Camp. 299; Okell v. Smith, 1 Stark. 107; Gom- pertz V. Denton, 1 Cromp. & M. 209 ; Fortune v. Lingham^, 2 Camp. 416; Taymon v. Mitchell, 11 Md. Ch. 496. The distinction stated in the text is recognized in late cases, that, where there \i fraud in a sale '^\Va or without warranty, the vendee may return or offer to return the article, and recover back the money paid ; but it is not necessary, where he iistends to bring a suit for damages, or to set up the breach in reduction of the claim of the vendor. Getty v. Rountree, 2 Chand. 28. See Allen v. Hooker, 2& Term. 13T. In an action for deceit in a false warranty, on an exchange of horses, the defendant cannot show defects in the property received by him. Odom V. Harrison, 1 Jones, 402. But, where A. let B. have a horse, in exchange for a yoke of oxen and ten dollars, and A. warranted the horse to be sound and good to work, and, if he was not, agreed to take him back and give up the oxen ; and B. delivered the oxen, but, did not pay the ten dollars ; and the horse proved unsound; and B., as soon as be found him to be unsound, offered to return him, and demanded his oxen, but A. refused to give them up, and sued B. for the ten dollars : held, B. might set-off and recover the value of the oxen. Smith v. Steinkamper, 16 Mis. 150. If, in an action for the price, the purchaser sets up a warranty in de- fence, the burden of proof is on him. Dorr v. Fisher, 1 Cusb. 271. The vendee, after a breach of warranty, is not bound to accept a prop- osition of the vendor, to rescind the contract and refund the purchase- money, with interest, &c. ; nor can his promise to consider such proposi- tion, and to give notice whether he will accept it or not before he in- stitutes a suit, which he fails to do, deprive him of his action, or amount to a waiver or discharge of the vendor's liability ; especially where it is not shown that the latter is placed in any worse condition by the want of such notice. Marshall v. Wood, 16 Ala. 806. 882 LAW OF SALES OF PERSONAL PROPERTY. fraud ; and a warranty must be proved, but knowledge on the part of the defendant need not he. The action of deceit, or the action on the case for deceit, can be main- tained only where there is an actual and intentional de- ception, and a loss or damage resulting from it ;' while assumpsit is the proper and usual, if not exclusive,'' action » In an action for breach of warranty, it is improper to instruct the jury what would constitute a fraud in the sale. Wallace v. Wren, 32 111. 146. ^ See, contra, Tyre v. Cousey, 4 Harring. 425; Trice v. Cockran, 8 Gratt. 442; Williamson v. Allanson, 2 E. 846; Jones v. Bright, 6 Bing. 633; Hillman v. Wilcox, 30 Maine, 170; Bartholomew v. Bushnell, 20 Conn. 221. False and fraudulent representations may also be a warranty. Steven- son V. Eeaves, 24 Ala. 425. In the action on the case on a false warranty, it is enough to aver and to prove that the warranty was false, and the purchaser deceived by it. Hnlman v. Dord, 12 Barb. 336. Where one sells bank notes to another, at the usual rate of discount, but the bank had then failed, unknown to either party, and, on learning the fact, the seller promises to refund, an action will lie. In such ease, the promise is evidence of the understanding and nature of the original contract, that, for the discount, the buyer was to take the trouble of col- lecting only, and not the risk of the money being actually bad. Hough- ton v. Adams, 18 Barb. 545. In a declaration upon a warranty, it is sufficient to negative the words of the warranty ; the particular unsoundness upon which the plaintiff relies need not be stated. And if a declaration count upon the warranty of a horse, and aver a breach, and that the horse was of no use to the plaintiff, and then conclude with an averment, that so the defendant be- came indebted to the plaintiff, for so much money had and received, as the plaintiff paid for the horse ; and proceed in the common form oiin- debitaius assumpsit for money had and received : this latter averment and conclusion will, on motion in arrestof judgment, be treated as surplusage. Iieeper v. Shawman, 12 Ind. 463; Parlin v. Eundy, 18 Verm. 682. An allegation, that the plaintiff exchanged certain property with the defendant for a horse, " which the defendant expressly warranted," &c., shows sufficiently that the warranty was made at the time and in con- sideration of the exchange. Curtis v. Moore, 15 Wis. 134. Where a general warranty is relied upon, it is not necessary to state whether it is express or implied. Hoe v. Sanborn, 21 N. Y. (7 Smith) 652. In a suit for the price of coach-varnish, sold by the manufacturer to a coach-painter; an answer, that the varnish was warranted to be of good WARRANTY. 383 upon express or implied warranty : and no evidence can be oftered of deceit or ♦fraud, unless expressly alleged. And allegations, either of fraud or warranty, must be proved precisely as laid in the declaration." But if the action be brought, not for a breach of warranty, but for fraud, by representations which the defendant knew to be false, such knowledge is an essential ingredient in the quality and well adapted to the purpose for which it was bought, and that it was not so, only sets up the warranty the law would imply, and no express warranty need be proved. Bird v. Mayer, 8 Wis. 362. Where an implied warranty is relied upon as a defence to an action for the price, the warranty should be alleged, and not the facts which imply the warranty. Misner v. Granger, 4 Gilra. 69. With reference to the party who may maintain an action for breach of warranty ; one who sells an article, which he at the time believes to be sound, but which is actually unsound, is not liable for an injury sub- sequently sustained by a third person in consequence of such unsound- ness. Thus a declaration in case, by a husband and wife, stated that the defendant, who was the maker and seller of certain lamps, called Holli- day's lamps, sold to the husband one of these lamps, to be used by his wife and himself in his shop, and fraudulently warranted that it was reasonably fit for that purpose ; that the wife, confiding in that warranty, attempted to use it, but, in consequence of the insufficient materials with which it was constructed, it exploded and burnt her. The jury found that the accident had been caused by the defective nature of the lamp, but that the defendant was ignorant of this unsoundness, and had sold it in good faith. Held, the action was not maintainable by the wife. Longmeid v. HoUiday, 6 Eng. Law & Eq. 562 ; see Newsom v. Huey, 36 Ala. 37. ■ The plaintiff and defendant having a conversation respecting certain obligations, the latter offered to transfer them, and, as an inducement for the plaintiff to buy, affirmed that they were good and collectable, and that the obligor was good and would pay them. The declaration alleges, that the plaintiff gave credit to these statements, bought and took a transfer of the obligations, and that, to induce him to take such transfer, the defendant falsely and wickedly alleged that the obligations and assignments were good and sufficient ; that the defendant has not performed his said affirma- tion, promise, and assumpsit; and the plaintiff avers that the defendant, at the time, well knew that the obligor was not good, &c. The declara- tion also contained a second count for money had and received. Held, there was a misjoinder of counts. As there was an assignment in writing, the law could not raise any parol, implied warranty, but the action must rest wholly in deceit. Hence, not guilty was the proper plea to one count, while non-assumpsit must be pleaded to the other. Wilson v. Marsh, 1 John. 503. 384 LAW OF SALES OF PERSONAL PROPERTY. fraud, and must be proved." ' The burden is on tbe ven- dee, throughout, to show a brearfh of the warranty.^ § -36. A warranty is not necessarily made in writing.^ But where a vendor of goods makes representations amounting to a warranty, and the sale is afterwards con- summated by a written and sealed transfer without war- ranty ; in an action of assumpsit by the vendee, he cannot offer evidence of the previous representations, it being presumed that the writing contains all the terms of the bargain."' And the warranty agreed on is so far an * In an action on the case, alleging that the defendant sold two horses to the plaintiff, by fraudulently and falsely warranting them to be sound, when, in fact, tbey were blind in both their eyes, which was unknown to the plaintiff, but well known to the defendant; after the plaintiff had Introduced evidence that the defendant, at the time of sale, made certain representations respecting the soundness of the horses, which he knew to be false, the defendant claimed to have proved that the representations made by him were accompanied by a distinct refusal to warrant the horses; but the court instructed the jury, that, if the horses were unsound, and the defendant made representations calculated and intended to deceive the plaintiff, and he was thereby deceived, the defendant was precluded from saying there was no warranty. Held, a misdirection, as proof of fraud, without a warranty, would not support the declaration. 20 Conn. 271. ^ In an action for breach of warranty of a vessel, constructed under a written contract that she should be covered with pine plank, and that the builder should see "that she was just right in all respects," parol evidence is admissible, that defects in her arose from the use of the pine plank, and were naturally incident thereto, and were not known to the builder, and could not have been discovered by him by the exercise of reasonable care and skill. Cunningham v. Hall, 4 Allen, 268. " In order to entitle the seller of goods obtained by fraudulent represm- ialions to reclaim the goods, it is not necessary that the representations should have been made at the time of the sale, as in case of a warranty. Seaver v. Dingley, 4 Greenl. 306. A warranty is held to be good at any time before delivery. Webster V. Hodgkins, 5 Fost. 128. A written contract of sale, containing a warranty of soundness, is the highest and best evidence of that warranty, and, as such, admissible to ' Bartholomew v. Bushnell, 20 Conn. 271. " Tipton V. Triplett, 1 Met. (Ky.) 670; Cunningham v. flall,4 Allen, 208. » Van Ostrand v. Eeid, 1 "Wend. 424. WARRANTY. 385 essential part of the contract, that it should be set out in the note or memorandum, and the omission of it renders the contract void." ' So where an agent sells in writing, and warrants in his own name, he is personally bound, though the vendee had notice of his agency. To exempt him from personal liability, the fact should appear by the writing.' So, if a bill of sale contains no warranty, ex- prove it, in assumpsit for its breach, although the consideration averred in the declaration is a certain sum of money, while that expressed in the written contract is the defendant's acceptance for that sum. Brown v. Sones, 24 Ala. 463. But, in general, the precise promise and the entire consideration for the sale and warranty must, be set out, and any material variance, be- tween the consideration as averred and that proved, will be fatal. Penn V. Stuart, 6 Eng. 41 ; Buckman v. Haney, lb. 839. . So, where an action is founded on a joint contract of sale, laid in the declaration, the joint contract is essential to the joint warranty, and requires strict proof, in whatever form of action the plaintiff may sue. Stockfleet v. Fryer, 2 Strobh. 301. Declaration, that the defendants sold to the plaintiff a cargo of corn, then shipped at Orfano on board the O., at a certain price, including freight to Cork, Liverpool, or London ; that it was agreed that the quality should be of a certain average, and that the corn had been shipped on board in good and merchantable condition. Breach, that it was not shipped in good and merchantable condition for the performance of the said voyage. Held, it was a misdirection, to ask the jury whether the corn was good and merchantable for a foreign voyage. Dickson v. Zizinia, 2 Eng. L. & Eq. 314. Where a general and a special unsoundness are averred in a plea, the defendant is not confined to evidence of the latter. Fleming v. Toler, 7 Gratt. 310. As to the evidence. In case of warranty, generally ; see Bush v. Jackson, 24 Ala. 273 ; Kurtzman v. Weaver, 20 Penn. 422. • The defendant, whose business was the collecting of rough tallow, and preparing it for market, made an oral agreement with the plaintiff, to furnish him with a certain quantity of tallow, of good quality and color, at a certain price per pound, and to deliver it at a certain place, and afterwards furnished and delivered the specified quantity, and made and signed bills of parcels, in which the article was denominated "tallow." The plaintiff accepted the tallow, and paid the agreed price for it. Held, 1 Peltier v. Collins, 3 "Wend. 459. 2 Hastings v. Lovering, 2 Pick. 214. 25 386 LAW OF SALES OF PERSONAL PROPERTY. press or implied, beyond that of title, parol evidence is in- admissible, to add to it a simultaneous verbal warranty as to age and soundness.' But where the vendor of a negro gave a warranty in writing of his soundness, parol proof was held admissible, that, at the time of sale, he informed the vendee of a defect.^ § 36 a. The fact, that a "good and responsible party," since the commencement of the action, offered a certain sum for the sold horse, which was refused, is not evidence of the value of the horse.^ § 37. With regard to the amount or measure of damages for breach of warranty ; the general rule is, that the meas- ure of damages for false warranty of soundness, more es- pecially when the purchaser has not offered to return the article, is the difference between the actual value and the value of the thing when sound ;* and that, without regard to the price given originally,' or obtained upon resale." Although such price may be used as evidence ; whether paid in money, or by exchange of other property.' And the rule of damages has been held to be the game, whether there was an offer of return or not.' The jury may add the agreement was within the Statute of Frauds, and the plaintiflF could not recover on the warranty. Also, if the delivery, acceptance, and pay- ment, constituted one entire contract of sale, yet there was no contract of warranty, because the hill of parcels, the only memorandum signed by the defendant, specified none, and contained no description or denomination from which a warranty could be inferred. Lamb v. Crafts, 12 Met. 853. 1 Bush V. Bradford, 15 Ala. 317. » Schuyler v. Russ, 2 Gaines, 202. ' Finley v. Quirk, 9 Min. 194. < Worthy v. Patterson, 20 Ala. 172 ; Willis v. Dudley, 10 lb. 933; 4 Gratt. 121 ; Sharon v. Mosher, 17 Barb. 518. See Stone v. Watson, 1 Ala. (S. C.) 236. ' Stearns v. McCullough, 18 Mis. 411 ; Eeggio v. Braggiotti, 7 Gush. 166 ; CothfTS V. Keever, 4 Barr, 168. See Fuentes v. Gaballero, 1 La. An. R. 27 ; Milton v. Bowland, 11 Ala. 732. 6 Comstock v. Hutchinson, 10 Barb. 211. ' Houston V. Starnes, 12 Ired. 313; 16 Ala. 806; 11 lb. 732; Fisk v. Hicks, 11 Fost. 535; Willis v. Dudley, 10 Ala. 933. " Thornton v. Thompson, 4 Gratt. 121. WARRANTY. 387 interest on such difference. So money necessarily paid to a physician, in attempting to cure the disease, which con- stitutes unsoundness.^ But it is error to assume that, be- cause a slave afterwards died of such disease, he was not worth anything at the time of sale.^ And if death be immediatdy caused by an injury suffered after the pur- chase ; the measure of damages is the depreciation by the disease alone.^ If the purchaser has sold the article, with like warranty, the measure of damages is prima fade the amount recovered of the second vendor by his vendee ; with the costs, if he gave notice to the defendant of the former suit ; but not counsel fees." * § 38» Although, in general, a seller can pass no title to property which he does not himself own (see ch. 4) ; yet, with reference to his own liability to the buyer, it is fur- ther to be stated, that, where a seller is in possession, there is an implied warranty of an unincumbered titled ^ ' The question of damages may arise, where the suit is hrought by the seller, and a warranty set up in defence. Thus the defendant agreed to purchase from the plaintiff a large quantity of Campeachy logwood at so much per ton, to be Of real merchantable quality. Such part thereof, as impartial judges^sbould pronounce otherwise, to be rejected. Sixteen tons out of three hundred proved to be of an inferior quality to that mentioned in the agreement. In a suit brought bj the vendor against the vendee for non -performance of the agreement, held, the latter was bound to take such part of the logwood as corresponded with the contract, at the stipulated price ; and that such price was the measure of damages, and not the amount of diiference between the price and what the logwood would have brought, when the true quantity of Campeachj was ascer- tained. Graham v. Jackson, 14 B. 498. Where, in an action on a warranty, the only question raised is as to the proper rule respecting damages, and the jury find all the issues in favor of the defendant ; the charge of the judge becomes immaterial, andj even if erroneous, cannot be reviewed. Kamsay v. Morris, 13 Ired. 458. "■ The necessity of a vendor's possession, to raise such implied warranty, ' Marshall v. Wood, 18 Ala. 806 ; Kornegay v. White, 10 Ala. 255 ; Anderson v. Duffield, 8 Tex. 237. « Stearns v. McCuUough, 18 Mis. 411. ' Marshall v. Gantt, 15 Ala. 682. * Eeggio V. Braggiotti, 7 Cush. 166. ' Brown v. Pierce, 97 Mass. 46 ; Williamson v. Sammons, 34 Ala. 691 ; 388 LAW OF SALES OF PERSONAL PROPERTY. Although the purchaser is himself a wrong-doer in refer- ence to the true owner, and though the seller did not ex- is perhaps founded upon a dictum of Lord Holt (Medina v. Stonghton, 1 Salk. 210), to the effect that, where a vendor is in possession, and affirms the thing to be his, this is a warranty of title. But if not in possession, the rule caveat emptor applies. It seems, however, that an express affir- mation is not necessary to render the vendor liable, where he is in pos- session ; and the other part of Lord Holt's proposition has also heen ques- tioned (per BuUer, J.^ Pasley v. Freeman, 3 T. K. 57, 58), and is said not to be found in Lord Kaymond's report of the same case. (Ld. Kay. 593.) In Mr. Metcalf's notes to Telverton (21 b), affirmation of title is said to be a suflSciemt warranty. Otherwise in the sale of real estate. It is said, that by the Roman and Scottish law, and the old law of France, no warranty of title is implied. Story on Sales, s. 7. The qualiiication to the general rule is for the most part recognized, that the vendor must have possession; sell the thing as his own, or with an assertion of ownership, not aa an agent ; and for a fair price, or full value. Long v. Hickingbottom, 28 Miss. 772 ; Edick v. Crim, 10 Barb. 445 ; Lackey v. Stouder, 2 Cart. 376 ; McCoy v. Arteher, 3 Barb. 328 ; Kobinson v. Kice, 20 Mis. 229 ; Scott v. Hix, 2 Sneed, 192 ; Huntington V. Hall, 36 Maine, 501. With some slight discrepancies, the elementary writers generally concur in this statement of the law. Thus Blackstone says : "A purchaser of goods and chattels may have a satisfaction from the seller, if he sells them as his own, and the title proves deficient, without any express warranty for that purpose." 2 Bl. Comm. 451 ; 8 lb, 166. Ace. 2 Kent, 478. And a late American writer remarks : "Although the English authorities are somewhat uncertain and con- flicting, we consider that a rule is recognized in the English courts, or in some of them, which, although not distinctly and positively asserted, nor so well supported by direct decision as the American rule, may yet be regarded as essentially the same. And in this country it seems to be now well settled, by adjudications in many of our States, that the seller of a chattel, if in possession, warrants, by implication, that it is his own, "Ward V. Gavin, 1 Head, 506 ; Linton v. Porter, 31 111. 107 ; Fawcett v. Osborn, 32 111. 411 ; Boyd v. Whitfield, 19 Ark. 447; Chism v. Woods, Hardin, 531 ; Dresser v. Ainsworth, 9 Barb. 619; De Freeze v. Trumper, 1 John. 274 ; Heermance v. Vernoy, 6 lb. 5 ; Swett v. Colgate, 20 lb. 196; Bell, 95. See McCoy v. Arteher, 3 Barb. 323; Doe v. Stannion, 1 Mees. & W. 701 ; Vibbard v. Johnson, 19 John. 78; Blasdale v. Bab- cock, 1 lb. 518 ; Heermance v. Vernoy, 6 lb. 8 ; Coolidge v. Bingham, 1 Met. 551 ; Willing v. Peters, 12 S. & K. 181 ; Dean v. Mason, 4 Conn. 428. WARRANTY. 389 pressly undertake that he had the right to sell, or know that he had no such right ; the purchaser may still recover and is answerable to the purchaser if it be taken from him by one who has a better title than the seller, whether the seller knew of the defect of his title or not, and whether he did or did not make a distinct affirma- tion of his title. But if the seller is out of possession, and no affirmation of title is made, then it may be said that the purchaser buys at his peril." 1 Pars, on Contr. 457. See Morley v. Attenborough, 3 Exch. 500; 11 Law Kep. 272; Williamson v. Sammons, 84 Ala. 691 ; Ward v. Cavin, 1 Head, 506. In a recent English case, however, the following conflicting views were expressed by an eminent judge: "From the authorities in our law, to which may be added the opinion of the late Lord Chief Justice Tindal, in Durand v. Huth, 14 Mees. & Welsh. 664, it would seem that there is no Implied warranty of title on the sale of goods, and that if there be no fraud, a vendor is not liable for a bad title unless there is an express warranty, or an equivalent to it, by • declarations or conduct; and the question in each case, where there is no warranty in express terms, will be, whether there are such circumstances as to be equivalent to such a warranty. Usage of trade, if proved, as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement, and without proof of such usage, the very nature of the trade may be enough to lead to the conclusion, that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys, as against all persons." Per Parke, B., Morley v. Atten- borough, 3 Wels. H. & G. 500. Upon these grounds it was held, that, in case of sale by a pawnbroker, there was no implied warranty of title. lb. So a trustee or adminis- trator is held to be bound by an implied warranty of title, only while the purchase-money remains in his bands. Mockbee v. CJardner, 2 Har. & G. 176. A horse being seized upon execution, the sheriff conveyed it to the ex- ecution creditor, who ordered him to return it to the debtor, which was accordingly done. The debtor sold the horse to A., and A. to B., both acting bor\&fide and without notice of the levy, and afterwards the sheriff took it from B., and sold it upon the execution. Held, B. might main- tain an action against A. upon an implied warranty of title. Rew v. Barber, 3 Cow. 272. An assignment of a right to personal property, then under an execu- tion, carries with it no warranty of title. Where, therefore, a sheriff re- fuses to deliver property levied upon to such an assignee, on account of other liens thereon, no action lies against the assignor. Hopkins v. Grin- nell, 28 Barb. 533. Sale of goods on civil process by the auctioneer of a sheriff, who, in ref- erence to some possible defect of title, desired the vendee to give him a 390 LAW OF SALES OF PERSONAL PROPERTY. damages from the seller. The principle is said not to be founded upon contract, but upon the falsehood of the seller; ■written notice not to pay over the price to the execution creditor. Not receiving such notice, he paid it over. It did not appear that the creditor knew of any defect in the title. Held, notwithstanding this request, the vendee might still maintain an action against the vendor, on the implied promise that a vendor does not know of an existing defect in the title of the thing sold ; and that the damages must be not merely nominal, but the amount of injury suffered. An action for money had and received would not lie. Peto v. Blades, 6 Taun. 657. The plaintiff, an auctioneer, sold goods under the order of the defend- ant, who had no authority to dispose of them, and the true owner after- wards recovered their value from the plaintiff. The plaintiff declares against the defendant, in an action on the case, that, the defendant was possessed of certain goods, and represented to the plaintiff that he had a right to sell them. That the plaintiff, in consequence thereof, at the de- fendant's request, sold the goods at auction, and, after deducting the charges for his trouble, paid the balance of the proceeds to the defendant. That the defendant herein deceived the plaintiff, not being at the time of sale entitled to sell the goods, and the true owner afterwards recovered their value from the plaintiff, and the defendant refused to reimburse him. It was objected to this declaration, that it alleged merely a want of authority to sell at the time of sale, not at the time when the defendant claimed such authority. Held, the real ground of action was, that the defendant affirmed that he had power to sell the goods, and requested the plaintiff to do it, whereby the plaintiff was induced to sell them, when, in fact, the defendant had no power thus to authorize him. This was an injury to the plaintiff, and a benefit to the defendant. Hence the plain- tiff had a right of action, whether the affirmation were false or true. If the defendant had authority when he employed the plaintiff, and after- wards lost it, he was bound to inform the plaintiff accordingly, or at least not to take the proceeds of sale. The evidence showed that the de- fendant had no authority at the time of sale, and he showed none at the time when he affirmed that he had it. Hence the law presumed that he never had authority. Held, the declaration, on these grounds, was good, after verdict. Adamson v. Jarvis, 4 Bing. 66. The plaintiffs bought of the defendant a boiler, which was bedded in brickwork, and was so large that it could not be got out of the building whole without taking down part of the wall and injuring the building; but it could be removed by taking it to pieces. The boiler had been seized and sold under a distress for poor-rate (of which the plaintiffs had notice), the defendant being the purchaser, and selling to the plaintiffs at an advanced price, which they paid. The plaintiffs asked the defend- ant what time was allowed to remove the boiler, and he replied, about seven days, but fourteen days were afterwards allowed. The plaintiffs. WARRANTY. 391 his (implied) affirmation of what he does not know to be true, or does know to be false.^ But where a seller is in possession, and delivers the article to the purchaser, pos- session is primd facie evidence of title, and, if the purchaser would avoid the sale upon the ground of title to another, the burden of proof is upon him.^ And although a bill of sale implies a warranty of title, the presumption may be rebutted by parol evidence.' In New York, it seems, the vendee may abandon the property to a claimant, if satisfied that he is the true owner, taking upon himself the onus of proving that the claimant had the title and right to possession, if sued by the vendor.'' In an action for breach of implied warranty of title, it is enough to show that judgment has been recovered against the plain- tiff for conversion of the goods, without showing that the judgment has been paid.' The only effect of a failure to give the vendor, warrantor, notice of the former suit, is, that he cannot be made responsible for the costs thereof, and the record is not admissible to show that he had no title at the time of sale.' In Kentucky, an express war- ranty of title is not broken until the vendee is deprived being prevented from removing the boiler, bring this action, as upon a warranty of title, but a verdict for the plaintiffs was set aside. Bovill, C. J., says : " I consider the general rule to be, that, upon the sale of goods, there is. no warranty of title implied by law ; and I do not find any evidence .... to take this case out of the ordinary rule, or upon which a jury could properly find that the defendant entered into any warranty of title, or any contract that the boiler should be delivered or allowed to be removed." Bagueley v. Hawley, Law Kep. (Bng.) De- cember, 1867, p. 627. Where, at a sale on execution, the constable declared the property to belong to the debtor, and that he would sell it as the law directed; this was held no warranty of title. Morgan v. Fencher, 1 Blac. 10. ' Adamson v. Jarvis, 4 Bing. 73 ; Medina v. Stoughton, 1 Salk. 210. ' Dougherty v. Holloway, 5 Mon. 316. » Miller v. Van Tassel, 24 Cal. 458. * Sweetman v. Prince, 26 N. Y. (12 Smith), 224. ' Burt V. Dewey, 31 Barb. 540. « lb. 392 LAW OF SALES OF PERSONAL PROPERTY. of possession, and therefore tlie declaration should show that fact.' § 39. Where there is an adverse title to the thing sold, it is sometimes held, that the buyer may recover against the seller upon the implied warranty, without "proving a recovery against himself by the true owner ; that the right of action and the period of limitation commence at the time of sale and delivery.^ But, where wood is sold standing, by the acre, and the vendee has not been dis- turbed in his possession, he cannot defend an action for the price, on the ground that the vendor has no title to the land.^ And other cases decide, that eviction by judg- ment of law is necessary to constitute a breach of the im- plied warranty of title.' ^ The case has been compared to that of rent. If A. has occupied certain premises under B., he cannot defend against a suit for the rent by B., on the ground that he has paid rent to C, and that B. has no title ; though it would be otherwise if C. had proved his title and recovered the rent from A.° § 40. Where a purchaser has been evicted, in a suit against the seller upon the implied warranty of title, the buyer may show, as evidence of .eviction, the record of a judgment against him by the true owner. And, if he once notified the seller of the commencement of that suit, this is sufficient, and the latter was bound to take notice of the subsequent proceedings. As where the seller at- tended with a witness at one court, but a trial was not » A seller may relieve himself of liability by a settlement with the true owner, unless the buyer has paid the amount of a judgment against him. Allen V. Koundtree, 1 Speers, 80. I Tipton V. Triplett, 1 Met. (Ky.) 570. * Payne v. Kodden, 4 Bibb, 304. ' Wanser v. Messier, 5 Dutch. 256. < Vibbard v. Johnson, 19 John. 79 ; Case v. Hall, 24 "Wend. 102. ' Blasdale v. Babcock, 1 John. 517. WARRANTY. 393 thea had, and did not attend, having'no notice, at the trial, or at a subsequent term." ' » A. Bold a slave to B., for which B. paid. The slave turned out to be mortgaged to C, and he brought a suit to foreclose. B. executed a bond to have the slave forthcoming to abide the result of the suit. The con- dition of this bond was broken, and 0. sued B. thereon, and recovered the amount secured by the mortgage, and costs of both suits. Held, in a suit by B. against A., that B was only entitled to recover from A. the amount of the mortgage and costs of the chancery suit, as that was the amount which A., as warrantor, was bound to pay. Western v. Short, 12 B. Mon. 158. If a vendee, on being informed that an adverse title is set up to the property, examines that title, and expresses himself satisfied with his own, this does not deprive him of his right of action against his vendor, on a breach of his warranty. Harris v. Rowland, 23 Ala. 644. Where a company, composed of A., B., and C, sell personal property, with an implied warranty, to D., B., and F. ; and 1)., without a title from D., E., and F., or from any one claiming under them, sells the same property to A., and A. is dispossessed upon the title of a third person, and sues D. as upon an implied warranty : D. cannot defend, on the ground that he would himself have an action against the plaintiff on his implied warranty, thus producing circuity of action, there being no privity be- tween A. and D., on which D. could recover ; but, if A. had notice of the defect of the title at the time he bought from D., he cannot recover as on an implied warranty. Sibley v. Beard, 5 Geo. 550. The purchaser of a steamer, who alleges that he has been evicted by order of a court of competent jurisdiction, for debts secured by lien and privilege contracted by his vendor previous to the sale, cannot claim restitution of the portion of the price paid by him, nor retain the balance, where he had at his disposal adequate proof to repel the claims on which the alleged eviction was effected, but which was not heard, solely be- cause the only judge present, who had authority to grant an injunction applied for by the purchaser, had been counsel for one of the parties, and would not act on the application, and where the vendor was not a party to the proceedings, nor notified of them. A vendor is not liable, under his warranty, for a failure of justice resulting from such an accident. Cockerell v. Smith, 1 La. An. K. 1. A loss, caused by some act not connected with the assertion of an ad- verse title, cannot be treated as an eviction. Thus, where a slave, while on trial before a criminal court, was sold, and, being remanded to prison, escaped, and was never again heard of; 1 Blasdale v. Babcock, 1 John. 517. See Daniels v. Street, 15 Ark. 307; Eowland v. Shelton, 23 Ala. 217; 23 Ala. 644. 394 LAW OF SALES OF PERSONAL PROPEKTT. § 41. There may be an express, as well as implied war- ranty of title. And the knowledge of the seller of his want of title, more especially if he be in possession, is unneces- sary to sustain an action against him ; partly upon the ground, as stated in an old case, that " the plaintiff had no means to know to whom the property did belong, but only by the possession."' held, the purchaser was liable for the price. Chapman v. Campbell, 13 Gratt. 105. An implied warranty is broken, if the vendor had no title at the time of sale. Tipton v. Triplett, 1 Met. (Ky.) 570. The warranty is broken as soon as made, the right of action accrues to the vendee at the same time, and the statute of limitations then begins to run. Ward v. Cavin, 1 Head, 506. If after sale the vendor acquire title, it will enure to the benefit of the vendee. Sherman v. Champlain, &c., 31 Vt. 162. The purchaser is not to presume, from a vague statement that the vendor is a trvfling fellow, and had not money, in the opinion of the per- son making the remark, to buy the property, that his title is defective. A purchaser is not bound to take mere suspicions unsupported by facts, in his business affairs, as a warning ; though the statement of facts, touch- ing the manner of the acquisition of the property, might be sufficient to put him on bis guard. Gosney v. Frost, 27 111. 53. In an action to recover the price, the title having failed, the complaint must set up the implied warranty ; otherwise, testimony that the de- fendant refused to warrant the title, and the plaintiff said he did not wish him to warrant it, is inadmissible as irrelevant. Miller v. Van Tassel, 24 Cal. 458. 1 Crosse v. Gardiner, Carth. 90; 1 Show. 68; 3 Mod. 261. See Bayse . Briscoe, 13 B. Mon. 474. KESCINDING OF SALES. 395 CHAPTER XIX. EESCINDING OP SALES. 1. BY MUTDAL CONSENT; DISTINCTION BETWEEN KESCINDING AND STOPPAGE IN TRANSITU ; KESALE, ETC. 8. RESCINDING BY THE TENDOR FOR NON-PAYMENT, INSOLVENCY, FRAUD, ETC. 20. RESCINDING BY THE VENDEE ; FOR FRAUD, BREACH OF WARRANTY, UNDER AN EXPRESS CONDITION, ETC. 36. LEGAL EFFECT OF THE RESCINDING OF A SALE. § 1. "When an article sold, on condition that it may- be returned if it does not correspond with a warranty, is returned and accepted unconditionally, the contract is terminated, and the vendor cannot recover the price, al- though there was no breach of the warranty.' And, in general, a sale may be rescinded by subsequent consent of the vendor and vendee, before the rights of third persons intervene.^ Notwithstanding a delivery of goods with the concurrence of all parties interested, an agreement by the parties to rescind puts an end to the contract.^ And more especially, when a bargain is made, and all the parties con- sent to dissolve it, and other conditions are proposed, the new agreement destroys the former bargain. Thus A. sold furniture to B. in N'ew York, to be paid for on de- livery at Milwaukee, by B.'s acceptance of two drafts. Before the furniture arrived, B. left Milwaukee, and in- structed C. to inform A. that he would not receive it, and to return it to A. if it should arrive. The property ar- ' Manny v. Glendinning, 15 Wis. 50. « Smith V. Field, 5 T. E. 402. 3 Atkin V. Barwick, 1 Str. 165. 396 LAW OF SALES OF PERSONAL PROPERTY. rived, and the drafts were returned without acceptance. Held, no title ever vested in B. ; the furniture was not subject to execution against him ; and the sheriff and all others intermeddling with it were wrong-doers.' So A. sells to B. several sheep in a market, without delivery. Afterwards, in the same market, this agreement was dis- charged, and a new one made, that B. should drive the sheep home and depasture them till such a time, A. pay- ing him a weekly sum therefor ; and that B. might then have them by paying an agreed price. Before this time, A. sold the sheep to the plaintiff, and afterwards B. sold them to C, who replevied them from the plaintiff; and the defendant, a servant of C, aided in driving the sheep to C.'s grounds, where they were left. After demand of the defendant, the plaintiff brings trover against him. Held, the new agreement between A. and B. defeated the first sale, being made by mutual consent and upon new conditions ; that the new agreement was no sale, and the property remained in A., and passed to the plaintiff from § la. "Where the article sent is different from that con- tracted for, and the seller directs that it be returned by the first ship ; if the buyer send it coastwise and it is lost, he may recover back the price, though no bill of lading was taken or letter of advice sent.' § 2. But where an agreement to rescind is in its terms executory and conditional, and before completion of it new rights intervene, the title will not revest in the vendor. ' But it was further held, that the action did not lie, because, 1. The sheep were in cusiodici legis at the time of the alleged conversion ; 2. The defendant was acting as a servant, and the act commanded to be done was not an apparent wrong or a trespass; 3. The defendant acted under legal process ; 4. The verdict did not find a conversion, but only a demand and refusal. 1 Hicks V. Cleveland, 39 Barb. 573. 2 Mires v. Solebay, 2 Mod. 242. See Sewall v. Henry, 9 Ala. 24. « Stinson v. Walker, 8 Sliepl. 211. KESCINDING OF SALES. 397 Thus the defendant, having sold goods to A. by a re- ceipted bill of parcels, and taken A.'s negotiable note in payment, gave him a certificate that he held them for him on storage. Afterwards A. offered to cancel the bargain, if the defendant would return the note, to which the latter assented. The note was at that time in a bank, having been discounted for the defendant. Some days afterwards, the defendant tendered A. the note, and requested him to cancel the agreement. A. had in the meantime assigned the goods to the plaintiffs, his creditors, giving them no- tice, however, of the conversation in relation to the can- celling. The plaintiffs bring trover against the defendant. Held, the original contract vested the property in A. ; that, being an executed agreement, it was not rescinded ; and that there was no resale to the defendant, but at most a^ conditional agreement to convey. Hence the action was sustained.' So, after a verbal sale has been consummated by delivery, neither a subsequent change in the mode of payment, nor the subsequent acceptance of a bill of sale, operates a divestiture of the title, or a rescission of the contract.^ And, in general, in order to change the rights and relations of the parties, a rescission must be not only proposed and initiated, but adopted and carried into effect by their concurrent action. Thus the seller of a machine, which turned out to be defective, took it back to repair it, and after repairing it returned it to the purchaser, who gave no subsequent notice to the seller of any defect. Held, the seller might recover of the purchaser so much as the machine was reasonably worth.^ So, if the vendor refuses to accept the property when the purchaser offers to return it, this will dispense with a more formal tender ; but the purchaser, if he still retains the property in his possession, must yield it up on the reasonable demand of the vendor, and his refusal to surrender on such demand, ' Chapman v. Searle, 3 Pick. 38. 2 Sanders v. Stokes, 30 Ala. 432. * Frankenfield v. Freyman, 13 Penn. 66. 398 LAW OF SALES OF PERSONAL PROPERTY. even after suit brought, will destroy the effect of his pre- vious tender.' So where the purchaser of slaves, on dis- covering their unsoundness, by letter informed the seller of that fact, and tendered them back ; and the vendor, in reply, objected that the offer to rescind was made too late, and referred the purchaser to his warranty for indemnity; held, these letters did not amount to a rescission, the pur- chaser having afterwards brought suit on the warranty.^ So where a vendor proposed to take back a part of the goods, and to give his note on time for them, and the ven- dee accepted the proposition as to return, but referred the vendor to his partner as to the note, and shortly after sent the goods to A., to the care of the vendor ; held, the title did not repass, until the vendor had arranged for giving his note. Consequently, a previous sale by the vendor to A. did not vest the title.' But, if an agent purchase goods, and afterwards rescind the sale, and the seller bring trover against him ; the seller thereby assents to the rescission.^ § 3. We have already (chapter 17) considered at length the important subject of stoppage in transitu; M'hich right of the vendor can be exercised only in case of the buyer's insolvency. The rescinding of a sale by mutual consent generally, though not necessarily, occurs also in connec- tion with the insolvency of the vendee, and leads to a fur- ther consideration of the same subject. (See p. 282.) § 4. As illustrative of the somewhat nice distinction between stoppage in transitu and rescinding ; it has been doubted whether the former right can be exercised, when the seller obtains possession, not by his own diligence, but by casual information, or through the act of the purchaser after bankruptcy ; because, in the latter case, the pur- chaser gives him a preference over other creditors. But 1 Bennett v. Fail, 26 Ala. 605. 2 lb. 9 Stiles V. Howland, 32 N. Y. 309. « Bacon v. Soudley, 3 Strobh. 542. RESCINDING OF SALES, 399 the distinction is said to be a small one, more especially where there is no fraud on the part of the purchaser; and not sufficient to justify a departure from the general rule." ' « A., residing at N., in Devonshire, ordered gooda from B., at London, but gave no directions to have them sent by any particular vessel. They were forwarded to him by ship, by way of Exeter, and he was advised accordingly. Upon their arrival at Exeter, the goods were delivered to C, a wharfinger, who received and booked them on A.'s account, paying the freight and charges. After arrival of the goods, A. advised B., that having become involved he should not take them, and that they were still at Exeter. At this time, A. had committed an act of bankruptcy, and afterwards became legally a bankrupt. B. applied to C. for the goods, tendering the freight and charges, and C. promised not to part with them, till he should be sure of a safe delivery, but he afterwards de- livered them to the assignees of A., though indemnified by B. Held, B. had the right of stoppage in transitu, and might maintain trover against C. Mills V. Ball, 2 B. & P. 457. Goods were consigned by A. to B. On arrival at the wharfinger's, B. refused to receive, and ordered his attorney to take measures for stopping them. The attorney accordingly notified the wharfinger not to deliver to B. Three days afterwards, A. wrote to confirm this direction. The next day, the goods were seized upon an execution against B. Held, the contract was rescinded before such seizure, and the arrival of the goods, and the order given by B. in relation to them, had not terminated the transitita. Bartram v. Farebrother, 4 Bing. 579. A., residing in the country, purchased goods of B. on the 7th (or 17th) of April, which were duly sent to him and credited to B. in his books. June 4th, A. became bankrupt, having previously. May 18th, sent the goods, without B.'s order or knowledge, to C, for B.'s use. June 6th, A. informed B. by letter of this fact, stating the embarrassment of his affairs, that he was unwilling to have the property applied to the use of his creditors, that he had not credited B. with the goods, but they were subject to B.'s order in the hands of C. June 9th, the plaintiffs became assignees of A. June 13th, B. received A.'s letter, and immediately assented to the return of the goods. In an action of trover by the plaintiffs against B., held, the sale was rescinded by the delivery to C, and the suit could not be maintained. Atkin v. Barwick, Str. 165; 11 Mod. 295. Goods were consigned to A., in London, but, before their arrival in the river, he became insolvent. At the solicitation of the captains, A. gave a verbal order to his son to take the goods from the vessels, and store 1 2 B. & P. 457. 400 LAW or SALES OF PERSONAL PROPERTY. § 5. IsTor, on the other hand, where the buyer, previous to and on other grounds than his insolvency, rescinds the them at a wharf which he sometimes used for that purpose, his own ware- house being in the city. At the same time he declared that he should not take the property, but this declaration was not communicated either to the wharfingers or the vendor. The goods were accordingly unloaded and piled away. A. becoming bankrupt, the consignor stopped them as in transitu, and A.'s assignees bring trover against the wharfingers. At the trial, the question left to the jury was, whether the wharfingers took possession for A. as his agents. The court subsequently decided, that the question left to the jury should have been, whether the wharfingers took possession for A. as owner; or whether, supposing the wharfingers to be A.'s agents, they received the goods for his benefit, or merely to keep for the vendor. It was also held, that A.'s declaration against accepting the goods was properly admissible in evidence. James v. Griffin, 1 Tyrwh. & Gr. 449. A. sold goods to B., who resided and traded in America, hut had a place of business in London. On the 3d and 5th of May, the goods were delivered to C, B.'s clerk in London, for shipment to B. ; and were sent by C. to the defendant, a packer, to be packed for this purpose. April 9th, B. wrote to C, informing him of his (B.'s) insolvency, and ordering that any goods purchased should be returned. May 18th, C. received this letter, and about 9 o'clock p.m. showed it to A., who said he was ready to receive back the goods. On that and the next day, the goods were attached as B.'s. Having demanded them from the defendant, A. brings trover against him. Held, the sale was rescinded, and the action would lie. Salte v. Field, 5 T. K. 211. See Barnes v. Freeland, 6 lb. 80; Cowp. 123; Neate v. Ball, 2 E. 117. Another creditor of B., re- ceiving the same information given to A., declined taking back the goods sold, under the belief that 0. had no authority to return them; and attached them in the packer's hands. Held, he thereby affirmed the sale, and could not claim the goods. Smith v. Field, 5 T. K. 402. A. shipped goods from Newcastle to London to the order of B. Before arrival of the goods, B. sent word to A. that he was in failing circum- stances, and would not claim the property when it should arrive. A. re- plied, without particularly mentioning the goo^s, " If I find you an honest man, you shall have every indulgence from me;" and immedi- ately proceeded to London, and applied for the goods, tendering the freight and charges, at the wharf of C, where they had arrived, being the usual landing for B.'s goods, and at which they usually remained till called for. C. refused to deliver the goods, except on condition of A.'s paying him a general balance due from B. for past wharfage. Held, these facts showed a rescinding of the contract before the goods reached their destination, and, as there was no proof of their not coming into the hands of C. as A.'s property, C. had no right to retain them against KESCINDINO OF SALES. 401 sale with the seller's consent, will his subsequent insol- vency invalidate the effect of such rescinding. Thus A. the plaintiff", sent goods to B. by a carrier, according to B.'s order; but B., before their arrival, refused to take A., although by virtue of a usage he might have done it against B. C.'s only claim must be under B., but A.'s title was paramount to B.'s. C. had a bare authority to receive the goods, dated before B. was suspected of insolvency, and which could not avail against A.'s subsequent claim. Biohardson v. Qoss, 3 B. & P. 119. Similar questions sometimes arise, where the terms of sale are changed in reference to the mode and place of delivery. Thus a firm, J. A. B. & Co., having ordered goods, to be delivered at their store, without ex- pense to them; the seller subsequently proposed, by letter, that they should take the goods at a certain depot, the vendor paying the freight from the depot to his store. H., a member of the firm, answered the letter, consenting so to take the goods, and also informed the vendor that J. bad gone out of the firm and left. The vendor, before he received this letter, having sent the goods to the depot, answered the letter, making no objection on account of the information, and informed H. that he had sent the goods, and a bill of the same by mail. While this correspond- ence was going on, a teamster, who had general orders to take such goods as he should find at the depot, for the firm, but was not otherwise their agent, took the goods from the depot, for the purpose of freighting them to the firm, and, while so doing, they were attached as the property of J. A. B. & Co., and H. compromised with the creditors, and gave them bills of sale of the goods, and, in pursuance of this arrangement, the creditors received most of the goods, and H. a small portion. Held, the first contract was abandoned, and a new one made, under which there was such a delivery and acceptance of the goods, as to vest the title in J. A. B. & Co. Eedington v. Koberts, 25 Verm. 686. "Where the defendant sold to the plaintiff a quantity of tea, which proved not to be good, and the plaintiff returned the tea to the defend- ant, who received it, and said that he should have some good tea soon and would replace it, to which the plaintiff assented ; held, not an abso- lute contract of rescinding, which would make the defendant debtor to the plaintiff, either for the money or for the tea, unless called for ; and that it imported no obligation on the part of the defendant to carry the tea to the plaintiff. Nor could the obligation of the defendant, being merely to deliver tea when called for, by mere lapse of time become an obligation to pay the money. "West v. Cutting, 19 Verm. 536. If a vendee, on account of his inability to pay, declines to accept a bill for the price, but afterwards accepts it and receives the goods, and then fails; there is no rescission, and his assignees hold against the seller. Greaner v. Mullen, 15 Penn. 200. 26 -102 LAW OF SALES OF PERSONAL PROPERTY. them, objecting to the quantity, the term of credit, the quality, and price. After some correspondence between A. and B., A. agreed to sell the goods to C, a purchaser found by B. B. becoming bankrupt, the defendants, his assignees, with notice of the above facts, urged him to in- clude these goods in the assignment, but he declined doing it, saj'ing, " he would rather rob on the highway, for he had never accepted them." The defendants afterwards induced the carrier to deliver them the goods. Held, the plaintiff might maintain trover.' § 6. AVhere a vendor receives property in part-payment, with the agreement, that, unless the balance be paid, he may retain such property, and also receive back the thing sold ; a subsequent promise to restore the property is not conclusive against him of a rescinding of the bargain. Thus A. purchased a horse from B., and delivered him a note, signed by C, in part-payment. It was agreed be- tween the parties to the sale, that, unless ' A. should within a certain time give security for the balance, he should restore the horse, and B. should become owner of the note. A. did not give such security, but returned the horse and demanded the note. B. declined delivering up the note at that time, but afterwards said that A. might have it if he would come for it, but that he (B.) should sue him for damages. A. again demanded the note, B. refused to give it up, and A. brings assumpsit for the amount of it. Held, by the above contract, the note had become the property of B. ; that the subsequent agree- ment to re-deliver was without consideration, and there- fore void as a promise, and not conclusive evidence of a rescinding of the bargain." » It was further held, that the contract was not void as a gambling transaction. There was no deposit of the note, subject to any future casualty or event. A. had possession of the horse, and might either use or sell him, while B., being out of possession, could do neither. Hence the contract was a fair one. ' Lovat V. Parsons, Cowp. 61. * Larabee v. Ovit, 4 Verm. 45. RESCINDING OF SALES. 403 § 7. A sale may be rescinded in part, or in relation to some only of its terms ; and such rescinding need not be in writing, though the original agreement is a written one. Thus A. agreed in writing to purchase from B. 300 hogs of bacon, to be delivered at certain times and in specified quantities. A part having been delivered, A. requested B. not to press the delivery of the rest, the sale being then dull; to which B. assented. Held, this was only a parol dispensation of performance in regard to the times of delivery, and therefore not iuvalid, either by the Statute of Frauds, or the rule excluding parol evidence to control written instruments ; and, therefore, that A. was liable for not accepting the remainder of the property in a reasonable time after the above parol contract.' But, under some circumstances, the same acts are necessary to rescind, as to make, the bargain. Hence it has been held, that a re-exchange of personal property has all the quali- ties of a sale, to which payment or delivery is an essential circumstance. Without this, the transaction is a mere executory agreement, and passes no property.^ Thus A. and B. made an exchange of horses, the former receiving the horse of the latter. The same day, B., thinking him- self cheated in the bargain, made complaint to A. accord- ingly, and they thereupon agreed to rescind, upon B.'s giving A. three bushels of wheat ; but there was no re- delivery, and A. sold B.'s horse to C. B. was previously informed where possession of his horse was to be had, but made no attempt to obtain possession or to perform his own agreement for several weeks ; whereas C. took the horse a day or two after the bargain was rescinded. B., having tendered the wheat, and demanded his horse from C, brings replevin against him. Held, the action did not lie. The re-exchange was not effectual, it seems, even be- tween the parties themselves. It was not to put them in statu quo, because the wheat made a new ingredient in the > Cuff V. Penn, 1 M. & S. 21. » Hoadly v. Maclaine, 4 M. & Scott, 340. 404 LAW or SALES OF PERSONAL PROPERTY. contract. Hence delivery, at least on one side, was neces- sary." * Agreement between A. and B., for the joint purchaseof twenty thou- sand mats, afterwards to be stored by B. May 6, a new contract was made between them, substantially as follows : " A. bought of B. twenty thousand Russia mats at ten cents each — $2000. A. to pay $4 per month storage from this date, and interest on the mats till paid for. A. not to pay for the mats more thnn the amount indorsed on this bill, till the same are sold.'' Upon this contract, of the same date, was an indorse- ment of the receipt of $1104.50 in cash and notes. May 8, B, procured the mats, not paid for, to be attached for one of his creditors. May 13, A. was summoned as trustee of B. June 5, A. brings an action of tres- pass against the officer, and recovers judgment for the value of the prop- erty, which was paid to A. Immediately afterwards, A. was again sum- moned, as trustee of B., in the present suit. Held, the sale of May 6 passed a title to A. ; that the attachment, being tortious, had no effect upon the sale; and that A. was chargeable in the iirst suit for the residue of the mats not paid for, and consequently was not chargeable in the present action. That the mats were not to be paid for till sold by the trustee, made no difference in the case. It was " debitum in prsesenti ;" and there was a limitation merely of the time of payment. Nor was it material that the trustee had merely a constructive possession, the sale being complete, and the title vested. This fact might be important, if the trustee were attempted to be charged as holding property in trust (as in Andrews v. Ludlow, 5 Pick. 28) ; but the only ground for charging him here must be as a debtor for the price. The attachment could not operate to rescind the sale. Stone v. Hodges, 14 Pick. 81. A. sold to B. a. boat, B. paying part of the price, giving his note for the balance, and taking a bill of sale. Being unable to pay the note, B. gave up the bill of sale to A., who agreed, upon payment of the balance due, to re-convey or restore the boat, and, having no convenient place for keeping it, left it with B., with authority to sell it, subject to the lien of A. Held, the transaction was either a re-sale of the property and payment of the note, with the privilege reserved to B. of re-purchas- ing, or a mortgage to secure the balance due ; and that A. might main- tain replevin against an officer, who attached the boat as the property of B. Under the circumstances, A. could no longer have sustained a suit upon the note, although not given up to B. And, on the other hand, if B. had converted the boat to his own use, A. might bring trover against him. The facts showed a sufficient consideration, not executory, but executed, for a re-sale. Gleason v. Drew, 9 Greenl. 79. At the time for payment for a horse, previously delivered, the vendee repudiated the bargain, and sent the horse to a livery stable, whence the 1 Hazard v. Hamlin, 6 Watts, 201. RESCINDING OF SALES. 405 § 8. With reference to a rescinding by the vendor alone, it is said, there is no case, where one party can rescind a sale 80 as to divest the property from the other, except where he discovers fraud in the agreement, and can re- store what he has received in as good plight as it was originally.' Also, that, if a buyer does not carry away the goods in reasonable time, the seller may charge him for storage, or bring an action against him for not remov- ing them, if he is thereby injured ; but that he cannot on this ground put an end to the -contract and re-sell the goods to others.^ So that a vendor, after delivery, can- not rescind the sale on the ground of /rauf?, without prov- ing deceptive assertions and false representations, fraudu- lently made, to induce him to part with the property. And that the insolvency of the buyer, and immediate liability of the goods to attachment, though known to him, and concealed from the seller, furnish no sufficient cause to rescind ; but, it seems, there must be an indictable fraud, or at least sufficient foundation for the action of deceit, and for the recovery of damages, in case the seller should not rescind. That it is certain there must be all the evidence of fraud, which would be necessary to sustain an action against any third person, who had induced the seller to give credit to the buyer.^ § 9. But, it is said, in case of a sale in a market or shop, owner took him. Held, the vendor, by resuming possession, rescinded the sale, and waived his action for the price, but, on proper proof of injuries, the vendee would be liable as bailee. And also for the livery Will if paid by the vendor. Coon v. Eeed, 1 Hilt. 511. If A. by parol purchase goods of B., to be delivered at a. future day, and earnest be paid, a sale by B. to C, before the day, will entitle A. to recover of B. the earnest, under the nio-ney counts, and will excuse A. from B. tend€ir of perforimance. But if A. tender performance, he may maintain an action for damages for breach of contract. PacJ&er v. Steward, 34 Vt. 127. ' Allen V. Edgerton, 3 Verm. 445. ■" Greaves y. AsWin, 3 Camp. 426. * ^ Cross V. Peters, 1 i&reeiil. 37i6. But see Dow v. Sanfeom, 8 Allen, 181. 406 LAW OF SALES OF PERSONAL PROPERTY. where it is unusual to give credit, if no credit be given, nor delivery made, and the vendee go away without pay- ing, the vendor may rescind the sale, and sell the goods anew. And it is further held, that, if the contract is com- pleted, but the vendee refuses to take and pay for the goods, the vendor may resell them, more especially after notice, and call upon the other to make up the loss thereby sustained,' including the cost of keeping.^ So, if a pur- chaser fails to take and pay for the property, the seller is not bound to resell the property at auction, or in any other particular mode,' or at any particular place. If the buyer does not call for the goods, or refuses to pay for them, the seller may keep them and recover the diiference be- tween the contract and the market price, or he may re- sell them, as above stated, and recover the amount of loss.^ (See s. 14.) The second sale must be made in good faith, and in the mode most likely to yield the value of the property, and the usual mode of selling property of that description, whether at auction or through a broker; and the vendee must have notice. "Where the parties live in the same place, and payment has been repeatedly demanded, and no objection made to the time of notice when given, and the sale not actually made for several days after such notice ; notice of an intention to resell on the next day is sufficient.' ' But where, to an inquiry by the seller what the purchaser was going to do, the latter answered, " You * A vendee, who receives the thing into his possession, cannot sell it at auction, though it does not conform to the contract, but may leave it at the vendor's door, giving him notice. Buffington v. Quantin, 17 Penn. 310. > Long, 241 ; Brod. Sup. to Stair, 853-7; Maclean v. Dunn, 1 M.& P. 761 ; Crooks v. Moore, 1 Sandf. 297. ' McEchron v. Randies, Aran. Law Reg., Feb. 1862, p. 241, N. T. ' Lewis V. Greider, 49 Barb 606 ; 3 Barb. 66. ♦ Barr v. Logan, 5 Barring. 52; 34 Barb. 301. 6 34 Barlj, 301 ; McArthur v. Wilder, 3 Barb. 66 ; Buffington v. Quan- tin, 17 Penn. 310. EBSCINDING OF SALES. 407 may sell the goods or do what you please with them ;" to which the former replied, " If I had known that you was going to serve me in this way, I would have sold them before ;" held, this was an abandonment of the con- tract by the buyer, but not a consent that the seller might sell without fbrther notice and charge the buyer with the loss, and that a resale thereupon must be deemed to be for account of the original seller.' So, upon the ground of usage, in case of the sale of goods by a broker in Lon- don, to be paid for by a bill of exchange, the vendor, if he doubts the solvency of the vendee, may annul the contract in reasonable time ; that is, so soon as he can inquire into the vendee's circumstances. But five days were held to be an unreasonable delay.^ So it has been held, that if, after an agreement to deliver goods, the buyer makes a composition with his creditors, this is a sufficient defence to an action for non-delivery.' § 9 a. Though a sale procured by fraud is voidable at the election of the vendor, yet if he rescind, he must do so in toto. If part of the price has been paid, he may affirm the whole and sue for the price, or avoid the whole and sue for the goods, first unconditionally returning the price, or whatever he has received under the contract.^ § 9 6. If the vendee, after part-payment, and before de- livery, refuses to further comply with the terms of sale, a second sale by the vendor, after the time for delivery, and in the absence of any demand therefor, does not of itself amount to an election on his part to rescind, so as to en- title the vendee to a return of the part of the price paid.' And, in general, a neglect to receive and pay for the goods in the manner agreed will not of itself rescind the contract and revest the title in the vendor, so that he can sell again.' ' McEachron v. Bandies, 34 Barb. 301. ' Hodgson V. Daviea, 2 Camp. 530. « Reader v. Knatchbull, 5 T. E. 218, u. ♦ Weed V. Page, 7 Wis. 503. 5 Ashbrook v. Hite, 9 Ohio (N. S.), 357. • McClure v. Williams, 5 Sneed, 718. 408 LAW OF SALES OF PERSONAL PROPERTY. So the detention, by vendors, of goods sold, on the insol- vency, and assignment for benefit of creditors, of flie vendees, does not rescind the sale ; and the vendors are entitled to pro rata distribution out of the estate. And where a part of the goods have been delivered, and the balance is sold by the vendors, who apply the proceeds to the notes given upon the sale, leaving a balance still due ; they are entitled to a dividend upon the whole amount of their claim at the date of the assignment.' § 9r. A sale of goods upon credit to one member of a firm, for the partnership, but upon the express understand- ing that he shall personally attend to their sale, may be rescinded upon his death, if not so far executed that the parties cannot be put in statu quo. Where the death oc- curs before the goods have reached their destination, the vendor may stop them in transitu.'^ § 9(i. "Where goods were sold for cash, and the vendee took possession but failed to make payment, and the vendor sued out a writ of replevin and retook the goods ; held, a disaffirmance of the sale and a defence to an action for the purchase-money.^ So where the plaintiffs bought of the defendant a quantity of sheep, paying fifty dollars down, and agreed to pay the balance and take away the sheep within a specified time ; and, the plaintiffs failing to keep this agreement, the defendant sold the sheep to another person : in an action to recover the fifty dollars and damages for rescission ; held, the defendant having sold the sheep without notice that he should sell them, if the plaintiffs did not take them and pay the balance due within the time, he rescinded the contract in toto, and became liable, without demand, to refund the fifty dollars, having lost all right of action against the plaintiffs for their breach of the contract.' But that the plaintiffs were 1 Patten's, &c., 45 Penn. 151. ' Fulton V. Thompson, 18 Tex. 278. » Morris v. Rexford, 18 N. Y. (4 Smith), 552. * Fancher v. Goodman, 29 Barb. 315. RESCINDING OF SALES. 409 not entitled to damages for rescission, because they did not fulfil it themselves.' § 9 e. If, before the expiration of the usual time for de- livery, under a contract for the exchange of cotton for the note of a third person, at an agreed price for the cotton, the defendant gives notice to the broker, that, on account of the insolvency of the maker of the note at the time of contract, he shall decline to deliver the cotton under it ; he cannot object that the plaintiff did not formally tender the note and demand the cotton until ten days after such usual time of delivery.^ § 10. If a vendor, in case of fraud, after full knowledge of material facts, affirms the sale, he cannot afterwards disaffirm and avoid it. Otherwise, if he affirms it before discovery of the fraud, or of its full extent and character. The fact of his bringing suits upon other and similar con- tracts is no estoppel. The question is for the jury.'^ § 11. A vendor may rescind the sale for fraud, though the representations were made at a time previous to such sale, if it was founded upon this inducement. The case is different from that of a warranty, which must make » In case of exchange between A. and B., if A. elects to rescind for fraud in B., he cannot maintain an action merely by notifying B to come and receive back his goods ; but must actually return them. Nor- ton V. Young, 3 Greenl. 30; Ellis v. Hamlen, 3 Taun. 52; Cash v. Giles, 3-C. & P. 407 ; O'Kell v. Smith, 1 Stark. 107 ; Kutter v. Blake, 2 Hur. & J. 353. So where the plaintiff sold the defendant a horse, and took in payment the promissory note of a third person, -which the defendant warranted to be of the value expressed on its face, whereas at the time the maker was insolvent ; held, to recover the value of the horse, the plaintiff must show a return or an offer of return of the note within a reasonable time ; and that four years was not a reasonable time. Fisher v. Fredenhall, 21 Barb. 82. Ace. Johnson v. McLane, 7 Blackf. 501 ; Gushing v. Wyman, 38 Maine, 589. ' Panoher v. Goodman, 29 Barb. 315. 2 Bicknall v. Waterman, 5 R. I. 43. " Mackinley v. Macgregor, 3 Whart. 369. 410 LAW OP SALES OP PERSONAL PROPERTY. part of the contract of sale." ' And it is said, that, where goods are obtained by fraud, the vendor may treat the sale as a nullity, and reclaim them, though the term of credit has not expired ; and even from a bond fide second purchaser without notice of the fraud.^ (But see chap. 20.) And where goods are obtained by fraudulent pretences, and the vendee sells them to one having notice of the fraud, and the vendor replevies them from him ; it is no defence to this suit, that the second purchaser has been summoned as trustee of the first, in an action still pend- ing : because, if the plaintifl' in replevin prevails, the party summoned as trustee may disclose the judgment against him, as a bar to his liability in the trustee process.^ § 12. It has been held, that, where goods are obtained by means of fraudulent representations of the vendee, and afterwards attached by a creditor of the latter, whose claim accrued after the sale, the vendor cannot maintain replevin against the attaching oificer. If a part of the debt was incurred before, and a part after the sale, the attachment shall prevail over the vendor's claim, only to the amount of the latter portion, and the costs. But, as the property is indivisible, the attachment is a' bar to the replevin suit for the whole; and, if the officer afterwards sells more than enough of the property to satisfy that portion of the debt incurred after the sale, the plaintiff will have another remedy.' (But see chap. 20.) § 13. In case of sale, with the privilege, allowed to the • So, where a vendor brings an action upon the vendee's bond given for the price, the defendant may offer evidence of the plaintiff's oral dec- larations prior to the written agreement, for the purpose of showing fraud. It would be otherwise with respect to warranty. Such declara- tions are immaterial, unless relied on by the vendee. But he is presumed to have relied on them, if the contrary be not shown. Holbrook v. Burt, 22 Pick. 546. ' Seaver v. Dingley, 4 Greeul. 306. 2 Ibid. » Ibid. * Gilbert v. Hudson, 4 Greenl. 345. RESCINDING OF SALES. 411 vendor, of rescinding within a certain time ; if he does not rescind within that time, the sale is absolute. Thus A. mortgaged certain personal property to B., but retained possession of it, and afterwards made a second sale, for valuable consideration, accompanied by delivery, to C, who was ignorant of the mortgage. It was agreed, that C. should make payment, a part in six, the rest in nine months ; and, if he should fail in making the first pay- ment when due, A. was to have the right of taking back the property. After ten months, C. died insolvent, and A., without permission from any one, took possession of the goods, and D., the defendant, a constable, afterwards seized them under a process against A. Held, B. could not maintain trespass against D.' § 14. Besides the right of rescinding the contract, the vendor may, under some circumstances, resume the owner- ship of the property sold, not under his own former title, but as agent for the vendee. This principle has been stated as follows : After the property in goods sold has vested in the vendee, by virtue of the contract and part- delivery, if he refuses to receive the remainder upon their being tendered, with notice that the vendor intends to sell ' them, in case of his default, and hold him responsible for the deficiency; the vendor has a right to abandon the property, or to dispose of it bond fide, as agent of the ven- dee, to the best advantage, by a sale at auction, and to call upon the vendee for the amount of difterence between the proceeds of sale and the price stipulated in the con- tract. The vendor becomes agent or trustee of the vendee, for managing the property ; and must necessarily either abandon or sell it. The case is like that of abandonment of a vessel insured, which the insurer refuses to accept. The party in possession then becomes agent for the other, and, by exercising the right to sell, does not waive any claim upon the contract.^ (See s. 9.) 1 Patten v. Smith, 5 Conn. 196. ' Sands v. Taylor, 5 John. 395. 412 LAW OF SALES OF PERSONAL PROPERTY. § 15. The vendor's requesting the vendee to sell the goods, on his account, is a rescinding of the sale, and bars a suit for the price. Thus, the vendee of goods refusing to accept them, the vendor requested him to sell them on his (the vendor's) account ; to which the vendee assented, if he should be able to do it. Not having sold the goods, the vendor sues him for the price. Held, the above re- quest was in law a waiver of the sale, and it was not to be left to the jury to inquire, whether the request was made under an ignorance of the law, and an impression that the plaintiff's remedy was gone.' § 16. Where a vendee desires to rescind the sale, but the vendor refuses to do it, and sues for the price, this is conclusive against his right to bring trover afterwards for the goods. Thus a vendor of goods sued for the price of them, in the sheriff's court, by attachment, but the pro- ceedings were stayed by injunction from chancery. The vendee had previoasly desired to rescind the sale, but the vendor would not consent to do it, and, after notice of the vendee's bankruptcy, claimed the price. The vendor then brings trover. Held, the action would not lie. The oidy question was, whether the sale had been rescinded, and the facts conclusively showed it had not.^ So, on the other hand, an offer to rescind by the vendor, not ac- cepted by the vendee, has no legal effect whatever on the contract, unless the offer is based on the fraud or bad faith of the vendee.' And a mere notice to the buyer, in regard to payment, will not be such a rescinding as to bar a suit for the price. Thus it is no defence to an action for the price of two buildings sold on credit, and one of which has been removed by the purchaser, that, before the ex- piration of the term of credit, the seller gave him notice not to remove the other until the price was paid.^ And » Goracry v. Bond, 3 M. & S. 378. ' Smith V. Field, 5 T. R. 402. ^ Harris v. Rowland, 28 Ala. 644. ' Demmon v. Locke, 2 Gray, 183. RESCINDING OF SALES. 413 if the buyer fail to perform some merely incidental part of the contract, it is held that the seller is still bound to perform the substantial agreement, so far as it can be done under the circumstances. Thus, upon a sale of corn, to be delivered at a certain place, the buyer to furnish sacks, and the seller to sack the corn ; the buyer not having furnished the sacks, held, the seller was bound to furnish the corn in bulk.' § 17. After receiving a part of the consideration without objection, the vendor cannot rescind without some default in the vendee. Thus, where A. contracted with B. to work in a factory, in consideration of which B. sold to him certain property, and the contract continued to run, and the stipulated labor was performed by A. for several weeks ; it was held, that B. could not, after this, rescind the bargain and divest the property from A., more especi- ally if the circumstances would not allow his being put in statu quo.^ § 18. In connection with the right of a vendor to rescind the sale, may be considered the question, what circum- stances, occurring without his fault, as by act of law or inevitable accident, or by the fault of the vendee, will justify non-delivery of the goods. § 19. "Where the vendor of goods contracted to ship them at St. Petersburg on a certain day in particular vessels ; and the goods, while on board of lighters which were taking them to the ships, were seized by the Russian government ; and the ships cut their cables and put to sea, to avoid an embargo: these facts were held no defence to an action for not delivering the goods.^* But where a contract was made in London, for the sale of tallow from a certain ship on her arrival, to be taken from the king's landing-scale ; and, in case the property did not arrive on or before a given day, the contract to be void ; and the I Lowe V. Porbea, 14 111. 423. « Allen V. Edgerton, 3 Verm. 442. Ace. Poor v. Woodburn, 25 lb. 234. • Splidt V. Health, 2 Camp. 67, n. 414 LAW OF SALES OF PKRSONAL PROPERTY. vessel containing the tallow was wrecked on the coast of Scotland, but the cargo was saved, and might have been forwarded by the appointed day ; but the vendor disposed of it at the place where the shipwreck took place ; and the vendee did not offer indemnity for bringing the tallow to Loudon: held, he could not maintain an action for its non-delivery.' So an agi'eement was made by A. to fur- nish straw to B., to be delivered at the premises of the latter ; three loads per fortnight, for a specified time. B. agreed to pay a certain sum per load, for each load so de- livered on his premises during the time. The straw having been sent for some time according to agreement, B. refused to pay for the last load, claiming the right of always keeping one load unpaid for. Held, by the terms of the agreement, each load was to be paid for on delivery, and therefore A. was not bound to furnish any more loads, after B.'s refusal and claim as above mentioned ; although it might have been otherwise, had B. merely neglected to pay according to agreement.^ § 20. The subject of rescinding by the vendee has been already incidentally considered in connection with war- ranty. It remains, however, to be more specially noticed in the present connection. It will be seen, that this right of the buyer sometimes depends upon an express condition or reservation in the contract itself, which, although un- usual, is not illegal;^ and sometimes upon the bad quality or unfitness for its intended use of the article bought, although the sale be in terms absolute. The right and remedy of the party are in both cases substantially the same." § 21. It may be stated as the general rule, that, where » As to rescinding for failure of title, see Williamson v. Sammons, 34 Ala. 691. ' Idle V. Thornton, 3 Camp. 274. ' Withers v. Reynolds, 2 B. & Ad. 882. ' Sraalley v. Hendrickson, 5 Dutch. 371. RESCINDING OF SALES. 415 one sells a different interest from that which he pretends, especially if the contract is founded in ignorance and fraud, the vendee may return the chattel to the vendor immediately after a discovery, and thus rescind the bar- gain ; and, under these circumstances, no action will lie for the price.' So, where articles are ordered, of a certain quality or description, or for a particular purpose, and prove to vary essentially from the order ; the buyer, after a reasonable time for inspection and trial, may return them and recover back the price.' Thus, in the case of the sale of a cotton gin, the buyer promising to pay for it " if on trial it performs well, for value received, by the 25th December ;" held, the purchaser was prima facie liable for the full price ; but not if, within reasonable time, he gave the gin a fair trial and it did not work well, and also in reasonable time gave notice to the seller, ten- dered the gin back, and offered to rescind.' So where a party agrees to furnish at a fixed price a certain quantity of bags, capable of holding two bushels each, and delivers bags of an inferior size, which the agent of the vendee fills and sews up, and carries to a warehouse, where they remain six or eight days, when the vendee for the first time sees them, and then notifies the vendor that they are not of the proper capacity, and on the same day takes them back to the vendor, who refuses to receive them ; he cannot maintain an action, either on the agreement, or on the common count in assumpsit.* So if a worthless note be fraudulently sold as good, the vendee may rescind the sale by tendering back the note, and thereafter is not bound to take any steps to collect it.* So an untrue rep- resentation or aflirmation by the vendor of a pianoforte, that "it is well made, and will stand up to concert pitch," ' Kettletas v. Fleet, 7 John. 324. » Street v. Blay, 2 B. & Ad. 460; Gomperton v. Dentz, 1 Cr. & Mee. 207. ' Griswold v. Scott, 13 Geo. 210. * Waldo V. Halsey, 3 Jones, Law, 107. • Clayton v. O'Conner, 29 Geo. 687. 416 LAW OF SALES OF PERSONAL PROPERTY. may authorize the purchaser to rescind the contract.' So the plaintiff" purchased of the defendant a chaise and har- ness, on condition that he might return them, in case his wife did not approve of them, paying a certain sum per day for their use. The wife not approving of the articles, the plaintiff" returned them after three days, tendering the stipulated sum for the use of them ; hut the defend- ant refused to accept them or restore the price paid. Held, by the p]aintiff"'s offer the contract was ended, and he might sue in money had and received for the price.^ § 22. But it is said, when there is any objection to an article of sale, common justice and honesty require that it should be returned at the earliest period, and more espe- cially before it is so changed as to render it impossible to ascertain, by proper tests, whether the article is of the quality agreed for.^ Hence, where there is a parol order for goods, which are delivered, subject to the vendee's ap- proval, he is bound to take them, unless he refuses to accept in reasonable time, or unless the articles are unfit for use, in which case the order would not be complied with.^ So where goods delivered do not conform to the order given for them, the vendee is still bound to pay the stipulated price, if he fail to return them in reasonable time, and use them as his own. As where the plaintiff was to supply a complete chandelier, sufficient to light a certain room, and the defendant kept it, though wholly insufficient for this purpose, six months.' So where the defendant ordered from the plaintiff a threshing-machine, and the machine delivered was unfit for use, but the de- fendant kept it several years, though he used it only twice, and never notified the vendor to take it back ; this 1 Stroud V. Pierce, 6 Allen, 413. 2 Soiners v. Barrett, 1 T. E. 13.3. See Doug. 23; IN. K. 351. ' Per Lord Ellenborough, Hopkins v. Appleby, 1 Stark. 479. * Coleman v. Gibson, 1 Mood. & R. 168; Somers v. Barrett, 1 T. K. 13G ; Fisher v. Samuda, 1 Camp. 190 ; Smalley v. Hendrickson, 5 Dutch. 371 ; Warren v. Van Pelt, 4 E D. Smith, 202. • Milner v. Tucker, 1 C. & P. 15 ; Reed v. Randall, 29 N. Y. 858. RESCINDING OF SALES. 417 was held a waiver of any objection to the quality, and the defendant was liable for the price.' So the plain- tiff offered to sell the defendant a lot of cutlery, and showed him a list with the prices, which list was repre- sented to contain an approximate statement of sizes and quantities as well as qualities. The defendant agreed to purchase, at a credit of eight months, and a discount of fifty per cent, from the list prices. The goods were soon after delivered and accepted, with a definite invoice, both in quantity and quality, somewhat varying from the list. The defendant was requested to compare the goods and invoice, and inform the plaintiff at once if there was any error. The defendant made no objection during the period of credit, and disposed of all the goods. In an action for the purchase-money, held, that there was an absence of fraud or warranty, and the defendant was liable for the price agreed.^ So, where a vendee allows the article pur- chased to remain on his premises for two months without examination ; its unfitness for use is no defence to a suit for the price, unless some deceit was practised ; more especially if after the end of the two months he has prom- ised payment.' ^ So the plaintiff" sold a clock to the de- * It is sometimes held, that the cases, in which a party must return, or offer to return the property, in a reasonable or limited time, are cases where he wishes to rescind the sale, and recover back the whole price paid; or conditional sales, where the thing about to be sold is talien on trial, with liberty to the purchaser to return it, if he dislikes it, in a stipulated period. Ferguson v. Oliver, 8 S. iSs M. 332. The cases of a right to rescind on the part of a purchaser are said to be, where the right to return the property was a part of the original con- tract, where there has been fraud, and where there has been an entire failure of consideration. 2 Rich. 40. A mere proposal, by the purchaser of a chattel, to return it to the sellers, the chattel not being present, is not a sufficient rescission. Carter v. Walker, 2 Rich. 40. 1 Cash v. Giles, 3 C. & P. 407. « Eagle Works v. Churchill, 2 Bosw. 166. See chap. 23, a. 43. ' Percival v. Blake, 2 C. & P. 514 ; Cole v. Champlain, &c. 26 Verm. 87. 27 418 LAW OF SALES OF PERSONAL PROPERTY. fendant, warranting it to keep good time. The clock was worthless as a timepiece, but the case alone, without the works, was worth more than a nominal sum. In an ac- tion on a note under twenty dollars, given for the clock ; held, the defendant might have rescinded the contract, or might claim an abatement on the note to the amount of the damage which he had sustained ; but, having failed to rescind, and having kept the clock, judgment must go against him for what it was actually worth.' So a note was given, payable in a year, as part of the price of a clock, which was to be returned if it did not go to the satisfaction of the vendees ; and this was a condition of payment. Held, in an action on the note, that the ven- dees were bound to give notice of their dissatisfaction, with an offer to return the clock, or, if the vendor was resident in a foreign State, to attempt to give him notice through the post-office ; and, not having done this, the sale was held to be absolute.^ So the plaintiff agreed to supply the defendant with furnaces, warranting them for a time ; and promising, if they failed to heat the building, to remove them, on demand, at his own expense. Held, if the defendant kept them after the time, he was bound to pay their value.^ So the defendant gave the plaintiff his note, in exchange for bank notes, but for less than their face, and the bank suspended. In a suit on the note, held, even if the plaintiff guaranteed the notes, yet the defend- ant could not entirely defeat the action, unless he offered to return them, or allow their market value ; that the insolvency of the bank did not conclusivelj' prove them to be valueless ; and an offer by the defendant, to pay his note in Memphis bank currency, was not an offer to return the consideration.'' § 23. And it is to be further observed, that, although a 1 DaTis V. Dickey, 23 Ala. 848. 2 Dewey v. Erie, &c. 14 Penn. 211. » Bristol V. Tracy, 21 Barb. 236. * Johnson v. Barney, 1 Clarke (Iowa), 531. I BBSCINDING OF SALES, 419 buyer is not bound to receive goods of different quality from those purchased ; yet, if he receives a part, he must take the whole.' More especially, if he has sold those re- ceived, and the seller demands a return, the latter may recover the value of the goods at the time of demand.^ But though upon a sale, with warranty, of a lot of pork barrels, the vendee cannot select such as he may suppose corresponded with the warranty, and return the balance ; and a rescission of the contract must be entire : yet, if they are to be delivered continuously, from time to time, the receiving of a portion answering to the warranty will not oblige the vendee to accept such as are deficient in quality ; especially if the portion received has in any way been ap- propriated, or placed in a condition rendering a return in- convenient." ' And it has been held, that, if the property is worthless, or a return impracticable, an oifer to return is = In regard to the vendee's right of rescinding, it is said (1 Pars, on Contr. 475), "Some authorities of great weight limit his right to return the goods for breach of warranty to cases of fraud, or where there was an express agreement to that effect between the parties." See Carter v. Walker, 2 Eich. 40; Voorhees v. Earl, 2 Hill, 288; Allen v. Anderson, 3 Humph. 581; Thornton v. Wynn, 12 Wheat. 183; Ease v. John, 10 "Watts, 107 ; OUivant v. Bayley, 5 Qu. B. 288 ; Westmoreland v. Wal- ker, 25 Miss. 76 ; chap. 18, s. 29. And the distinction has been made, and sanctioned by high authority, that, if the contract be executed, and the goods received and accepted, the buyer cannot rescind, but must sue upon the warranty. But where the contract is executory, as if an article is ordered for a particular use ; the buyer, upon discovery of a defect, may return it, and rescind the con- tract. See Street v. Blay, 2 B. & Ad. 460; Thornton v. Wynn, 12 Wheat. 193; Toulmin v. Hedley, 2 Car. & K. 157. It is held, that, to disaffirm a sale, the articles must be returned, or offered to be returned to the vendor, if practicable ; but where this is not doQe, and fraud exists, the vendor can only recover the market value of the property at the time of sale. Henckley v. Hendrickson, 5 McLean, 170. 1 Shields v. Pettee, 2 Sandf. 262. 2 Shields v. Pettie, 4 Comst. 122. ^ Sigerson v. Harker, 15 Mis. 101. 420 LAW OF SALES OF PERSONAL PROPERTY. unnecessary.' As where the purchaser gives a note for the price, and subsequently ascertains that he has been defrauded.^ So when the article is not rightly an article of sale or of merchandise.^ § 24. More especially one party to a contract cannot rescind it, if circumstances have so changed, that it is im- possible for both parties to be reinstated in the situation which they occupied when the contract was made.'' Thus, if the title-deeds of a ship have been delivered to the pur- chaser, and he has pledged them to a third person, and taken possession of the vessel ; he cannot rescind the sale and recover back the price, though the seller refused to give a bill of sale, or refund the money. So the purchaser of a patent, which proves to be void, if he has used it to his advantage, cannot recover back the price.' So where the plaintiff sold to the defendant a quantity of barilla, warranting it to be of a certain quality, and the defend- ant used the barilla in eight successive boilings, consuming the Avhole quantity sold, and made no complaint in regard to it ; held, as it was no longer possible for the plaintiff to apply tests for the purpose of ascertaining the quality, the whole having been used, or to obtain the opinion of intel- ligent men, which he might have done if the defendant had given him notice, the latter was bound to pay the stipulated price, notwithstanding any inferiority in the quality of the article." § 25. But the buyer does not forfeit his right to rescind by acts done under the contract, after a part-performance, when the seller fails to complete the contract on his own part. Thus in June, 1791, A. agi-eed to sell B., for a cer- ' Christy t. Ciiromins, 3McL. 386 ; 30 Verm. 139 ; 8 Florida, 435; San- born V. Osgood, 16 N. H. 112. 2 Smith V. Smith, 30 Vt. 139. 3 Hancock V. Tucker, 8 Florida, 435. < Jemison v. WoodrufF, 34 Ala. 143. 6 5 E. 449; Beed v. Blandford, 2 Y. & Jerv. 284; Brindley v. Tib- betts, 7 Greenl. 70; Taylor v. Hare, 1 N. E. 261. ^ Hopkins v. Appleby, 1 Stark. 477. RESCINDING OF SALES. 421 tain price, all Ws cord-wood. It was the custom, in sucli case, for the vendor to cut off the boughs and trunks and cord the wood, then for the vendee to re-cord it, where- upon it became the property of the latter. A. cut sixty cords, corded ten, and B. re-corded half a cord and meas- ured the rest. In March, 1792, a part of the price was paid, but A. corded no more of the wood. B. brings an action to recover back the money paid. Held, the acts of B. did not amount to a part execution of the contract ; that it had failed of complete fulfilment through the fault of A. ; and therefore the action was sustained." ' § 25 a. It has been repeatedly stated or intimated, that the right to rescind a sale, hj return or offer of return of the property, is only a concurrent remedy of the purchaser, to be adopted at his election. Thus, although in the ab- sence of fraud, as we have seen (chap. 18), it has been sometimes doubted whether an executed sale can be thus rescinded ; yet it is well settled that a sale with warranty may be rescinded for fraud.^ As in case of a fraudulent misrepresentation of soundness.^ And a breach of an im- plied warranty of merchantableness may be set up by way of failure of consideration. The vendee is not bound to return the goods, and rescind or affirm in toto.* So if the goods be not delivered, the buyer may either rescind the contract and recover back the deposit, or he may affirm * Where A. conveyed to B. " four clapboard shingle machines," then being at a certain place in L., "and likewise the patent right for L. and J., during the term of the patent, which is fourteen years from Septem- ber 3, 1813 ;" held, this was a conveyance of the patent right to use both the clapboard and shingle machines; that A., having no patent for the former, was bound to refund such part of the consideration as B. had paid therefor ; and that, inasmuch as no interest had passed in this respect, there was nothing for B. to return, in order to maintain an action for the above amount. Judkins v. Earl, 7 Greenl. 9. ' Giles V. Edwards, 7 T. B. 181 ; Beed v. Blandford, 2 Y. & J. 283-4. See Hunt V. Silk, 5 E. 449. ' Prentiss v. Euss, 4 Shepl. 30. » BIythe v. Speake, 23 Tex. 429; Love v. Oldham, 22 Ind. 51. • Brantley v. Thomas, 22 Tex. 270. 422 LAW OF SALES OF PERSONAL PROPERTY. the contract and sue for damages.' And if property be of any value at the time of sale, though unsound, its then value must be deducted from the price the vendee seeks to recover back, or the property must be returned in as good condition.^ § 26. As has been suggested, a buyer who would re- scind the sale must return the property, as is sometimes held, at the first practicable moment, or, according to the prevailing rule, in reasonable time.^ Thus a party, having bought a slave warranted sound, but proving unsound, may rescind the contract in a reasonable time after dis- covering the unsoundness.^ And, in case of a breach of warranty, the reasonable time, within which the pur- chaser must rescind by returning the goods, dates from the discovery of such breach.* So a party, who seeks the rescission of a contract on the ground of fraud, must act with vigilance and promptness on the discovery of it, by an oifer to return the property within a reasonable time, if the parties live at a distance from each other , or by an actual re-delivery of it, or a tender with a view to re- delivery, if they reside near each other, and the property is susceptible of easy transportation. And if he retains the property, after an offer to return, or a tender with a view to re-delivery, he is merely the bailee of the vendor, and must avoid the use or employment of the property in any manner inconsistent with the vendor's rights.^ And if, upon its not being received by the vendor, the vendee takes it and uses it as his own, he will be deemed to have waived all rights derived from his tender, and cannot afterwards rescind the contract.*^ » In September, 1855, the plaintiffs agreed to purchase of the defendant ' Barr v. Logan, 5 Barring. 52. • Tilman v. Stringer, 26 Geo. 171. » Nichols V. Guibor, 20 111. 285. * Clements v. Smith, 9 Gill, 156. See Hoffman v. Noble, 6 Met. 74. Taynion v. Mitchell, 1 Md. Ch. Dec. 496. « Dill V. Camp, 22 Ala. 249. .. ' McCulloch V. Scott, 13 B. Mon. 172. RESCINDING OF SALES, 423 § 27. "Where a purchaser reserves the right to rescind the sale, if he shall be unable to sell the property, or sick of his bargain; the question, what is a reasonable time for rescinding, has been held a question of law for the court. Two months have been held to be more than a reasonable time.' But where the plaintiff agreed with the defendant to manufacture for him certain utensils of trade at a speci- fied price, and that they should be sound, and made of the best materials, and, the articles having been delivered in an action for the price, the defendant contended that they were unfit for the intended use ; held, it was a ques- tion for the jury, whether the defendant had used them longer than was necessary to make a fair trial of their quality.' If he had not, and if the utensils were unfit for the use proposed, the vendor, upon notice, would be bound to take them away, and they would remain at his risk. But if the vendee retain them, without notice to the ven- dor, he is liable for the value of the materials.^ § 28. A distinction has been suggested, between the his crop of tobacco, then growing, and to pay therefor at the rate of ten cents a pound, on its delivery, well cured and boxed and in good con- dition ; and the defendant agreed to sell and make such delivery in May, 1857. The tobacco was delivered, and received and accepted, and no notice given the defendant that it was defective, and no offer made to return it. More than a year and a half afterwards, the plaintiffs brought an action to recover damages on account of the bad condition of the tobacco when delivered. Held, no action would lie. Keed v. Kandall, 29 N. Y. (2 Tiffa.) 358. Where by the conditions of sale of a reaper, on which the defendant had paid fifty dollars in cash, and had given his note for. the balance, it was warranted that the reaper should be capable of doing a stated amount of work, and that, if it did not, then he might return it to the agents of the plaintiff and receive his money back ; and in an action brought against him on the note he set up breach of warranty and claimed the money paid as an offset, but did not return the reaper as agreed: held, he was not entitled to judgment for the return of the fifty dollars. Williams v. Donaldson, 8 Clarke (Iowa), 108. • The plaintiff agreed to make a coat for the defendant from certain materials, and send It to the defendant, and warranted it to fit. It was 1 Kingsley v. Wallis, 2 Shep. 57. ' Okell V. Smith, 1 Stark. 107. 424 LAW OF SALES OF PERSONAL PKOPERTT. right of the buyer to resist payment of the price, upon the grounds above considered, and his right to recover damages in a suit against the seller for breach of contract. Thus an article sold by sample did not correspond with the sample exhibited. The vendee, after seeing fresh samples inferior in quality to that by which he purchased, put up the article for sale at an auction of the East India Com pany, as the vendor had agreed he might do, at a limited price."' No bid being obtained for this amount, the vendee bought in the article, but in the name of the vendor, to avoid payment of a duty. Held, by these proceedings, the vendee had lost the right to repudiate the contract, on the ground of variance from the sample, so far as it furnished any defence to a suit for .the price, though he might have a remedy over against the vendor ; that he chose to take the chance of making a profit on the re-sale ; and, the contract being not wholly void, he affirmed, by acting on it. Nor did it make any difference, that the goods were never transferred into his name.' § 29. So, with regard to the form of action against the seller ; it is held, that, where the goods delivered are of the general kind ordered, though bad and unfit for use, the vendee, having paid the price, cannot recover it in an action for money had and received, as upon a total failure of consideration. As where fish were sold, though they proved to be worm-eaten and putrid. The remedy must be a special action. Though it was said that if sato-dust had been delivered instead of fish, the former action might be sustained.' accordinglj' made and sent, but the defendant returned it, with the words, " not so good as bought," wHtten on the wrapper. Held, a question for the jury, whether this referred onl^' to the materials, or to the fit of the coat also. Haynes v. Flanders, 7 Fost. 210. " Where a purchaser, after tender back, exposed the chattel for sale at public audtion, and no person would bid, it was held not to be con- clusive evidence that the chattel was of no value. Carter v. Walker, 2 Rich. 40. ■ Parker v. Palmer, 4 B. & A. 386. ' Fortune v. Lingham, 2 Camp. 416. RESCINDING OF SALES. 425 § 30. Where goods are sold to order and afterwards re- turned, the seller, in a suit for the price, must prove that they are made conformably to the order. The burden of proof is on him, and not on the defendant to show the contrary. As where a riding-habit was made, and returned upon the ground that it did not fit.' § 31. "Where a party who has contracted to make and sell an article within a certain time violates his contract the proposed vendee may rescind the bargain, and, if he does, he acquires no title to the property, and by taking it subjects himself to an action. Thus the plaintifi"'s in- testate agreed to make a wagon for the defendant, to be dehvered in the spring of 1827, and paid for in mutton, which was accordingly supplied. The defendant selected wheels at the shop of the intestate, and marked them with his name, but there was no evidence of their being used for the wagon. The intestate died in May, 1828. Before his death, the wagon was set up in the yard of his dwell- ing-house, and, once before and again after his death, painted by his 8on,.who transacted business for him during his last sickness. A few days before his death, the intes- tate gave notice to the defendant, that the wagon was ready whenever he should choose to take it. In JSTovem- ber, 1827, the defendant gave his account for mutton to an attorney for collection, directing him to receive the wagon, which he accordingly demanded ; but, not being delivered, he brought an action upon the account, agree- ing, however, to discontinue upon delivery of the wagon. The intestate's estate was insolvent. In Ifovember, 1828, the attorney, without directions from the defendant, and ignorant that he had taken the wagon, which he really had, presented the account to the commissioners of insol- vency, who allowed it. The attorney said, if the plain- tiff would give up his claim to the wagon, he would not present the account, but the plaintiff declined doing so. In 1829, the suit was discontinued. The plaintiff' brings ' Hayden v. Hayward, 1 Camp. 180. 426 LAW OF SALES OF PERSONAL PROPERTY. trover for the wagon. Held, the action should be sus- tained. The defendant had acquired no title to the wagon. He was hound by the doings of his attorney. He lawfully might, and did, rescind the contract. The agreement, which was merely executory, was broken by the intes- tate's neglect to build the wagon within the stipulated time ; and for this breach the defendant had his remedy by action. He might waive his right of action and accept the wagon, but had no right to take it without the plain- tifi"'s consent. The taking therefore was tortious.' § 32. Where a vendee agrees to pay the vendor by sell- ing him other property, and violates the agreement, this is a rescinding of the bargain by the vendee, and authorizes the original vendor to bring an action for the amount of the price. Thus, where A. purchased of B. two ploughs, the value of which was allowed B. on settlement of ac- counts ; and B. afterwards refused to deliver the ploughs, and converted them to his own use : it was held, that A. might treat the agreement as rescinded, and recover back the stipulated price in an action for money had and re- ceived; upon the ground that B. had received money's worth to the amount claimed.' § 33. The distinction has been made, that, in case of sale with warranty, on an agreement that the purchaser may return the article (if dissatisfied), a mere ojfer to re- turn^ whether accepted or not, rescinds the bargain, and is either a defence to a suit for the price, or enables the vendee to recover it, if paid. The same rule applies to an absolute sale, if the vendor consents to take back the thing sold, unconditionally. But without such consent the contract remains open, and the vendee can maintain an action only upon the warranty, unless the vendor knew the article to be unsound, and the vendee offered to return it in reasonable time.' 1 Bennett v. Piatt, 9 Pick. 558. 2 Danforth v. Dewey, 3 N. H. 79. ' Thornton v. Wynn, 12 "Wheat. 183. See Getty v. Kountree, 2 Chand. 28. RESCINDING OF SALES. 427 § 34. We have already considered the point, whether a sale can be rescinded in part.'' It may be added, in fur- ther illustration of the general proposition, that, where a party exercises the right of rescinding a sale, he must re- scind in toto, if at all ; that a purchaser will not be allowed to reclaim the property, and also recover damages for breach of contract. Thus A. exchanged with B. oxen previously mortgaged by the former, though not deliv- ered to the mortgagee ; not disclosing the mortgage. B. gave $10 as boot, which he did not return, or offer to re- turn, but claimed to retain, because the oxen which he re- ceived had risen in value hy good treatment, while the others had been hardly worked. Held, B. might treat the exchange as fraudulent ; but that it was merely voidable, not void, and he could not both reclaim the oxen and re- cover damages.*" * Where a third person guarantees the price, such guaranty remains in force, though the purchaser, being dissatisfied, returns a part of the goods, but afterwards accepts them at a reduced price. Price v. Pilene, Law Reg., February, 1864, p. 249 ; Mass.— 6 Allen. '' A carefully considered case in Massachusetts establishes some impor- tant distinctions in reference to the rescinding of a sale by return of the property. The general rule is laid down, that a party to an exchange of horses, deceived by false representations, cannot replevy his horse from the other party until he has rescinded the contract, and returned, or offered to return, the horse received by him. Thayer v. Turner, 8 Met. 550. On an exchange of horses by A. and B., A. was thus deceived, and sued out a writ to replevy his horse, and went, with an officer, to B. 's premises, and there left the horse received of B., without any communi- cation with B. The ofBcer then took the other horse on the writ, and afterwards read the writ to B. ; and A., at the same time, informed B. that his horse was returned. Held, the action could not be maintained, being commenced before the contract was rescinded. lb. On another trial of the same case, A. proved a false representation by B. that his horse was kind. On a trial of the horse, in the presence of B., the horse was found to be unkind, and B. requested A. to make a further trial, which A. refused to do. B. then promised A. that be would meet him on the next Monday, and "make all right, and settle > Junkins v. Simpson, 2 Shepl. 364. 428 LAW OF SALES OF PERSONAL PROPERTY. § 35. With regard to the legal effect of the rescinding of a sale, whether by mutual consent, or by the act of one of the parties alone, and in reference either to the relation of the parties themselves, or that of either of them to third persons ; it may be stated, in general, that a sale re- scinded, both as between the parties and in reference to third persons, is substantially like one never made or com- pleted." Thus, where the vendor of a horse rescinds the sale, he is liable to the vendee for the expense of his keep- ing, from the day of the contract.' And, on the other hand, where, after sale of a horse, it was agreed that the vendee might in reasonable time return it and receive back the price, if the horse should be in as good condition as when delivered ; and the vendee accordingly rescinded the bargain, and returned the horse to the vendor, who re- ceived it without objection and restored the price : held, the affair of the horses." On Monday, B. sent a message to A. that he would not take the horse back. A. thereupon sued out a writ of replevin against B., without any further communication with him, and took the horse which he had delivered to B. Held, the action might be main- tained ; as a jury would be warranted in finding, either that A. had offered to return the horse to B., and that an answer had, by mutual consent, been postponed till Monday, and that B.'s message on that day was a refusal of that offer ; or, that the message was an express waiver of any further offer to return the horse. lb. • If the contract has been rescinded, the purchaser, if plaintiff, should recover the whole price paid ; if defendant, should be entirely discharged. Carter v. Walker, 2 Rich. 40. If the contract has not been rescinded, then the purchaser should only pay so much as the chattel, in its unsound state, was worth; or, if it was of no value, he should be entirely discharged. lb. Where the contract has been rescinded, the effect of the verdict will be, to revest the title in. the seller, who will, it seems, be liable to the purchaser for the expense of keeping the chattel after the tender. lb. Whether a verdict will operate to confirm a rescission, will depend, at least to some extent, on the form of the action and the pleadings. A purchaser, therefore, who desires to have the contract regarded as re- scinded, should not sue on the warranty, but should bring some action which treats the contract of sale as void. lb. 1 King V. Price, 2 Chit. 416. RESCINDING OF SALES. 429 the sale was unconditionally rescinded ; otherwise the vendee might have chosen to retain the horse ; and the vendor was estopped from suing the vendee on account of a deterioration of the horse in his hands, arising from a secret injury.^ § 36. And, under some circumstances, the seller may lose his right of action upon the contract, which has been rescinded by the biiyer, and also for any extra expense in- curred by him in relation to the thing sold, at the buyer's request. Thus the plaintiff agreed to sell, and the de- fendant to buy of him, a certain ship, which should be fitted like another one, named. Before the fittings were completed, the defendant repudiated the bargain, and re- fused to take the ship. Previous to such refusal, however, the plaintiff performed certain extra work upon the vessel, at the defendant's request. After the refusal, the plaintiff suspended his work, sold the ship, and brought an action against the defendant for the loss upon the sale. The dec- laration alleged, that the ship was fitted according to the form and effect of the agreement, and ready for delivery at the proper time. There was also a count for work and labor. Held, the plaintiff could not recover on the former count, because performance of the contract was a con- dition precedent ; nor on the latter, for the extra work, because he had sold the ship.^ So goods sold can be taken on execution by a creditor of the purchaser, only when the contract between vendor and vendee is complete. Even a suspension of the contract will be a bar to seizure on execution ; much more an entire rescinding of it.' So, where A. agreed to sell B. certain goods, and, before any bill of parcels made out or payment made, B. removed the goods to the store of C, a commission merchant and a creditor of B. ; and afterwards the contract between A. 1 Lord V. Kenny, 13 John. 219. 2 Parmeter v. Burrell, 3 C. & P. 144. 3 Bartram v. Tarebrother, 4 bing. 582. 430 LAW OF SALES OF PERSONAL PROPERTY. and B. was rescinded, of which C had notice, but sold to D., taking his note for the price: it was held, that, by the rescinding, the property revested in A., subject to no lien, and the sale to D. was void ; that, if D. had paid his note, he might recover back the amount of it from C 1 Spring V. Cofan, 10 Mass. 31. FRAUDULENT SALE. 431 CHAPTER XX. FRAUDULENT SALE. JBATTD BETWEEN THE PARTIES. FKATTD OF THE SELLER AND 01' THE BUYER. RIGHTS OP PURCHASERS FROM, OR CREDITORS OF, THE FIRST PUR- CHASER. § 1. It is held, that a fraudulent contract does not change the ownership of the goods."' Also, that, where ■ False representations, not sufBcient to sustain an indictment for false pretences, may be suflScient to vitiate the contract. Nichols v. Michael, 23 N. T. (9 Smith) 264 ; Bell v. Cafferty, 21 Ind. 411. To avoid a sale for false and fraudulent representations of the buyer, they must be made to him, or for the purpose of being communicated to him, not to a stranger without any intent to influence him. Van Kleeck V. Le Roy, 37 Barb. 544. See Eastman v. Brown, 32 111. 53. A contract for the purchase of a note may be rescinded on the ground of material fraudulent representations of the agent selling it, if the pur- chaser acted on the faith of them. Elwell v. Chamberlain, 4 Bosw. 320. The plaintiff was holder of the note of a third person, and employed a broker to sell it for him. The broker employed an agent, who agreed with the defendant that the defendant should buy the note if another note of the same maker's was paid at maturity. The note was not paid, but the day after its maturity the agent told the defendant it had been paid, whereupon the defendant gave his check payable to the order of the agent, by him indorsed and delivered to the broker, and by him delivered to the plaintiff. Payment of the check was stopped, and this action brought to recover the amount. Held, the sale was void by reason of the misrepresentation, whether the agent knew of the untruth or not, and that the plaintiff could not recover. Elwell v. Chamberlin, 2 Bosw. 230. A fraudulent warranty at an executor's sale may be set up in defence of an action brought by the executor for the price. Williamson v. Walker, 24 Geo. 267. » Butler V. Collins, 12 Cal. 457. 432 LAW OF SALES OF PERSONAL PROPERTY. goods are sold under a fraud, no action lies for the price.^ And if a note be given for the price, the buyer may de- feud against an action upon the note, even though he promised to pay the price after discovery of the fraud.' So a false representation by the vendor that he has the goods he professes to sell, v^hereby the purchaser is in- duced to pay for them, avoids the contract."* § 2. On the other hand, where a vendor is induced to make the sale by misrepresentations of the purchaser, in respect to the material facts peculiarly within the knowl- edge of the latter, by which the seller is deceived to his injury, the sale is void, and no title passes.^ Though it is otherwise, if the seller was not thereby induced to sell.^ § 3. It is said, that law has concurrent jurisdiction -with equity in cases of fraud ; and that it is a rule, both of equity and of law, that suppressio veri is equivalent to suggestio falsi.^ That, on a question of fraud, the remedy at law is complete.' And that the distinction between jurisdiction of fraud at law and in equity is, that in the former court it must be proved, and cannot be presumed; whereas in the latter it may be presumed.* • If A., having in his possession a horse belonging to B., exchange with C. for another horse, without disclosing his want either of title or authority to sell ; such concealment renders the sale fraudulent. Abbott V. Marshall, 48 Maine, 44. If A. had previously mortgaged the horse, and induced C, in ignor- ance of that fact, to exchange another for him, the trade, as between the parties, might be rescinded by C, who would be bound to restore the horse received by him, unless prevented by B.'s taking the horse from him, or excused by other circumstances. lb. • Lewis V. Cosgrave, 2 Taun. 2 ; Weimer v. Clement, 37 Penn. 147. ' Huckabee v. Albritton, 10 Ala. 657. » Bales V. Weddle, 14 Ind. 349. • Griffin v. Chubb, 7 Tex. 603. 6 Bronson v. Wiman, 4 Seld. 182. « Fleming v. Slocum, 18 John. 404 ; Bhoades v. Selin, 4 Wash. Oir. 715; Brooks v. Carneal, 1 Litt. 164. ' Bussell V. Clark, 7 Cranch, 69. « Per Wood worth, J., Gallatian v. Cunningham, 8 Cow. 361. See FRAUDULENT SALE. 483 § 3 a. In general, to avoid a sale on the ground of fraud- ulent representations, by the seller, the representations must be knowingly false (with some exceptions) in regard to a material part of the contract, and such as might fairly be, and were relied on by the buyer.^ The distilic- tion is made, that representations believed to be correct by the vendor, and not being statements as of facts within his knowledge, when he really had no knowledge, are not fraudulent so as to avoid the sale, whatever may be their effects as warranties.^ But a representation may be fraud- ulent in law, though the vendor did not in fact know that it was untrue.* ^ § 4. The further distinction is made, that a purchaser is not bound to inform the seller of extrinsic facts, exclu- sively within his knowledge, which may affect the price ; though neither party is at liberty to say anything which tends to impose upon the other.* * • In a suit on a note given by T. to M. for the interest of tlie latter in a firm, this interest was put at $3640. M. told T. that he put into the firm $1240 cash j that the firm had bought $40,000 worth of goods, and supposed they had made twenty-five per cent, on them ; and that T. could inquire of the clerks and other partners. T. did not do so. A few days afterward, M. called on T. about the matter, and T. said he was not in the notion of trading. M. said, if he was hesitating about the amount, he need not, for it was every dollar there. T. replied, that that was just what he was hesitating about, but, if he (M.) said it was all there, then he would trade. M. replied that it was every dollar there, and a trade was made. M. had put in $1240, and the firm had bought $40,000 worth of goods ; but for some unexplained reason M.'s interest was only worth about $1800. Held, a good defence. Matlock v. Todd, 19 Ind. 130. " ' The following cases illustrate, though perhaps some of them do not Dule V. Eoosevelt, 9 lb. 307 ; Jackson v. Hills, 8, 290 ; Cocke v. Hardin, Litt. 374; Coffman v. Allin, lb. 201 ; Blacks v. Catlett, 3 lb. 139 ; Good- loe V. McLanathanj 6 Mon. 310. ' Zehner v. Kepler, 16 Ind. 290 ; Blythe v. Speake, 23 Tex. 429 ; Peers V. Davis, 29 Mis. 184 ; Jenkins v. Long, 19 Ind. 28. Even though the buyer had full means of information. 19 Ind. 130. " Mason v. Chappell, 16 Gratt. 572. ' Biaokman v. Johnson, 35 Ala. 252. * Laidlaw v. Organ, 2 Wheat. 178. (See Warranty.) Said to be " the 28 434 LAAV OF SALES OF PERSONAL PROPERTY. § 5. With regard to the effect of fraud upon the respec- tive rights and liabilities of the parties ; it may be further fully confirm the rule in the text. The decisions upon the whole subject are not entirely reconcilable. If the vendor of a horse, with actual knowledge that the eye of the horse is positively defective, merely suggests a doubt respecting its sound- ness, it is as much a suggesiio falsi and suppressio veri as if no such doubt had been intimated, and tends to aggravate the fraud. Baker v. Sea- horn, 1 Swan, 54. A description of goods sold, as " in good order and condition," though not signed by the vendor, if he knows it to be false, avoids the contract. Bryant v. Crosby, 36 Maine, 562. A representation by the vendor, at the time of the sale, that he knew the property to be good, which proves to be bad, will not establish fraud in the contract, unless it is also shown that he knew such representation to be false when he made it. Horner v. Fellows, 1 Doug. 51. See Dyer V. Lewis, 7 Mass. 284. In an action to recover the purchase-money of a slave, on the ground that the slave was unsound at the time of the sale, unless the petition charges fraud on the part of the seller in respect to representations as to the soundness of the slave, evidence of such fraud is inadmissible. Mo- Kinney v. Fort, 10 Tex. 220. The rule in regard to the duty of disclosure, on the part of persons dealing with each other, is, that a party under any special obligation, by confidence reposed or otherwise, is bound to communicate to the other his knowledge of material facts, if they are not open and naked, and equally within his observation. In the case of a sale, the law presumes that the purchaser reposes confidence in the vendor, as to all such defects as are not within the reach of ordinary observation, and therefore im- poses the duty on the vendor to disclose fully and fairly his knowledge of all such defects. But, in ordinary cases, the vendor reposes no such confidence in the purchaser ; and hence a purchaser may use and withhold any information he may obtain, but must do nothing to mislead or de- ceive. Bench v. Sheldon, 14 Barb. 66. The common law requires good, faith and fair dealing between the par- ties to a contract ; and it is well settled, that the sale of a chattel maj' be avoided, for fraudulent concealment of a defect known to the vendor, leading case on this subject in A.merica." 1 Pars. Contr. 461, u. The concealment, of the treaty of peace, which raised the value of the article from 30 to 60 per cent., occurred on Sunday. The case was remanded to the jury to pass upon the question of imposition. See Klntzing y. McElrath, 5 Barr, 467. FRAUDULENT SALE. 435 remarked, that a purchaser is held to gain no title, and to have no right of retaining the goods, if he obtained pos- and not discoverable on ordinary inspection by the vendee. Turner v. Huggins, 14 Arli. 21. Thus, if the vendor of a horse know of a latent defect in the animal, that could not be discovered by a man of ordinary observation, he is bound to disclose it, and a suppression of such fact is fraud. Cardwell v. McClelland, 3 Sneed, 150. So the defendant, wishing to sell the note of a broken bank, represented that a broker had offered to discount it at a certain rate, but concealed the fact that three other brokers had refused it Held, whether the actual representation was true or false, the concealment was fraudulent, and vitiated the sale. Gough v. Dennins, Hill & Denio, 55. So theplaintiff lost a flock of sheep, made diligent search for them, but could not find them. The defendant heard of them, inquired of the owner if he had found them, and, on being answered that he had not, observed he " supposed he never would find them." He then offered the plaintiff $10 for them, which he took. Held, the plaintiff might recover the full value of the sheep. Bench v. Sheldon, 14 Barb. 66. But a sale is binding, notwithstanding the vendee conceal his knowl- edge of the value of the property before purchase, provided he be guilty of no fraud or misrepresentation. Butler's Appeal, 26 Penn. 63. And the general rule is laid down, that, if a defect in the property sold be equally open to the observation of both parties, if the means of infor- mation be equally accessible to both, if neither does or says anything tending to impose upon the other, and if the one in possession of material facts, knowing the other to be ignorant of them, be under no special ob- ligation, by confidence reposed or otherwise, to communicate them truly and fairly ; then the disclosure of this superior knowledge, as to facts af- fecting the value of the commodity, is not requisite to the validity of the contract, and a failure so to disclose does not render the vendor liable for such defects. McKinney v. Fort, 10 Tex. 220. A purchaser is not bound to disclose his knowledge of a fraud, which gives to the seller a better title than he supposes himself to have, if the means of knowledge are equally open to both. Kintzing v. McElrath, 5 Barr, 467. Upon a negotiation between A. and B., for the sale by A. of his crop of hops, B., to induce A. to sell him the hops, falsely represented that he had purchased C.'s hops for 12^ cents per pound. A. was ignorant of the price of hops, and was reluctant to sell ; hut believing and relying upon this representation, and having confidence in the prudence and judgment of C, he closed the bargain. Held, a defence to a suit by B. against A. Smith v. Countryman, 30 N. T. 655. The more recent cases upon these subjects are as follows : Where a vendor sells a defective article, knowing the existence of the 436 LAW OF SALES OF PERSONAL PROPERTY. aession by gross fraud, under color of a purchase, whether on credit or otherwise." ' Thus, where a debtor confessed defect, for a sound price, and does not disclose it, such fraud is a defence to an action on a note given for the price. Barron v. Alexander, 27 Mis. 530. More especially, where the vendor conceals a latent defect, knowing that the vendee does not suppose such defect to exist ; this is a fraud which may be set up in defence of a suit for the price, or furnish ground of action for damages. "Wintz v. Morrison, 17 Tex. 372 ; Cecil v. Spurger, 32 Mis. 462 ; Cecil v. Tutt, lb. 463. In Louisiana, the exclusion of warranty cannot avail the vendor, when fraudulent, as he is bound to disclose known redhibitory vices and defects. Faulk V. Hough, 14 La. An. 659. The terms of warranty, though qualified, are immaterial. Hubby v. Stokes, 22 Tex. 217. "Where the sale is for a fair price, the seller must disclose such latent defects as would probably induce the purchaser to decline the purchase, and, if he makes representations as to soundness, he is bound to state all he knows on the subject. Patterson v. Kirkland, 34 Miss. 423. Where the evidence tended to show, that a cow had been sold and pur- chased for a breeder, and to in)prove the plaintiflF's herd of cattle ; that there was a latent defect, which would greatly impair, if not destroy her capacity to breed ; that this was known to the vendors, and unknown to the vendees, and was not disclosed at the time of sale ; and a charge was asked, that, if these facts were found by the jury, the defendants would be guilty of fraud: it was held, that the charge was properly refused, as asking from the court a conclusion of fact, and not matter of law. Had- ley V. Clinton, &c., 13 Ohio (N. S.) 602. The court, in response to the charge so asked, said to the jury, that the rule of caveat emptor applied to the case, and then, in general remarks, referred to the distinction between moral and legal fraud, and the ne- cessity that the fraud should be active. Held, the charge was calculated to mislead the jury. Hadley v. Clinton, 13 Ohio, N. S. 502. - With regard to the duty of the seller In promptly avoiding the sale, see Wheaton v. Baker, 14 Barb. 694 ; Munn v. Worrall, 16 lb. 221. A. and B. agreed for the sale of a chaise by the former to the latter. B. to give his notes for the price, at twelve months, to keep possession of the property and use it at his pleasure, but A. to retain the ownership till payment. B. accordingly gave his notes and received the chaise, used it as his own, and within the year sold it toC, who had no notice of A.'s claim. C. used the chaise several months, with the knowledge of A., and after the expiration of the year sold to D. At the time of the I Chit, on Contr. 321 ; Earl, &e., v. Wilsmore, 1 B. & C. 614; Irving V. Motley, 7 Bing. 551. FRAUDULENT SALE. 437 judgment, and fraudulently purchased goods and obtained a delivery of them without payment, for the purpose of having them taken on execution ; held, he had gained no title, and the property was not liable to be taken upon ex- ecution.' So the defendant purchased goods from the plaintiff, to the amount of about $700, and gave his note therefor, payable in six months. He also represented that contract and during the year, B. was solvent, but afterwards became in- solvent. A. brings trover against C. Held, the action would lie. There was no fraudulent delay or acquiescence on the part of A. ; though, if B. had been Insolvent at the time, with the knowledge af A., this might have been evidence of fraud. Sawyer v. Shaw, 9 Greenl. 47. A mutual mistake of the parties as to the circumstances of the vendee is held no ground for relief in law or equity. (See Mistake.) Thus, where a large amount of goods has been sold to a merchant in good credit, who considered himself and was regarded by others as solvent, but eleven days after the sale proved to be bankrupt; this is no case for relief in a court of equity on the ground of mistake. If it were, the conse- quence would be the greatest confusion in the mercantile world. Every purchaser, though solvent, would be liable to have his circumstances ex- posed to the public eye. Lupin v. Marie, 6 Wend. 77. See Chapman V. Cole, 12 Gray, 141. A., of Manchester, contracted to buy of B., of Dumfries, a quantity of oak bark, to be shipped "for delivery at Liverpool." B. accordingly shipped the bark, to be delivered at Liverpool to the defendants, who were wharfingers and carriers there, to be by them forwarded to A. at Manchester. The bark was to be paid for in cash ; and B. sent a bill of lading making it deliverable to " A. or his assigns," together with a bill of exchange payable on demand, through his bankers, to the M. and S. Bank, with instructions to present the bill for acceptance. The Bank were unable to find A., and accordingly returned the bill of lading and draft to B. Before the bill of lading had been so returned, B., who was at Liverpool when the bark arrived there, believing from the represen- tations of an agent of the plaintiff (who had bought the bark of A.), that the bill of lading had been duly handed over to A., assented to the bark's being delivered to the defendants for the purpose of its being carried to Manchester for the plaintiff; but, upon subsequently discovering that A. had not got the bill of lading or paid for the bark, B. claimed and re- ceived it from the defendants. Held, the property in the bark never passed to A., and consequently B. had a right to countermand the de- livery; and that it was competent to the defendants to set up the title of B. Sheridan v. New Quay Co., 4 C. B. (N. S.) 618. Van Cleef V. Fleet, 15 John. 147; Durell v. Haley, 1 Paige, 492. 438 LAW OF SALES OP PERSONAL PROPERTY. he was worth about $2000 ; but in one month became in- solvent, and then stated to his creditors, that his assets were a little more than $4000, and his liabilities a little more than $11,000, and proposed to pay 25 percent. The plaintift" brings trover for the goods, and produces the note at the trial, but without having offered to return it before suit brought. The defendant's counsel declines theplain- tiff''s oiFer to give up the note, and it is thereupon placed upon the files of the court. Held, the plaintiff might at any time rescind the sale as a mere nullity, except as against some bond fide purchaser for valuable consideration ; that a conversion took place at the time of sale, and no de- mand was necessary to maintain the action ; that, if the note was not negotiable, it need not be returned, because the rescinding made it void ; and, if negotiable and not ac- tually negotiated, it was sufficient to bring it into court.' So the plaintiff, at Birmingham, forwarded by the defend- ant, a carrier, a box directed to J. West, Great Winches- ter Street, London ; having previously sold the goods to a person falsely assuming that name, tendering a fictitious bill in payment, and ordering them to be thus directed. The defendant, finding there was no such person at the place named, but receiving a letter with the above signa- ture, requesting that the box should be sent to an inn at St. Alban's, accordingly delivered it there to a person calling himself J. West, and who showed that he was acquainted with the contents. This person absconded, without pay- ment. In an action of trover by the plaintiff' against the defendant, held the defendant was liable for the value of the goods. They were at first obtained by fraud, — sold to a felon (Park, J., said, "I will not call him a swindler"), who did not mean to purchase, but to commit a felony. In determining whether any property passed, the question is, not what the seller, but what the buyer intended to do. Originally, the contract was between the defendant and the supposed purchaser. But when the defendant discov- 1 Thurston v. Blanchard, 22 Pick. 18. FRAUDULENT SALE. 439 ered that there was no such person at the appointed place this contract came to an end, and the defendant began to hold the property by an implied contract for the plaintiff.' So A. went to the shop of B., and proposed to purchase goods. B. agreed to sell, and deliver them at Lad Lane the same evening. On arriving there, A. said he expected a friend with the money, who would give it to him (A.) at Tom's coffee house, and appointed to meet B. there in an hour. B. accordingly left the goods, and A. absconded with them. In determining whether the property passed from B., the question was left to the jury whether A. in- tended to buy or steal ; and, upon their finding the latter, it was decided that the property did not pass.^ I 6. It has been often held, however, that the sale is not avoided by the mere insolvency of the buyer, or his knowledge of insolvency or inability to pay, unless ac- companied by an intention not to pay f even if such in- tention will avoid the sale.* Thus, where goods are ob- tained by a person knowing himself to be in danger of in- solvency, by means of bills drawn on other insolvent per- sons ; the sale is not void, unless the bills were contrived expressly for the purpose of obtaining the goods. As where one went to Glasgow from London, with the inten- tion of purchasing goods from those who were ignorant of his own want of credit, and that of the drawees of the bill. It was held that the sale was not void, unless it was proved by what means he persuaded the vendor to sell.^ More especially does the rule apply, if the party, though insolvent, purchase, with an honest intention of paying for the goods and continuing his business."* And the general rule applies, though the buyer has been accus- tomed to purchase goods of the seller, and to pay for them ' Stephenson v. Hart, 4 Bing. 476. See Aickles's case, 1 Leach, 294. ' Campbell's Case, cited, 4 Bing. 483. » Redington v. Koberts, 25 Verm. 686; Bidault v. Wales, 20 Mis. 546. * Smith V. Smith, 21 Penn. 367. See p. 440, n. ' Noble V. Adams, 2 Marsh. 366 ; 7 Taun. 59. • Buckley v. Artcher, 21 Barb. 585 ; Bidault v. Wales, 19 Mis. 36. 440 LAW OF SALES OF PERSONAL PROPERTY. according to agreement.' The question of intent is for the jury.^ It is not enough that the vendee knew himself to be insolvent, and had no reasonable expectation of being able to pay ; though these facts may induce the jury to find a fraudulent purpose.^ An immediate sale at reduced prices is also proper evidence of such purpose.' * * Late cases — some of them less indulgent to the buyer than the rule stated in the text, p. 439, — are as follows : In New York, if the vendor make no inquiry of the vendee as to his solvency, who makes use of no misrepresentation or artifice to deceive; his silence on that subject will not in general be held fraudulent. But whether his failure to disclose a sudden and great change in his affairs for the worse, which he has reason to believe the vendor ignorant of, would not avoid the sale, is doubted. Nichols v. Pinner, 18 N. T. (4 Smith) 295. In Pennsylvania, where there is a sale of goods and delivery of posses- sion, though the buyer intends at the time not to pay for them, and con- ceals bis insolvency from the vendor, it is not a cheat that will avoid the sale. There must be artifice practised, such as was intended and fitted to deceive, to constitute a cheat. Backentoss v. Speicher, 31 Penn. 324. The mere fact of failure, within two months after the purchase of goods, will not establish a fraud against an agent, who stated, that the vendees were worth $40,000, without their direction. "Ward v. Wood- burn, 27 Barb. 436. Other cases hold, that, if goods are obtained upon credit, with a pre- conceived design not to pay for them, the vendee is guilty of fraud, and the vendor, upon discovery, may reclaim the goods. Hennequin v. Nay- lor, 24 N. Y. (10 Smith) 139 ; Pike v. Wieting, 49 Barb. 314; Seligman V. Kalkman, 8 Cal. 207. So as against an attaching creditor. Wiggin v. Day, 9 Gray, 97. Or subsequent purchaser, with notice or without consideration; al- though there were no fraudulent misrepresentations or false pretences. Dow V. Sanborn, 3 Allen, 181. And even though such fraud of the buyer alone might not avoid the sale without some artifice fitted to deceive, yet, if two parties fraudulently combine to enable one to purchase goods on credit upon which the other immediately levies, the vendor may avoid the sale. Pottinger v. Heok- sher, 2 Grant, 309. 1 Mitchell V. Worden, 20 Barb. 253. " Bidault V. Wales, 20 Mis. 546. ' Biggs V. Barry, 2 Curt. 259. * See Earl, &c. v. Wilsmore, 1 B. & 0. 514; Irving v. Motly, 7 Bing. 551,4 lb. 476; 9 B. & C. 59. FRAUDULENT SALE. 441 § 7. The rule above stated, which has been often recog- nized, that, -where the purchaser is insolvent, knows him- self to be so, and has no reasonable expectation or inten- tion of paying for the goods, or where he fraudulently misrepresents his ability to pay, he gains no title against A sale of molasses was made by the plaintiff, the price payable on de- livery. The vendees obtained its delivery on board their vessel, when their bankruptcy was imminent, and, after their insolvency had become publicly known at the place of their residence, though not to the plain- tiff, they procured from him a bill of lading, which they sent to New York, despatching the vessel also thither. On demand for payment, they refused on account of insolvency. In the plaintiff's suit against a consignee of the vendees, who had sold the molasses for their account, for the value of the gOods ; held, there was sufficient evidence, of fraudulent intent in the vendees to obtain the molasses without payment, to be put to the jury. Pequeno v. Taylor, 38 Barb. 375. The distinction, however, is made, that, where goods are fraudulently purchased by one insolvent or greatly embarrassed, with a preconceived design not to pay for them, and under circumstances that deceived, and were designed to deceive, the vendor ; the purchaser does not acquire title, and the vendor may recover them from him, or any one claiming under him, not being a bon&Jide purchaser for value. Otherwise, where the omission is in consequence of an honest belief that the purchaser can improve his condition, and will be able to pay for the goods. King v. Phillips, 8 Bosw. 603. Evidence, that, after the purchaser had been allowed a considerable credit, the buyer required him to give business paper for any further pur- chases, is not sufficient to prove, as matter of law, that he had any doubt of the purchaser's solvency, or any suspicion of an adverse change in the condition of his business. lb. After a course of dealing by sales on credit for several years, the buyer, being required to furnish business paper, stated, that he would give busi- ness paper of merchants designated by him, to be delivered whenever the seller required. After about three weeks from the time of sales made on these terms, the buyer failed and assigned, owing a large amount, double the amount of demands due him, and having but little merchandise which had not been pledged, but no notes or other demands against the merchants, whose business paper he had agreed to give, except open ac- counts against some of them, which, together with his other demands, ho had pledged to other creditors. Held, some evidence, that the buyer was, and knew that he was, insolvent at the time of his purchases, and, in the absence of explanation, a jury might find that his purchase was fraudulent, and the question ought to be submitted to the jury; and the complaint was wrongly dismissed. lb. 442 LAW OF SALES OF PERSONAL PROPERTY. the vendor ; is held equally applicable to a bond fide cred- itor of the purchaser, whose claim accrued before the sale, and who therefore did not trust upon the credit of these goods, claiming under a legal process against the pur- chaser. The seller may maintain replevin against the officer who seizes the property under such process, after a demand. But a sale of the above description is only void- able, not void. Hence it is the prevailing doctrine, that one who bond fide purchases from the first vendee, be- fore the vendor elects to avoid the sale (or, it seems, an attaching creditor, whose claim accrued after the sale), will hold against the vendor.' A purchaser is one who obtains the goods from the vendee in the usual course of trade, without notice ; in other words, one who gives value for them, by making advances, or incurring responsibil- ities, or taking them in pledge for money loaned upon their security."" But not one who receives them in pay- ment of or us security for a prior debt." ' It is well re- * There is no distinction between legal and actual fraud. Sinclair v. Healy, 40 Penn. 417. ^ Where the goods are pledged fo?- a usurious loan, the opinion has been expressed, that the pledgee is not a bonct fide holder. Williams v. Birch, 6 Bosw. 299. But a very late case holds the contrary. Williams v. Tilt, 36 N. T. 319. It is held, that a party receiving a transfer of a bill of lading and of the goods, bon& fide, and either absolutely or as security for future ad- vances, from a fraudulent vendee, may hold them as against the original vendor. He stands upon the same ground as a bond fide purchaser of the goods, who has taken possession. Dows v. Rush, 28 Barb. 157. Contra, Decan v. Shipper, 35 Penn. 239. < "= Contra, in Wisconsin, as to a pre-existing debt. Shurfeldt v. Pease, 16 Wis. 659. An extension of time upon such debt is held to make a new consideration. Abbott v. Marshall, 48 Maine, 44. ' Rateau v. Bernard, 3 Blatch. 244; Root v. French, 13 Wend. 570; Bell V. Cafferty, 21 Ind. 411 ; Harris v. Mercer, 22 Ind. 329; Stevens v. Hyde, 32 Barb. 171; Bliss v. Cottle, lb. 322; Williams v. Birch, 6 Bosw. 299 ; 48 Maine, 44 ; Caddington v. Bay, 20 John. 651 ; Evans v. Smith, 4 Bin. 368; Buffington v. Gerrish, 15 Mass. 156; Durell v. Haley, 1 Paige, 492; Mackinley v. McGregor, 3 Whart. 389; 1 Allen, 483. FRAUDtTLENT SALE. 443 marked, in a late case, " a mere possession by the vendee carries with it no right or authority to transfer the title. That continues in the vendor until the conditions of sale and delivery are complied with by the vendee, or are waived by the vendor. And this constitutes the precise distinction between a sale and delivery of goods on con- dition, and a sale procured by fraud or false representa- tions on the part of the vendee. In the latter case, the property passes by the sale and delivery, because such was the agreement and intent of the parties. Therefore the vendee, having the property, as well as the possession of the goods, can pass a good title to a purchaser, who takes the goods in good faith and without notice of the fraud. But the vendor can reclaim the goods by rescinding the contract, and avoiding the sale, so long as they remain in the hands of the vendee, or of any one who has taken them with notice of the fraud, or without paying a valu- able consideration for them. In such case, the title to the goods is in the vendee, though defeasible at the option of the vendor, because the vendee, or those claiming under him with knowledge of the fraud, cannot honestly or le- gally hold the property as against him. But, in the case of a conditional sale and delivery, the title does not pass from the vendor until the condition is fulfilled.""' And, as already suggested, one who in good faith advances « A similar distinction is taken between goods purchased, though by- fraud, and those obtained by felony, or, in general, by wrong, without delivery of the owner. A felon gains no right of property or possession, and can convey none. Eowley v. Bigelow, 12 Pick. 307 ; Caldwell v. Bartlett, 3 Duer, 341. The statute definition of the term felony has no application to a trans- action, where goods, obtained by false pretences, have been sold and de- livered to a bon&fide purchaser. Kepper v. Harbeck, 3 Duer, 373. • Per Bigelow, J., Coggill v. Hartford, 3 Gray, 548-9. Ace. Steven- son V. Newnham, 16 Eng. L. & Eq. 401 ; Ditson v. Eandall, 33 Maine, 202; Caldwell v. Bartlett, 3 Duer, 341; Keyser v. Harbeck, lb. 373; Smith v. Lynes, 1 Seld. 41 ; Kingsford v. Merry, 34 Eng. L. & Eq. 607 ; Andrews v. Dieterich, 14 Wend. 34. 444 LAW OP SALES OF PERSONAL PROPERTY. money, or, in the ordinary course of business, incurs lia- bilities, on the faith of the title of a fraudulent possessor, is a bond fide purchaser J So one who exchanges property for stolen goods cannot reclaim the property from a bond fide purchaser ; and the consideration of the second pur- chase may be partly an antecedent debt and partly prop- erty stolen from the second purchaser by the first.^ But this privilege does not include the general creditors of the purchaser, who seize the property' by attachment or exe- cution, or take it as security for a debt before contracted.' So the goods may be recovered from one to whom they are mortgaged for an existing debt, if the mortgage has not been foreclosed. It would be otherwise if mortgaged for a new consideration.'' So the purchaser from a fraudulent vendee will not be held a bond fide purchaser, if he had reasonable ground of suspicion.* As where the original seller retains possession."^ So where one accustomed to make purchases of another, and pay for them according to agreement, at the time of making a purchase is insolvent, • On the other hand, it is lately held, that a saleby a fraudulent vendee passes no title without delivery. Spaulding v. Brewster, 50 Barb. — & mn. Law Keg., Aug. 1868, p. 640. (Which also questions the rule stated in the text, that such sale passes a title in any case.) An assignment by a fraudulent vendee to trustees for the benefit of creditors, without knowledge of the fraud, is yet made upon insufficient consideration, and is therefore void against the vendor. KatclitFe v. Sangston, 18 Md. 383. Where certificates of stock worth $10 per share were wrongfully taken by a lad sixteen years of age, sold to the defendant for $3, and by the de- fendant for $7 immediately afterwards ; held, such a purchase of such property from a lad of that age could not be deemed bon& fide, and the purchaser acquired no title. Anderson v. Nicholas, 28 N. Y. (1 Tiffa.) 600. 1 Caldwell v. Bartlett, 3 Duer, 341. As, for example, to release the goods from attachment. Wood v. Yeatman, 15 B. Mon. 270. s Titcomb v. Wood, 38 Maine, 561. » Bidault V. Wales, 19 Mis. 36. • Johnson v. Peck, 1 W. & M. 334. « Danforth v. Dart, 4 Duer, 101 ; Hyde v. Ellery, 18 Md. 496. • Spaulding v. Brewster, 50 Barb. 142. FRAUDULENT SALE. 445 and knows himself to be so, having committed an open and notorious act of insolvency, by breaking up business and assigning his property for his creditors ; one who buys from such purchaser, without payment, and with legal notice of the facts, is not a bond fide purchaser."* § 7 a. Where a vendee pays for the goods by transfer- ring to the vendor forged promissory notes, knowing them to be forged ; such sale is not absolutely void, but only voidable. "Whether the fraud amount to a crime or not, the vendor, being himself innocent, still has the right to avoid or aflirm the sale, upon discovery of the fraud, so long as the property remains in the hands of the vendee, or a purchaser from him with notice.^ § 7 6. Where a note to which there is no legal defence, and which can be enforced in the name of the payee in favor of the holder, is transferred in part-payment for goods sold and delivered ; the insolvency of the maker of the note is no ground for rescission of the sale.' § 7 c. The buyer's knowledge of such insolvency, or of facts from which he must reasonably infer it, would enable the seller, if concealed from him, to rescind the bargain ; but knowledge merely that the maker, who was a small manufacturer, had renewed one of his notes, alleging as • A fraudulent purchaser of goods, for cash on delivery, ordered a de- livery of them on board a ship, which was done by the seller, who took ship receipts in his own name. The purchaser fraudulently abstracted the receipts, and, by means of them, procured bills of lading from the captain, on which he raised money from a party having no notice of the fraud till two or three days after delivery of such bills ; the captain and owners of the ship also having no notice. Held, the seller might recover the property from the captain and owners. Brower v. Peabody, 3 Kern. 121. ■ Mitchell V. Worden, 20 Barb. 253. See further, Gibson v. Jayne, 37 Miss. 164; Manly v. Culver, 20 Tex. 143 ; Richards v. Alden, 1 Grant, 247; Case v. Jennings, 17 Tex. 661 ; Arendale v. Morgan, 5 Sneed, 703; Chissom v. Hawkins, 11 Ind. 316. ' Bell v.'cafferty, 21 Ind. 411. • Gushing v. Wyman, 44 Maine, 121. 446 LAW OF SALES OF PERSONAL PROPERTY. an excuse that lie had been short of water, and thus un- able to realize from the products of his mill, is not a fact from which the exchanger of another of his notes is bound to infer his insolvency ; nor is it a fact which the other party can claim should have put the exchanger of the note upon inquiry as to the solvency of the maker of it ; since such exchanger is bound to no diligence in acquiring knowledge of the value or quality of the subjects of the exchange, in order to communicate it to the other party, but only to good faith, regarding the knowledge which he actually has at the time of the exchange.' § 8. To prove fraud in a sale, on the ground that the vendee did not intend to pay for the property, it is not absolutely necessary to show a false pretence or other direct artifice in regard to the individual purchase. It is sufficient, if such purchase is one of a series of acts, which, all together, indicate a design to obtain the goods with- out payment, of which these are a part. As where an in- ordinately large quantity is purchased from many persons, in proportion to the regular purposes of the party's ap- parent business ; where the goods are not kept or dealt with in such place or manner, as to show a fair acquisition for the purposes of regular business; where there have been forced sales, at a sacrifice, of goods purchased shortly before on credit, or subsequent conversations and conduct, showing a design to evade payment and unjustly appro- priate the property,'^ - It is held, that, where a vendee seeks to set aside a sale on the ground of fraudulent misrepresentations of the vendor, evidence of fraudulent sales to other persons, effected by similar misrepresentations, of which the vendee had no knowledge at the time of the sale to him, is inadmis- sible. Bischof V. Coffelt, 6 Ind. 23. Where testimony is introduced by a defendant, tending to prove false representations by the plaintiff, in a sale of blooded stock, as to age and soundness, it is competent for the plaintiff, to repel the presumption of fraud, to show that he informed the defendant, after the sale, of an error 1 Burgess v. Chapin, 5 K. I. 225. • Maokinley v. McGregor, 3 Whart. 369. FRAUDULENT SALE. 447 § 9. The skme kind of deceit or misrepresentation, which renders a sale void, furnishes a good ground of action by the vendee against the vendor or a third person. Thus where A. induces B. to sell goods on credit to C, whom he would not otherwise have trusted, by asserting what he knows to be false ; the assertion alone is no sufficient ground of action, but it must be proved to be false, and that the defendant knew it to be so. The principle is, that, if one wickedly assert what he knows to be false, and draws another into loss, he is liable to an action for damages. In such action it must be alleged, that the de- fendant, intending to deceive and defraud, did deceitfully encourage and persuade the plaintifi, and for that purpose made a false affirmation whereby the plaintiff acted.' § 10. It is not a fraudulent act, for a vendor to repur- chase from his vendee through a third person, who does not disclose that he acts for the vendor. Thus the defend- ant sold goods to A., to be paid for by a bill at two months. A. declining to give the bill, and being in dan- ger of insolvency, the defendant procured a broker to re- purchase the property in his own name, at a price much lower than the former one. A. became bankrupt, not knowing that the repurchase was made on the defendant's account; and his assignees bring trover for the goods against the defendant. Held, there was no fraud on the part of the defendant, and the action could not be sus- tained.^ But where one person purchases goods professedly in his representations, and offered to take back the property ; which offer the defendant rejected. Bush v. Bradford, 15 Ala. 317. Where the seller of a slave, taking a note for the price, asserts to the purchaser that he is as sound as any slave, and, a week after, the slave is found sick of a disease of long standing ; fraud may be inferred, and will be a good defence to an action upon the note, although a warranty was accepted which did not cover this disease, and the slave afterwards died of another. Huckabree v. Albritton, 10 Ala. 657. ' Pasley v. Freeman, 3 T. B. 51. • Harris v. Lunell, 4 Moore, 10. 448 LAW OF SALES OF PERSONAL PROPEKTT. for another at a certain price, and the vendor privately agrees with the real purchaser to pay him a further sum ; this is a fraud upon the nominal vendee, and the vendor cannot recover such additional price. Thus A., taking a house which had been tenanted by B., was to take the goods therein at an appraisal. Ifot having the necessary funds, A. applied to C, who thereupon pur- chased the goods for A., taking a bill of sale to himself, in which the consideration was expressed ; but B. made a private agreement with A. to pay him (B.) an additional sum. Held, this agreement was a fraud upon C, and could not be enforced against A.' § 10 a. A party by his own act or neglect may waive or forfeit his right to rescind a sale for fraud. § 10 6. Where the plaintiff bj"^ fraud of the defendant was induced to accept a wagon in payment for a debt, and to give a receipt in full, and after discovery of the fraud brought a suit on the account ; held, the action would not lie, uiiless the wagon was first returned, but the remedy was in a suit for the fraud.' § 10 c. To rescind a sale for fraud, the demand, and ten- der back of the price, may be made to a general assignee who has the goods in his possession and under his control. A subsequent ratification of an unauthorized demand can- not avail the plaintifi^.^ It must be a distinct demand, with an explicit assertion of the fraud, where the assignee is not fully cognizant of it. A tender and demand must be made before suit, and the tender must be kept good. § 10 (^. A creditor, by suing and levying an attachment upon the property of the debtor for such parts of the debt as have become due, waives alleged fraud in the sale and confirms the sale.* So a vendor cannot maintain re- plevin for goods sold and transferred by his vendee to the ' Jackson v. Duchaire, 3 T. E. 551. • Garland v. Spencer, 46 Maine, 628. ' Bliss V. Cottle, 32 Barb. 322. < Adler v. Penton, 24 How. (U. S.) 407. FRAUDULENT SALE. 449 defendant, wlio knew, at the time of transfer, that forged notes had been given in payment for them, if the plaintiff has sold the notes for value to the wife of the vendee pending the writ of replevin.^ § 10 e. Fraud is in general an exception to the rule, that one exercising the right of rescission must put the other party in statu quo? But, in such case, the right will be waived, if not exercised within a reasonable time ; as where, after discovery of the fraud, the party discharged mortgages, and gave a new one, and otherwise changed the condition of the property. So where one conveyed land, receiving therefor railroad stock represented to be of a certain value ; and nineteen months afterwards he found that he had been deceived, and sued to set aside the contract and conveyance.^ § 10/. It is not necessary, where a vendor of goods seeks to recover them back, on the ground of fraud in the sale, from a party to whom the vendee has assigned them to pay his debts, that a demand should be accompa- nied with a disaffirmance of the sale, or a declaration that the ground of the demand is fraud in such sale.* § 10 g. In case of a fraudulent purchase on credit, the purchaser giving his notes for the purchase-money, if be- fore maturity of the notes he absconds, after transferring the property, the original vendor is not bound to disaffirm the contract, by seizing or replevying the goods, immedi- ately, but may wait until maturity of the notes." § 10 ^. A vendor or vendee, to rescind a previous sale on the ground of fraud, must offer to restore the notes given by the fraudulent purchaser ; but this may be done at or before the trial.^ As where the purchaser has ab- ' Whitford v. Chace, 7 K. I. 322. ' Downer v. Smith, 32 Vt. 1. « Barton v. Simmons, 14 Ind. 49. ' White V. Dodds, 42 Barb. 554 ; Hathorne v. Hodges, 28 N. T. (1 Tiffa.) 486. ' 28 N. T. (1 Tiffa.) 486. ' CoghiU V. Boring, 15 Cal. 213 ; "White v. Dodds, 42 Barb. 554. 29 450 LAW OF SALES OF PERSONAL PROPERTY. sconded.* It is not necessary that the vendor should have had possession of the paper, or power to surrender it, at the commencement of the action ; though negotiated, if he can at the trial cancel or surrender it, this will be suf- ficient.^ So the vendor need not attach to his answer the notes or securities which are to be delivered up, nor pro- duce them with it in court. Readiness to deliver, with an averment to that effect, is sufficient.' So in trover by the vendor, for goods purchased on credit by the defend- ant, by means of fraudulent misrepresentations of his own property and that of another, by whose acceptances he secured payment, it is not necessary — the drafts being overdue and worthless, from the insolvency of both par- ties to them at the time of action brought — to restore, or oflier to restore them to the defendant before commence- ment of the action ; but it is sufficient, if they are brought into court at the trial, to be impounded for the use of the defendant ; and, in such case, cash and the note of a third person, originally, or before the discovery of the fraud, received by the vendor in part payment, need not be re- stored to the defendant at all, to enable the vendor to maintain such action against him for the balance of the goods included in the purchase.* § 11. Where one obtains property by fraud, and there- fore by a void title, and then disposes of it to another, the latter may set up the original fraud in defence to a claim for the price. Thus a note, given in consideration of a patent, which was obtained by fraud, is void, though the conveyance were by deed, with covenants of warranty, and though the vendor has furnished the vendee instruc- tion, materials, and labor in relation to the patented art ; 1 Hathorne v. Hodges, 28 N. Y. (1 Tiffa.) 486; Pequeno v. Taylor, 38 Barb. 376. 2 Praschieris v. Henriques, 36 Barb. 276 ; Nichols v. Michael, 28 N. r. (9 Smith), 264. 3 Fulton V. Thompson, 18 Tex. 278. * Duval V. Mowry, 6 E. I. 479. FRAUBULENT SALE. 451 because these are useful only as connected with the art itself.' § 12. It has been held, that, though a sale be fraudu- lent, yet, if the property be delivered, the seller cannot forbid the purchaser to take the property, or maintain trespass for such taking.^ But it is also held, that, if a person purchase personal property, by means of false and fraudulent representations as to his solvency, and means of paying therefor, he acquires no right, either of property or possession, and the vendor will be justified in pursu- ing him and retaking the property, using no more force than is necessary to effect this object. And, if the vendor retake the property by force, using no more than is neces- sary, no action will lie against him, at the suit of the pur- chaser, for assault and battery. And if the purchaser resist the taking of the property, and draw his knife, he becomes the aggressor, and the vendor may use any addi- tional force requisite to recover the property.^ So also it is held, that a sale and delivery of goods, procured through the false representations of the vendee in regard to his solvency and credit, passes no title whatever to the prop- erty, as between the parties ; and the vendor may main- tain either trover, trespass, or replevin in the cepit or detinet, even though the actual posssession is in another.' * • In case of a pretended sale, by written agreement, with a private understanding that it is not to take effect; if the purchaser obtains pos- session for another purpose, this is not a delivery under the contract, and no title passes. Lott v. Booth, 22 Eng. L. & Eq. 438. The plaintiff, in the present action of trover, being indebted, borrowed money from the defendant on the security of goods. To prevent the seizure of the goods by his landlord, the plaintiff' executed a written in- strument of sale to the defendant, and afterwards delivered them to the defendant to keep for the plaintiff, and the defendant sold. them. Held, the action would lie. lb. ' Bliss V. Negus, 8 Mass. 46. 2 McCarty v. Vickery, 12 John. 348: » Hodgeden v. Hubbard, 18 Verm. 504. * Hunter v. Hudson B. &c. 20 Barb. 493. 452 LAW OP SALES OF PERSONAL PROPERTY. CHAPTER XXL FEAUD ON CBEDITOKS, ETC. rRATJD AQAINST CREDITORS, ETC. WANT OF CONSIDERATION. COLLUSION. PREFBRENCE. SUBSEQUENT PURCHASERS. ASSIGNMENT FOE CREDITORS. BANKRUPTCT AND INSOLVENCY. § 1. In addition to the fraud which avoids a sale as between the parties, there is a species of fraud having refer- ence only to creditors of, or subsequent purchasers from the vendor, and by reason of which such creditors or pur- chasers may claim the property out of the vendee's hands.' • An intermediate case would seem to be, that of a sale made by one person, without full authority from another, the owner of the goods, which might be valid against the latter, but not as against his creditors. Thus A., being the owner of goods, procured B. to assign them by bill of sale to C, to secure an advance of money. C. took the goods boni fide, and upon the assurance of A. that the goods belonged to B. They were afterwards seized under a fi. fa. of D. against A. On the trial of an interpleader issue between C. and D., the jury found that there had been no actual transfer from A. to B. Held, C. had acquired no title as against D. Richards v. Johnston, 4 Hurl. & Nor. 660. The general distinction is, that insolvency of the seller does not invali- date the sale, if no liens have attached. McTaggart v. Eose, 14 Ind. 230. One holding under a bill of sale has » good title, which cannot be impeached for fraud by the vendor or any one claiming under him, ex- cept a bond, fide creditor, having a legal lien. Evans v. Herring, 3 Dutch. 243; Sharp v. Jones, 18 Ind. 314. Where execution defendants have sold property before seizure under process, the vendees hold against any claim of the creditor, although he had no notice of such sale. Thomas v. Hillhouse, 17 Iowa, 67. FRAUD ON CREDITORS, ETC. 453 One of the principal evidences of this kind of fraud has been already considered at length, viz., the retaining of possession by the vendor after a sale. (See ch. 8 ; also the note at the end of this chapter.) In some other import- ant points of view, the subject now remains to be con- sidered. § 2. It is said, that every man may dispose of his own property as he pleases ; but always subject to the equitable principle, that he is not to injure another by his gift.'' So it is a maxim of the common law, that " fraud vitiates everything." But the doctrine of fraudulent conveyances, so called, is said to rest chiefly upon an ancient English statute, 13 Eliz. ch. 5, which was passed to do away all doubts upon the subject, and to affirm expressly the im- plied principles of the common law.'' ^ § 3. One of the earliest, and the most important, of the If, between the time of quashing an execution and issuing a new one, the owner sells to the sheriff's keeper in possession, the sale is good. Wellington v. Sedgwick, 12 Cal. 469. In equity, a purchaser of goods from one confessedly insolvent, who sells with a view to defraud his creditors, may he held liable for such part of the purchase-money as was diverted from the payment of debts. Clements v. Moore, Aran. Law Keg., April, 1868, p. 378—6 Wal. » " Videndum est igitur, ut ea liberalitate utamur, qu» prosit amicis, noceat neraini. Kihil est enim liberale, quod non idem justum." — Oic. de Off. 1, 14. ^ It is remarked, by a high American authority, that the doctrine of fraudulent sales of goods rests upon the more ancient statutes, 50 Edw. 3, oh. 6| 3 Hon. 7, ch. 4; and that the statutes, 13 Eliz. eh. 5, 27 Eliz. ch. 4, apply to lands only. 1 Story, Eq. 343; 1 Cranch, 309. But see 2 Kent, 439. Notwithstanding evidence that a conveyance by A. to B. was fraudu- lent and void as against A.'s creditors, under 13 Eliz. i;. 5 ; held, a con- veyance by B. to C., which was bond, fide and without notice, gave 0. a good title. Moorewood v. South, &c. 3 Hurl. & Nor. 798. 1 Marcy v. Clark, 17 Mass. 334. » Cadogan v. Kennett, Cowp. 434 ; Hamilton v. Russell, 1 Cranch, 316 ; Co. Lit. 76 a, 290 b j Fleming v. Townsend, 1 Geo. 103. 454 LAW OP SALES OF PERSONAL PROPERTY. expositions of the statute above referred to, is Twyne's Case, decided in the Star Chamber, in the 44th year of Elizabeth. The principles therein settled have been recog- nized as law in most of the subsequent cases. The facts were as follows: A., being indebted to B. in the sum of £400, and to C. in the sum of £200, and being possessed of personal property worth £300, pending an action against him by C, secretly conveyed by deed all his goods and chattels, real and personal, whatsoever, to B., in satisfac- tion of his debt, expressly stating that it was done hon- estly, truly, and bond fide. A., however, still retained possession, sold some of the property, sheared the sheep, and marked them with his own mark. C, having re- covered judgment, put his execution into the sheriff's hands, who undertook to levy it upon the property con- veyed to B. ; but certain persons, under B.'s direction, made forcible resistance, claiming the goods as B.'s, under a transfer made for good and lawful consideration. Upon the question, whether this was a fraudulent conveyance, held, it was ; because, 1. It was general, not excepting even apparel or other necessaries, and " dolus versatur in generalibus ;" 2. A. remained in possession ; 3. The gift was secret, and " dona clandestina sunt semper suspiciosa;" 4. It was made pending the writ ; 5. There was a trust, proved by A.'s continued possession ; 6. The statement, that the transfer was an honest one, was an unusual clause, and " clausulse inconsuetse semper inducunt sus- picionem." The exception in the statute of Elizabeth, being of any transfer made " on good consideration and bondfide," did not apply to this case ; because, although B.'s debt was consideration enough, the transfer was not made in good faith, on account of the secret trust. Thus if one owe several persons £20 each, and, having goods worth £20, convey them to one of his creditors in satis- faction of his debt, but subject to a trust, that the donee shall deal favorably with him in regard of his poor estate, either to permit the donor, or some other for him or for FKAUD ON CREDITORS, ETC. 455 his benefit, to use or have possession of them, and is con- tented that he shall pay him his debt, when he is able, this is void, because not bond Jide. Lord Coke, the re- porter, goes on to advise, that, when any gift shall be to you in satisfaction of a debt, by one who is indebted to others also : 1. Let it be in a public manner and before the neighbors ; 2. Let the goods and chattels be appraised by good people to the very value, and take a gift in par- ticular in satisfaction of your debt ; 3. Immediately after the gift, take the possession of them. He further remarks, that every gift, though bond fide, is not made for good consideration. Thus if one, being indebted, conveys all his goods to his son or cousin, in consideration of natural affection, this is void against creditors, because the con- sideration is not a valuable one ; and, as the claims hereby defeated are valuable, equity requires that the convey- ance which defeats them should be on equally high and good consideration ; and it is to be presumed that the father, if not in debt, would not have dispossessed himself of all his goods, and subjected himself to his cradle ; and therefore it shall be intended that it was made to defeat his creditors.' § 4. In conformity with the above cited case, and as the general result of later authorities, it may be stated, that, where the terms of a sale provide a trust for the vendor, the sale is fraudulent. And possession by him is primdfade evidence of such trust. The same rule applies, though he be not in possession at first, but the property is left with him under a subsequent contract to take it and pay rent. The question, whether a trust existed, is for the jury ; but, when admitted or proved, the inference from it is an inference of law, which the court is bound to make. The nature of the trust reserved is immaterial. It may be the use of the goods or some other favor. Lord Coke says, " What is a trust, per nomen speciosum, between donor and donee, is, as to creditors,/rau(5?." An express 1 Twyne's Case, 3 Co. 80. 456 LAW OF SALES OF PERSONAL PKOPEETT. trust is where the terms of it are specified. An implied trust is when the sale is for no consideration, or a good one only. In the latter case, the law presumes, that a benefited relation will relieve a donor who is in debt. And an express trust may consist in some secret under- standing. But a trust does not avoid the sale as against a creditor having notice of the sale. He is a quasi party. And marriage settlements are exceptions to the general rule. In these, possession is consistent with bona fides. On this subject, it is remarked in a leading case, that there is no contradiction in the decisions, though there are some contradictory dicta} % 5. The distinction has been made, that, in case of a bill of sale, or other transfer, apparently absolute, any secret trust or agreement, inconsistent with the tenor of such instrument, is evidence of fraud as against creditors. But it is not actual fraud or conclusive evidence of it, ex- cept in the case of real estate, where the whole agreement ought to appear in the deed, or some other writing of as high a nature. So, inadequacy of indebtedness on the part of a vendor is not per se fraudulent.^ § 6. It has been held, that liability to future damage as a surety is no sufficient consideration for an absolute bill of sale, as against creditors.^ But where a bill of sale, in terms absolute, is in fact made for security, this fact is not ^jer se conclusive of fraud, but merely evidence, for the jury. If both parties prove, that the instrument, though absolute in form, is designed for security, and made bona fide, it is valid as a mortgage. Although it is doubted ' Per Eichardson, C. J., Coburn v. Pickering, 3 N. H. 415; Edwards V. Harben, 2 T. E. 687; Twyne's Case, 3 Co. 80; Hamilton v. Eussell, 1 Cranch, 309; Dawes v. Cope, 4 Bin. 258; XJ. S. v. Hooe, 3 Cranch, 73; Bartlett v. Williams, 1 Pick. 295; Paget v. Perchard, 1 Esp. 205; Wor- dall V. Smith, 1 Camp. 332; Steel v. Brown, 1 Taun. 381 ; Cadogan v. Kennett, Cowp. 432; Haselinton v. Gill, 3 T. E. 620, n. » New England, &o. v. Chandler, 16 Mass. 275 ; Adams v. Wheeler, :0 Pick. 199. ' Gorham v. Herrick, 2 Greenl. 87. FRAUD ON CREDITORS, ETC. 457 whether an attaching creditor of the vendor can be ad- mitted to show this fact.' § 7. Where a vendee gives a bond of defeasance to the vendor, and the property is afterwards attached by credi- tors of the latter ; in a suit against the attaching oflEicer, the vendee must produce the bond, or account for its non- production, by showing due diligence to procure it. Parol evidence of such bond is inadmissible. The vendor might be summoned as a witness, and the bond, being in his hands, would then be forthcoming.' § 8. It may be inferred from Twyne's Case, and seems to be well settled, that the question, whether an assign- ment to a creditor, of an amount of property much ex- ceeding his debt, shall be held wholly fraudulent and void against other creditors, depends upon the consideration, whether the assignee knew the existence of other debts, and the debtor's fraudulent intention, or honestly designed to hold the surplus as trustee for the debtor ; or, in other words, whether there was actual or merely constructive fraud. Actual fraud avoids the conveyance in toto, so that it cannot stand as seciirity for reimbursement or in- demnity of advances really made. But constructive fraud avoids it only for the excess of the value of the property over and above the claim to be secured.* An assignment, • In the American Edition of Long on Sales, the editor remarks (p. 123), that "in a court, proceeding according to the course of the common law, where actual fraud alone is regarded, if a conveyance is found to be fraudulent against a creditor, he can avoid it unconditionally, &c. It Is otherwise, however, in cases where no actual fraud was in contempla- tion, but where the conveyance was made or obtained under such suspi- cious or inequitable circumstances, that a court of equity may set it aside, as ieing constructively fraudulent." It would seem, that a distinction be- tween actual and constructive fraud, depending upon the tribunal re- sorted to for relief, is not strictly accurate. A court of law, no less than a court of equity, has power to avoid a sale for constructive fraud ; as, for instance, where the vendor remains in possession, although no fraud- 1 Reed v. Jewett, 5 Greenl. 96. » Gorham v. Herrick, 2 Greenl. 87. 458 LAW OF SALES OF PERSONAL PROPERTY. made partly to secure a just debt and partly to defeat creditors, is wholly void.' § 9. Where A., being indebted to B. and C, is sued by B., he may still make a valid conveyance to C. Thus, if B. have taken out execution, A. may voluntarily give C. a warrant of attorney to confess judgment, which may be immediately entered, and execution be thereupon levied on the same day when B. might and had threatened to sue out execution ; and G.'s title shall prevail over B.'s. So a debtor, pending a suit against him by one of his cred- itors, may assign all his property in trust for all of them ; the object of such conveyance being highly equitable and honest, though made with intent to delay the suing cred- itor of his execution.^ § 10. A conveyance is not void as against subsequent creditors, unless it be not only voluntary but collusive and fraudulent, and made with a view to future debts." ' ulent intention be proved. Both in law and equity, fraud is not to be presumed, but must be proved. But it may be done by circumstantial evidence. Parkhurst v. McGraw, 24 Miss. 134. See Caswell v. Caswell, 28 Maine, 232; McGill v. Harman, 2 Jones Eq. 179; Brown v. Godsey, 2 lb. 417 ; Hunt v. Blodgett, 17 111. 583 ; Meux v. Anthony, 6 Eng. 411 ; Barton v. Bryant, 2 Cart. 189 ; Swan v. Dent, 2 Md. Ch. 111. • The following cases may be cited, as illustrating the general points on the subject of fraudulent conveyances, above stated: A., being in debt, delivered certain goods to B., a creditor, for more than their value, with a bill of parcels, de-^icribing the articles and their prices, and stating that thej' were bought and paid for. It was agreed between the parties that B. should sell the goods, apply the proceeds to pay his debt, and account to A. for the surplus. Held, a void sale. Parker v. Pattee. 4 N. H. 176. Assignment in trust, of a part of the debtor's property, from the rents ' Wilson V. Wormal, Godb. 161 ; Long, 122, 123 ; Magniac v. Thomp- son, 1 Bald. 344; Tucker v. Welch, 17 Mass. 164; Garland v. Kives, 4 Band. 282; Sands v. Codwise, 4 John. 699; How v. Weldon, 2 Ves. 617; Watt v. Grove, 2 Sch. & Lef 492. 2 Holbird v. Anderson, 6 T. K. 235; Pickstock v. Lyster, 3 M. & S. 371; King v. Watson, 3 Price, 6; Meux v. Howell, 4 E. 1 ; Bowen v. Bramidge, 6 C. & P. 142. 3 8 Wheat. 229 ; 4 Wend. 300 ; 6 Paige, 626. FRAUD ON CREDITORS, ETC. 459' 1 11. A sale void against creditors is valid not only be- tween the parties, but also between the grantee and a third and profits to pay one-half for his use, and the other to particular cred- itors. If there is no intention of fraudulently delaying other creditors, such assignment is valid. Estwick v. Caillaud, 6 T. R. 420. A bond fide creditor said to his debtor, that he wished to have a con- veyance of his property, rather to prevent attachment by other creditors than for his own security. A transfer being accordingly made, held, the above declaration merely raised a presumption of fraud. Reynolds v. Wilkins, 2 Shepl. 104. A., "in consideration of indebtedness," conveyed to the plaintiff cer- tain property by a written instrument containing this clause: "And it is agreed that the debtor shall remain in possession till default of pay- ment of what may be due to the plaintiff, at such time as he shall demand payment." The property was subsequently delivered. The sale was proved to be bond fide. Held, the property passed as against creditors of the vendor, and might be held as security for subsequent liabilities on his account. The vendee was subject to be summoned as trustee of the vendor, which would prevent any claim for advances, made after service of the writ upon him. Adams v. Wheeler, 10 Pick. 199. A., being indebted to a bank, besides a cash deposit, transferred to B., the cashier, shares in the bank and in an insurance company. The trans- fer was in form unconditional, but there was an understanding betweeui the parties that it was to be for collateral security only, and that any surplus remaining after payment of the debt was to be paid to A. There was evidence that the bank consented to the arrangement. Held, the transfer was valid, and the cashier was a trustee of A. as to the surplus proceeds. The conveyance was not in law made to the bank, though B. was mentioned as cashier, and took in that capacity. B. was a depos- itary for the benefit of the bank and of A., and the word cashier was a mere term of designation. B. only had control of the property and could assign it, and though a sale by him without authority would be a violation of his duty to the bank, yet a purchaser ignorant of the facts would take a title. The transaction was not a fraudulent one. The ob- ject was a fair one, viz., payment of an honest debt. Though an indis- creet arrangement, there was no attempt to secrete the property from creditors. It is a common usage for banks to take security without any formal stipulations as to disposing of the property. New England, &o. V. Chandler, 16 Mass. 275. A., being in embarrassed circumstances, gave a bill of sale of a ship to B., without consideration, and for the purpose of preventing an attach- ment by his creditors. B., with the consent of A., reconveyed the ves- sel to C, one of A.'s creditors. Held, C. should hold against other cred- itors of A. Boyd V. Brown, 17 Pick. 453. A bill of sale or assignment of goods set forth, as the object sf the in- 460 LAW OF SALES OF PERSONAL PKOPBRTT. person for whose benefit it is made. Thus, where one conveys to his children in fraud of creditors, the fraud is no defence to an action, brought by the children against the party who receives, and agrees to account to them for the property. The transaction is not illegal, and, though liable to be avoided by creditors, is valid against all others.^ So, though a sale be void against creditors, a subsequent vendee, for valuable consideration and without notice, ac- quires a good title.^ § 12. In case of a fraudulent conveyance, a creditor may avail himself of the property transferred, either by a direct attachment, or a trustee process.^ § 13. A peculiar instance of fraud in relation to credi- tors, is where a person conveys his property to one or more creditors, in expectation or contemplation of bank- ruptcy. Under the English bankrupt law every such con- veyance is void ; and all American bankrupt and insolvent laws contain a substantially similar express provision. § 14. Such conveyance is held void, though the debtor were in full credit at the time. So a conveyance of all a atrument, to secure the party taking it against his liabilities as surety for the other, and provided, that, if the former should become answerable thereupon, he might turn out the goods upon execution or dispose of them at private sale, accounting for the proceeds. Held, the transaction was in nature of a mortgage, and, as the possession of the mortgagor was con- formable to the terms of the instrument, there was no proof of fraud against creditors, and he retained no interest liable to be taken by them. Marsh v. Lawrence, 4 Cow. 461. Bond fide conveyance by a debtor of all his property (consisting mostly of his wife's former estate), to trustees, in consideration of a certain sum to be paid by one of them, in trust to sell, and from the proceeds to pay such trustee's own claims, and then all such debts as the trustees should think proper, and to hold the surplus for the wife as a separate mainte- nance. Held, the assignment was valid, all the creditors known at the time having received payment of their debts. Nunn v. Wilsmore, 8 T. E. 521. (See, further, the note at the end of this chapter.) 1 Fairbanks v. Blackington, 9 Pick. 93. 2 Trott v. Warren, 2 Fairf. 227. ' Hastings v. Baldwin, 17 Mass. 652 ; Burlingame v. Bell, 16, 318. FRAUD ON CREDITORS, ETC. 461 man's property in trade, to pay a bond fide debt, however meritorious, and however exceeding the value of the prop- erty, is held void, because it is put of the course of busi- ness, and must necessarily produce bankruptcy. So al- though a part merely colorable is excepted. So a convey- ance for the benefit of all the creditors but one is void ; or a conveyance providing for distribution, as the statutes of bankruptcy would distribute ; no man being allowed to choose his own assignees. The distinction is made, that, where the debtor's situation and conduct clearly show his own expectation of eventual bankruptcy, the transfer will be void. Otherwise, where he bond fide hopes to escape such a result."' And, where a conveyance is void on the above ground, though the assignees may, they are not bound to treat it as void ; but may affirm and act under it.^ § 15. In order to avoid a conveyance for the cause above referred to, it is necessary to prove, not only that the debtor knew himself to be insolvent, but that he made the transfer in contemplation of bankruptcy, and himself took the first steps towards it, for the purpose of giving an illegal preference. If the conveyance is made through the importunity of the preferred creditor, or under the threat or fear of legal process, even though such fear be unfounded, the law will not avoid it. And where the circumstances raise or admit a doubt, as to the controlling motive under which a transfer or payment was made (or, • The cases of Small v. Dudley (2 P. Wms. 471 ; 1 Bnrr. 480), and Hooper v. Smith (1 W. Bl. 441), seem to conflict with the general tenor of the authorities on this subject. But these decisions are denied to be law in Long on Sales, 378; Alderson v. Temple, 4 Burr. 2240; Cowp. 124; and Locke v. Winning, 3 Mass. 325. ' Hassells v. Simpson, Dougl. 89, n. ; Wilson v. Day, 2 Burr. 827 ; Compton V. Bedford, 1 W. Bl. 862; Berney v. Davison, 1 Brod. & B. 408 ; Wedge v. Newlyn, 4 B. & Ad. 831 ; Gibson v. Boutts, 3 Scott, 229. • Nixon V. Jenkins, 2 H. Bl. 135. 462 LAW OF SALES OF PERSONAL PROPERTY. in general, whether it was a fraud upon the bankrupt law), the question is for a jury to settle.' And to the determi- nation of this question the maxim has been applied, that every man may be supposed to contemplate the necessary and usual consequences of his acts. The necessary effect of a debtor's conveying his whole property to one creditor is to break up his business, and deprive the others of their ordinary legal remedy to enforce their demands. Hence, such conveyance is to be deemed an act of bankruptcy, and fraudulent against creditors.^ So where creditors express to a debtor their determination to obtain either payment or security, and he thereupon conveys to them his whole stock, and immediately quits his house and business ; the law will not intend that such conveyance was induced by the urgency of creditors, because, if they had taken out immediate process against him, he could have been placed in no worse situation than that in which he placed himself by the transfer ; and the conveyance will therefore be held void.' § 16. But where a debtor intends, voluntarily, and in contemplation of bankruptcy, to make a conveyance to a creditor, and does the first act towards such conveyance, but, before its consummation, the creditor takes measures to enforce payment, the transfer is not void. As where a debtor put checks into the hands of his clerk, to be deliv- ered at the creditor's counting-house, which was done, but they did not reach the creditor till after he had demanded payment. So where a creditor, knowing the debtor to be embarrassed and insolvent, demanded security about two ' Morgan v. Brundrett, 5 B. «& Ad. 289 ; Atkinson v. Brindall, 2 Bing. N. C. 225; Hunt v. Mortimer, 10 R & C. 44 ; Ridley v. Gyde, 9 Bing. 349 ; Scott v. Tliomas, 6 C. & P. 611 ; Thompson v. Freeman, 1 T. K. 155 ; Doe v. Gillett, 2 Cr. M. & E. 680 ; Belcher v. Prittie, 10 Bing. 408 ; Reynard v. Robinson, 3 M. & Sc. 127 ; Gibson v. Boiitts, 3 Scott, 237 j Cook v. Rogers, 7 Bing. 438; JTidgeon v. Sharpe, 6 Taun. 539. ' Gibson v. Boutts, 3 Scott, 236. ' Thornton v. Hargreaves, 7 E, 544. FRAUD ON CREDITORS, ETC. 463 months before his bankruptcy, and received a conveyance of part of his stock in trade, although the creditor did not threaten a suit ; the conveyance was held good. In this case, the bankrupt made oath to the fairness of the transaction, and that he did not at the time contemplate bankruptcy.' § 17. "Where the property conveyed by the debtor equit- ably belongs to the person to or for whom the conveyance is made, though legally a part of the debtor's estate ; as, for instance, where it consists of money held in trust for the debtor's children : the conveyance will not be void, more especially in the absence of clear proof that it was made in contemplation of bankruptcy, though the party must have had apprehensions of such an event.^ Thus A. had engaged to transfer bank stock to B., to secure him as an indorser for A. E"ot having the stock when applied to for the transfer, A., at B.'s instance, conveyed land to C, who took up the notes. Held, though A. had com- mitted an act of bankruptcy before he conveyed the land, yet the conveyance was valid ; and B.'s preference, thus obtained, was only a substantial fulfilment of A.'s original engagement, when B. indorsed the notes."' ^ ■ The following cases may be cited, in illustration of the several points above stated. A., a trader, conveyed all his stock to B., by way of security for all the money which B. should advance to him, but retained possession of the property. Held, an illegal preference, in fraud of the bankrupt laws, and therefore void. Worselley v. De Mattos, 1 Burr. 467. The brother of the plaintiff, carrying on business in two shops, an upper and a lower one, and being indebted to the plaintiff, assigned to him his goods in the upper shop, being one-third of his stock, for the purpose of giving him a preference and in contemplation of bankruptcy. Held void. Linton v. Bartlett, Cowp. 120. A., the acceptor of a bill, two days before its maturity, called upon B., the drawer, and informed him that he was insolvent. The drawer re- quired payment, offering to secure to the creditors, in the event of a 1 Bayley v. Ballard, 1 Camp. 416 ; Smith v. Payne, 6 T. R- 152. • 10 Mod. 489 ; 1 Burr. 478, 481. ' McMechen v. Grundy, 3 Har. & J. 185. 464 LAW OF SALES OF PERSONAL PROPERTY. composition with them, the proceeds of A.'s property. A. accordingly paid the bill, and four days afterwards became bankrupt. It appeared that the bill had been altered, so as to make it fall due before this trans- action, but not with the knowledge of B. Held, on the grounds that such alteration showed a fraudulent intent, and that the first movement was made by A., and not by B., the payment was void, and A.'s as- signees might recover the amount, in an action for money had and re- ceived against B. Singleton v. Butler, 2 B. & P. 283. By the usage of trade between A. and B., B. might either keep or re- turn the goods sent him by A. Goods were sent, February 19, and retained by B. till March 4, on which daj- and the following one, being then insolvent, he returned them; and on March 5, after returning them, committed an act of bankruptcy. Held, the act of returning the goods was fraudulent and void, and the properly vested in B.'s assignees. Neate v. Ball, 2 E. 117. "Where notes were given to a creditor as collateral security, and the debtor became a bankrupt on the following day; held, the assignment of the notes was void, and the assignee of the bankrupt might maintain trover to recover them. The transfer, on general principles, would be valid, but was held void as against the policy of the bankrupt law. Locke V. Winning, 3 Mass. 325. A debtor, on the eve of bankruptcy, sent by mail to his creditor a bill of exchange, without the previous knowledge of the latter. Held, the act was a fraud on the bankrupt laws and void. It was said, that all acts done to defraud creditors, or against the public law of the land, such as the statutes of bankruptcy, are absolutely void. Alderson v. Temple, 4 Burr. 2235. A trader, in contemplation of absconding, inclosed a bill to his cred- itor in discharge of the debt, saying, that he had the honor to show him that preference, which he thought his due. The creditor, however, was not privy to this act. Before the bill could be received, the debtor committed an act of bankruptcy. Held, as the motive was to give a preference and the act incomplete, it was void. Harman v. Fisher, Cowp. 117. A. purchased goods for B., and placed them in the custom-house in his own name. He also handed to B. a bill of exchange as security; but, the bill proving to be forged, B. required an immediate transfer of the goods to himself, which was accordingly made. Two days afterwards, A. com- mitted an act of bankruptcy. Held, this was not a voluntary preference, and the transfer was good. De Tastet v. Carrol, 1 Stark. 88. A debtor transferred goods to his creditor, at the request of the latter, in part-payment of a debt not yet due, and became bankrupt soon after- wards. Held, the facts did not conclusively show an unlawful prefer- ence. Hartshorn v. Slodden, 2 B. & P. 582 ; 11 E. 256. It will be observed, that the text of the foregoing chapter is founded FRAUD ON CREDITORS, ETC. 465 rather upon the earlier than the more recent decisions, relating to fraud- ulent conveyance. The later reports abound with cases upon the same subject. Very many of them, however, apply to real property, and they generally turn upon slight points of fact, which involve no new rules of law, but merely call for the application, in doubtful circumstances, of well-settled principles. Upon the various branches of the general topic most of the more recent authorities are hereto subjoined. See Fox v. Willis, 1 Mann. 321; Stokes v. Jones, 18 Ala. 734; Johnson v. Thweatt, 18 Ala. 741; Crumbaugh v. Kugler, 2 Ohio (N. S.) 378; Eussell v. Dyer, 33 N. H. 186; Shoutz v. Brown, 27 Penn. 123; Young v. White, 25 Miss. 146; Glenn v. McNeal, 8 Md. Ch. 349; Grover v. Grover, 3 Md. Ch. 29. The statute of 13 Elizabeth is to be construed liberally in favor of cred- itors. Thus it applies to a surety or contingent creditor. Gibson v. Love, 4 Florida, 217; Poote v. Cobb, 18 Ala. 585; Beach v. Boynton, 26 Verm. 725. So, though in terms the statute 27 Elizabeth applies only to land, yet, being declaratory of the common law, it embraces fraudulent con- veyances generally. lb. Fraud in law is distinct from fraud in fact, and it is the duty of a judge to instruct the jury, that their conclusions from facts must be regulated by the character and import given to these facts by necessary legal im- plication. Where the legal effect of a conveyance is to hinder, delay, and defraud creditors, no matter what the actual intention may have been, it is a fraud in law, and the courts are bound so to declare it. lb. See Eobinson v. Eobards, 15 Mis. 459; Green v. Trieber, 3 Md. 11; Mayor, &c. V. Williams, 6 Md. 235 ; Middleton v. Hoff, 15 Mis. 415 ; Kuyken- dall T. McDonald, 15 lb. 416. Where one honestly conveys property to another, believing that he will reoonvey or transfer it to such person as the grantor may direct, not intending to affect his creditors; and where they would not be injured if his intentions were carried out by the grantee: such conveyance is not fraudulent. Hovey v. Holcomb, 11 111. 660. But a sale made with fraudulent intent is void, though such intent does not take effect. Drum V. Painter, 27 Penn. 148. So, although the seizure of property by a creditor is beneficial to 'the debtor. Feagan v. Cureton, 19 Geo. 404. A public sale, as by a sheriff upon execution, falls within the rule of law against fraudulent conveyances. Forrest v. Camp, 16 Ala. 642. But there must be an intent to " hinder, delay, or defraud creditors ;" not merely to prevent a sacrifice of property. Cason v. Murray, 15 Mis. 378. See Clark v. Depew, 25 Penn. 509 ; Buck v. Sherman, 2 Doug. 176. The phrase "creditors and others," in statute 13 Eliz. c. 5, has been held to include the wife of a grantor. Feigley v. Feigley, 7 Md. 537. It has been held, that a conveyance of personal property, though void under the statute 13 Elizabeth, as to creditors, is valid against subsequent purchasers. Long v. Wright, 3 Jones, 290. Also, that this act avoids all voluntary conveyances as against creditors, but not purchasers ; while 30 466 LAW OF SALES OF PERSONAL PROPERTY. the statute of 27 Elizabeth avoids voluntary conveyances of land only as against subsequent purchasers. Garrison v. Brice, 3 Jones, 85. It is also said, the statute 27 Elizabeth was made for the protection of -puT- chasers, as 13 Elizabeth was for that of creditors. Greenl. Over. Cas. 495. With regard to the effect of indebtedness, as making a conveyance fraudulent, see Smead v. "Williamson, 16 B. Mon. 492 ; Walcott v. Almy, 6 McL. 23; Dunlap v. Bournonville, 2G Penn. 72; Woodson v. Pool, 19 Mis. 340; Dietas v. Fuss, 5 Md. 148; Clayton v. Brown, 17 Geo. 217; Hickey v Eyan, 15 Mis. 62 ; Thornton v. Lane, 11 Geo. 459; Neuffer v. Pardue, 3 Sneed, 191 ; Footes v. Cobb, 18 Ala. 585. A conveyance of personal property, by a debtor in embarrassed cir- cumstances, for the purpose (known to the purchaser) of securing it from attachment, is void as against creditors, although the debtor, at the time, believes that such conveyance is for the benefit of his creditors, and may intend that his creditors shall ultimately be paid. Kimball v. Thomp- son, 4 Cush. 441. As to the nature and effect of collusion, see McDowell v. Goldsmith, 6 Md. 319 ; Garr v. Hill, 1 Stockt. 210 ; Seavy v. Dearborn, 19 N. H. 361 ; Sterling v. Kepley, 3 Chand. 166. Of a trust for the vendor, Towle v. Hoit, 14 N. H. 61 ; Adams v. Beaman, 3 Jones, Law, 140; West v. Snodgrass, 17 Ala. 549; fiobinson v. Kobards, 15 Mis. 459 ; Hapgood v. Fisher, 34 Maine, 407. As to the nature, necessity, and effect of a consideration, and at the same time of bona fides in the purpose of the conveyance, see Woodson v. Pool, 19 Mis. 310; Farmers', &c. v. Douglass, 11 S. & M. 469; Glenn V. Kandall, 2 Md. Ch. 220 ; Wisner v. Farnham, 2 Mich. 472 ; Robin- son V. Robards, 15 Mis. 469; Tatum v. Hunter, 14 Ala. 557 ; Wright v. Brandis, 1 Cart. 336 ; Clayton v. Brown, 17 Geo. 217 ; Johnson v. Sul- livan, 23 Mis. 474; Wellington v. Fuller, 38 Maine, 61 ; Clark v. Depew, 25 Penn. 509; Worthington v. Bullitt, 6 Md. 172; Delaware v. Ensign, 21 Barb. 85; Cason v. Murray, 15 Mis. 378; Kuykendall v. McDonald, 15 Mis. 416 ; Ashmead v. Hean, 13 Penn. 584 ; Smith v. Culbertson, 9 Rich. 106. That mere want of consideration does not avoid a conveyance, see Hays V. Hollis, 8 Gill, 357; Brady v. Haines, 18 Penn. 113; Lane v. Kings- berry, 11 Mis. 402. It is held that a consideration cannot be set up dif- ferent from that expressed in the instrument of sale. Glenn v. McNeal, 3 Md. Ch. 349. A consideration must be adequate. Kuykendall v. McDonald, 15 Mis. 416. And the creditors of the vendor will be entitled to have the surplus of property over the amount of consideration. Tripp v. Childs, 14 Barb. 85. A debtor m&y prefer one creditor to the rest. Garr v. Hill, 1 Stockt. 210; Upler v. Maulfair, 23 Penn. 481 ; Hopkins v. Beebe, 26 Penn. 85; Kirtland v. Snow, 20 Conn. 23; Kuykendall v. McDonald, 15 Mis. 416; Anderson v. Tydings, 3 Md. Ch. 167; Lloyd v. Williams, 21 Penn. 327; FRAUD ON CREDITORS, ETC. 467 Covanhoven v. Hart, 21 lb. 495; McWhorter v. "Wright, 5 Geo. 555. Even though, as haa been held, the creditor knew that the object was to avoid payment of another creditor. Hartshorn v. Eames, 31 Maine 93. But see Little v. Eddy, 14 Mis. 160. So a debtor may transfer all his property to one creditor. Cason v. Murray, 15 Mis. 378. See Little v. Eddy, 14 Mis. 160; Mabbett v. "White, 2 Kern. 442. But an assignment of the assets of a hank, insolvent at the time, and about making a general assignment, and cgainst which proceedings are pending to revoke its charter, made to a creditor cognizant of these facts, and by collusion with him to defraud the other creditors, is void. High- tower V. Mustian, 8 Geo. 506. So, in general, a conveyance to a creditor, made under circumstances of suspicion, and tainted with fraud in law. Merry v. Bostwick, 13 111. 398. As to the effect of a good consideration, and the general character and aspect of conveyances made to or for the benefit of relatives, see Johnson V. Boyles, 26 Ala. 576 ; Jessup v. Johnston, 3 Jones, Law, 335 ; Fiedler V. Day, 2 Sandf. 594 ; Gratz v. Cohen, 11 How. 1 ; Ford v. Aikin, 4 Rich. 121; Berst v. Spelman, 4 Comst. 284; OUiver v. King, 35 Eng. L. & Eq. 812; Parish v. Murphree, 13 How. 92; Bulkley v. Buffington, 5 McL. 457; Lewis v. Caperton, 8 Gratt. 148; High v. Nehus, 14 Ala. 350; Bullett v. Worthington, 3 Md. Ch. 99; Foues v. Eice, 9 Gratt. 668; Harper v. Scott, 12 Geo. 125; Stokes v. Jones, 21 Ala. 731 ; Mont- gomery V. Kirksey, 26 Ala. 172 ; Bowman v. Herring, 4 Harring. 458 ; Davis V. Turner, 4 Gratt. 422 ; Gannard v. Bslava, 20 Ala. 732; Zerbe V. Miller, 16 Penn 488 ; Trimble v. Eateliff, 9 B. Mon. 511 ; Worthing- ton V. Shipley, 5 Gill, 449 ; Eichards v. Swan, 7 Gill, 366 ; Hitt v. Orms- bee, 12 111. 166 ; Watson v. Kennedy, 3 Strobh. Eq. 1. A voluntary settlement by a husband upon his wife, he being at the time insolvent, is void even as to subsequent creditors. Vertner v. Humphreys, 14 S. & M. 130. A conveyance, by a debtor, of all his property, to secure the future support of himself and his family, without making provision for the pay- ment of all his debts, is fraudulent in law, and void as to the creditors for, whom no provision is made. Jones v. Spear, 21 Verm. 426. "Where a father has executed to his son a voluntary deed, which is fraudulent as against creditors or subsequent purchasers, the marriage of the son, after its execution, and before it is avoided, will not give it validity. Stokes v. Jones, 18 Ala. 734. But relationship merely raises a, presumption of fraud. Montgomery V. Kirksey, 26 Ala. 172. See Ingram v. Phillips, aStrobh. 565 ; Martin V. Oliver, 9 Humph. 561. A deed of trust, executed by a father, to secure a pre-existing volun- tarybond to his daughter, payable on her marriage,. the father being wealthy and unembarrassed at the time of the execution of the bond, but 468 LAW OF SALES OF PERSONAL PROPEKTT. insolvent at the time the deed is executed, is valid against creditors, be- coming such after the marriage. "Welles v. Cole, 6 Gratt. 645. So a voluntary settlement in favor of an illegitimate child, made by a father while in trade and indebted, but clearly solvent, is good against subsequent creditors, there being no fraudulent intent. Wallace, Jr. 107. So a conveyance, by one not in debt, to his wife or other relative, of a portion of his estate, is not fraudulent, unless it was made with the in- tention of becoming indebted. Haskell v. Bakewell, 10 B. Mon. 206. So a mother, holding personal property in trust for her daughters, and doing business as a partner in a firm, may give or sell it to them, to pre- vent its being levied on by creditors of the firm, no judgment against her existing at the time, or being anticipated immediately. Smith v. Stern, 17 Penn. 360. See Lockwood v. Nelson, 16 Ala. 294; Anderson V. Tydings, 3 Md. Ch. 167; Jenkins v. Peace, 1 Jones, Law, 413. That a conveyance, though fraudulent against creditors, is not there- fore invalid as between the parties ; see Epperson v. Young, 8 Tex. 135; Lassiter v. Cole, 8 Humph. 621 ; Broughton v. Broughton, 4 Rich. 491 ; Thompson v. Moore, 36 Maine, 47 ; Lenox v. Notrebe, 1 Hemp. 251 ; Jewell V. Porter, 11 Post. 34; Osborne v. Tunis, 1 Dutch. 633; Drum v. Painter, 27 Penn. 148 ; La Crosse, &c. v. Seeger, 4 Wis. 268. So it is held valid as against the widow, administrator, and heirs of the grantor. 27 Penn. 148; Kinnemon v. Miller, 2 Md. Ch. 407; Laney v. Laney, 2 Cart. 196 ; Dawzey v. Smith, 4 Tex. 411 ; Fewber v. Stoneum, 11 Tex. 478; Cobb v. Norwood, 11 Tex. 556; McLaughlin v. McLaughlin, 16 Miss. 242; Cushwa v. Cushwa, 5 Md. 44; Choteau v. Jones, 11 111. 300; Crosby v. De Graffenreid, 19 Geo. 290; Burke v. Murphy, 27 Miss. 167. (Although, in general, by virtue of express statutory provisions, an exec- utor or administrator may, for the payment of debts due from the es- tate, recover property fraudulently conveyed by his testator or intestate.) Upon this ground, if a fraudulent vendor acquire a title under a sale made upon execution against him, both he and his vendees with notice are estopped by the original conveyance. Perry v. Calvert, 22 Mis. 361. A fraudulent grantor, who has parted with the possession, cannot maintain an action for the property. Britt v. Aylett, 6 Eng. 476. Even a statute, imposing a penalty upon the parties to a fraudulent con- veyance, does not, as between them, render it void. Ellis v. Higgins, 82 Maine, 34. Upon the same ground, it is held, that there can be no fraudulent con- veyance of property not attachable. Bond v. Seymour, 1 Chand. 40. See Stokes v. Jones, 21 Ala. 731 ; Sugg v. Tillman, 2 Swan, 208. And, upon the same principle, where a deed of gift is fraudulent against creditors, and the property sold under executions, the surplus in the hands of the olBcer, after satisfying the executions, belongs to the donees. Williams v. Avent, 5 Ired. Eq. 47. So a deed, whether made for a valuable consideration or not, but given FRAUD ON CREDITORS, ETC. 469 upon a trust, declared at the time of its execution, that the grantee should hold in trust for the children of the grantor, if intended as a fraud upon the grantor's creditors, is void as against them, hut valid as against the grantor and the children, or their vendee, whether in possession or not. Murphy v. Huhert, 16 Penn. 50. Tbata JoBa/rfe subsequent purchaser from the fraudulent grantor will take a good title, see Fowler v. Waldrip, 10 Geo. 350; Dolin v. Gardiner 15 Ala. 758; Newark, &c. v. Jaralemon, 3 Halst. Ch. 304; Stokes v. Jones, 21 Ala. 731 ; Stone v. Van Heythuysen, 23 Eng. L. & Eq. 491 ; Caston V. Cunningham, 3 Strobh. 59. A voluntary conveyance is presumed fraudulent against subsequent purchasers. Wells v. Treadwell, 28 Miss. 717. The execution of a sub- sequent conveyance is held conclusive proof that the party intended to make it when he made the former one, and that he made the former one in order to defeat the subsequent purchaser. Newman v. Eusham, 9 Eng. L. & Eq. 410. A., being insolvent, conveys property to B., to be held for A.'s use, and delivers possession. A. subsequently agrees with his creditor, C, in consideration of a full discharge, to turn over to him all his property, real and personal, and all his rights of property ; and, in pursuance of said agreement, turns out to him all his property, except that before conveyed to B. Held, the agreement was a contract of sale, and vested a title to all A.'s property in C, including that conveyed to B. Woodward v. Solomon, 7 Geo. 246. But it is otherwise in the case of a subsequent purchaser with notice. Eohinson v. Martel, 11 Tex. 149; Fowler v. Stoneum, lb. 478; Hubbs v. Brockwell, 3 Sneed, 574; Mayor, &c. v. Williams, 6 Md. 235; Fowler V. Waldrup, 10 Geo. 350; Corprew v. Arthur, 15 Ala. 525. But see Clayton v. Brown, 17 Geo. 217. A bond fide purchaser for valuable consideration is protected under statutes of 13th and 27th Elizabeth, whether he purchase from a fraudu- lent grantor or grantee. Thus, where a father bought property with his own money, and procured it to be conveyed to his minor children, and afterwards sold it for a valuable consideration ; it was held, in an action of trover by the minors, that the conveyance to them was void as to the subsequent purchaser. Howe v. Waysman, 12 Mis. 169. Shearer v. Barrett, Hill & Denio, 70. A creditor without notice may receive the property in payment of a debt from a fraudulent grantee. Knox v. Hunt, 18 Mis, 174. So a bond fide purchaser under a trust deed gets a good title, whether the deed is fraudulent or not. Richards v. Ewing, 11 Humph. 327. A mere voluntary conveyance, without a fraudulent intent, is held good against siibaequent creditors. Atkinson v. Phillips, 1 Md. Ch. 507. See Stiles v. Lightfoot, 26 Ala. 443 ; Martin v. Oliver, 9 Humph. 561 ; Pepper v. Carter, 11 Mis. 540; Creed v. Lancaster, &c. 1 Ohio (State), 1. See also Wilson v. Howser, 12 Penn. 109. A prior creditor loses his rights as such, and places himself in the posi- 470 LAW OF SALES OF PERSONAL PROPERTY. tion of a subsequent creditor, even by adding interest to his claim and recovering judgment therefor. Quimby v. Dill, 40 Maine, 528. Upon a proceeding in equity against a bond fide purchaser, the property cannot be held, itself, but the proceeds may be, in the hands of the fraudu- lent grantee. Bryant v. Young, 21 Ala. 264. A subsequent deed to the fraudulent purchaser may be valid. White V. White, 13 Ired. 265. As to the effect of continued possession, see Hutchins v. Gilchrist, 23 Verm. 82; Otis v. Sill, 8 Barb. 102; Walcott v. Keith, 2 Post. 196; Walworth v. Readsboro, 24 Verm. 252; Allen v. Wheeler, 4 Gray, 123; MoQuinnay v. Hitchcock, 8 Tex. 33 ; Kuykendall v. McDonald, 15 Mis. 416 ; Powers v. Green, 14 111. 386 ; Thompson v. Blanchard, 4 Comst. 303 ; Kendall v. Fitts, 2 Post. 1 ; Eandall v. Parker, 3 Sandf. 69 ; Pork- ner v. Stuart, 6 Gratt. 197 ; Young v. Booe, 11 Ired. 347 ; Barnard v. Mosely, 3 Florida, 322 ; Morgan v. The Republic, 2 Texas, 279 ; Harts- horn V. Eames, 31 Maine, 93; Carter v. Stanfield, 8 Geo. 49; Beers v. Dawson, lb. 556; Gibson v. Love, 4 Plorida, 217; Veazie v. Holmes, 40 Maine, 69 ; Potter v. Mather, lb. 551 ; Brown v. Wilmerding, 6 Duer, 220; Pringle v. Ehame, 10 Rich. 72; Converse v. McKee, 14 Tex. 20; Earle v. Thomas, lb. 583 ; Whitney v. Brunette, 3 Wis. 621 ; Addington V. Etheridge, 12 Gratt. 436; Seavy v. Dearborn, 19 N. H. 351 ; Hugus V. Robinson, 24 Penn. 9; Bartlett v. Blake, 37 Maine, 124; Eidout v. Burton, 1 Wms, 383; Garnett v. Rhame, 9 Rich 407; Jarvis v. Davis, 14 B. Mon. 529 ; Merrill v. Dawson, 1 Hemp. 563 ; Sanders v. Pepoon, 4 Plorida, 465; Wooten v. Clark, 23 Mis. 75; Humphries v. McCraw, 4 Eng. 91 ; Sanborn v. Kittredge, 20 Verm. 632 ; Tifft v. Barton, 4 Denio, 171 ; Merritt v. Lyon, 3 Barb. 110; Simerson v. Branch, &c. 12 Ala. 205; Garland v. Chambers, 11 S. & M. 337 ; Fleming v. Townsend, 6 Geo. 103 ; Hardy v. Skinner, 9 Ired. 191 ; Coleman v. Bank, &c. 2 Strobh. Eq. 285; Ewing v. Cargill, 13 S. & M. 79; Farmers', &c. v. Douglass, 11 lb. 469; Walter v. Wimer, 24 Mis. 63 ; Smith v. Stern, 17 Penn. 360; Burrows v. Stebbins, 26 Verm. 659; Poster v. Woodfln, 11 Ired. 339. It is said (1 Pars, on Contr. 442), " there seems now to be a tendency to consider the question of fraud in all such cases as a question of fact, in relation to which the circumstance of possession is of great weight, though not absolutely conclusive." "It must be confessed, however, that there is a host of decisions in support of the opposite principle, and that it still has the sanction of very sound, respectable, and learned courts." lb. n. With regard to the evidence relating to fraudulent sales, and the gen- eral distinction between questions of law and of fact, see Anderson v. Tydings, 3 Md. Ch. 167; Smith v. Mobile, &c. 21 Ala. 125; Hollister v. Lord, 2 Mich. 309; Young v. White, 25 Miss. 146; Grover v. Grover, 3 Md.Ch. 29; Pierce v. Hoffman, 24 Verm. 525; Johnson v. Thweatt, 18 Ala. 741. Fraud will never be presumed in a court of law. FRAUD ON CREDITORS, ETC. 471 A purchase and sale for valuable consideration, accompanied by a hon& fide change of property and possession, without proof of fraud in which both parties participated, will not be presumed, at law, to have been made with intent to hinder, delay, or defraud creditors, no matter how much the vendor may have been indebted at the time. Dardenne v. Hardwick, 4 Eng. 482. So, although fraud, like other facts, may be proved by direct, or circum- stantial, or presumptive evidence, the proof must be satisfactory; and a sale will not be set aside as fraudulent in fact, merely because it is doubtful or suspicious. White v. Trotter, 14 S. & M. 80. See Bulk- ley v. Buffington, 5 McL. 457. The burden of proof is on the party seeking to avoid the sale. Shoutz V. Brown, 27 Penn. 123. As to the evidence, in a suit against an officer who seizes the property upon legal process, see Helfrich v. Stem, 17 Penn. 143 ; Hopkins v. Scott, 20 Ala. 179. The officer is bound to prove the debt of an attaching creditor. Maley V. Barrett, 2 Sneed, 501. So creditors alone have the right to contest the validity of a transfer, and the purchaser may show that the party contesting is not a creditor. Thus he may set up the Statute of Limitations as n bar to the claim of such creditor. McClenney v. McClenney, 3 Tex. 192. So it is held that a creditor must establish his debt by judgment, before he can question a conveyance made by his debtor. And the grantee may show fraud or irregularity in the judgment. Carter v. Bennett, 4 Florida, 283. But, in order to make a deed of trust, conveying property for the sat- isfaction of certain creditors, valid as against judgment-creditors of the grantor, it not being shown, that, independent of the property conveyed, the grantor had enough, at the date of the deed, to satisfy other creditors, the party relying upon the deed must produce evidence of the existence of the debts therein mentioned, or, at least, of such an amount of them as will show, prima facie, that the transaction was bona fide. The onus of proving fraud is then thrown upon the party alleging it. Feimester v. McEorie, 12 Ired. 287. A transaction in the nature of a sale may be questioned as fraudulent in relation to creditors of the vendee, as well as those of the vendor. In other words, the creditors of the vendee may seek to hold property com- ing into his hands by a contract not amounting to a sale between the par- ties, on the ground that possession gives the vendee a false credit. But the property cannot be thus held, without proving actual fraud. Thus the plaintiff furnished one A., an insolvent, with goods, to be sold at a shop kept by A. A. was to pay for them at certain prices as fast as he sold them. "Whatever he might obtain over those prices were to be his profits. The goods were to remain the plaintiff's, and at his risk, until sold. Such articles as should not be sold were to be returned to the 472 LAW OF SALES OF PERSONAL PROPERTY. plaintiff; such as should be sold on credit, were to be at A.'s risk ; and, for all goods sold, he was to account with the plaintiff at the prices fixed. Held, that such a consignment was not fraudulent in law in respect to A.'s creditors, and that whether it was in fact hon& fide, or only a color for a sale, was a question for the jury. Patten v. Clark, 5 Pick. 5. See McDermott v. Barnum, 19 Mis. 204. The vendor need not have notice, to make such conveyance void. Godding v. Brackett, 34 Maine, 27. Where a parent placed a slave in the possession of his son-in-law, which the creditors of the latter claimed; held, it was not necessary that the possession should appear adverse, in order that their rights might attach. "Whitesides V. Poole, 9 Kich. Law, 68. See Tomlinson v. Tom- linson, 10 lb. 404. Where a debtor purchases goods with his own money, but buys and takes a bill of sale in the name of a third party, such goods will not be protected from his creditors. Godding v. Brackett, 34 Maine, 27. See Creed v. Lancaster, &c., 1 Ohio St. 1 ; Dewey v. Long, 25 Verm. 564. A. bid off slaves at auction, and procured B. to give his bond for the price, and take the slaves, on the understanding that A. would after- wards take them and refund the money. Three months afterwards, A. paid B., who sent the slaves to C. Held, they became the property of A., and were liable to be taken by his creditors. Pitman v. Staton, 11 Gratt. 99. With reference to sales alleged to be fraudulent, as against bankrupi or insolvent laws, many cases have arisen under the former and late bank- rupt laws of the United States, and insolvent laws of some of the States; not, however, for the most part, materially changing the principles upon the subject, stated in the text. It will be seen, that the construction of the United States bankrupt law by different courts has not been per- fectly uniform. The following general propositions and citations of authorities are sufficient to indicate the prevailing law upon the most material points involved. Under the old bankrupt law of the United States, giving voluntary preference to one creditor was not an act of bankruptcy, though, if given on the eve, and in contemplation, of bankruptcy, it was void. Harrison V. Sterry, 5 Craneh, 301; Locke v. Winning, 8 Mass. 325; Barnes v. Billington, 1 Wash. 29; Ogden v. Jackson, 1 John. 370. The term " conveyance" in the bankrupt act meant an instrument under seal; and therefore a fraudulent sale or transfer of personal property, unless by a sealed instrument, was not an act of bankruptcy. Livermore v. Bagley, 3 Mass. 487. Paying money, or giving security to a creditor, in contem- plation of bankruptcy, and with a view to prefer him, was valid, if it were not voluntary, but the effect of measures taken by the creditor. 1 John. 370; Phojnix v. Dey, 5 John. 412; McMechen v. Grundy, 3 Har. & J. 185. A conveyance to secure a bon& fide creditor, if made before FRAUD ON CREDITORS, ETC. 473 June 1, 1800, was valid, though made in contemplation of bankruptcy, the bankrupt act not having gone into operation till that day. McMen- omy V. Roosevelt, 3 John. Ch. 446. A deed, executed and delivered before that day, though not acknowledged till after, was valid. Wood V. Owings, 1 Cranch, 239. A., being in embarrassed circumstances, April 15, 1800, conveyed certain lands, and May 81, 1800, executed a writing, declaring the conveyance to be made in trust for the payment of certain preferred creditors. June 13, A. drew an order on B., his agent, directing him to pay C. such moneys as he rafght receive from particular persons, which order B. on the same day accepted. July 11, A. committed an act of bankruptcy, and, July 18, was duly declared a bankrupt. The assignees of A. bring an action against B. upon the order. Held, the order and acceptance constituted an assignment of the funds referred to, and the order was not fraudulent, as given in contemplation of bankruptcy. McMenomy v. Ferrers, 3 John. 71. The policy of the bankrupt law of 1841 was to secure equality among the creditors. Breneman, Crabbe, 456. Assignments with preferences have been held valid, only on the ground that there was no bankrupt law in existence at the time. lb. It is not the proceedings in court that constitutes bankruptcy; it takes place in the course of a man's business, and the court is to ascertain whether the party was or was not a bankrupt at a certain time. lb. An assignment of all a man's property, made for the benefit of cer- tain creditors, is an act of bankruptcy, though made without moral fraud. lb. In England, the contemplation of bankruptcy means the benefit of the bankrupt act ; but, in this country, it has been construed to meail insol- vency. Ashby V. Steere, 2 W. & M. 347. Creditors, taking under a conveyance which is fraudulent under the bankrupt act, are not treated as purchasers, but as creditors claiming under a defective title. Everett v. Stone, 3 Story, 441. An assignment, in contemplation of bankruptcy, and for the purpose of giving preferences, is not absolutely void for ail purposes; but only as against an assignee under the bankrupt act. Seaman v. Stoughton, 3 Barb. Ch. 344. (So, in England, a conveyance by a debtor, who afterwards becomes insolvent, for the benefit of his creditors, is only void as against the as- signees, and is not fraudulent, though made with the object of defeating or postponing persons claiming under a decree. Lee v. Green, 35 Eng. L. & Eq. 261.) See Bittleston v. Cooke, 36 Eng. L. & Eq. 97; Leake v. Young, lb. 188 ; Hale v. Allnut, lb. 383 ; Preshney v. Carrick, 38, 542 ; Graham v. Purber, 25, 273 ; Young v. Ward, 14, 462 ; Heslop, 15 lb. 18; Chase, 22 Verm. 649; Tichenor v. Allen, 13 Gratt. 15. An assignment by a debtor, in contemplation of bankruptcy, of all his effects, for the benefit of his creditors, to one not a bond fide creditor or purchaser, without notice, was held void, under the bankrupt law of 1841. McLean v. Meline, 8 McL. 199; McLean v. Johnson, 3 McL. 202. Such 474 LAW OF SALES OF PERSONAL PROPERTY. assignment, though valid under the law of the State, being void under the bankrupt law, the property might be seized on execution, issued upon judgments regularly obtained, without fraud, before the filing of the pe- tition in bankruptcy. lb. A conveyance or assignment, if fraudulent at common law, was within the meaning of the first section of the bankrupt act, defining what should be considered cause for declaring a person a bankrupt. Also, every con- veyance or assignment which contravened the provisions and objects of the bankrupt act, though good at common law. Gassett v. Moore, 21 Verm. 627. So a conveyance or assignment, by a trader in embarrassed circum- stances, of all his cflFects to a particular creditor, whether voluntary, or under pressure of legal process, or with intention to take the benefit of the bankrupt act, or not, was an act of bankruptcy, within the first sec- tion of the law. lb. So where a portion of the property of a debtor was under attachment, and another creditor executed to the attaching creditor his bond, condi- tioned for the payment of the debt, and thereupon the attachment was released, and then the debtor executed to the second creditor a general assignment of all his property, to secure a debt due to him, and also to secure him for so giving his bond to the attaching creditor, and for the benefit of his other creditors generally, but creating preferences in favor of some of them ; held, both an act of bankruptcy within the first section, and an unlawful preference within the second section. lb. A. and B., partners, apprehending embarrassment in their business, conveyed all their stock and real estate, and certain notes, to certain of their creditors, to secure them, as sureties and indorsers. Afterwards, suits were commenced on certain of the debts secured, on which judgment was rendered, and execution levied; but, before judgment, A. and B. be- came bankrupts. The personal chattels, so assigned, were sold previous to the bankruptcy, and the proceeds applied to payment of said debts. Held, the assignment was an act in contemplation of bankruptcy, and a preference, and therefore void; that the judgments were not valid liens, within the saving of the last proviso of the act ; that the proceeds of the chattels sold could be followed by the assignee, and made assets in bank- ruptcy ; and that the conveyance was a bar to the bankrupt's discharge. Everett v. Stone, 3 Story, 446 ; Caryl v. Eussell, 3 Kern. 194. As already suggested, the words, " in contemplation of bankruptcy," as used in the bankrupt law, meant a contemplation of » state of bank- ruptcy merely, and not an intention to take the benefit of the bankrupt law. And this meant more than an inability to pay debts promptly. It contemplated a thorough breaking up of business. McLean v. Lafayette Bank, 3 McL. 687 ; Everett v. Stone, 3 Story, 446 ; Winsor v. Kendall, 3 Story, 507. Contra, Buckingham v. McLean, 13 How. 168. Any act, done in contemplation of bankruptcy, or when in a state of insolvency, whereby a preference was given to particular creditors, was void. Collins v. Hood, 4 McL. 186. FRAUD ON CREDITORS, ETC. 475 The following cases relate more particularly to the point, whether, and how far, the voluntary oi forced and compulsory nature of the conveyance affects its validity. A. was declared a bankrupt, on a petition filed against him by his credi- tors, September 21. August 5, he had mortgaged land to secure a note, at the urgent request of the creditor ; and he testified, that, though in fact at the time deeply insolvent, he supposed he could go on and pay his debts, and that he did not at the time intend to petition, nor expect to be proceeded against in bankruptcy. Held, the mortgage was valid. Dow V. Sargent, 15 N. H. 115. Under the insolvent law of Massachusetts, where one of the creditors of an insolvent debtor, within six months previous to the commencement of the prceedings in insolvency, sued out a writ of attachment against such debtor, and caused all his property to be attached thereon ; and the debtor, thereupon, in order to obtain a dissolution of the attachment, and to enable himself to go on with his business, which he was wholly unable to do whilst the attachment remained, made a mortgage of the property so attached, in favor of the attaching creditor, and to secure the payment of the debt, on account of which the attachment waj made : held, the mortgage was nevertheless void, under the stat. of 1841, u. 124, \ 3, as having been made with an intent "to give a preference to a pre- existing creditor," provided the mortgagee, when accepting such prefer- ence, had reasonable cause to believe that the mortgagor was insolvent. Denny v. Dana, 2 Cush. 160. So, in England, where, on the eve of his bankruptcy, the bankrupt, upon being pressed for payment by a creditor, executed to him an assign- ment of so much of his estate and effects, as to render it impossible for him to continue carrying on his trade ; this was held an act of bankruptcy, and void as against creditors. Bailey, 19 Eng. Law & Eq. 61. See Graham v. Chapman, 11 lb. 498. So, where a debtor was irretrievably insolvent, and had actually and notoriously failed and stopped business, and, when under immediate ap- prehension of being committed by one of his creditors, transferred a part of his property to another creditor, without any request or demand on his part, to an amount exceeding his debt, and soon after became a volun- tary bankrupt; it was held, that the transfer was such an unlawful pref- erence, as ought to deprive the bankrupt of his discharge. Pearce, 21 Verm. 611. But it was held, iha-t preference of a creditor is not the payment of one in the ordinary course of business, or under threats or suits, but selecting one as a relation or friend, or settling with him before due, or on the eve of bankruptcy, when not pushed by him. lb. Ashby v. Steere, 2 W. & M. 347. See Rowell, 21 Verm. 620; Perkins v. Webster, 2 Cush. 480; Stevens v. Blanchard, 3 Cush. 169. And the preference, to be void, must be voluntary, not induced by an agreement between the parties for the creditor's security. Smoot v. Morehouse, 8 Ala. 370. Where an insolvent debtor, who was ignorant of his insolvency, made 476 LAW OF SALES OF PERSONAL PROPERTY. a bond fide mortgage of real and personal property, not with the intention of closing his business, but rather with a view to continue and extend it; it was held, that this was not a conveyance made " with a view to insol- vency," within the meaning of a State insolvent law. Utley v: Smith, 24 Conn. 290. So an involuntary transfer by an insolvent debtor, who was going on with a bon&fide intention and expectation of saving himself from failing, and of paying his debts, was held not an unlawful preference, within the meaning of the bankrupt law. A voluntary conveyance, by aninsolvent debtor, of a portion of his property, made in the ordinary course of busi- ness, will not justify an inference that the transfer was made in contem- plation of bankruptcy; but it must appear that the debtor acted in an- ticipation of failing in his business, of committing an act of bankruptcy, or of being declared bankrupt at his own instance, on the ground of ina- bility to pay his debts, and intending to defeat the general distribution of effects, which takes place under a proceeding in bankruptcy. Pearce, 21 Verm. 611. It has been held in Maryland, that an assignment of an insolvent debtor will not be set aside, on proof of an intent to prefer alone, though made at the request of a creditor having knowledge of the debtor's in- solvency ; without proof of an intent to take advantage of the insolvent law. Brooks v. Thomas, 4 Md. Ch. 16; Farringer v. Ramsay, lb. 33; Falconer v. Griffith, 3 lb. 151. With more particular reference to the knowledge of the creditor pre- ferred as to the debtor's insolvency ; it was held, that a conveyance made two months before the bankruptcy was not void, whatever was the inten- tion of the bankrupt, if the other party acted fairly, and without notice of his intention. McLean v. Lafayette, &c., 3 McL. 507. And that a creditor is never held to be unduly preferred, unless he understands, at the time, that he is dealing with the bankrupt, or with his avowed agent, for security or payment out of the funds of the bankrupt. Winsor v. Kendall, 8 Story, 507. So a sale of property to a creditor, more than thirteen months before the debtor applied for the benefit of the law, if bond fide, and without knowing that the debtor contemplated going into bankruptcy, was held valid. Ashby v. Steere, 2 W. & M. 347. Such sale, if made as a preference, when the debtor contemplated going into bankruptcy, might prevent his discharge, and be an act of bankruptcy, but still be valid in regard to the creditor. lb. The mere fact that a debtor, two months before his insolvency, assigned claims, as security for a pre-existing debt due from him, of an amount nearly double that of the debt, does not authorize the conclusion, that the creditor had reasonable cause to believe the debtor insolvent, under the Massachusetts insolvent law. Porter v. Ballard, 26 Maine, 448. It has been held, that the no- tice in cases of this description must be actual notice. Falconer v. Grif- fith, 3 Md. Ch. 151; Falconer v. Clark, 7 Md. 177; Preston v. Leighton, 6 Md. 88; Cole v. Albers, 1 Gill, 412. But on the other hand it was held, that, to constitute a conveyance in " contemplation of bankruptcy," FRAUD ON CKEDITORS, ETC. 477 it was not necessary that the preferred creditor should know of the debtor's insolvency, or should co-operate with him to obtain a priority of payment. Peckham v. Burrows, 3 Story, 544. A. mortgaged to B. the whole of his stock in trade, and nearly all of his real estate, to secure a debt, and on the same day petitioned for the benefit of the bankrupt act. Subsequently, B. assigned his interest to the Cohasset Bank and others. Held, the mortgages were "in contemplation of bankruptcy," and void, whether B. did or did not know that a fraud- ulent preference was intended, if it were actually given. Also, that, if the bank had notice that A. had failed, and took the assignment as secu- rity for old claims, without extinguishment or surrender thereof, it was not a bon&fde purchase, for valuable consideration, without notice; and, as the assignment by B. was merely of his right, title, and interest, the invalidity of his title destroyed all right of the bank. Also, that the pendency of proceedings in bankruptcy was sufficient constructive notice. Morse v. Godfrey, 3 Story, 364. So, information that a person was gen- erally considered insolvent, in the town or neighborhood, with the knowl- edge that he was selling his goods by consent of the creditors, is legal notice of insolvency. Brooks v. Thomas, 8 Md. 367. Or, at least, is evi- dence that the creditor had reasonable cause to believe the debtor insol- vent. Lee V. Killburn, 3 Gray, 594. So, in trover, by the mortgagee of an insolvent debtor, claiming under a mortgage executed by the debtor within six months previous to the commencement of the proceedings in insolvency, against the assignee, claiming on the ground that the mort- gage was void, as made with a view to give a preference; evidence having been given, that Jhe debtor was a manufacturer of printed goods, and, among others, of mousselines de laine, and that the plaintiff was a mer- chant dealing in dyestuffs, and trading with manufacturers, the debtor as well as others; held, the defendant might inquire of a witness, "whether, previous to the execution of the mortgage, it was a fact known in the community, that the printing of mousselines de laine was a ruinous business to those engaged in it ;" in order to show, that the plaintiff had reasonable cause to believe that the mortgagor was then insolvent. Denny v. Dana, 2 Cush. 160. An agreement by a creditor, who has re- ceived an unlawful preference, to surrender the property received, and to share joro 7-aia with other creditors, made before commencement of in- solvency proceedings, but not consummated until afterwards, does not purge the illegality. Blodgett v. Hildreth, 11 Cush. 311. With regard to the requisite evidence of a fraudulent intent in this class of cases, see Curtis v. Leavitt, 15 N. T. (1 Smith) 9; Brooks v. Thomas, 4Md. Oh. 15; Williams v. Ooggeshall, 8 Cush. 377; Stewart v. Union, &c., 2 Md. Ch. 58 ; Powles v. Dilley, 9 Gill, 222. In reference to the rights and duties of partners in connection with in- solvency ; where two partners, subsequent to the filing of a petition by one of them, individually, for the benefit of the insolvent law, but prior to the first publication of notice, divided between themselves certain notes, the property of the partnership, one of which, before such pmbli- 478 LAW OF SALES OF PERSONAL PROPERTY. cation, was indorsed with the partnership name by the partner receiving it; such indorsement was held to pass a valid title in the note, so as to enable a subsequent indorsee to maintain an action against the maker. Mechanics', &c. v. Hildreth, 9 Cush. 356. A bonti file sale, for a valu- able consideration, by one partner to another, of all the partnership effects, is valid, and the property becomes the separate estate of the pur- chaser, although the firm and both partners are at the time insolvent. Howe V. Lawrence, 9 Cush. 553. A conveyance by one partner of his separate property to one of his pre-existing creditors, with the intent to give a preference, is void under (Massachusetts) St. 1841, c. 124, J 3, if the property of the partnership and of the individual partners be insuf- ficient to pay the partnership debts, although the private estate of such partner be more than sufficient to pay his separate debts. Judd v. Gibbs, 3 Gray, 539. As to the rights and duties of assignees in insolvency with reference to property fraudulently conveyed ; an assignee may sell and convey his in- terest, as such, in real estate which has been conveyed by the debtor to defraud creditors, without first bringing an action therefor against the grantee. Gibbs v. Thayer, 6 Cush. 30. In regard to the operation of a State insolvent law beyond the limits of that State ; the assignee of an insolvent debtor, appointed under the laws of Massachusetts, does not so far represent creditors in the State of Rhode Island, as to be able to avoid a conveyance of personal property in the latter State, good as against the insolvent, but invalid as against creditors by the law of Bhode Island. Betton v. Valentine, 1 Curt. 168, A., a resident and citizen of New York, sold and delivered goods in that city to B., a resident and citizen of Maryland, for which B., on the 12th of May, 1841, gave A. his note at six months, dated November 6th, 1840. On the 12th of May, 1841, A.'s agent received of B., in Maryland, mer- chandise, and promissory notes of third parties, for about the amount of B.'s note, and gave him up his note. B. was then insolvent, which fact was known to A. In August following, B. applied for relief under the insolvent laws of Maryland. His permanent trustee brought trover against A.'s agent, to recover the value of the notes and merchandise so received by him, as being a preference against the policy of the insolvent laws of Maryland. Held, that he could not recover, those laws having no force, as against a citizen of New York, to render the delivery of the notes and merchandise to him invalid. Larrabee v. Talbott, 5 Gill, 426. A. and B., copartners, petitioned in insolvency in Massachusetts, and the master in chancery made an assignment of all their property to C. On the day before the petition, A. assigned to D. a large amount of prop- erty in New York and New Jersey, to pay certain debts, which would leave an excess, in the nature of a resulting trust, to the assignor. C. brought a bill against D., in New York, to set aside A.'s assignments to him. Held, he could maintain the bill, the assignments to D. being void on their face. Hooper v. Tuckerman, 3 Sandf. 311. VOID AND VOIDABLE SALES. 479 CHAPTER XXII. VOID AND VOIDABLE SALES; ILLEGALITY, IMMOEAL- ITY, PUBLIC POLICY, ETC. 1, ILLEGAL SALES ; EFFECT OF A STATTJTORT PROHIBITION AND PEN- ALTY ; BE VENUE EEOTJLATIONS, ETC. 17. BALKS YOID FOR IMMORALITY, ETC. 18. AGAINST PUBLIC POLICY. 19. OF PROPERTY NOT IN EXTSTENCK, OB NOT OWNED BY THE VENDOR. 20. IN RESTRAINT OF TRADE. 21. IN CASE OF ADVERSE POSSESSION. 22. SALES MADE ON SUNDAY. § 1. Under the various heads of the foregoing chapters —more particularly Warranty, Bescinding, and Fraud" — we have incidentally inquired for what causes a sale is void or voidable.^ Some other grounds of avoiding a sale * Mistake, as well as fraud, is sometimes a ground for avoiding a sale. In equity, and with reference to real property, cases of this nature often occur; but rarely in regard to sales of chattels. The plaintiff bought a bar of silver, first sending it to an assayer. By the assay it was estimated to contain so many ounces, and the plaintiff paid accordingly ; but the weight was afterwards found to be greater. Held, the plaintiff, after offering to return the bar, might recover the price in an action for money had and received. Cox v. Prentice, 3 M. & S. 314. So, where shingles were sold and delivered at the price of $3.25, but there was a dispute whether this price was for a bunch or a thousand; it was held, that, unless both parties had understandingly assented to one of these views, there was no special contract as to the price. Greene v. Bateman, 2 Woodb. & M. 359. See Brown on Sales, J 223. In reference to the effect of mistake, as to the title of a portion of the property sold, see Chambers v. Griffith, 1 Esp. 150; Poole v. Shergold, 1 Cox, 273. I" As to the exact meaning of these terms, see Snow v. Lang, 2 Allen, 19. See also Law Eev., April, 1867, p. 591. 480 LAW OF SALES OF PERSONAL PROPERTY. remain to be stated ; the first and most important of which is, that contracts of sale, like other agreements, are invalid, if contrary to the law of the land, whether it be the common law or express statutory provisions.* And it seems to be now well settled, that, where a statute im- poses a penalty upon the doing of a certain act, any con- tract relating to the doing of such act is void, although there are no express words of prohibition in the statute. The principle is, that a court of justice cannot assist in enforcing contracts which the law of the land has either expressly or by implication interdicted.' There can be no recovery on a contract, where it is so connected with an • As where a title is obtained by compounding a felony. Simmons v. Kincaid, 6 Sneed, 450. •> And where part of the consideration of a sale is illegal, the whole transaction is void. Carleton v. Whitoher, 5 N. H. 196. A contract for the purchase of coals at Philadelphia, and to pay for the freight of the same to Boston, if void by the Statute of Frauds as to the sale, is void also, and cannot be enforced, as to the freight; though the latter part, if it stood alone, would not be within the statute. Irvine v. Stone, 6 Cush. 508. But where the sale of goods is not for a gross sum, but at stipulated prices for each article, the entire sale will not be rendered illegal, because the sale of some of the articles was prohibited by law. Walker v. Lovell, 8 Post. 138; Boyd v. Eaton, 44 Maine, 51. Thus, where A. sold a stock of goods to B., for the cost and freight of the articles constituting it, and a schedule of the articles was made, and the cost of each separately carried out ; and for the whole amount B. gave several promissory notes ; and among the firticles were spirituous liquors, A. not being a licensed retailer : held, this was not an entire, but a divisi- ble contract, and that A. was entitled to recover, under a count for goods sold and delivered, the agreed price of all the goods sold, excepting the spirituous liquors. Carleton v. Woods, 8 Post. 290. Where an action is brought to recover the price of goods sold, the sale of a part of which was prohibited by law, the otficer who attaches goods, if they are claimed by another under an alleged sale from the defendant, may impeach the sale on the ground of fraud, in an action commenced by him for the property. Walker v. Lovell, 8 Post. 138. If chattels are sold and delivered in part-payment of the price agreed to be paid for land, the contract for which is void ; the sale of the chattels is also void, and the vendee is a mere depositary thereof, and not liable to an action for their value, unless he converts them to his own use. Grand v. Mason, 1 Swan, 196. VOID AND VOIDABLE SALES. 481 illegal act, that it is necessary to prove such act to main- tain the suit." Though it is otherwise, if a contract is so far unconnected with an illegal act as to be founded on a new consideration. In case of illegal contracts, or con- tracts growing out of illegal acts, courts will leave the parties in the situation where they have placed them- selves; more especially, if the statute cannot otherwise be made effectual to accomplish the object.^ " § 2. It is remarked on this subject by eminent judges, as follows : " Every contract made for or about any matter or thing, which is prohibited and made unlawful by any statute, is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender ; because a penalty implies prohibition, though there are no prohibitory words in the statute."^ " Con- » A strong case in illustration of this rule recently occurred in Penn- Bylvania. Hubbs v. City, per Hare, C. J. "The plaintiif sued for the price of three lounges furnished by him under a resolution of the board of directors of the eleventh school section, passed April 11th, 1866. The resolution was adopted, and the lounges ordered under it, after the ap- propriation made on February 26th, 1866, by ordinance of councils for the eleventh section had been exhausted, and before any new or other appropriation was voted for the ensuing year. It, therefore, fell directly within the provision of the act of April 21st, 1858, ' that no debt or con- tract hereafter incurred or made shall be binding on the city of Phila- delphia unless an appropriation sufficient to pay the same be previously made by councils. ' . . . It was indeed suggested that as the order.for the lounges was not actually given until some time in January, 1867, they might come under the appropriation voted on the 11th of February, of that year. But this would contravene the words of the act. And it would be equally at variance with the intention of the Legislature, which was to keep the accounts of each year separate, and prevent the public funds from being exhausted by anticipation. Each recurring season brings its list of necessary expenses, and if the tax-payer can be charged beforehand, he may have to bear a double burden when the occasion comes. Judgment for the defendants " Leg. Intell. ' Buck V. Albee, 26 Verm. 184. ' Bank, &c. v. Parsons, 21 Verm. 199; Territt v. Bartlett, 21 lb. 184 ; Bancroft v. Dumas, lb. 456; Bell v. Quin, 2 Sandf. 146; Brackett v. Hoyt, 9 Post. 264. ' Per Lord Holt, Bartlett v. Viner, Carth. 252. 31 482 LAW OF SALES OF PERSONAL PROPERTY. tracts in violation of statutes are void ; and they are so, whether the consideration to be performed, or the act to be done, be a violation of the statute.'" " What is done in contravention of the provisions of an act of Parlia- ment, cannot be made the subject-matter of an action."^ " "Where a contract, which the plaintiff seeks to enforce, is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give it effect."^ § 3. Thus it has been held, that, where by the general law a penalty is imposed upon any broker of a certain city who trades as principal, the law will not enforce a contract by which such penalty is incurred.'' So where a statute provided, under a penalty, that all bricks sold should be of certain dimensions ; it was held that a seller of bricks not conforming to this measure, though selected by the purchaser, could not recover the price — this being the only method of effecting the purpose of the act, which was to guard the vendee against the fraud of the vendor.' So where the plaintiff was engaged in the management of an unlicensed theatre, it was held that he could not recover of the defendant money paid at his request for dresses of the dancers. And if a statute prohibit the buying of pheasants, a sale of them passes no title. So where a statute imposed a penalty for buying or selling corn by any other measure than the Winchester bushel ; it was held that no action would lie for the non-delivery of two hobbits of barley. So an action does not lie for the price of butter sold in firkins not marked according to law.* 1 Harris v. Kunnels, 12 How. 83. ' Per Lord EUenborough, Langton v. Hughes, 1 M. & S. 596. 3 Per Lord Tenterden, Wetherell v. Jones, 3 B. & Ad. 226. * Garth. 252 : Drury v. Defontaine, 1 Taun. 136 ; Comyns v. Beyer, Cro. Eliz. 485; De Begnia v. Armistead, 10 Bing. 110; Little v. Poole, 9 B. & C. 192. 6 Law V. Hodson, 11 B. 300. ■' De Begnis v. Armistead, 10 Bing. 107; Tyson v. Thomas, M. Lei. & T. 119; Forster v. Taylor, 5 B. •& Ad. 887; Wetherell v. Jones, 3 B. & Ad. 221. VOID AND VOIDABLE SALES. 483 § 4. And the following cases, differing greatly in their particular circumstances, all illastrate and confirm the same general principle. § 5. A. agreed to sell B. Russian hemp, th-e ship to sail from St. Petersburgh by a certain day. An English statute prohibited any person from trading with Russia unless belonging to a certain association of merchants. A., being the importer, bat not a member of this associa- tion, used the name of a member at the landing-scale and in the docks. In an action by A. against B. for the price, held, to be questionable, whether the action could be maintained, or whether B. was bound to accept an article which would be immediately liable to seizure.' § 6. One of the plaintiffs, residing in Guernsey, and a partner with the others, who lived in England, received an order from the defendant, of Cornwall, for a quantity of brandy. The defendant directed that the brandy should be delivered to the master of a smuggling vessel, and some of it was delivered at Guernsey and the rest at sea. The whole was put into half-ankers, by the partner at Guernsey, and ready slung for smuggling, but it was brought to England at the defendant's cost. Held, an action would not lie for the price.' So a bill of exchange, given for ankers of gin and brandy, which were shipped by the plaintiff", and delivered on board a ship by order of the defendant ; was held to be void.' So the plaintiff", a foreigner, living at Lisle, sold the defendant, an English- man in England, a quantity of lace, knowing it was to be smuggled, and packed in a peculiar manner, suitable for this purpose, by order of the defen In regard to the legal definition of the term goods : If the owner of a building, standing on land of another, sell it for an 1 Bowdell V. Parsons, 10 E. 359. REMEDIES IN CASE OF SALES. 509 § 6. To sustain such action, it is not necessary to prove an express promise to pay." The ordering of an article, or bidding for it at auction, includes a promise to pay, if it be actually obtained by the vendee. The transaction is itself a promise, rather than something from which a promise is inferred. And, if matter of inference, the question is for the jury, not for the court.' So this action lies, though no price were agreed upon.^ So, where goods are sold under a contract of " sale or return," they pass to the purchaser, subject to an option in him to return them within a reasonable time, and, if he fails to do it, the price may be recovered, as upon an absolute sale, in an action for goods sold and delivered.^ (See s. 7.) So, in au action for goods sold and delivered, a verdict for the plaintiffs is authorized by the production of credible evi- dence, that the goods were purchased of them, as a part- nership, by the defendant, with a knowledge of the name of the firm ; that a bill of the goods was delivered to him, which he fully examined without objecting thereto ; and that the goods were delivered on board a vessel which he had specified as the place where he wished them to be delivered.* So, where the defendant is proved to have re- agreed price, and the purchaser take possession and hold the building under the sale, the seller may recover the price in general indebitatus asmmpsit for goods sold and delivered. Keyser v. School District, 35 N. H. 477. But where labor and materials are bestowed upon land, under a con- tract that the party shall be paid as much as the improvements shall be worth, he cannot recover in general indebitatus assumpsit, the contract remaining unrescinded. Streeter v. Sumner, 19 N. H. 516. The term "goods" is held to include music. Com. v. Nax, 13 Gratt. 789. See Browne on the Statute of Frauds, § 295, et seg. • But a request by the defendant must be proved. 2 Greenl. Ev. ? 107. 1 Adams v. Steamboat Co., 3 "Whart. 75 j Button v. Solomonson, 3 B. & P. 685. « Jenkins v. Eichardson, 6 J. J. Mar. 441 ; Snodgrass v. Broad well, 2 Litt. 355. ' Moss v. Sweet, 3 Eng. L. & Bq. 311. * Wight V. Stiles, 29 Maine, 164. 510 LAW OF SALES OF PERSONAL PEOPERTT, ceived and used the goods in question ; this is prima facie evidence to sustain the action." Thus, where the plaintiff » Where goods are delivered to A. on the credit or request of B., an action for goods sold, &c., lies against B. Stapp v. Anderson, 1 Marsh. 539; Bickham v. Irwin, 3 Teates, 66. But see Williams v. Chadbourne, 6 Cal. 559. But a special action only will lie, where B. merely guarantees payment by A. So, where A. sold and delivered goods to B., under a verbal agreement with C. that C. should pay if B. did not; and C, having paid A., brings an action against B. in A.'s name : held, it would not lie. Barnes v. Blackiston, 2 Har. & J. 376. Where one duly authorized buys goods for another, who receives and has the benefit of them, the vendor may sue the latter for the price, though he have paid the former ; unless the vendor has done some act to discharge him. Emerson v. Providence, &c., 12 Mass. 237. So if A., withou,t authority, buy goods as the agent of B., who receives them, B. is liable to the vendor, unless he has paid A. Kupfer v. Inhabitants, &c. 12 Mass. 185. But where A. agreed with B., that B. should do work for him, and find materials, which B. accordingly bought from C. in his own name, and used for A.'s benefit, and A. paid B. for them ; held, A. was not liable to C. Clark v. Imlay, 7 Halst. 119. Indebitatus assumpsit lies for necessaries furnished to a wife, child, or slave. Van Valkinburgb v. Watson, 13 John. 480 ; Oatfield v. Waring, 14 lb. 188; Forsyth v. Ganson, 5 Wend. 558; Angel v. McLellan, 16 Mass. 31. So against one who promised to pay for necessaries furnished to a. feme covert and her children, though the husband lived in the State, and the defendant was under bo prior obligation to provide for the wife, &c. Lanier v. Harwell, 6 Munf. 79. So, where a father knew where and by whom his minor daughter was boarded and clothed, but expressed no dissent, and did not take her away ; held, he was liable. Nichol v. Allen, 3 C. & P. 36. Assumpsit on the common counts lies to recover the board of the de- fendant and his servants. Tremain (v. Edwards, 7 Cush 414. The plaintiff wrote to the defendant, ^' I have a lot of furs on hand, which I am anxious to sell," &c. The defendant replied, " I have this day written to Mr. T. G. K., of N., who is my agent, to make you a visit for the purpose of purchasing your furs., and I hope and trust that you and Mr. K. will be able to make a bargain for your lot of furs." E. afterwards purchased the furs, paying part cash and giving a note for the balance in the name of the defendant. Held, that the defendant was liable for the balance, as for goods sold and delivered ; and that evidence offered by the defendant of an agreement between him and R., by which he was to ad'vance money to R., to purchase furs in his (R.'s) name, and to have a lien on the furs purchased, for his advances, was properly re- jected. Sorrel v. Brewster, 1 Mann. 373. A quantity of prospectuses had been ordered by the secretary of a REMEDIES IN CASE OF SALES, 511 sent goods to the defendant abroad, upon the order of certain merchants in London, and the defendant received public company, delivered at the o£Bces of the company, and there received and Iiept. The plaintiff had executed former orders for the company, which had been paid for. At the trial, there was but slight evidence of tie nature of the goods supplied ; there was no proof that they had been used by the company ; but it was shown that the goods were useful to the defendants, and useless to any one else, and that, after delivery at the place of business of the company, they were not repudi- ated or returned. The jury found for the plaintiff, and the court refused to disturb the verdict. Levy v. The Metropolitan, &c., 25 Eng. L. & Bq. 263. The seller of goods to two copartners, with whom la third is*fterwards admitted as a copartner, cannot maintain assumpsit against the three for the price. Atwood v. Lockhart, 4 McL. 350. Where the question on the trial of an action for goods sold and de- livered was, whether D., who recerved the goods immediately from the plaintiff, was the authorized agent of the defendants, the plaintiff, to es- tablish such agency, introduced evidence to show, that D. had acted as the general agent of the defendants in the purchase and sale of property of all descriptions. He then proved, that D. had purchased of P. certain real estate, »s agent of the defendants, and taken deeds thereof to himself, as their agent; and, to shoiw that the defendants had knowledge of the acts of D., as their agent, the plaintiff exhibited in evidence a release deed from D. to the defendants of the estate so conveyed to D., referring to the deeds from P. to him. Held, such release deed, in connection with the other deeds, was evidence for the pu.rpose for which it was in- troduced. Ely v. Tweedy, 18 Conn. 458. The defendant, the guardian of two lads, who had been placed by him at school in a neighboring town, addressed a letter to A., one of the plain- tiffs, partners, desiring him to furnish such articles as might be necessary for the lads, and charge the defendant:; and, in.another letter,, addressed to A., said, "You may let J." (one of the lads) "have $15 or $20, and I will see you paid ;" and in another letter, addressed to one of the lads, "Say to A., that any necessaries you and N." (the other lad) "may want, I will pay for when I come on." A. was the only active partner of the firm; the store at which the goods were furnished was their only place of business; and the goods were originally charged, on the plain- tiffs' books, to J. and N. After the delivery of the goods, a bill of them, made out in the name of the firm, was shown to the defendant, who, after examining it, objected to but one item, and promised to pay it as soon as convenient. Held, that the application of the defendant by letter to A. might be considered as made to A., as a member of the firm, for goods to be furnished by the firm ; that the letters of the defendant, in connection with his recognition of the bill, established his liability for 512 LAW OF SALES OF PERSONAL PROPERTY. and used them ; this was held prima fade, though slight evidence, to sustain the action/ So, where the plaintiff, a book-publisher, having for a long time furnished to one A. a periodical publication, after the death of A., of which the plaintiff was ignorant, continued to forw^ard the work by stage, directed to A., as before; and the defendant, who succeeded to the property of A., received the num- bei-s, as they were sent, and never offered to return them : it was held, although the plaintiff had no knowledge of the defendant as purchaser, that an action for goods sold and delivered would lie against him."^ § 7. But, in order to sustain an action for goods sold and delivered, there must have been a sale from the plain- tiff to the defendant. Hence, where the plaintiff declared in this form, and the evidence proved, that the defendant had received the goods from him under an authority to dispose of them in a certain way, and had disposed of them in a different way ; this was held a fatal variance. ISTor will proof, that the plaintiff had consigned goods to the defendant for sale, and that part of them had been sold the goods furnished ; that the fact, that the goods were originally charged to the lads, was not conclusive against the defendant's liability, but ad- mitted of explanation ; and that parol evidence, regarding the exhibition of the bill to the defendant, and his promise to pay it, was not objection- able, as being within the Statute of Frauds, being offered to prove, not a a promise to pay the debt of another, but that this was the defendant's own debt. Loomis v. Smith, 17 Conn. 116. The plaintiff furnished money, to be expended by A. in the purchase of flour, A. to repay the money, with interest, and allow the plaintiff one barrel for every hundred purchased; the flour to remain the property of the plaintiff till sold and paid for. Flour having been purchased and in- voiced in the name of the plaintiff, held, the right of action for the price was in him. Heald v. Warren, 22 Verm. 409. » The vendor of a machine, sold with the right to use a patented ar- ticle therewith, may recover the price without evidence of his right under the patent, unless the vendee has been interrupted in the use of the ar- ticle by one whose ri^'ht prima facie is violated. Buss v. Putney, 38 N. H. 44. 1 Bennett v. Henderson, 2 Stark. 550. " Weatherby v. Banham, 5 C. & P. 228 REMEDIES IN CASE OF SALE, 513 by him, support this count.'' ' So A. was employed by B. to sell goods on commission. A. sold some of them re- ceiving part of the price, which he intrusted, with the remaining goods, to C, his clerk, who absconded with the money and goods. B. brings assumpsit for goods sold, &c., against A. Held, the action would not lie.^ So the owner of goods which have been intrusted to an agent for a special purpose, and have been sold by him wrongfully, cannot maintain an action against the purchaser for goods sold and delivered.' And, in general, in a suit for goods sold and delivered, evidence that the defendant received the goods to sell, as the plaintiff's agent, and had sold them and received the price, is inadmissible." So the ac- tion is not supported, by evidence of the consignment of the goods to the plaintiff for sale, and of their delivery by the plaintiff to the defendant, upon his agreement to pay for or deliver them to the owners, when requested, and of his refusal so to pay for or deliver them.' So, where a certain number of pounds of live sheep were delivered, and the same number of pounds were to be returned at the end of the year, with one-quarter of that number of pounds in addition ; held, these facts would not sustain assumpsit on account annexed, or for money had and re- ceived.'' ' So, where goods were sold by the plaintiff to ' Under the practice act of Massachusetts, St. 1852, c. 312, an action on an account annexed for "balance due for bread furnished to the defend- ant's agent, A.," and for " bread delivered to the defendant's agent, A.," is sustained by proof, that the bread was consigned to A. for sale, and sold by him, and the money used in the defendant's business. Hull v. Richardson, 4 Gray, 598. ^ Assumpsit will lie, to recover from a bailee for hire the value of 1 Shepard v. Palmer, 6 Conn. 95 ; Colman v. Price, 1 Blackf. 303 ; 4 Gray, 598. ' Bead v. Bertrand, 4 "Wash. C. 514. ' Berkshire, &c. v. Wolcott, 2 Allen, 227. ' Lindley v. Downing, 2 Cart. 418. * Brown v. Holbrook, 4 Gray, 102. « Wheat V. Norris, 13 N. H. 178. 514 LAW OP SALES OF PERSONAL PROPERTY. the defendant, to be paid for by a bill of exchange drawn by A. upon B., without recourse to the defendant in case of non-payment ; and the defendant knew that the bill was of no value : it was held, that the plaintiff could not maintain indebitatus assumpsit for the price of the goods, but his remedy must be an action of trover or deceit. The goods were in effect to be bartered for the bill of exchange.' So, where the plaintiff sold to the defendant a quantity of beer in casks, and gave him notice, that, unless he re- turned the casks in a fortnight, he should be regarded as having purchased them ; and, the casks not being re- turned, brings an action as for goods sold and delivered : it was held, that he could not recover in this form, but must declare upon the special agreement, arising out of the above notice."^ (See s. 20, Goods Bargained and Sold.) goods delivered to him, which he has converted to his own use. Barker V. Cory, 15 Ohio, 9. So a count in general indebiiaius assumpsit may be joined with one in assumpsit upon a special contract of bailment, which sets out the promise and undertaking of the defendants, the consideration on which it was founded, the breach of that promise by the defendants, and their neglect and carelessness, and the loss occasioned to the plaintiff thereby. Ken- naird v. Jones, 9 Gratt. 183. A bailee of property cannot he charged, in an action of assumpsit brought in the name of a purchaser, upon a contract of bailment made with a former owner. Willard v. Bridge, 4 Barb. 361. " The plaintiff, a tailor, sued the defendant, the commandant, and a member of the committee, of a volunteer rifle corps, for uniforms sup- plied to the corps. According to the plaintiff's statement, he attended a meeting of the committee, when the defendant used expressions which implied that he undertook to pay for the uniforms. This was denied by the defendant, who gave in evidence the plaintiff's daybook and ledger, in which the uniforms were debited to the corps. The defendant admitted his liability to pay for his own uniform and those of the band, which he had ordered. The judge told the jury, that, if the contract was with the defendant alone for the whole corps, he was liable. So, if with the de- fendant jointly with the committee (there being no plea in abatement). So, if with the defendant jointly with the whole corps. But if by the defendant for his own uniform, and those which he specially agreed to ' Bead v. Hutchinson, 3 Camp. 352. • Lyons v. Barnes, 2 Stark. 39. REMEDIES IN CASE OP SALE. 5I5 So, where the plaintiff issued the following advertisement : " The public, &c., served with new clothes at the following low rates per annum, on return of those left off;" and the defendant contracted with him for four suits in a year and return of the old ones, or for the use or wear and tear of four suits 'per annum : it was held, that the plaintiff could not recover in a count for goods sold and delivered, but must declare upon the special contract.^ 80, upon an agreement between A. and B., that A. should labor for B., and receive payment in goods ; a part of the labor being done after delivery of the goods, B. brings an ac- tion for goods sold, &c., and A. files no account in offset. Held, the action did not lie, the goods not being sold, but delivered in payment of a debt.^ 80, where A. agreed pay for, he was not liable. Held, a case for the jury, and there was no misdirection. Cross v. Williams, 7 Hurl. & Nor. 675. Where a widow was entitled for life to the use of an ore-bed lying in land of her son in law, but she had allowed him to receive one half of the profits until she had notified the lessees not to pay except to her order; her notice to the company is a good revocation of the authority of her son in law, to receive any part of the amount due for ore; and consequently the company is liable to her in assumpsit for all ore mined thereafter. Troxell v. Lehigh, &c., 42 Penn. 513. If one assumes to sell the property of another, and takes in payment a note running to himself, the owner of the property cannot sustain an action against the purchaser for goods sold and delivered. Brigham v. Palmer, 3 Allen, 450. So if A. contracts to ship flour for B., and B. procures C. to deliver flour to A. on his contract, A. is not liable to C. for the price, there being no privity between them. Rossman v. Townsend, 17 Wis. 95. The contractors for construction of a railroad gave to their workmen certificates of the amounts due them, which were duly accepted by the company, upon presentation at their office. Upon these certificates the plaintiflTs furnished goods, which they charged to the contractors. In an action against the contractors for the price, held, the plaintiffs must prove that the transaction was within the original arrangement of the parties, or else that the defendants had subsequently assented to the goods being charged to them. Whether, in the latter case, the plaintiffs could recover, was doubted. Farwell v. Dewey, 12 Mich. 436. 1 Kees V. Manners, 8 Smith, 119. ' Wilby V. Harris, 13 Mass. 496. 516 LAW OF SALES OP PERSONAL PROPERTY. with B., to cut on B.'s land, and draw and deliver to him, a quantity of spars ; which he accordingly did cut, and one C. delivered them to B., and received the money : held, A. could not maintain an action for goods sold and delivered against C § 8. And, in order to maintain this action, the goods must have heen sold by the plaintif to the defendant, and not delivered to the defendant under such circumstances as to create a liability, real or supposed, for the price to a third person. Thus where, the defendant having agreed with one A. to take goods of him, to be manufactured for A. by the plaintiff, the plaintiff sent goods to the de- fendant, who credited them to A., and on subsequent set- tlement accounted for them with him ; and the plaintiff", though seasonably advised of the credit given A., did not notify the defendant till after the settlement, that the o-oods were delivered on account of the defendant and not of A.: it was held that this action would not lie.^ So where goods are delivered to A. upon the order of B., B. and not A. is liable as the purchaser; and, even if the con- tract was not obligatory so long as it remained executory, as soon as executed, the goods are properly charged to B., and will not furnish a consideration for a due-bill obtained from A. by artifice.^ § 9. Where goods sold are sent to the vendee, but he fails to receive them through his own neglect, this action lies against him." Thus, in November, 1802, A. ordered » General indeb. assump. is held to lie for the value of goods sold and delivered, where the plaintiflf agreed to receive specific articles in pay- ment, but the defendant has broken his contract to deliver them. Bay- lies V. Fettyplace, 7 Mass. 329. So, where goods have been delivered in part execution of a special contract, which has been rescinded by mutual consent. Goodrich v. LaflBin, 1 Pick, 57. Thus, where A. and B. mu- tually agree to deliver goods to each other, and A., having in part per- » Weed V. Butterfield, 1 Chip 161. » Parwell v. Smith, 12 Pick. 83. ' Thayer v. Gallup, 13 Wis. 539. REMEDIES IN CASE OF SALE. 517 goods from B. at London, writing to him to send them by any conveyance which would reach Bristol, as he (A.) lived only six miles from thence; and to inform him when they were sent, that he might know when to expect them. B. sent the goods to the wharf at which Bristol vessels lay, took a receipt for them to go by the Commerce, and notified A. accordingly. The Commerce sailed in January, 1803, but, being fully loaded, the goods did not go by her, but were afterwards carried by another vessel, the Nancy, which sailed in April. The usage at the wharf was, to give a receipt for goods as if to be sent by vessels then loading, whether a full freight had been already taken or not ; and, if it had, to send them by the next vessel. The Commerce having arrived without bringing the goods, A. made no further inquiries for them. B. also was ignorant that they went by another vessel, till in the middle of the year 1804 he demanded payment, and A. wrote that he had not received them. B. then informed A. hjow they were sent. Held, that B. could sustain a suit for goods sold and delivered ; and that the risk was A.'s, and the wharfinger was his agent, not B.'s, and A. was guilty of gross negligence.^ § 10. But the action does not lie, where a sale is incom- plete, notwithstanding a previous tender of the goods by the vendor. Thus, where A. agreed with B., the plain- tifi", to deposit with C. a certain sum of money, as B.'s price for a horse, which C. was thereupon to deliver to A., B. to use the horse in the meantime ; and B. tendered the formed the agreement, brings an action for the value of the goods de- livered, and recovers; B. may do the same, lb. Where one contracts to do certain work and find the materials, and proceeds in fulfilling his agreement with an honest intention of conforming thereto, but not in the precise manner contracted for ; he may recover upon a quan. mer. so much of the agreed price, as remains after deducting the diminution of value caused by the deviations. Hay ward v. Leonard, 7 Piclc. 181. (See s. 11.) 1 Cook V. Ludlow, 2 N. E. 119. 518 LAW OF SALES OV PERSONAL PROPERTY. horse and demanded the money left with C. : it was held that the sale was incomplete, and the plaintiff could not recover in this action."" And where the vendor has man- ifested his determination not to deliver the goods without payment, he cannot maintain an action for goods sold and delivered until actual delivery. Thus, where goods are sold for cash, and packed in boxes of the purchaser for him and in his presence, but not removed from the vendor's premises, nor paid for ; the latter cannot maintain an ac- tion as for goods sc^ld and delivered, although the facts may show a sufficient acceptayiee by the purchaser to take the case out of the Statute of Frauds. The boxes cannot be considered the defendant's warehouse, nor did the plain- tiff ever intend, by packing the boxes, which were to re- main in his own custody, on his own premises, to give up the goods without payment.^ So, where the plaintiff agreed to sell goods to the defendant, who paid a shilling as earnest-money, and the goods were packed in cloths supplied by the defendant, and deposited in a building of the plaintiff's, till the defendant should send for them ; but the plaintiff at the same time declared that they should not be taken away without payment : it was held, that there was no delivery of the goods, and an action for goods sold and delivered did not lie.' But where a vendee re- serves the right of paying for the goods in specific articles within a certain time, he may do it within such time, without any demand or designation ; and, if he does not, the vendor may bring an action for the price without a previous demand.^ * When a mechanic has made an article according to contract, and tendered it, and, on the customer's refusing to accept and pay for it, has left it with a third person, giving notice to the customer ; he may imme- diately bring an action to recover the agreed price. Bement v. Smith, 15 Wend. 493. ' Branson v. Gales, 3 Murph. 312. ' Boulter v. Arnott, 1 Cromp. & Mees. 333. » Goodall v. Skelton, 2 Hen. Bl. 316 * Way V. Wakefield, 7 Verm. 223. REMEDIES IN CASE OF SALE. 519 § 11. Where the sale is founded on a special contract, upon which alone an action could otherwise be sustained this contract may be disaiBrmed by some act of the vendee and thereupon an action Tor goods sold and delivered sus- tained against him, and this though the contract has been only in part performed. (See s. 9, n.) Thus, in general, where there is a contract for exchange, and one party brings an action against the other for non-delivery accord- ing to agreement ; the contract must be specially set forth in the declaration. But where A. agrees to give a horse, warranted sound, in exchange for a horse of B. and a sum of money, and the exchange takes place, but B. refuses to pay the money ; A. may have an action for goods sold and delivered against him.' So where, upon an agreement to buy a lot of trees for a certain sum, and pay for them ac- cording to certain conditions, the conditions contained a proviso, that, on non-payment of the price or a part thereof, according to the conditions, the vendor might retain or retake the timber ; and the vendee cut and carried away a part without paying for them, and refused to pay till de- livery of the rest : it was held that the entirety of the con- tract was disaffirmed by the vendee, and an action might be sustained, as for goods sold and delivered, for the price of the trees actually taken ; a count on the special contract being unsupported, by reason of a variance in alleging an auction sale instead of a private one.' So where, upon a sale at auction, payment to be made by an approved note at six months, the goods were delivered, but the vendee refused to give a note ; it was held, the condition of the sale having been broken by the defendant, that the plain- tiff might treat it as absolute, and this action would lie.* So where, after a sale and delivery of goods, the vendee gave his note on time for the price, with the agreement, that, unless one A. would say that the vendee was able to 1 Sheldon v. Cox, 3 B. & C. 420. » Bragg V. Cole, 6 Moo. 114. ^ Corlies v. Gardner, 2 Hall, 345. 520 LAW OF SALES OF PERSONAL PROPERTY. pay the note when due, the vendor should have an im- mediate claim for the debt ; and A. refused to make this statement : it was held that the vendor might immediately bring an action for goods sold, &c.' So, if a vendor of goods receive a chose in action as collateral security for the price, but realize nothing from it ; it is held that he may bring this action, and need not sue upon the special con- tract.^ And this more especially, in case of any deceit on the part of the buyer. Thus A. sold to B. the note of a corporation, together with two shares of the stock, for which he was to be paid in whiskey. A. knew the com- pany to be insolvent, but represented it as responsible. B. gave A. his notes or contracts to deliver the whiskey, which was accordingly delivered ; but, on ascertaining the company's insolvency, he oifered to return the note and shares, and now brings an action for goods sold and de- livered, to recover the value of the whiskey. Held, the action would lie, the special contract as to the method of paying for the whiskey being vitiated by the fraud of A.' So, where indebitatus assumpsit is brought for goods sold under a special agreement, which has been complied with, it is immaterial whether it were a single stipulation, dis- connected with all others, or a separate and independent stipulation, embraced in the same contract with others.* So an agreement, to receive payment of a pre-existing debt in goods from a third person, is no defence to an ac- tion of assumpsit upon an account annexed, without proof of satisfaction.^ So an action lies for goods sold and de- livered, though the plaintiiF received an order for the pi-ice on a third person, payable in goods, which was presented, but not accepted, and no notice given. The doctrine of notice has no application to an order for goods.' So, where ' Clark V. Smith, 9 Conn. 379. 2 Leas V. James, 10 S. & R. 307. ' Pierce v. Drake, 15 John. 475. * Knight V. New England, &c. 2 Cush. 271. ' Ranlett v. Moore, 1 Fost. 336. 8 Nissen v. Tucker, 1 Jones, Law, 176. REMEDIES IN CASE OP SALE. 621 artibles are delivered not strictly in payment of a note, but are entered on account with a view to a subsequent adjustment and application, their price may be recovered, after payment of the note. Otherwise, if delivered in pay- ment.' So w^here A. buys goods of B., transferring to him the note of C, and guaranteeing payment of it ; upon non-payment of the note at maturity, B. may bring an ac- tion against A. for goods sold, &c.^ So proof of sale and delivery of goods, refusal of the purchasers to pay a draft given in payment therefor by their agent, and their failure to show payment, will support an action of assumpsit on the common counts.' So, where a buyer transfers to the seller a note of a third person, with his own guaranty, which is void for not expressing the consideration: the seller may recover for goods sold ; the guaranty, though void, aftbrding evidence that the note was not taken in payment.* § 12. But on the other hand it has been held, that, where A. and B. make an exchange of goods, and, A. having practised a fraud, B. rescinds the bargain, and calls on A. to come and receive back the property which he (A.) had given in exchange ; indeb. assumjp. does not lie, without an actual return of the goods." ° § 13. And it is held, that the action cannot he main- tained till the expiration of the time of credit fixed by the special contract. Thus a sale was made at auction, on condition, that purchasers of not less than a certain * The payee of a note, in fact paid, gave it in payment for goods to a third party. Held, the ordinary rule did not apply, that, before the transferee could recover on the original consideration, he should show an offer to return the note to the payee ; also, that, if the transfer were made fraudulently, the transferee might waive the fraud, and proceed upon the original consideration. Campbell v. Ayres, 9 Iowa, 108. 1 Cushman v. Hall, 2 Wms. 656. 2 Butler V. Haight, 8 Wend. 535. ' Slocomb v. Lurty, 1 Hemp. 431. * Monroe v. Hoff, 5 Denio, 360. » Norton v. Young, 3 Greenl. 30; 4 Mass. 505. 522 LAW OF SALES OF PERSONAL PROPERTY. amount should have twelve months' credit, giving bond with surety ; and that those who did not comply with these terms, should pay one-fifth of the price for disap- pointing the sale, and return the goods before sunset. The defendant bought a horse, which was delivered, but no bond given. He kept the horse some days, and then of- fered to return, but the plaintiif would not receive him. Held, indeh. assump. would not lie for the price till the expiration of twelve months.^ So, where one contracts to pay for goods at a future day, and agrees to give his note ; his failure to give it does not make him liable to pay before the day fixed. Otherwise, if the note of a third person is to be given.^ So, where A. purchased cattle of B. for $50, and gave his due-bill, payable the 1st of Janu- ary ensuing, for $30, and a bank bill for $20, which was to be returned if not good, and, the bill not proving good, B. returned it and the due-bill to A., who then ofi:ered to pay $10 in cash, and give his note with surety for $40, which B. refused ; held, that B. could not maintain an action for the value of the cattle until the 1st of Janu- ary.' So, when goods are sold and delivered, on a con- tract that the buyer shall pay therefor in town orders, payable at a future day, and he fails to procure the orders, the seller cannot maintain indebitatus assumpsit for the goods, before the time when the orders were to be pay- able has expired. His only remedy is an action on the special contract.' So, where A. sold goods to B. and re- ceived, in part-payment, a bill of exchange, drawn in New York, by B. upon C, and afterwards brought an action against B. upon the bill, adding the common counts ; held, he could not recover, under the common counts, without proving a demand upon C. and a refusal by him.* So, 1 Thompson v. Morris, 2 Mod. 248. See chapters 13, 14. " Hall V. Hunter, 4 Greene (Iowa), 539. ' Gudger v. Fletcher, 7 Ired. 872. ■* Hunneman v. Grafton, 10 Met. 454. » Gracie v. Sandford, 4 Eng. 233. REMEDIES IN CASE OF SALE. 523 where the seller agreed to take back the property if the buyer should disapprove of it, and the latter, being dis- satisfied, offered to return it, which offer the seller re- fused ; an action for money had and received does not lie to recover back the price, but the declaration should be upon the special contract.' § 14. With more particular reference to the form of action in case oi fraud on the part of the purchaser ; where a vendor receives, in payment from the vendee, a promis- sory note, made by a third person, he cannot sue for goods sold, on the ground of fraudulent representations made by the vendee as to the solvency of the maker, by which he was induced to take the note, unless he first return or tender the note to the defendant ; or, if he has recovered judgment against the maker, an assignment thereof.''^ And where a vendor received in payment a note of a third person, falsely and fraudulently represented by the vendee to be solvent, together with an order for goods, which was duly paid, and returned the note to the ven- dee, on discovery of the fraud ; held, he might maintain assumpsit for the price, deducting the amount of the order, without returning the latter.^ So an action lies on an ac- count for goods sold, notwithstanding a receipt, signed by the plaintiff", for a note in part-payment, and the balance in cash, if the receipt was obtained by fraud.* So, if one purchase goods, and give his note for them, and, by fraud and misrepresentation, induce the seller to deliver up his note on receiving a part of it ; the seller may recover the residue by a suit on the note, or for goods sold and de- • But, in general, upon discovery that credit has been obtained by fraudulent representations, the vendor may at once sue for the price as upon a sale and delivery for cash. Kayser v. Sichel, 34 Barb. 84. 1 Weston V. Downes, 1 Doug. 23. » Baker v. Bobbins, 2 Denio, 136. ' Martin v. Koberts, 6 Cush. 126. * Phelan v. Crosby, 2 Gill, 462. 524 LAW OF SALES OF PERSONAL PROPERTY. livered.' So, where one obtains goods on false pretences, giving therefor an accepted accommodation draft, the seller may rescind the sale and recover the goods, without returning the draft to the purchaser.^ (So, if a fraudulent purchaser, who gives his own acceptance for the price, deposits the goods with a third person, the seller, being at a distance from the buyer, may take them, without offering to give up the draft to the depositary, or sending it to the buyer. And in an action of trover, brought by the depositary, the defendant may offer to surrender the draft at the trial, or even to cancel or deliver it up at the argument, if he had inadvertently omitted to do it before, the merits having been tried.''*) § 15. As already suggested, indebitatus assumpsit for goods sold and delivered will not lie, when there has not been either an actual delivery of the goods, or what, in point of law, amounts to a delivery.'^ A special agree- ment must be performed, so as to leave a mere simple debt or duty between the parties. Measuring and mark- ing by the purchaser is not enough. When the vendor is bound to transport property, and deliver it at some other place, the contract is avibulatory. The title does not pass, so long as anything remains to be done by the vendor.'^ So, where delivery of timber was to be made by showing the land upon which it lay, and ascertaining the amount, • And on the other hand it is heid, that, if property bargained for is delivered, there must bo a total failure of consideration, in order to de- feat an aetioB for the price agreed upon. McEntyre v. McEntyre, 12 Ired. 299. >■ Where corn is sold to the plaintiff, and left in a heap, with corn of the vendor, in the possession of the latter, an action of assumpsit does not lie against the vendor for its value, no express promise appearing. Waldron v. Chase, 37 Maine, 414. 1 Blodgett V. Webster, 4 Fost. 91. 2 Frost V. Lowry, 15 Ohio, 200. ' Nellis V. Bradley, 1 Sandf. 560. * Messer v. Woodman, 2 Fost. 172; 19 Barb. 416. ' Evans v. Harris, 19 Barb. 416. REMEDIES IN CASE OF SALE. 525 after the timber was collected and piled by the vendee was a condition precedent to payment ; held, as the vendee after using reasonable diligence, could not get possession of the timber, the common counts for goods sold and de- livered would not lie.'' But where a party applying to purchase goods receives the due-bill of the seller, promising to deliver them on demand ; assumpsit for goods sold will lie.^ § 16. In reference to a fart-delivery ; where the plaintiffs cannot recover on a written contract, if there has been a partial delivery of goods sold, they may recover on a quantum valebant, less the damages for non-delivery of the whole.' But a vendor of personal property, to be delivered within a specified period, and payment to be made for the same upon a day certain, after the period of delivery, failing to deliver the entire property within the time specified, cannot recover in indebitatus assumpsit for any part delivered, unless there is a sufficient excuse for the non-delivery of the residue.^ § 16 a. Recent cases, however, establish the following distinctions, with reference to the rights and liabilities of the parties, in case of departure from the exact terms of the contract. § 16 b. In an action for the contract price of goods sent to order ; where the plaintiff's evidence tended to show, that they corresponded with the order in quality but ex- ceeded it in quantity ;"■ that the defendant was duly noti- fied of such excess, by bill and letter, and, after such notifi- cation and receipt of goods, acknowledged by letter their receipt, there being no evidence that he refused to accept them: it was held error to nonsuit the plaintiff, as the • As to a distinction between these points of variance, see 17 Wis. 37. ' Gilliam v. Towles, 16 Ark. 64. • Monroe v. Hoff, 6 Denio, 300. » Euiz V. Norton, 4 Cal. 855; Cole v. Swanston, 1 lb. 51. ' Witherow v. Witherow, 16 Ohio, 238. 526 LAW OF SALES OF PERSONAL PROPERTY. jury might fairly infer, that the defendant accepted the goods regardless of quantity or quality.' So where, upon an order for goods, a part only are sent, the purchaser is not bound to accept them, but, if he accepts them, he is liable to pay for them in the same manner as if the whole were sent. And, if they in fact come into his hands and use, the law implies a promise to pay for them, inde- pendently of the express contract. And the circum- stances may be such, as to require the purchaser, if he does not wish to accept the goods sent, to give notice to that effect to the seller. Thus, the defendant ordered a quantity of pumps and pipe-boxes of the plaintiffs, who soon after sent on the pumps by railroad, and a letter in- closing the l>ill by mail. The bill was made out against the defendant, and included the pumps only. The letter was as follows : " The above pumps we have sent to you by railroad per your order. We should have sent the balance of the order, if we had not received a letter from W., who informs us that he has bought your stock and business, and requests us to forward the pumps, but does not say anything about the pipe-boxes. We wish you would say to him that we should like to sell him pipe- boxes ; also that he may deduct five per cent, from the bill inclosed, and remit the money by mail." The defend- ant received the letter, and at once handed it over to W., but neither the defendant nor W. answered it. Held, the plaintiffs did not by this letter consent to accept W. as their debtor, in the place of the defendant ; and that the defendant by not answering the letter had accepted the pumps, and was liable for them in the same manner as if the order had been fully complied with.'' So where the publisher of a newspaper forwards it regularly, by mail, directed to one not regularly subscribing, but who takes it from the post-office and pays the postage, but refuses, upon demand, to pay at the usual times and rates, deny- 1 Barton v. Kane, 18 Wis. 262. • Downs V. Marsh, 29 Conn. 409. REMEDIES IN CASE OF SALE. 527 ing that he is a subscriber, but continues thereafter to re- ceive the paper as before, giving no other notice to the publisher ; the law v(rill imply a promise by him to pay ac- cording to the usual terms, and assumpsit v^ill lie to re- cover such amount as has fallen due vv^ithin six years.' § 16 c. But, on the other hand, v^here goods are sent to order, a delivery to the carrier, v^ithout proof that the consignee actually received and accepted the goods, will not constitute a delivery so as to pass the title and make the consignee liable for them, if they do not correspond in quantity and quality with the order.' So, in a contract in writing for delivery of a specified quantity of charcoal at a fixed price, although, if the purchaser receive more, he must pay for the excess what it is worth, whether he had knowledge of it or not ; this cannot be recovered in a suit on the original contract, without amendment.' So where A. contracted with B. for all the wheat on a cer- tain lot of land, and assigned the contract to C, who re- ceived from B. a larger quantity ; held, A. was not liable to B. for the excess, although he was present when it was delivered and made no objection to the quantity, supposing that it was all raised on the lot.^ But, in an action for the price of goods which the purchaser by his own agents ex- amined and selected, and which he himself afterwards received and kept without objection ; it is no defence, that the price agreed was above that of the market, there having been neither fraud, misrepresentation, nor wair- ranty.' § 17. It has been sometimes held, that, if one take the personal property of another, the owner may waive the tort, and sue in assumpsit." So one induced to part with ' Fogg v. Portsmouth Atheneutn, 44 N. H. 115. » Barton v. Kane, 17 Wia. 37. ' Caldwell v. Dawson, 4 Met. (Ky.) 121. « Leonard v. Warriner, 13 Wis. 179. » Miller v. Tiffany, 1 Wall. 298. ' McCullough V. McCuUough, 14 Penn. 295. See 2 Greenl. Ev. ? 108 ; Chambers v. Lewis, 2 Hilt. 594; Butts v. Collins, 13 Wend. 154; Putnam 528 LAW OF SALES OF PERSONAL PROPERTY. liis property by a fraud, practised upon him under color of a contract, may rescind the contract, return or offer to return what he has received in exchange within a reason- able time, and maintain general indebitatus assumpsit for the value of the property.' So, where A. went upon the land of B. with his knowledge and assent, and cut and carried away the grass there growing ; it was held that A. was not a trespasser, and that B. might maintain assump- sit to recover the value of the grass. ^ So it has been held, that, where one comes into peaceable possession of prop- erty belonging to another, and converts it to his own use; assumpsit will lie for the value, and the defendant will not be permitted to say that he took it by wrong, and not by contract.^ So an action of contract is held to lie for the value of lumber, the declaration alleging, that A. had furnished it under a contract that B. should manu- facture it and pay the price of the manufactured articles less the price of the manufacturing, but that B. had wasted and destroyed and converted it to his own use.^ So where growing wood, wrongfully cut and carried away, cannot be found to be returned in specie, the owner may waive the tort, and sue for its value, as on an implied contract of sale.^ So assumpsit is held to lie against a trespasser for pasturing cattle on the p]aintift"'s land.« So where it was agreed by the defendant and A., that A. should take the defendant's farm and raise grain upon it on shares, and, while the grain was growing, the tenant mortgaged it to the plaintiffs, and it was gathered by them, but im- mediately taken by the defendant and carried off under a claim of exclusive right and refusal to recognize the plain- V. Wise, 1 Hill, 240, n. ; Cave v. Green, 3 How. (N. T.) 376; Hinds v. Twoddle, 7, 278. ' Mann v. Stowell, 3 Chand. 243. 2 Goldthwaite v. Kempton, 13 N. H. 449. ' Johnson v. Eeed, 3 Eng. 202. • Jones V. Gregg, 17 Ind. 84. ' Halleck v. Mixer, 16 Cal. 574. « Welch V. Bagg, 12 Mich. 42. REMEDIES IN CASE OF SALE. 529 tiffs' rights ; held, a conversion, but that assumpsit would lie therefor, although there was no sale except of a trifling portion of the grain, not equal to the defendant's own separate interest.' § 18. But the prevailing rule is, that assumpsit will not lie to recover the value of goods wrongfully detained, un- less upon proof that they have been sold and converted into money f and that, where goods are taken tortiously, and converted to the use of the tort-feasor, the owner can- not maintain indeb. assump. for goods sold and delivered.^ So, where a party may bring trespass, trover, or replevin, a mere demand and refusal will not enable him to main- tain assumpsit for the value of the goods.* Upon these grounds, when sheep break from the inclosure of their owner into an adjoining pasture, and there remain for some considerable time, the owner of the pasture cannot, of his own mere motion, waive the tort, and sue in as- sumpsit for the pasturing of the sheep. To authorize this, there must have been what would amount to the consent of both parties, that it should be considered as matter resting in contract.* And where the defendant's sheep from time to time broke into the plaintifli^s pasture through the defendant's fence, and the plaintiff sent word to the defendant, that he must take care of them, and the defendant said to the messenger, that he did not know what he should do with the sheep, and that he expected he should have to pay the plaintiff for the sheep running in his pasture, and this was told to the plaintiff by the messenger, and the plaintiff continued to drive the sheep from his pasture, whenever he saw them there, as well after ' Fiquet v. Allison, 12 Mich. 328. See Patterson v. Prior, 18 Ind. 440. ' Smith V. Smith, 43 N. H. 536; O'Reer v. Strong, 13 111. 688; Stearns v. Dillingham, 22 Verm. 624. See Knight v. Dunlop, 4 Barb. 36. " Winchell v. Noyea, 23 Verm. 303. * Hutchinson v. Phillips, 6 Eng. 270. ' Stearns v. Dillingham, 22 Verm. 624. 34 630 LAW OF SALES OF PERSONAL PROPERTY, the message was sent to the defendant as before, but made no more personal complaint to the defendant respecting them ; held, these facts did not show any assent to make the pasturing of the sheep matter of contract, and the plaintiff could not recover of the defendant for pasturing the sheep, in an action of book-account, or assumpsit.' So an action for timber sold cannot be maintained, when the taking was a trespass, with proof from which a contract of sale may be inferred.^ So, if one tenant in common sell the chattels, and appropriate the proceeds to his own use, the remedy of the other is trover, or an action for money had and received, not an action for goods sold and de- livered.^ So, where the goods of the plaintiff were wrong- fully taken by the defendant, and destroyed by fire whilst in his possession, the plaintiff cannot waive the tort and sue ex contractu.* So assumpsit cannot be maintained by the owner of a horse against a party who has exchanged it, while in his possession, for another, and has not sold the one received by him in return.^ § 19. In an action for goods sold and delivered, the court will not compel the defendant to allow an inspection of the goods, for the purpdse of enabling the plaintiff to identify them. There is no instance of the court's order- ing such a proceeding, unless the thing to be inspected be- longs to both parties alike ; as in case of a written agree- ment. The plaintiff may demand of the defendant to allow an inspection by his (the plaintiff's) witnesses, and may avail himself in evidence of the defendant's refusal. But the principle does not require the defendant to give evidence out of his own hands which will injuriously aftect himself The court may always impose terms upon the plaintiff, but not upon the defendant, except as the condi- • 22 Verm. 624. * Allen V. Woodward, 2 Fost. 544. ' Williams v. Chadbourno, 6 Cal. 659, « Schweizer v. Weiber, 6 Rich 159. " Fuller V. Duren, 36 Ala. 73. REMEDIES IN CASE OF SALE. 531 tion of granting a favor asked by him. The plaintiff's relief, If any, was held to be in equity.' § 20. Similar to the action for goods sold and delivered, is that for goods bargained and sold. The latter is usually brought, where the former does not lie for want of de- livery or acceptance. In an action for the price of goods bargained and sold, it is only necessary to prove a valid sale, not to prove a delivery.^ The distinctions in the various cases on this subject are said to run extremely jine.^ But the prevailing rule is, that this action does not lie, unless there was an actual sale of goods in existence at the time, or a specific appropriation of goods, afterwards assented to by the purchaser.* Nor can it be sustained, unless the property has passed to the purchaser, so that he might maintain trover, and must bear the loss in case of theft or fire.' § 21. Where a vendee refuses to take the goods, upon the ground that they are damaged, when in fact they are not, an action for goods bargained and sold lies against him. And the measure of damages is the value of the goods.^ § 22. Where one sells from a large parcel of goods, and it is at his option to select a part for the purchaser, no suit lies for goods bargained and sold till such selection is made. Upon appropriation of a particular portion for the vendee, the property passes, subject to the vendor's lien for the price.' § 23. Whether the action for goods bargained and sold will lie, where the goods have been resold upon the vendee's refusal to accept them, is a point on which there seems to be some conflict of authorities. In one case it is ' Dell T. Taylor, 6 D. & R. 388. 2 Doremus v. Howard, 3 Zabr. 890. ' Alexander v. Gardner, 1 Scott, 640. « Atkinson v. Bell, 2 M. & K. 292. " Elliott V. Pybus, 10 Bing. 516. ' Hankey v. Smith, Peake, 42, n. ' Per Bayley, J., Bohde v. Thwaites,' 6 B. & C. 392. 532 LAW OF SALES OF PERSONAL PROPERTY. said that it will not, because by tbe resale the vendor loses his right of requiring the first vendee to take the o;oods. He treats them as not belonging to such vendee, and the contract as not completed. Hence he can recover, only in an action for breach of the contract.' So, where it is agreed between the vendor and vendee, that, if the latter does not take the goods within a certain time, the former may rescind the sale, and the vendee does not take them within the period mentioned, and the vendor then resells the goods ; it seems, he cannot maintain an action as for goods bargained and sold.^ But it has also been held, that, where a purchaser of goods at auction fails to take them away, and the vendor resells them at a loss, an action for goods bargained and sold lies, although the vendor has not the property to deliver, in case of a verdict in his favor ; that, after such verdict, the defendant may maintain trover for the goods ; having become a buyer, when they were knocked down to him at the auction.^ § 24. The action has been held to lie upon a contract of sale or return. Thus, where the plaintiff furnished goods to the defendant on a contract of sale or return within one year, the goods not being returned within the time mentioned, it was held, that the plaintiff might re- cover the price in a count for goods bargained and sold, and that no special declaration was necessary.'' § 25. This action does not lie, without privity of contract between the plaintiff and defendant. Thus, A. having a patent for certain spinning machinery, B. ordered from him a number of spinning-frames, to be manufactured by A., and the latter employed C. to make them, and in- formed B. accordingly. The work having been completed, A. ordered a certain alteration, which was made ; the > Acebal v. Levy, 4 Moo. & So. 217; 10 Bing. 384; Hore v. Milner, Peake, 42, a. * Hagedorn v. Laing, 6 Taun. 162. ' Mertens v. Adcock, 4 Esp. 251. * Harrison v. Allen, 9 Moore, 28 ; 2 Bing. 4. See p. 28. REMEDIES IN CASE OP SALE. 533 articles were packed in boxes for B. ; and C. informed E. that they were ready for delivery ; but B. refused to ac- cept them. Held, C. could not maintain the action for goods bargained and sold, nor for work done and materials found, against B." ' § 26. Another form of action between the seller and buyer, is assumpsit for money had and received. This we have had occasion to notice, in connection with the right of a buyer to recover the price from the seller, where the sale is avoided or rescinded, either by mutual consent, or by the action of the buyer alone, for breach of warranty, fraud, or other legal cause.'' ^ » It was remarked by the court, that, where you employ one to build a house on your land, or make a, chattel with your materials, the party doing the work cannot appropriate the produce of the labor and materials to any other person. He may maintain an action against you for the work. But if you employ one to work upon his own materials, he has the right of applying the produce to another person. During the pro- gress of the work, he cannot maintain an action ; hut when the work is completed and accepted, the party employed may have an action for goods sold and delivered, or, in case of non-acceptance, a special action on the case. But he csinnot have an action for work and labor, because it was done upon his own materials, and for himself, not for his employer. ' The action lies for the price of goods sold to the plaintiflF, but not de- livered. 1 Stra. 407. A. gave B. a receipt for "one hundred and fifty dollars, in full, for contract for fifteen tons of hay, to be delivered to order." Held, an ac- knowledgment by A. that he had $150 of B.'s money, upon an executory contract for the delivery to him of a given quantity of hay, at a fixed price per ton ; and that, upon A.'s delivery of thirteen tons only of the hay, and his refusal to deliver the residue, B. might recover of him, in an action for cioney had and received, the price of the other two tons, namely, $20. Hill v. Re wee, 11 Met. 268. In an action by B. against A. for money had and received, B. gave in evidence u due-bill, signed by A., of this tenor : " Due B. thirty-three hundred and fourteen pounds of hay, at my barn, on demand ;" and also gave in evidence, to prove the consideration, a receipt, of a previous date, signed by A., in these words : " Received of B. one hundred and 1 Atkinson v. Bell, 8 B. & C. 277. ' See Patterson v. Coats, 8 Blackf. 500; Dean v. Mason, 4 Conn. 428; Carter v. Walker, 2 Rich. 40 ; Steele v. Hobhs, .16 111. 59. 534 LAW OP SALES OF PERSONAL PEOPEKTT. § 27. Where one man sells the property of others, with full notice that he is doing wrong, and disposing of that to which he has no title, he is held liable to an action for money had and received.' Thus A. tortiously took a quantity of coal from the land of B., sold it, received the money, and afterwards died. Held, B. might maintain an action for money had and received against the admin- istrator, though no direct evidence was offered of the sum that had been received, if the jury believed the fact of a sale. The judgment was founded upon the consideration, fifty dollars, in full for contract for fifteen tons of hay ; the hay to be de- livered to order, or, if sold, to be accounted for with B." B. also gave evidence, that he had received part of the hay mentioned in the receipt, and that, when the due-bill was given, there was due to him the quantity of hay therein mentioned, which he had demanded of A., and which A. had refused to deliver. Held, A. might give parol evidence, that, before he gave the receipt to B., B. agreed with him for the purchase of more than fifteen ton* of hay, at $10 per ton, and that, when the receipt was given, A. agreed not to require B. to take more than fifteen tons, if B. would then pay $150; that B. then paid A. that sum, and took the receipt; that B. was to take the hay at A.'s barn, and that A. was to sell the hay, as he might have opportunity ; that B. took part of the hay, and A. sold a part of it, and accounted with B. for the proceeds ; that, when the due-bill was given, the quantity of hay therein mentioned remained in A.'s barn, and A. requested B. to take it away; that B. thereupon re- quested A. to take it, and A. did take it, and gave the due-bill therefor. Held, also, that, on proof of these facts, B. could not maintain his action for money had and received. lb. In reference to a suit brought in this form by the seller, it is held that assumpsit for money had and received will not lie for the value of goods sold, which were to be paid for in merchandise. Beals v. See, 10 Barr, 56. A. sent a horse to B., an auctioneer, to be sold, without? warranty, on certain false representations, the falsehood of which was concealed from B. B. sold the horse accordingly, and received the price ; but, before he paid over the price to A., the purchaser discovered the fraud, rescinded the contract, gave B. notice not to pay the price to A., and demanded it back from B. Held, a defence to an action by A. against B. to recover the price, as money had and received to A.'s use. Stevens v. Legh, 24 Eng. L. & Eq. 210. 1 Hardacre v. Stewart, 5 Esp. 103. REMEDIES IN CASE OF SALE, 635 that the estate of A. was increased to the amount of the value of the coal taken." ' So a sale of goods, procured by fraud, does not change the property in them. Hence, where the defendant fraudulently colluded with A., an insolvent, to procure wines from the plaintiiF, the proceeds of which finally came to the defendant's hands, for a prior ■ We have already considered the question, whether, in case of a tortious taking, an action will lie for goods sold and delivered. [Supra, §17-) It has been held in Massacliusetts, that, where trees are unlawfully cut and carried away, the owner cannot waive the tort and sue as for goods sold and delivered, unless the defendant has sold the trees. Jones v. Hoar, 6 Pick. 285. But where one tenant in common sells trees from the land, the other may have an action for money had and received, whether payment was made in land, by note, or otherwise. Miller v. Miller, 7 lb. 133. So, where A. without authority sells the goods of B., taking a nego- tiable note for the price ; B. may have this action against him. Whit- well v. Vincent, 4 lb. 449. One disseised cannot, during the disseisin, maintain assumpsit for the proceeds of trees cut upon the land and sold. Bigelow v. Jones, 10 lb. 161. Where one wrongfully takes the chattel of another, manufactures it into a new form, sells and receives the price for it ; he is liable to the owner as for money had and received. Gilmore v. Wilbur, 12 lb. 120. In New Hampshire it has been held, that, where one took the goods of another, and converted them to his own use, without the owner's license ; upon an agreed statement of facts, the tort might be waived, and assumpsit supported for the price, though it was agreed there was no contract. Hill v. Davis, 3 N. H. 384. ^ The owners of certain goods mortgaged them to the plaintiff to secure a debt ; and afterwards conveyed the same goods to the defendants, in trust fo' their creditors. The defendants sold the goods and received the proceeds. The next day after the sale, the plaintiff assigned his in- terest in the mortgage to a third party, who brought this suit in the mortgagee's name. Held, that the defendants, by the sale, rendered themselves liable to the plaintiff in an action of tort, which he might waive, and claim the proceeds in assumpsit ; and that the action, not- withstanding the assignment, was properly brought in the name of the mortgagee. Leighton v. Preston, 9 Gill, 201. There may be a waiver of the tort, in ease of conversion into money or money's worth. Staat v. Evans, 35 111. 455. » Powell V. Kees, 7 Adol. & El. 426. 636 LAW OF SALES OP PERSONAL PROPERTY. debt due him from A. ; held, the plaintiff might maintain an action for money had and received against the defend- ant. A. knew that the defendant would ultimately have the proceeds of the wines, and stood as the defendant's agent. And it was held to make no difference whether the property was actually converted into money or not." So A., having obtained possession of goods intrusted to B., to be sold at a certain price, refused to re-deliver them or pay the price at the time appointed. B., under threat of a suit b}^ the owner, paid him for the goods. Held, B. might recover against A. in an action for money had and received, a sale of the goods by A. being presumed.^ So, where two persons make a valid agreement to join in the purchase of goods for the purpose of selling them again ; if one of them take and appropriate to himself the whole of the property, the other may bring an action for money had and received for his share of the profits.' ^ § 28. With reference to the pleadings in an action be- tween seller and buyer ; in an action for non-delivery of goods sold, the declaration need set forth only that part of the contract, a breach of which is complained of.* And, * The followinE; miscellaneous cases may be cited, in which money had and received will lie after a sale of goods. A. buys goods of B., the agent of C, but not huving authority to sell. B. applies the proceeds to C.'s benefit, but C. afterwards disaffirms the sale and recovers the goods. A. may maintain an action against C. for the money paid B. Peters v. Ballistier, 3 Pick. 495. Where a vendee gives his negotiable note for the price, and either the goods are overcharged or the note given for too large a sum; he may re- cover the excess before paying the note, or even though he paid it after discovering the error. "Whitcomb v. Williams, 4 Pick. '.'28. Where an agent, not authorized to sell on credit, takes a note payable to himself, or unreasonably delays collecting such note, the principal may maintain an action for mone}" had, &c. Hemenway v. Hemenway, 6 Pick. 389. See Langley v. Sturtevant, 7, 214. 1 Abbotts V. Barry, 5 Moo. 98. ' Longcharap v. Kenny, 5 Moore, 104. ' Stiles V. Campbell, U Mass. 321. * Squier v. Hunt, 3 Price, 68. REMEDIES IN CASE OF SALE. 537 in general, the declaration need not state the particulars of the contract, though, if alleged, they must be proved. Thus, in an action on a warranty, the mode of paying the price need not be stated, though it was by barter and note.' And a declaration on warranty, if substantially good, is sufficient." * » In Massachusetts, upon the ground of immemorial usage (and some other States), iruleb. assump. lies for goods sold and delivered, as described in a schedule annexed to the writ. Nor need the writ state, even gener- ally, what the schedule contains. Kinder v. Shaw, 2 Mass. 398; Kider V. Kobbins, 13, 284. In the same State it is held, that, where a suit is hrought upon a special contract, still remaining executory, the declaration should state the whole contract. But it is otherwise, where the terms of a special agreement have been performed, and nothing remains to be done but the payment of money. Felton v. Dickinson, 10 Mass. 287. In Kentucky, the declaration may be general for goods, &c., sold and delivered, without specifying the particular description. Snodgrass v. Broadwell, 2 Litt. 355. The price of lottery tickets, if the sale be not illegal, may be recovered in a count for goods, wares, and merchandise sold and delivered. Yohe V. Eobertson, 2 Whart. 155. In assumpsit upon an account annexed, to recover the price of goods sold and delivered, it is no objection to a recovery, that the date pre- fixed to an item differs from the true time of sale and delivery. National, &c. V. Lovering, 10 Post. 511. This count may be maintained, where the plaintiff has fully performed his part of a contract, and there remains only a debt or duty to be paid or performed by the defendant. New Hampshire, &c. v. Hunt, 10 Fost. 219. In assumpsit for goods sold and delivered, the plaintiff is not bound to rely upon his book of accounts, although the goods may be there charged. Books of account possess none of the uncontrollable qualities of a record, but are open to the same explanations as any other species of parol evi- dence. Thus the plaintiffs sold and delivered goods to the defendant, but, at his request, made the charges on their books against one A., for whom the defendant bought them, for the convenience of the defendant. Held, the plaintiffs might show these facts, in order to rebut any pre- sumption arising from the books, that the credit was given to A. Pecker v. Hoit, 15 N. H. 143. ' "Webster v. Hodgkins, 5 Fost. 128. 2 Goodenough v. Snow, 1 Williams, 720. 638 LAW OF SALES OP PERSONAL PROPERTY. § 29. In an action on the case against a vendor, for falsely affirming that the property sold belonged to him, whereby the plaintiff was induced to buy it, and after- wards evicted by the rightful owner ; the declaration need not allege either a contract, consideration, or price. In such case a recovery by the true owner is conclusive against the present defendant ; and, if the declaration alleges, that the vendor testified, in the former suit be- tween the true owner and the vendee, that he did not own the property, this is equivalent to an averment of notice to the vendor of the pendency of the former suit.' § 30. Where the declaration contains one count upon a special agreement, and another in indeb. assump., if the evidence sustains the latter the plaintift' will recover, though he unsuccessfully attempt to sustain the former.^ § 31. The law in many cases requires, that the plaintiff, suing upon a contract of sale, should allege the perform- ance of some act or condition on his own part. § 32. Agreement, that A. should furnish B. a certain quantity of goods, for which B. was to pay $200 at a future time. A. brings an action for the price, alleging delivery of the kinds of articles agreed for to the amount of $200, which B. had received in full satisfaction of the agreement, but not the particular quantity delivered. Held, this was a sufficient averment of performance of . the condition precedent, or of what was equivalent to performance, by way of accord and satisfaction.^ (And the same principle applies to the proof. Thus where, in an action for non-delivery of goods according to agree- ment, after a demand, the declaration alleged that the plaintiff was ready and willing to accept and pay for the goods ; it was held that this allegation need not be spe- cifically proved, the demand being sufficient evidence of it.^) So the defendant agreed to deliver to the plaintiff a 1 Barney v. Dewey, 13 John. 224. 2 Keyes v. Stone, 5 Mass. 391. ' Richards v. Carl, 1 Blac. 313. * Wilks V. Atkinson, 1 Marsh. 412. BEMEDIES IN CASE OF SALE. 539 quantity of malt, at a certain price. In a suit for non- delivery, held, the plaintiiF need not allege a tender of the price, but only a request to deliver, and that he was ready and willing to receive and pay for the malt accord- ing to agreement, but the defendant refused to deliver. More especially is this sufficient after verdict.' So a declaration alleged, that, in consideration the plaintiflf had paid the defendant a certain sum, he agreed to de- liver the plaintiff, at E,., sixty quarters of wheat in certain proportions, and for a certain price, to be paid immedi- ately after delivery; but the defendant, though often requested to deliver it, and though the plaintiff, at the said several times when the wheat should have been delivered, was ready at R. to receive it, and pay the defendant the sums which he ought to pay, immediately after the receipt of it, had not delivered the wheat. Held good.^ So, in an action by A. against B., the declaration alleged, that B. was possessed of certain land, on which hops were growing, and agreed to sell to A. all the hops then growing, at <£10 per hundred weight, to be paid by A. to B. ; the hops to be delivered in packets by B. to A., at W. in R. ; that, in consideration of A.'s undertaking to accept and pay for the hops, B. promised to deliver them at said place and in said manner, in a reasonable time . after they were picked and gathered ; that hops had been picked and gathered, amounting to two hundred weight, and, though a reasonable time for delivery had elapsed, and though during and since that time A. was ready and willing to accept and pay for them at the rates and in the manner, &c. ; yet B. had not delivered them. But the declaration alleged no request or notice to deliver at any particular time, and no tender of the price. Held, as the first act was to be done by the defendant, no such allega- tion was necessary, and the declaration was good.^ • Kawson v. Johnson, 1 E. 203. ' Korwood V. Norwood, Plowd. 180. » Bristow V. Waddington, 2 N. K. 355. 540 LAW OF SALES OF PERSONAL PROPERTY. § 33. But where the acts of the parties are to be con- current, the plaiutitF cannot recover, without alleging the performance of his own part of the agreement. Such case is said not to depend on technical niceties of plead- ing, but on the true construction of the agreement. Thus, in an action for non-delivery of a quantity of corn, which the defendant, in consideration of the plaintiff's purchasing it of him at a fixed price, undertook to deliver at S., within one month from the time of sale ; held, the declaration must allege a tender of the price, or some act equivalent thereto.' § 34. With regard to the particularity with which the sale must be set forth ; an averment, that the defendant contracted to make and deliver to the plaintiff a certain wagon, for a sum then mentioned and agreed to between them, but that he did not deliver, &c., was held, after verdict, to be a sufficient averment of a consideration.^ So a declaration alleged, that, in consideration that the plaintiff' had sold a certain horse to the defendant, at and for a certain quantity of certain oil, to be delivered within a certain time, which had elapsed before commencement of suit, the defendant promised to deliver said oil accordingly. The value of the horse was not stated, nor the value, quantity, or quality of the oil. Held good, after verdict. Lord Eldon was at first of a contrary opinion, but at length concurred with the other judges.^ But a declarar tion in case, that whereas the plaintiff had agreed to buy, and the defendant to sell and deliver, at a certain rate or price per pound, to be paid in the manner then stipulated, forty bags of wool, to be delivered by the defendant to the plaintiff' at a time which, before the making of the defendant's promise, after-mentioned, had elapsed, but which wool had not then been delivered ; and thereupon, in consideration of the premises, and that the plaintiff ' Morton v. Lamb, 7 T. E. 125. 2 McKee v. Bartley, 9 Barr, 189. ^ Ward V. Harris, 2 B. & P. 265. REMEDIES IN CASE OF SALE. 541 would still receive and pay for the wool at the rate or price, and in the manner, last aforesaid, upon delivery within reasonable time, the defendant promised the plain- tiif to deliver the wool within a reasonable time ; and, although the plaintiff, for a reasonable time after the de- fendant's promise, was ready and willing to receive and pay for the wool at the rate or price and in the manner last aforesaid, the defendant would not deliver it, &c. ; was held too general, and bad on special demurrer ; as it mentioned no price and manner of payment in the first bargain, which nevertheless was referred to, incorporated with, and made part of the consideration of the new prom- ise, upon which this action vras founded. Hence nothing was presented to the jury, which could serve as the meas- ure of damages for non-delivery.' § 35. Mce questions often occur, whether the declara- tion upon a contract of sale is supported by the evidence, or whether there is a variance between the allegations and the proofs. § 36. "Where, in an action for goods sold and delivered, the declaration alleged that the goods were the property of the plaintiff, but the evidence proved that they belonged to him and another, it was held a variance.^ So where the plaintiff" in his declaration alleged a promise by the defendant, made in consideration that the plaintiff would deliver certain goods to a third person ; and the evidence proved that the plaintiff was to deliver them to the de- fendant himself.^ So where, upon a declaration that the defendant agreed to deliver goods for the plaintiff, a spe- cial agreement was proved, to deliver them to the bearer of a receipt given for them at delivery ; it was held, that the evidence disproved the declaration.^ § 87. But, in assumpsit, the declaration set forth a 5 Andrews v. Whitehead, 13 E. 102; 2 Ditchburn v. Spracklin, 6Esp. 31. ' Leery v. Goodson, 4 T. B. 68-7. * Samuel v. Darch, 2 Stark. 60. 542 LAW OP SALES OF PERSONAL PROPERTT. written agreement between the plaintiff and defendant, by which the latter was to sell and deliver to the former all the wool that he (the defendant), should cut, annually, for five years, from his sheep, and also what should be cut from those of his two sons. The plaintiff offered in evi- dence a written contract, signed by the plaintiff", the de- fendant, and his sons ; by which the defendant contracted as above alleged, and the sons agreed to improve their flocks in a certain manner, to retain the increase, and that the plaintiff should have the fleeces of such increase. The plaintiff' to pay the defendant so much per pound. Held, there was no variance, because the agreement was the sole contract of the defendant ; or, if the sons were parties, the promise declared on was that of the defendant alone." § 38. Contract, to deliver rough gum Senegal. Declara- tion, as on a contract to deliver gum Senegal generally. Proof, that all gum Senegal, on arriving in England, is rough. Held, the declaration was sustained.^ So, upon an agreement to purchase a parcel of hemp, about eight tons, a declaration of an agreement to purchase a parcel of hemp, to wit, eight tons, this being the exact quantity in the parcel sold, was held sufficient, though it might have been better to state the facts precisely as they were.' So an agi'eement was made to purchase all the head-matter and sperm oil, per the Wildman. Declaration, that the plain- tiff bargained and sold, and the defendant agreed to buy, a large quantity of head matter and sperm oil at a certain price per ton, which was afterwards ascertained to be a • It being proved, that one of the sons owned in common with one A., who however let his share to such son, so that the whole of the wool sheared was sheared by and belonged to the son ; held, the defendant's contract included the whole of the wool. An agreement that a third person shall convey certain property is binding, although the party may be unable to fulfil it. 20 Pick. 432. ' Stearns v. Poote, 20 Pick. 432. 2 Silver v. Heseltine, 1 Chit. 39. » Gladstone v. Neale, 13 E. 410. REMEDIES IN CASE OF SALE. 543 given quantity. Held to be no variance. The plaintiff had proved all his declaration, arul something more. There v^as no proof of any qualification or condition to the bargain. Objection could be taken, if at all, only by demurrer or in arrest of judgment.' But v^here, upon an agreement to take in a certain specified quantity of goods, the declaration alleged an agreement to take in a full cargo; it was held a variance, though the quantity named was a full cargo.^ So where the plaintiff declared, that, in consideration that he had sold to the defendant two hundred and seventy- six hides of leather, and agreed to deliver them, the de- fendant agreed to accept and pay for them, the weight to be determined by inspection ; and it was proved, that the defendant agreed to buy a lot of leather then in the vats, and to take what should be stamped good, by the inspector : held, a fatal variance.^ So where, upon a sale of manu- factured goods, with a warranty that they were equal to any manufactured in America, the declaration set forth a warranty that they were good and merchantable ; held a variance.'' So, upon a sale of spruce timber, a declaration as upon a sale of fine timber, was held a variance.'^ § 39. The same question may arise more particularly with reference to the price.. Thus, in case of an agree- ment for three hundred and eight chests and thirty half chests of China oranges, and twenty chests of lemons, — no price being specified ; the plaintiff alleged in his declara- tion, that he had agreed to sell, and the defendant to buy, certain goods and merchandise, to wit, three hundred and twenty-eight chests and thirty half chests of oranges and lemons, at and for a certain price, to wit, £623 3s. Held, no variance.^ So A. agreed to famish B. with saddles at " 24s. 26s." B. brings an action upon this agreement, de- 1 Wildman v. Glossop, 1 B. & A. 9. • Harrison v. Wilson, 2 Esp. 708. ' Hart V. Tyler, 15 Pick. 171. * Goulding v. Skinner, 1 lb. 162. 5 Bobbins v. Otis, 1 lb. 368. 8 Crispin v. Williamson, 1 Moore, 547. 544 LAW OF SALES OF PERSONAL PKOPERTY. daring upon it as a contract to furnish saddles at a rea- sonable -price. Held, this was no variance. The legal construction of the agreement was to sell at a price near about the sums named.' So the declaration alleged, that the goods were to be paid for by a bill at two months ; but the evidence was, that they were to be paid for by a bill at two mouths, on receiving the invoice or delivery of the property. Held, this was not a fatal variance.^ § 40. A declaration, alleging that the plaintiff was ready and willing to perform his part of the agreement between him and the defendant, is sustained by proving a demand made by his servant in his absence.' § 41. A contract in the alternative must be so stated in the declaration ; otherwise, the case shows a variance, although facts occurring subsequently to the contract have rendered it absolute. Thus an agreement was made • to purchase one hundred bags of wheat ; fo7~ty or fifty of them to be delivered on one market-day, the remainder on the market-day next following. Forty bags were de- livered on the first market-day. In an action for non- delivery of the rest, held, the declaration must allege the agreement, as above stated, in the alternative— /or Dixon V. Deveridge, 2 C. & P. 109. • Dickerson v. Sparks, 17 111. 178. » Clark V. Westrope, 37 Eng. L. & Eq. 813. * Per Gibson, C. J., Girard v. Taggart, 5 S. & E. 34. " Bush V. Bradford, 15 Ala. 37; 20 Conn. 38; McNaugter v. Cassally, 4 McL. 530. « Crooks V. Moore, 1 Sandf. 297. REMEDIES IN CASE OF SALE, 551 tract for the sale of a slave provided that the vendor should have the refusal of him, at the price which he re- ceived for him ; held, the measure of damages, for a failure of the vendee to comply with the contract, was the differ- ence between that sum and the price for which the vendee sold the slave.' But where the property is utterly worth- less in the hands of the plaintiff, the whole price agreed to be paid should be recovered.^ And, in an action on a contract for the payment of wheat in flour and bran, the value of the flour and bran to be paid is the measure of damages, and not the value of the wheat sold.' § 50. A vendee of goods rightfully offered to return, but the vendor refused to accept them, and then the ven- dee kept and sold them. Held, the rule of damages in assumpsit by the vendor, was the amount of the proceeds of the second sale, after deducting a fair compensation for the services of the vendee ; and not the whole value of the goods.* § 51. A. made a contract with B. for the purchase of railroad shares, and afterwards paid B. a part of the price. B. subsequently caused the shares to be transferred to A., but he refused to take them, and B. brought an action against him. Held, the measure of damages was the con- tract price.* § 52. In an action for goods sold and delivered, interest cannot be recovered, though a special agreement to pay interest be proved, where the declaration contains no count for interest, and where none is claimed by the bill of par- ticulars,^ § 53. In reference to suits brought by the vendee against the vendor ; as we have already seen, in case of warranty, the difference in value between the real and the warranted I Brent v. Eichards, 2 Gratt. 539. « Allen V. Jarvis, 20 Conn. 38. ' Lucas V. Heaton, 1 Smith, 184. * Greene v. Bateman, 2 W. & M. 359. ' Thompson v. Alger, 12 Met. 428. « De Groot v. Darby, 7 Kich. 118. 552 LAW OF SALES OF PERSONAL PKOPERTT. quality is the measure of damages, and the jury may also allow interest." ' § 54. Where goods are purchased by the bale, and by a mutual mistake invoiced as of a larger quantity than the actual measurement ; the purchaser can recover for the deficiency, at the price at which they were purchased ; but not for duties and commissions paid by himself on the deficient amount, in consequence of the mistake.^ § 55. In regard to the nature of the injury, as direct or remote, for which damages may be recovered ; in an action in M'hich the value of two flat-boats, made and delivered under a contract, was claimed, the vendee, proved that they were not delivered at the time, and were not of the quality required by the contract, and that he had incurred expenses in making the necessary repairs upon them. He then proposed proving, that he had sustained damage by loading the boats with produce, which was injured in con- sequence of their defective construction, and also that he had sustained damage by depreciation in produce, by not having the boats in time. Held, the vendee, having ac- " But when the action is brought for deceit, if the wrong complained of is characterized by fraud, malice, or gross carelessness, the damages will embrace all injuries which naturally flow therefrom. Thus, in an action for deceit in the sale of a horse, the plaintiff having proved that the defendant, at the time of the sale, represented the horse to be perfectly gentle and kind, and that the defendant knew such repre- sentation to he false ; and having proved, also, that within a day or two after the trade, and for the first time, he attempted to use the horse before a buggy, when, without any apparent cause, he ran and kicked until the buggy was badly broken, and to save his life, the plaintiff leaped upon the ground, and thereby broke one of his legs : held, it was competent for the plaintiff to introduce evidence, to show the full nature and extent of the injuries to his person and vehicle, and the expenses necessarily incurred in effecting his cure ; and that it was for the jury to say, whether they resulted from the viciousness of the horse, and were the probable and natural consequences of the fraud. Sharon v. Mosher, 17 Barb. 518. 1 Foster v. Eodgers, 27 Ala. 602. 2 Hargous v. Ablon, 3 Denio, 406. EEMEDIES IN CASE OF SALE. 553 cepted the boats, was bound to pay wbatever they were worth ; that he could not set up subsequent losses, grow- ing out of the use to which he applied them ; and that the facts which he proposed proving were too remote and contingent to become the subject of damages under the contract.^ § 56. lu ^n action on a contract for the delivery of goods, the general rule of damages is, the market value of the goods at the time and place when and where the contract was broken, with interest, or the diiference be- tween the price agreed on and the market value at the specified time and place. If clear evidence of such value is ofiered, evidence is not admissible of the value at other neighboring places. But in the absence of the former evidence, the latter is admissible, as raising a presumption in relation to the point at issue.^ The above is the meas- ure of damages, unless the use intended to be made of the goods were known to the seller." ' And the value at the time of breach, not afterwards, and not the agreed price, is the measure of damages, although the vendor withhold the property with a view to his own profit. Eut if there is no fixed price, but the price ranges between difierent rates, the jury may adopt the highest, lowest, or an inter- mediate rate, according to the conduct of the defendant.^ So, where the goods are paid for in advance, and in case of contracts for the transfer of stock on a given day ; if the goods or stocks have risen in value subsequent to the ■- Damages for non-delivery are not to have reference to a purpose in the purchase not known to the seller. Cory v. Thames, Law Eep. 3 Q. B. 181; Amn. Law Eev., July, 1868, p. 677. » Davis V. Tish, 1 Iowa, 406. See Ogle v. Earl, &c. Law Eep. (Eng.) May, 1868, p. 271. * Gregory v. McDowell, 8 Wend. 435 ; Gainsford v. Carroll, 2 B. & C. 624; West v. Pritchard, 19 Conn. 212. ' Bartlett v. Blanchard, 13 Gray, 439. « Hopkins V. Lee, 6 Wheat, 109 ; Sheperd v. Hamilton, 3 Wheat. 2W; Blydenburgh v. Welsh, 1 Bald. 331. 554 LAW OF SALES OF PERSONAL PEOPERTT. time of delivery or transfer, the purchaser may recover their value at the time of trial.' § 57. Where A. agreed to deliver a quantity of oats to B. " on or about the Ist of November," and there was a total failure to deliver, and a notice vpas given by a per- son claiming to be A.'s attorney, before the time, that A. did not intend to deliver : held, as A. had the liberty to deliver the oats within a reasonable time after the Ist of ^N^ovember, and B. would have been bound to receive them, which question of reasonable time was to be left to the jury ; the measure of damages would be the difference of price, within such reasonable time, between the con- tract and market prices, and that the notice of the attor- ney did not affiect A.'s liability.'' § 58. Where the plaintiff^ sold property to A., relying for security upon the undertaking of the defendants to deliver to the plaintiff certain goods, at specified prices, on demand, and these goods, at the time of the demand, had fallen in value below the prices so specified ; in an action for non-delivery of such goods, held, the plaintiff was entitled to stand in the same situation as if he had paid to the defendants the amount of the property sold to A., and, consequently, if the goods had risen in value after the demand, the plaintiff" would have been entitled to recover the value of them at the time of trial ; but as they had fallen after the contract, he could recover only their value at the time of the demand.' § 59. In the month of September, the defendant agreed to deliver tallow to the plaintitf in all the ensuing De- cember, at so much per hundred weight. In October, the defendant told the plaintiff he had sold the tallow, and could not perform his agreement ; but the plaintiff did not consent to rescind the bargain. After the making of the agreement, tallow rose in price. Held, the plaintiff 1 16 Conn. 212. ' Kipp V. Wiles, 3 Sandf. 585. » 19 Conn. 212. REMEDIES IN CASE OF SALE. 555 should recover as damages the difference between the agreed and the market rate on December 31st, the last day on which the contract would authorize the defendant to deliver the tallow. Had the article fallen in price, the plaintiff would still have been bound to take it at the agreed rate. He was not bound to purchase other tallow at a lower price, though he might have done it. The defendant might have purchased for a lower price as well as the plaintiff.' 1 Leigh V. Patterson, 2 Moore, 588. 556 LAW OF SALES OF PERSONAL PROPERTY. CHAPTER XXIV. ASSIGNMENT OF CHOSES IN ACTION. 1. ASSIGNMENT 0¥ CHOSBS IN ACTION IN EQUITY ; WHAT ARE ASSIGN- ABLE ; WKONQS, ACCOUNTS, POLICIES OE INSURANCE, SHAKES, JUDGMENTS, ETC. ; STATUTES MAKING CHOSBS IN ACTION LE- GALLY ASSIGNABLE. 16. rOKM OK MODE OE ASSIGNMENT ; -WHETEBK IT MUST BE IN -WRIT- ING ; ORDER UPON A THIRD PERSON, ETC. 20. EFFECT OP ASSIGNMENT ; LIABILITY OF THE DEBTOR ; NOTICE, SET- OFF, ETC. 26. REMEDY IN CASE OF ASSIGNMENT; PROCEEDINGS IN LAV AND EQUITY ; LIABILITY OF THE ASSIGNOR TO THE ASSIGNEE, ETC. § 1. The law relating to sales of personal property con- templates for tlie most part personal property in possession ; that is, the property commonly known as chattels, which have an absolute, and present, and not a mere representa- tive or future value. The other division of personal prop- erty consists of choses in action, which are mere securities, promises, or debts. The most common and important kind of securities, namely, negotiable paper, or bills and notes, is the subject of a distinct branch of commercial law, and does not fall within the plan of the present work.* But it » Questions sometimes arise upon the assignment of choses in action, ■which are not strictly negotiable, but partake to some extent of a ne- gotiable character. A certificate of deposit, payable to the depositor, or order, in currency, is not a negotiable instrument, and the indorsee thereof cannot maintain an action upon it in his own name. Loudon, &o. V. Hagerstown, &c., 86 Penn. 498. Nor is the mere indorsement of such an instrument a legal assignment, such as will enable the indorsee, by statute, to sue in his own name. lb. Warehouse receipts for goods left in store are not promissory notes for the payment of money within the statute authorizing assignments, and ASSIGNMENT OP CHOSES IN ACTION. 557 seems not inappropriate to consider the sale or assignment as it is usually termed, of choses in action not negotiable."' § 2. At common law, choses in action are not assignable.'' "Ko possibility, right, title, nor thing in action, shall be granted or assigned to strangers, for that would be the occasion of multiplying of contentions and suits."* It will be seen, however, that this ancient rule has ceased to be of much practical efficacy." § 3. In reference to the meaning of the term " choses in therefore the assignor must be made a party defendant in a suit thereon. Hubbell v. Skiles, 16 Ind. 138. The assignee of a bill of sale of a slave cannot sue at law in the name of the assignor, on a warranty of soundness contained in the bill of sale, when such warranty contains no negotiable words. Kendig v. Giles, 9 Florida, 278. A certificate issued by a municipal corporation, entitling A. or "the holder " to receive $500 for a city improvement, to be paid in a specified manner, and providing that the certificate should be receivable by the collector for the assessments upon which it was drawn, and be transfera- ble by indorsement, is assignable; but only by indorsement, the word "holder" referring only to the original bolder or his indorsee. Win- field V. Hudson, 4 Dutch. 253. • An assignment is sometimes partial or resiricied. Thus, where a contract was assigned simply to enable assignees to collect a certain sum, then to be re-assigned ; held, the assignees had no right to assume per- formance of, or make a variation in, the contract, and could not recover for work done in accordance with any arrangement for variation. Litch- field V. Garratt, 10 Mich. 426. >> This doctrine does not prevail in Iowa. Watson v. Hunkins, 13 Iowa, 547. = The fact of an assignment of the plaintiff's claim, in an action by a contractor against a railroad company for work, and a use in favor of another, is immaterial to the company ; their contest is with the plaintiff, and the absence of the use party cannot prejudice their defence. Mem- phis, &c. v. Wilcox, 48 Penn. 161. The assignee of an account for goods sold cannot maintain an action in his own name ; and, in an action brought in the name of the vendor, who had sold and assigned it, if the amount is due, the question whether the vendor has repurchased it is immaterial. Moore v. Coughlin, 4 Allen, 335. ' Per Lord Coke, Tampet's Case, 10 Co. E. 48. See 3 Leading Cases in Equity, 280; Williamson, K. P. Ill, n. 558 LAW OF SALES OF PERSONAL PBOPERTY. action," wliich, as will be seen, are now held to be equita- bly assignable ; it is said,' " the term choses in action in- cludes all rights to personal property not in possession, which may be enforced by action ; whether the owner has been deprived of his property by the tortious act of another, or by his breach of a contract."^ § 4. But the distinction is made, on the one hand, that, if a urongdoer or his estate is benefited by the wrong, a right of action survives, and is therefore assignable;' and, on the other hand, that any interest, to which the personal rep- resentatives of a deceased party would not succeed, is not the subject of assignment inter vivos." Therefore an assign- ment of all interest in the goods sold by the firm of which the assignor was a member, in consequence of false and fraudulent representations by a third person of the ven- dee's credit, and also of all right of action against the per- son making the representations, conveys no interest." So a voluntary assignment to trustees of " the lands and tene- ments, estate real, personal, and mixed, of what nature and kind soever, and wheresoever the same may be, mer- chandise, vessels, goods, moneys, and effects, and debts due, owing, or coming due, or belonging," to the assignor, will not pass a claim against the United States, for wrong- fully preventing the assignor, owner of lands in Florida, » On the other hand, a contract on which personal representatives can sue is assignable. Sears v. CoBover, 34 Barb. 330. As for conversion of funds intrusted to an agent, with duties in the nature of a trust. Gould v. Gould, 36 Barb. 270. The inchoate title of a legatee, prior to the taking out of administration, accompanied by possession, may be assigned. Cecil v. Eose, 17 Md. 92. • Per Bronson, C. J., Gillet v. Fairchild, 4 Denio, 80. ' See Weine v. Davenport, 11 Iowa, 49 ; Hall v. Eobinson, 2 Const. 293; Jordan v. Gillen, 44 N. H. 424. » 18 Penn. 249. Ace. Kee v. Judd, 2 Kern. 622 ; Waldron v. "Willard, 17 N. y. 466; Whittaker v. Merrill, 30 Barb. 390. * Zabriskie v. Smith, 3 Kern. 322 ; Sears v. Conover, Amn. Law Keg. Feb. 1862, p. 241— N, Y. ASSIGNMENT OF CHOSES IN ACTION. 559 from cutting and removing timber therefrom. ISTor will it pass by an assignment under the insolvent law, it being neither "estate, credits, nor effects.'" So, on the other hand, the owner of slaves at the time of their loss may maintain an action on the case, in his own name, for neg- ligence occasioning such loss, although he has assigned them for the benefit of his creditors, subsequent to the ac- crual of the right of action, but before the suit was insti- tuted.' So a claim against a common carrier for breach of duty is held not a right of action which can be assigned, so as to enable the assignee to sue in his own narae.^ But, as already suggested, it has been sometimes held, that a claim for damages for the wrongful conversion of personal property is assignable.^ So, under an act " requiring com- pensation for causing death by wrongful act, neglect, or default," the right of a mother, who is also sole distributee and next of kin, in the damages given by the statute for the death of her son, is assignable.' And although mere personal actions, which die with the person, are not assign- able ; torts for taking and converting, or for injury to per- sonal property, and, it seems, generally, all such rights of action for a tort as would survive to the personal repre- sentatives, may be assigned, so as to pass an interest to an assignee, which he can assert in his own name in a civil action, under a statute authorizing this fonn of action, as he might formerly do in the name of the assignor at law." ' Sibbald's Estate, 18 Penn. 249. ' Oneall v. South Carolina, &c. 9 Rich. Law. 465. ' Thurman v. Wells, 18 Barb. 500. But see p. 560, n. « McK.ee v. Judd, 2 Kern. 622 ; Smith v. Kennett, 18 Mis. (3 Ben- nett) 154. ' Quin v. Moore, 15 N. T. 432. ' Butler T. New York, &c. 22 Barb. 110. See Gardner v. Adams, 12 Wend. 297; Hall v. Eobinson, 2 Comst. 293^ Greenby v. Wilcocks, 2 John. 1; Coolidge v. Buggies, 15 Mass. 387; Dunlop v. Silver, 1 Cranch, 367, 466, Appendix ; Bothick v. Purdy, 3 Mis. 60; Halrert v. Deering, 4 Litt. 9; Lampton v. Preston, 1 J. J. Marsh. 454; CommonweaKh v. Puqua, 3 Litt. 41. 560 LAW OF SALES OF PERSONAL PROPERTY. So substantial, specific property, in controversy in an ac- tion of replevin, may be assigned/ ^ • A part interest in a written contract is assignable in equity. Groves V. Kuby, 24 Ind. 418. A claim for money loaned, for which the defendant had given the note of a third person, indorsed by himself, as security, and afterwards, when the note fell due, having requested the holder to get a renewal, had prom- ised to indorse the new note, and also the right of action for breach of the agreement to indorse, are assignable. Westcott v. Keeler, 4 Bosw. 564. So a claim against an owner of a lot fronting on a street, for the assessed share of the expenses of work done on such street under a con- tract. Cochran v. Collins, 29 Cal. 129. So the right of action, of a carrier, for an injury to goods while in his possession. Merrick v. Brainard, 8 Barb. 574. Or a claim for goods burned at a railroad. Ayres v. Western, 48 Barb. 132. So a claim against the winner at play. Hendrickson v. Beers, 6 Bosw. 639. Or a claim for money obtained by fraudulent representations. Byxbie V. Wood, 24 N. Y. (10 Smith) 607. And this although the assignor has settled the account with the defend- ant, given a receipt for it, and executed a sealed contract, in pursuance of such settlement, in conformity to which the money has been paid. lb. Conversion does not prevent an assignment. Tome v. Dubois, 6 Wall. 548. Notes owned by a Connecticut bank. A., were forwarded to B., an Ohio bank, for collection. B. claimed to hold the notes on account of a claim against C, another Ohio bank, through whom they had been remitted to them for collection. A. having demanded them before maturity, and the proceeds, afterwards assigned their demand to a resident of the State of New York. Held, the cause of action was assignable, and suit could be brought in that State. McBride v. Farmers' Bank, 26 N. Y. (12 Smith) 450. So the claim of a bank against its officer for fraudulent misapplication or conversion of property is assignable. In New York, a suit lies in the assignee's name. Grocers', &c. v. Clark, 48 Barb.; Law Reg. October, 1867, p. 774. Claims held in 1847 against Indian tribes, and which the United States government was expected to pay, were legally assignable, and might be Bued on by the assignee. Coquillard v. French, 19 Ind. 274. A permit to cut logs from the State lands may be assigned as security 1 Taylor v. Galland, 3 Iowa, 17. ASSIGNMENT OF CHOSES IN ACTION. 561 § 5. In regard to the precise effect of the assignment of choses in action, that is, of such claims or demands as we have explained to be the subject of assignment ; it is said, the subject of the assignment of choses in action has been often under the consideration of the courts of Eng- land, as well as the United States ; and it seems clear at this day, that the assignee is to be considered, in law as well as equity, the party beneficially interested ; subject indeed to any legal claim of the debtor, but free from any claim of the assignor, his executors, or administrators.' Choses in action, though still not assignable at law,' may for supplies already advanced, or to be furnished at a subsequent time. Mason v. Sprague, 47 Maine, 18. So a contract for the labor of convicts. Horner v. Wood, 23 N. Y. (9 Smith) 350. Or the salary of a State officer. State Bank v. Hastings, 15 Wis. 75. A license to keep a ferry under the statutes of Massachusetts is not assignable. Maverick, Sprague, 23. Nor, in case of a deed, conditioned for the support of a person in old age, the interest of either party, without consent of the other. Bethle- hem V. Annis, 40 N. H. ^4. The route of a newspaper carrier is a privilege which may be sold, but by such sale no right passes against the proprietor of the paper, or any one except the vendor. Hathaway v. Bennett, 10 N. Y. (6 Seld.) 108. A right of entry for condition broken is not assignable. Warner v. Bennett, 31 Conn. 468. Nor a claim for injuries to the person before final judgment thereon. Eioe V. Stone, 1 Allen, 566. As for an assault. 1 Allen, 566. So for malicious prosecution. Lawrence v. Martin, 22 Cal. 173. A claim for deceit in a sale was held not to pass to assignees in bank- ruptcy. Shoemaker v. Keely, 1 Yea. 245. • This rule has been so strictly adopted, that, where one entitled to a distributive share in an estate assigned it, but afterwards collected and used the amount due ; it was held, that the assignee could not recover the . money from him in a suit at law. Smith v. Gray, 1 Dev. & B. 42. Equity will give effect to the assignment of a mere expectancy or pos- sibility, such as a contingent interest as heir to the estate of a person then living, not as a grant, but as a contract, entitling the assignee to specific performance as soon as the assignor has acquired the power to perform it. McDonald v. McDonald, 5 Jones Bq. 211. 1 Cutts v. Perkins, 12 Mass. 211. 86 662 LAW OF SALES OP PERSONAL PROPERTY. be assigned in equity, without concurrence of the debtor, and the assignee thereby acquires an equitable title, which may be enforced at law in the name of the assignor, and which cannot be afl'ected by his release or bankruptcy. Thus a debt due for goods sold and delivered, and prov- able by book account,' may be assigned." So an unliqui- dated balance of accounts ; and, if the debtor promise payment to the assignee, he may sue in his own name for the amount due, when ascertained.'' So a contingent debt is assignable f and other examples of the general rule will be stated hereafter." Under (Mass.) St. 1853, c. 371, the assignee, by verbal agreement, of a written contract, might enforce specitic performance in an action at law, brought in his own name, praying relief in equity. Currier v. Howard, 14 Gray, 611. In equity, a parol assignment of a claim or demand enables the as- signee to sue in his own name. Hooker v. Eagle Bank, 30 N. T. 83. » In South Carolina, the assignment of an open account merely gives an authority to receive the money and settle the account. Hence, even after notice, a receipt from the assignor will be a good discharge. Brown V. Eees, 2 Const. 498 ; 1 Brock. 456. I* If the claim of an accommodation acceptor who has paid a hill with- out funds in hand be assigned, and the debtor expressly promise to pay the debt to the assignee, he may sustain an action in his own name. De Barry v. Withers, 44 Penn. 356. = An assignment may give a right of action for a security itself which is assigned, as well as to collect or enforce payment of it. Thus a note in the hands of a depositary was assigned by a separate writing, with power to sue. The depositary having refused to deliver it to the pur- chaser, held, the latter might maintain trover against him in the name of the vendor. Day v. Whitney, 1 Pick. 503. 1 Cunningham v. Herndon, 2 Call, 447. 2 Bell V. London, &c. 21 Eng. L. & Eq. 556 ; Dix v. Cobb, 4 Mass. 508; Gould v. Newman, 6 lb. 289; Parker v. Grout, 11 lb. 157; Graves V. Brown, 11 lb. 334; Wood p. Partridge, 11 lb. 488; Usher v. De Wolfe, 13 lb. 290; Crocker v. Whitney, 10 lb. 316; Mowry v. Todd, 12 lb. 481; Allen v. Holden, 9 lb. 133; Brown v. Maine Bank, 11 lb. 153; Dunn v. Snell, 15 lb. 481; Norris v. Douglass, 2 South. 817; Black V. Everett, 5 Stew. & P. 60; Garland v. Kaheson, 4 Rand. 266; Lyon V. Summers, 7 Conn. 399; Wadsworth v. Griswold, Harper, 17; Sloan V. Sommers, 2 Green, 510; Woodbridge v. Perkins, 3 Day, 364; Dunck- lee V. Greenfield, &c. 3 Post. 245 ; Parker v. Kelly, 10 S. & M. 184 ; Jewett V. Dockray, 34 Maine, 45 ; Blake v. Buchanan, 22 Verm. 548. in in ASSIGNMENT OF CHOSES IN ACTION. 563 § 5 a. Between two bond fide purchasers of a chose action, as a judgment, the one prior in time is prior xu right.^ So though the debtor is first notified of a later assignment, except in case of laches.' So, though the one prior have given no notice to either the subsequent assignee or the debtor.^ An absolute assignment passes all the interest. If the debtor pays the assignor without notice, the latter becomes trustee for the assignee.* § 56. An assignee for security has entire control of the claim.* § 6. The statute law, in many of the United States, has made choses in action legally assignable, thereby enabling an assignee, like the indorsee of a negotiable security, to enforce the demand in his own name."' « With many So A., holding a note against B., received from B. another note, to be collected, and the proceeds applied in payment of the former one. Held, an equitable assignment, which vested a power coupled with an interest in A., who therefore was not liable in trover for refusing to return the assigned note. Canfield v. Monger, 12 John. 346. • In New Jersey it is held, that coupon hands, payable to bearer, al- though not negotiable by the law-merchant, are made so by usage, and pass by delivery, so as to vest a complete title in the holder. Morris, &c. V. Pisher, 1 Stockt. 667. See Mete, Contr. 188. An assignee may sue in his own name, on an account assigned to him, although the assignor continues to have an interest in it. Carpenter v. Johnson, 1 Neva. 331. Under the (N. Y.) code, an assignment valid as an equitable assign- ment is equally valid at law. Hooker v. Eagle Bank, 30 N. T. 83. The (Iowa) code has not narrowed the assignability of claims, nor con- fined it to the instruments and claims specifically enumerated in c. 68. Weire v. Davenport, 11 Iowa, 49. Under the Ohio code an assignee is the legal holder, though not as in case of bills and notes. Allen v. Miller, 11 Ohio, 374. So the Minnesota code merely assimilates the practice of law and 1 Fore V. Manlove, 18 Cal. 436. * White v. "Wiley, 14 Ind. 497. ' MacDonald v. Kneeland, 6 Min. 352. ♦ lb. • Myers v. South, 14 Cal. 268. ' See Dobyns v. McGovern, 15 Mis. 662. 564 LAW OF SALES OF PERSONAL PROPERTY. varieties of phraseology, these statutes have been held to give an assignable character to the following instruments, claims, and contracts. A bond with a collateral condi- tion.' An agreement, under seal, indorsed by sureties on an ordinary money bond, whereby the sureties severally agreed to pay to the obligee each a specific sum, part of the condition of the bond, in case the obligor, their prin- cipal, should make default in the payment of the bond.' A title-bond f or a bond for the payment of a specific sum in lumber ;* or a written promise of indemnity, whether under seal or not.' So a contract to furnish a wagon and lift a note is assignable ; and an assignment of the " right to receive the within-described wagon, the note being lifted, for value received," passes the whole subsisting interest in the contract, and a suit thereupon must be brought in the name of the assignee." So a suit upon a con- tract to furnish the running gear of a wagon at a certain time, which contract has been assigned, should be brought in the assignee's own name.'' So in case of the oral assign- ment of an account.' So in case of assignment of a receipt, given as follows : an agent for the settlement of claims, out of the proceeds of a government claim on his bonds, receipted to A. for three of the claims, on which, after describing them, he added, " to be paid out of the proceeds of a certain account (describing it) when collected by the undersigned, who holds a power of attorney for that pur- equity. The right acquired is still equitable. McDonald v. Kneeland, 5 Min. 352. And in New York the power to sue in the assignee's name does not affect the rights of the parties. Myers v. Davis, 22 N. T. (8 Smith) 489. ' "Waterman v. Prank, 21 Mis. 108. » Polk V. Cruikshanks, 4 Kich. 243. " Eussell V. Petree, 10 B. Men. 184. * Knighton v. Tufli, 12 Mis. 531. ' Pletcher v. Piatt, 7 Blackf. 522. « Mountjoy v. Adair, 1 Smith, 96. ' lb. 1 Cart. 254. » White V. Tucker, 9 Iowa, 100. ASSIGNMENT OF CHOSES IN ACTION. 565 pose.'" So the assignee, at once of an account and a note given in^ part-payment of it, may sue for tbe original demand in his own name ; and need not deliver up the note." So in ease of conversion? Or an action against a common carrier for the value of property intrusted to him.* § 7. But, on the other hand, a statute of this nature does not make all rights of action assignable, hut merely enables an assignee to maintain an action in his own name, in those cases in which the right was previously . assignable at law or in equity .° An assignee takes pre- cisely the same interest in the assignment of every species of demand, either at law or in equity, that he did before the statute." It only enables an assignee to sue in his own name, but does not alter the nature of an assignment.^ And a contract is assignable, only when the entire interest therein can pass by the assignment, both legal and equit- able.' Thus it is held that a supersedeas bond is not as- signable, so as to give the assignee a right of action in his own name ;' nor an open unsettled account ;'° nor a promise to pay a note not negotiable, and barred by the Statute of Limitations ;" nor a bill of sale of a slave with warranty of soundness ;'^ nor a covenant to deliver staves ;" nor a bond for the performance of any act or service ;" nor an 1 McKernan v. Mayhew, 21 Ind. 291. ' Armstrong v. Cushney, 43 Barb. 340. ' Lazard v. Wheeler, 22 Oal. 139. * Merrill v. Grinnell, 30 N. T. 594. See St. Anthony, &c., Co. v. Vandall, 1 Min. 246. « 34 Barb. 66 ; Purple v. Hudson, &o. 4 Duer, 74; Thurmanv. Wells, 18 Barb. 500. « Butler V. New York, &c., 22 Barb. 110. ' Cox V. Sprigg, 6 Md. 274. 8 White V. Buck, 7 B. Mon. 546. s Tantes v. Smith, 12 B. Mon. 395. "1 Newman v. Vickery, 1 Smith, 363; 1 Cart. 470. " Sims T. Eadcliffe, 3 Rich. 287. " Broughton v. Badgett, 1 Kelly, 75. " Cook V. Arthur, 11 Ired. 407. " Shackelford v. Franks, 25 Miss. 49. 566 LAW OF SALES OF PERSONAL PROPERTY. assignment, in blank, of school land certificates ;^ nor the receipt of a justice for claims taken to collect f nor, under the (N". J.) statute (Mx. Dig. 542), any choses in action, except agreements for the payment of money f nor the right to set aside a deed obtained by fraud, under which the grantee is in possession — being a right of action or entry, not even a chose in action, but a mere right to sue ;^ nor a written agreement to pay money rent, to let a third party have a portion of the produce of demised premises, and to furnish the means of carrying it away. Though, where money is due under such a contract, and the defend- ant promises the assignee to pay it, he may sue upon the promise, independently of the statute, and introduce the contract in evidence.' In reference to conflicting laws of difierent States upon the subject, an assignment, legal in the State where it is made, will not be enforced in another State, between citizens and non-residents, when not only contrary to the policy of the latter State, but also pro- hibited by positive statute.* So, in Vermont, where it was claimed, that, by the laws of ISTew York, the right of the assignee was perfect to a chose in action^ even against attaching creditors, without notice to the debtor of the assignment, and that, by the comity of nations, the Ifew York rule of law should apply ; it was held, that, before this can be claimed, it should appear that the attaching creditors are citizens of New York, and that the E"ew York rule of law is different from that of Vermont, in regard to the necessity of notice ; as courts of one State cannot take judicial notice of any conflicting law of a sister State, and, if claimed that there is a difference, the burden of proof is on the party claiming it.' But if the 1 Mowry v. Wood, 12 Wis. 413. !* White V. Wiley, 14 Ind. 497. '' Kuckman v. Cutwater, 4 Dutch. 571. * McMahon v. Allen, 34 Barb. 56. ' Gordon v. Downey, 1 Gill, 41. « Hershfeld v. Dexel, 12 Geo. 582. ' Ward V. Morrison, 25 Verm. 693. ASSIGNMENT OF CHOSKS IN ACTION. 557 law of the state, where the deceased payee of a non-negotia- ble promissory note resided, authorized his administrator to assign It, and vested in the assignee the right to sue upon it in his own name ; such assignment will be rec- ognized and enforced in a sister State.' § 8. It has been held, that the assignment of a policy of insurance gives the assignee an equitable interest, though the underwriter be not notified. But in another case it is said, that the assignee cannot avail himself of the poKcy, unless the assignment were made bona fide, for valuable consideration, and with notice to, and the express or im- plied assent of the underwriter. In case of such assent, either express or implied, or founded on usage, the as- signee may claim under the policy from the commence- ment of the voyage ; the assignor is discharged from the premium, and the assignee bound to pay it. But every set-off between insurer and insured, prior to the assign- ment, is good against the assignees.*^ ■ • A., being indebted to B., gave him security upon a schooner, prom- ising at the same time to have her insured, and transmit the policy to B. A. obtained insurance in the name of C, and wrote to B. that he had directed C, in case of a loss, to pay the insurance-money to B., and told a third person the same thing ; but there was no other evidence that he ever gave such direction. Held, not an equitable assignment of the fund. Dickenson v. Phillips, 1 Barb. 454. Goods insured by a marine policy were seized by the government of Mexico in 1834, and abandoned to the underwriters, who accepted the abandonment and paid the amount insured. In 1839, the United States entered into a convention with Me.tico, providing for the appointment of commissioners to decide upon claims against Mexico, and, in 1842, the commissioners appointed to carry this convention into effect made an award in favor of the original assured, who afterwards transferred to C. his interest in said award. In 1848, the United States, by treaty with Mexico, agreed to pay these claims ; and, in 1850, the commissioners on claims against Mexico, under this treaty, allowed to C, as assignee of the 1 Barrett v. Gillard, 10 Tex. 69. ' "Wakefield v. Martin, 3 Mass. 558 | Carroll v. Boston M. I. Co. 8 lb. 515 ; Cleveland v. Clap, 5 lb. 201 ; Gourdon v. Ins. Co. &c. 3 Yeates, 327 ; 1 Binn. 429 ; Spring v. South Carolina, &c. 8 "Wheat. 268. See Palmer v. Merrill, 6 Cush. 282. 668 LAW OF SALES OF PERSONAL PROPERTY. § 9. Shares in corporations constitute an important class of choses in action, which in commercial intercourse are often assigned, and the forms and occasions of assigning which are generally regulated by express statute. Some cases have arisen upon the question, how far such regula- tions must be literally complied with, in order to pass a title to the assignee. The further question is sometimes involved, whether such shares can be assigned, so as to defeat a lien of the corporation for its dues. Thus an act of incorporation provided, that no transfer of shares should be valid, till the whole capital stock were paid in. Held, a corporator might still transfer to his creditor, by way of security, his equitable interest in the corporation, before having paid his whole subscription ; and that the assignee was entitled to a certificate on paying the balance due.' So the charter of a bank provided, that the stock should be retained by the subscribers for one year from the date of such charter, and a by-law made all shares liable, as security for debts due from the persons owning them to the bank. Within the year. A., a stockholder, assigned his shares to B., who notified the bank, and paid the last in- stalment due upon them. The bank, having afterwards made a loan to A., claimed to hold the shares as security therefor. Held, it could not thus hold them against B., the transfer to him, though not entitling him to a certifi- cate in his own name, being an equitable assignment, which assured, the amount so awarded, and in 1851 made an award in C.'a favor. The underwriters made no claim before either commission, and iirst gave notice to C, after said allowance to him, that they claimed any interest in the property insured. Held, that the abandonment to the un- derwriters, and their acceptance thereof, passed to them the property in the goods abandoned, with all the rights of the assured to compensation for the seizure by the Mexican government ; but that, by reason of their laches in asserting their rights, they could not now maintain an action against C. as for money had and received to their use. Mercantile, &o. V. Corcoran, 1 Gray, 75. 1 Quiner v. Marblehead, &c. 10 Mass. 476 ; Alvord v. Smith, 5 Pick. 232. ASSIGNMENT OF CHOSES IN ACTION. 569 bound the bank after notice.' So the by-laws of an in- surance company provided, that the certificates of stock should be transferred only at the office of the company, by the holder or his attorney ; that transfers should be au- thenticated by the president, and attested by the secretary, and that it should be the duty of the former to attend at the office during business hours. An assignment of cer- tain shares was made to A. and B., partners, with a power to them to transfer the shares upon the books. A. called at the office during business hours, and, in the absence of the president, exhibited to the secretary the assignment and power, and demanded that the shares should be trans- ferred on the books, and certificates issued to himself and B. ; but the secretary refused, saying it was the business of the president. Held, the company were bound to make the transfers and issue certificates, though they held notes of the assignors for premiums, one of which was then due.^' § 10. The equitable interest in a judgment may be as- signed, by delivery of the execution. And where a judg- ment and execution are bond fide assigned for valuable consideration, the assignee may cause the execution to be levied upon lands of the debtor ; and, if the assignor after- wards release his right to the assignee, the latter will have a good title against creditors of the assignor, having notice of the assignment, though they attach the property before such release. But the assignment of an execution does " Where stock was assigned, with a transfer of "all dividends, made after the morning of the 23d of September," both parties at the time ex- pecting that the dividend would be then made, but it was not made until after the morning of the 23d ; held, parol evidence of the intention of the parties was competent, and the dividend did not pass. Brewster v. Lathrop, 15 Cal. 21. A railroad, having by its charter power to make any contracts condu- cive to the interest of the company, may assign its stock subscriptions, unless expressly restricted therefrom. Downie v. Hoover, 12 Wis. 174 ; Eaeine, &c. v. Ayers, lb. 512 ; Kimball v. Spicer, 12 Wis. 668. 1 Nesmith v. Washington, &c. 6 Pick. 324. ' Sargent v. Franklin, &o. 8 Pick. 90. 570 LAW OF SALES OF PERSONAL PROPERTY. not enable the assignee to sue, in his own name, the officer who fails to collect and pay over the money. Nor does the assignment of a judgment transfer the assignor's right to recover against the sheriff for previous neglect of duty, respecting executions issued on such judgment. Nor does the assignment extinguish such right.' § 11. The assignor of a judgment cannot discharge it, either by receiving the money, or agreeing to offset a claim held by the debtor against himself.^ And if the assignor of a judgment enters up satisfaction on the record, after notice to the debtor ; the court, on motion, will va- cate such entry.^ So an assignee, having recovered a judg- ment in the assignor's name, handed an execution to the sheriff, notifying him at the same time of the assignment. The sheriff suffered the debtor to escape, after arrest. Held, he was liable to an action by the assignee in the assignor's name, and that the latter could not defeat such action by a release.^ So the assignment of a judgment carries the damages afterwards given upon the dissolution of an injunction, and upon appeal, &c. ' § 12. The assignee of a judgment, recovered in one State against a citizen of another, may use the name of the assignor to enforce payment ; but, if the assignor be dead, and there be no administrator in the latter State, it is held that the assignee may apply to chancery in his own name, and will not be compelled to administer.'^ • An assignment of a judgment is not required to be under seal. Becton v. Ferguson, 22 Ala. 599. (See s. 15.) * Dunn V. Snell, 15 Mass. 481 ; Brown v. Maine Bank, 11 Mass. 153 ; Pearson v. Talbot, 4 Litt. 435 ; Patterson v. Wilkinson, Wright, 501 j Governor v. Griffin, 2 Dev. 352 ; Jones v. Com. 2 Litt. 357; Com. v. Puqua, 3 Litt. 41 ; Mangles v. Dixon, 18 Eng. L. & Eq. 82. ' Sampson v. Fletcher, 1 Verm. 168. " Warden v. Eden, 2 John. Cas. 121, 258 ; 1 John. 581. * Martin v. Hawks, 15 John. 405. » Marshall v. Craig, 3 Bibb, 291. • Cobb V. Thompson, 1 Marsh. 508. ASSIGNMENT OF CHOSES IN ACTION. 571 § 13. A decree in Chancery is not assignable at law, but may be assigned, for valuable consideration, in equity.' Such assignment is not valid as against the judgment debtor, unless he has notice thereof; and if, after an assignment without notice, he suffers a judgment to he rendered against him as garnishee of the original judgment creditor, he will be justified in paying it. Kichards v. Griggs, 16 Mis. 416 ; Clark v. Loker, 11 Mis. 97. It is held that the assignee of a judgment cannot maintain a proceed- ing in his own name to enforce it. Moore v. Hopping, 1 Smith, 288 ; Moore v. Ireland, 1 Cart. 531. And, as a judgment is not so assignable as to enable the assignee to sue on it in his own name, he cannot make use of one so assigned to him as a set-off. Bunnell v. Magee, 9 Ala. 433. The assignment is held void at law, and a court of law cannot notice it. Terebee v. Doxey, 6 Ired. 446. So the assignee of a judgment, under the provisions of a statute, takes it subject to any defence which might be set up, were it in the hands of the original plaintiff'. Colquit v. Bonner, 2 Kelly, 155. And where there are mutual judgments between two persons, the as- signee of one of them will take it, subject to any equities existing against it at the time. Jeffries v. Evans, 6 B. Mon. 119. But, as suggested in the text, the equitable assignee of a judgment may recover of a sheriff, in the name of the assignor, the amount received on the execution. Bryant v. Dana, 3 Gilm. 343. And if, pending a suit in which there has been an attachment of land, the plaintiff assigns for value the demand which was the subject of the suit, the levy of the execution vests an equitable estate in the assignee, by way of resulting trust. And if, in such levy, which is recorded, the appraisers in their certificate refer to the assignment ; such reference is implied notice of the trust to an attaching creditor of the assignor. And the demandant, with such notice, holding only subject to the trust, can- not maintain a writ of entry against the grantee of the cesiui que trust. Warren v. Ireland, 29 Maine, 62. The assignment of a judgment and execution passes all interest in the further enforcement of the judgment, but not in the money which the sheriff has previously collected on it. Kobinson v. Towns, 30 Ga. 818. An assignee of a certificate of sale under execution is bound by what- ever would bind the assignor. Ayres v. Campbell, 9 Iowa, 213. Coats are only an incident of a verdict, and do not pass by an assign- ment which does not pass the verdict. Lawrence v. Martin, 22 Oal. 173. The assignee of railroad bonds, assigned subsequent to a levy thereon, takes them subject to the levy. Hetherington v. Hayden, 11 Iowa, 335. 1 Coates V. Muse, 1 Brock. 552. 572 LAW OF SALES OF PERSONAL PROPERTY. The assignee succeeds to all the rights of his assignor.' So the bid of a purchaser at sheriff's sale is assignable, and the assignee, by a bill of sale from the oiScer, gains a valid title.^ So a bond with penalty, conditioned to con- vey land to the obligee or his appointee ; or a contract to convey land ; is assignable.^ So the trustees of an academy may assign to a college, which is authorized to receive funds in their hands, notes included in such funds.* So the assignment of a bill of sale of chattels passes a title, upon which the assignee may bring trover against a sub- sequent purchaser.' An action against a sheriff, for default of his deputy, in neglecting to take the body of a debtor in execution, upon an execution against the body, is assignable. Dininny v. Fay, 38 Barb. 18. In New Hampshire, for breach of duty by the sheriff, in respect to an execution committed to him, a suit may be brought in the name of the real party (in this case an assignee of the judgment), although not the party of record. Page v. Thompson, 43 N. H. 373. An assignment to a creditor of so much of a judgment as would pay his debt, and placing the j udgment under his control, are valid as against an administrator. Wood v. "Wallace, 24 Ind. 226. A judgment being assigned to secure debts amounting to a smaller sum, they are to be paid from the first moneys collected. Varnum v. Milford, 4 McL. 93. A party who transfers » judgment thereby impliedly warrants that there is such a judgment, and that the defendant therein is liable to pay the full amount of it. Lile v.. Hopkins, 12 S. & M. 299. And a clause, stating that " the assignors warrant their title and power to convey the same, only to the extent of the consideration paid," is a limitation upon the amount for which the assignors are to be held liable upon their warranty, and not upon the extent of the title warranted. And, upon failure of title to a part of the judgment, the assignee may recover such a proportion of the whole amount to which he is entitled upon an entire failure of title, as the value of the part to which the title has failed bears to the value of the whole. Furniss v. Ferguson, 15 N. Y. 437. 1 Shotwell V. Webb, 23 Miss. 375. » Blount V. Davis, 2 Dev. 19. ' Ensign v. Kellogg, 4 Pick. 1 ; Dyer v. Burnham, 25 Maine, 9. < Amherst, &c. v. Cowls, 6 Pick. 427. ' Southworth v. Sebring, 2 Hill, 587. ASSIGNMENT OF CHOSES IN ACTION. 573 § 14. A town, liable for the support of a pauper, and making provision therefor, may validly assign his services to one who will contract to furnish such support. But a servant bound by indenture is not a proper subject of as- signment, the trust of the master being strictly personal.' So, a contract was made between a town and one A., by which the latter was to support certain relatives while they lived, and the town to give him the use and occupa- tion of a farm during the lives of his parents, and after- wards give him a deed of it. Held, not an assignable contract.' ^ » The following somewhat miscellaneous examples will further illus- trate the point, as to what demands are assignable : An assignment for valuable consideration of claims not then existing, but which both parties expect will exist, as for work to be done, and ma- terials to be furnished ; is valid in equity, and takes effect when the claims come into existence. Tield v. The Mayor, &o. 2 Seld. 179. An assignment of all the claims which the assignor then had or might have, on the 1st of January next, against the city of Boston, for all sums of money due, or to become due, to him for services in laying common sewers, with power of attorney to the assignee to receive the same ; was made by one who had previously been employed by the city on a par- ticular job, and who was, after the assignment, and before said 1st of January, again employed by the city, at the same prices as before, which were paid by the city to the assignee, taking his receipt "for" the assignor ; but who was under no contract with the city at the time of the assignment. Held, the assignment did not pass money subsequently earned, and the city were chargeable as trustees of the assignor for such money remaining in their hands. Mulhall v. Quinn, 1 Gray, 105. But future wages, to be earned under an existing engagement, are assignable ; although the party works by the piece, and his wages per month vary. Hartley v. Tapley, 2 Gray, 665. Where a workman, in the employ of a manufacturing company, made an assignment of the wages then due, and which should thereafter be- come due to him, to a certain date, in consideration of being indebted to the assignee, and an undertaking on the part of the latter to supply the former with groceries, from time to time, as his family might need them ; held, the assignment, in the absence of fraud, was valid, and ' Wilson V. Church, 1 Pick. 23; Hall v. Gardner, 1 Mass. 172; Davis V. Coburn, 8 lb. 299. ' Clinton v. Fly, 1 Fairf. 292. 574 LAW OF SALES OF PERSONAL PROPERTY. § 15. In reference to the form or mode of assignment, it was once held, that the assignment of an instrument must transferred to the assignee all the assignor's interest in his wages for the time specified. Emery v. Lawrence, 8 Cush. 151. A written contract, to pay A. or his wife a certain sum, annually, for the life of the longest liver of them, "if called for or needed," ia assignable. Prindle v. Caruthers, 15 N. T. 425. So a chance in a land-lottery, before the drawing. Dugas v. Law- rence, 19 Geo. 657. So an attorney's receipt for a claim left in his hands for collection. Anderson v. Miller, 7 S. & M. 586. Though an assignment of a receipt given even for notes for collection does not pass the legal title. Eittenhouse v. Myers, 10 Mis. 305. So a witness's certificate; and the amount to be recovered, does not depend on the sum paid for the certificate by the assignee. But it is competent for the party, notwithstanding the certificate, to show that the witness undertook, before the services were rendered, to attend gra- tuitously. Carville v. Eeynolds, 9 Ala. 969. So A. settled upon land during the existence of the Spanish govern- ment, and held possession at the time he conveyed to B., and had an inchoate right of donation from the United States, when the latter acquired sovereignty, which was afterwards confirmed. Held, a sub- stantial, equitable right, which the party holding it might transfer ; and, when the title was confirmed in his name, it enured equitably to the benefit of his vendee. Nixon v. Carco, 28 Miss. 414. So A. purchased slaves, and took the conveyance in the name of his son, B., and the slaves were afterwards sold to C. on execution against A. B. subsequently took the slaves secretly from the possession of C, and C. afterwards sold the slaves, while in the possession of B., to D., the conveyance reciting, " which said slaves have been removed or stolen from this county ; I therefore convey the chance of said slaves only, and convey such title as is in me, or all the title I ever had at any time." Held, not an assignment of a chose in action, unless B. was at the time in actual possession of the slaves, claiming them adversely to C, openly asserting his title as bonci fide; and if the taking of the convey- ance in the name of B., on the purchase by A., was fraudulent as to the creditors of A., an action would lie by D. against B. for the slaves. Hinton v. Nelms, 13 Ala. 22. A parol license, to be exercised on the land of another, is a mere per- sonal trust and confidence, and not assignable, although it may be bind- ing between the parties. Cowles v. Kidder, 4 Fost. 364. A grocery license is not assignable ; nor a license to keep a ferry ; nor a mere right to file a bill in equity ; nor a contract for personal services. Lewis V. United States, 1 Morris, 199; Lombard v. Cheever, 3 Gilm. ASSIGNMENT OF CHOSBS IN ACTION. 575 be of as high a nature as the instrument itself.' (See p. 570, n.) So, it seems, that any instrument, not negotiable, could be assigned only by deed. It was afterwards said to be doubtful whether a manual delivery would be suf- ficient. But later cases have decided, that such delivery is a sufficient assignment of a note, bill, judgment, execu- 469 J Munsell v. Temple, 3 Gilm. 93; Marshall v. Means, 12 Goo. 61; Davenport v. Gentry, 9 B. Mon. 427. So, where a person agrees to work the land of another on shares, he has no assignahle title to his share of the crop before an actual division and appropriation. McNeely v. Hart, 10 Ired. 63. An officer in the army may assign, for the benefit of his creditors, the difference, received by him upon going on half-pay. Price v. Lovett, i Eng. L. & Eq. 110. So the claims of officers of the Revolution for compensation for ser- vices, as promised by Virginia, which remained unpaid at the death of the officers, were held assets, and assignable. Meriweather v. Herran, 8 B. Mon. 162. So certificates issued by the Secretary of the Treasury under the treaty with Mexico of April 11, 1839, and the Acts of Congress of 1840, c. 34, and 1841, c. 14, are legally assignable. Baldwin v. Ely, 9 How. U. S. 580. An assignment by a sheriff of fees due and to become due, having for one of its objects an indemnity of his sureties against future misappro- priations of moneys which should be collected on executions, is void. Currie v. Hart, 2 Sandf. Ch. 353. " It has been held, in North Carolina, that a written contract can be assigned only by a writing upon the paper which contains it. Estes v. Hairston, 1 Dev. 354. It is no objection to an assignment of an account due to several part- ners, that it was made by one only of them, and is under seal. Everit v. Strong, 7 Hill, 585. A verbal assignment, by a client to his attorney, of a note which he had placed in his hands for collection, will not prevail against a subse- quent written assignment under seal of the prison bounds bond executed by the surety of the maker of the note, and arising out of the action thereon, and of the execution and judgment on which it was founded. Bradley v. Herndon, 2 Strobh. 18. Whether a person claiming to be assignee by a written instrument is so or not, is a question of law for the court, and not of fact for the jury. Clark V. Edney, 6 Ired. 50. But, in general, the sufficiency of the assignment and notice is for the jury. Jordan v. Gillen, 44 N. H. 424. 576 LAW OF SALES OF PEKSONAL PROPERTY. tion, or other chose in action.' Thus an obligation or covenant may be assigned by an unsealed instrument.^ And an oral assignment of a chose in action operates as an equitable transfer, and, when followed by notice from the assignee to the debtor, will be protected and enforced by courts of law against a subsequent trustee process.' So a renewed assignment or continued hypothecation of a thing in action, already in the possession of the assignee by virtue of a previous written assignment, is valid, though made by parol ; especially where the consideration is the incurring of a future and contingent debt. The Statute of Frauds does not apply." So a judgment may be assigned by parol, or by an unsealed writing.^ And if an assignment be written upon the back of an instrument, but not signed, and the instrument delivered to the as- signee for valuable consideration ; this is held a valid transfer." (See.s. 16.) So the transfer of an equitable chose in action (a bond, for instance), by delivery, for valuable consideration, conveys an interest which a court of equity will protect.' So a contract in writing to con- vey land may be assigned by verbal agreement.* So the balance of unpaid purchase-money, on an agreement to ' Perkins v. Parker, 1 Mass. 117 ; "Wood v. Partridge, 11 lb. 488 ; Cutts V. Perkins, 12 lb. 206; Willis v. Twambly, 13 lb. 204; Jones v. Witter, 13 lb. 304 ; Dunn v. Snell, 15 lb. 481 ; Qiiiner v. Marblehead, &c. 10 Mass. 476; Titcomb v. Thomas, 5 Greenl. 282; Clark v. Eogers, 2 lb. 147; Briggs v. Dorr, 19 John. 95; Thompson v. Emory, 7 Post. 269; Porter v. Ballard, 26 Maine, 448; Crane v. Gough, 4 Md. 316; Tibbits V. George, 6 Ad. & El. 115; Prescott v. Hull, 17 John. 284; Titcomb v. Thomas, 3 Greenl. 349; Vose v. Handy, 2 lb. 322; Onion v. Paul, 1 Har. & J. 114; McMenomy v. Ferrers, 3 John. 72. See Kim- ball V. Le Pert, 1 Allen, 469. * Dawson v. Coles, 16 John. 51 ; Howell v. Bulkley, 1 N. & M. 250. ' Noyes v. Brown, 33 Vt. 431 ; 49 Maine, 167. * Hoyt V. Hoyt, 8 Bosw. 511. ' Ford V. Stuart, 19 John. 342. « Mowry V. Todd, 12 Mass. 281. ' Cannaday v. Shepard, 2 Jones, Law, 224 ; Licey v. Licey, 7 Barr, 251. " Currier v. Howard, 14 Gray, 511. ASSIGNMENT OF CHOSES IN ACTION. 577 convey, being personal property, an assignment by an ad- ministrator not under seal is sufficient to transfer it.' Or a parol assignment to a surety, who has paid the debt, of the action, and attachment therein against the principal debtor.^ So one summoned as a trustee had lawfully in his hands money belonging to the defendant, to which the latter had a present right. The defendant was in- debted to the claimant, an attorney, who also had in his hands for collection demands in favor of various clients against the defendant. For the purpose of securing these demands, the defendant verbally assigned his claim against the trustee to the claimant, who gave the trustee notice of such assignment previous to the commencement of this suit. Held, the assignment was valid, and not an assign- ment for the benefit of creditors within the (Verm.) stat- ute of 1852 on that subject.^ So it is not essential to the assignment of an obligation to convey real estate, and, in default thereof, to pay a certain sum of money, that such assignment be under seal.^ And a person may become equitably entitled to the benefit of a contract, without any formal assignment, or a transfer by delivery.' Thus no formal assignment of an account is necessary. Any act, showing an intent to transfer the party's interest, is sufficient."^ So, on the books of A., a factor, A. stood in- debted to B. in a large sum ; and C. stood indebted to A. in a smaller sum. B. directed A. to transfer the balance due to her to C, which A. assented to do, but forgot to ' The assignment of an account by the owner, and testimony that he (having since died) Icept correct accounts, does not sufficiently establish its justness to authorize the assignee to set it off to a suit in equity against him, brought by the debtor. Dunn v. Dunn, 8 Ala. 784. ' Moore v. Burrows, 34 Barb. 173. ' Brewer v. Franklin Mills, 42 N. H. 292. ' Noyes v. Brown, 33 Verm. 431. * Durst V. Swift, 11 Tex. 273. ' Field V. Weir, 28 Miss. 56. • Smith V. Sterritt, 24 Mia. 260 ; Wiggins v. McDonald, 18 Cal. 126. 37 578 LAW or SALES OF PERSONAL PROPERTY. do it, until he failed. Held, the request and engagement to transfer was equivalent to a transfer.' So A. verbally- agreed to assign to B. a demand in his favor against C, and thereupon called in C. and informed him in B.'s pres- ence that he had made such assignment, and requested him to pay A.'s demand to B. ; and it was understood by all parties that this was to be done. Held, such assign- ment was a present and perfected one, and the notice to C. of B.'s title was sufficient, and C. was not chargeable on the trustee process by A.'s creditors.' So future wages, to be earned under an existing appointment as v^atchman of a city, may be assigned, by an order addressed to the treasurer ; and such an order, given in the middle of a month, for " the amount on my month's wages when due," means the wages of that month.' So A. was in- debted to the E. M. Co., which was indebted to B., and it was agreed by all parties that A. should pay to B. Held, an equitable assignment, enforceable only by suit in the name of the assignee.* So the rules of the commercial law are held to govern, as to the form and mode of making assignments of sealed notes, contracts payable in property, or in money, or upon a contingency. A blank indorsement and delivery vests in the transferee a right of action and recovery.^ Though a deed of assignment even of bills of exchange and negotiable notes does not pass the legal, but only the equitable title to them." So the placing of a receipt for goods attached, approved by the plaintiiFs attorney, in that attorney's hands, is an equitable assignment, and the receiptor, after notice 1 Martin v. Maner, 10 Eioh. Law, 271. 2 Hutehins v. Watts, 35 Vt. 360. ' Macomber v. Doane, 2 Allen, 541. * 18 Cal. 126. ' Worthington v. Curd, 15 A.rk. 491 ; Sater v. Hendershott, 1 Morr. 118. « Grand Gulf, &c. v. Wood, 12 S. & M. 482. ASSIGNMENT OF CHOSES IN ACTION. 579 thereof, Gannot be discharged by the officer.'' And an assignment may be inferred from acts.^ § 16. But, in order to constitute an equitable assignment of a particular fund, there must be an absolute transfer of the control of the fund to the assignee.' A mere prom- ise of a debtor, to pay his creditor out of a particular fund when collected, does not operate as a transfer of the fund to the creditor, and vest in him a right of action for its recovery.* So an assignment must give a complete and present right ; even though it cannot be immediately ex- ercised. Thus a covenant to apply a fund to a debt, when received, is not an assignment.' So, in order that an as- signment of a chose in action be valid as against the cred- itors of the assignors, it must be bond fide, and upon ade- quate consideration ; and a mere formal transfer is insuf- ficient for that purpose.* So a mere verbal agreement between a plaintiff and a third person, that the latter shall receive the money sued for, is held not to be an as- signment.' So a verbal agreement, which contemplates a further assignment, will not be held to be itself an assign- ment, more especially where the rights of creditors have * It is no defence to a suit on an account assigned to the plaintiff, that the assignment was made after the time alleged in the complaint, or for a nominal consideration by one of two partners without consulting his copartners. Caulfield v. Banders, 17 Cal. 569. A note indorsed in blank, and the property of two owners, being in possession of one of them ; the other, for a good consideration, may bar- gain his interest to a third person, the three being together at the time. Lane v. Sleeper, 18 N. H. 209. The assignment of a debt, made by one party acting as agent of the other, will be valid, if the stranger's acts were authorized or afterward ratified by his principal. Garnsey v. Gardner, 49 Maine, 167. • Jewett V. Dockray, 34 Maine, 45. » 49 Maine, 167. » Dickenson v. Phillips, 1 Barb. 454. * Connelly v. Harrison, 16 La. An. 41. • Ford V. Garner, 15 Ind. 298 ; ace. White, &c. v. West, 46 Maine, 15. « Langley v. Berry, 14 N. H. 82. ' Seaver t. Bradley, 6 Greenl. 60. 580 LAW OF SALES OF PERSONAL PROPERTY. intervened by the bankruptcy of both parties. (See s. 15.) Thus A., being assignee of a bankrupt, had a de- mand for collection against B., a creditor of the bankrupt, who had proved his claim. A. being ordered to attach B.'s property, an attachment was issued and delivered to an officer, who was about to serve it, when it was agreed between A. and B., that A. should retain the moneys which should come to his hands, as assignee, on account of this claim, and that B. should assign, for benefit of creditors, his claims on the bankrupt's estate. The at- tachment was not served. B. afterwards became bank- rupt, and his assignees sued to recover from A. the money received by him as assignee. Held, notwithstanding the above agreement, the action would lie, the parties having never made the proposed assignment, nor signed any writ- ing at the time, and it being against public policy to give effect to loose bargains in cases of bankruptcy.' So, in a suit against A., B. was made a garnishee, and answered to interrogatories, that, before process was served upon him, he had, by A.'s direction, transferred upon his books a balance which was due to C, but that he knew of no person named C. Held, the transfer was invalid, with- out some evidence that C. had received and accepted it.^ So the drawer of a bill of exchange for the balance due upon an account, as shown by a statement of the drawee, delivered it, with the statement, to the payee, instructing him to collect the bill and pay the proceeds to A. The payee indorsed the bill to a banker, and it was indorsed by him to B. Held, no assignment to B. of the fund.' So a judgment debtor gave his creditor an assignment of a bill of items, to be applied to the judgment debt when col- lected. The creditor gave notice to the defendant, who owed the bill, and who promised to pay the creditor. The creditor parted with no value and gave up no claim on 1 Poster V. Lowell, 4 Mass. 308. 2 Eelf V. Bore, 17 La. An. 258. » Ford T. Angelrodt, 37 Mis. 50. ASSIGNMENT OF CHOSES IN ACTION. 581 his judgment upon taking the assignment, and the prom- ise of the defendant was without consideration. Held, the creditor was not the owner of the bill of items, and could not maintain an action thereon.' So the plaintiff, having a fund in the hands of the defendants, his bank- ers, directed them to place the same to the credit of ac- counts to be opened by them for that purpose, in the names of his children, who were of tender years ; but, after the defendants had done so, they continued to rec- ognize the authority and directions of the plaintiff in the management of the fund, and it did not appear that he had been indebted to the children, or had received any consideration upon the transfer of the credits, or that the children ever had notice thereof, or received possession of the securities. Held, neither a transfer of the fund of securities themselves, nor a gift in presenti nor in futuro, and the plaintiff could maintain an action in his own name for the balance due.^ So an assignment of all claims which the assignor may have on a future day, which is named, for sums of money due and to become due for ser- vices in a fire department, is ineffectual to pass sums earned before that day, but under a subsequent appoint- ment as fireman, if there was no agreement for such sub- sequent appointment, existing at the time of the assign- ment ; and sums earned under such subsequent appoint- ment, and collected of the city by the administrator of the assignee, may be recovered from the administrator in an action for money had and received.' So a mortgage of the account for work to be done for an habitual customer, who is no party to the contract, and not bound to have any work done, is not good against an attaching creditor.** ' A recent case in Pennsylvania — Jones v. Drake, Leg. Intell. Dec. 1 Eupp V. Blanchard, 34 Barb. 627. ' Geary v. Page, 9 Bosw. 290. ' Twiss V. Cheever, 2 Allen, 40. * Purcell V. Mather, 35 Ala. 570. 682 LAW OF SALES OF PERSONAL PROPERTY. § 17. A letter of attorney, irrevocable, to receive money to the attorney's own use, is prima facie an assignment ; but may be controlled by extrinsic evidence.' 27, 1867— by a full citation of authorities and otherwise, illustrates the distinction between an attempted and a completed assignment : This was a bill for an injunction to restrain defendants from disposing of certain bonds, and praying an order of transfer of said bonds to com- plainant. It appeared that at the time of the death of Henry Drake, father of the minor, there remained in the custody of the Montgomery County Bank, a box, the key of which, just before his death, said H. Drake gave his wife, one of the defendants. In the box were sealed envelopes, with the following addresses written on them, to wit, one of them, "John M. Jones, Esq., Guardian of Howard H. Drake, son of H. Drake, and not to be opened except in the presence of Aram Drake and Tobias G-. Haenge ;" the other, "John M. Jones, Esq., guardian of Howard H. Drake, in care of Aram Drake and Tobias G. Haenge, $10,262." Within these envelopes were duly executed assignments, by Henry Drake to John M. Jones, guardian, of the several bonds contained in the envelopes, and of another which had been, after said assignment was exe- cuted, transferred to another person. It appeared that the assignee had no knowledge of these assignments, and that the assignor had collected all the interest falling due after the date of the assignment up to his death. The defendants administered to the estate of H. Drake, took possession of and claimed the bonds as assets, and refused to deliver them to the complainant. Opinion by Chapman, J. " The plaintiff prays the court to decree that the defendants be restrained by injunction from transferring or other- wise disposing of the bonds and certificates of indebtedness mentioned in the bill, or from collecting or receiving any of the money secured by them, and that they deliver said bonds, &c., together with the assign- ments and envelopes, to the complainant, and also pay him interest from the 11th of December, 1865, upon $3650, secured by bonds Nos. 145, 148, 149. The circumstances under which the complainant invokes the aid of the court appear by the bill and answer and the testimony taken by the parties respectively. In Pennsylvania, choses in action may, by statute, be assigned, so as to confer upon the assignee the right to sue in his own name, but the nature of the property is not changed, and consequently the questions arising in this case are not affected by it. Is the case con- trolled by the doctrine that a trust without valuable consideration to sup- port it, where the instrument creating it is completely executed, will be 1 Gerrish v. Sweetser, 4 Pick. 374. See Rogers v. Lindsey, 3 How. 441. ASSIGNMENT OF CHOSES IN ACTION. 683 § 18. In case of an agreement by A. to assign to B. part of a judgment, recovered by C. against D. ; held, it enforced? This question necessarily arises here, for it cannot be pre- .tended that any such consideration moved the assignor, Henry Drake. The assignee does not aver it in his hill, and did not in his testimony when examined as a witness, and although there may he dicta which rec- ognize a meritorious consideration, as sufficient, to justify a chancellor in the enforcement of an agreement for a provision in favor of a wife or child, there is no case where such efficacy is given it, if the object he a discrimination to the prejudice of the former. If the transaction here be executory, the complainant has no ground to stand on. A man un- doubtedly has a right in his lifetime, to give away his personal property to whom he pleases. He may entirely defeat the reasonable expectations of his wife or children, and a court of equity cannot restrain him. The duties of maintenance and support do not infringe upon this right. But he must take care to do it effectually. The act must not be equivocal. He cannot be the owner during life, and leave an instrument which will have a retroactive operation after his death, unless it be a last will and testament. A court of equity will not aid such a transaction. The ne- cessity for this strictness operates as a check upon attempts to defeat the laws regulating the disposition of estates by will and otherwise. The law has established the rules by which he must be guided in the transfer of his property. If by will, the provisions of the statute must be com- plied with. If by gift inter vivos, or donatio causa mortis, the rules gov- erning the transmission of property by such means must be observed. In law, actual delivery of a chattel, where it is capable of delivery, is essential; but in equity a chose in action may pass by assignment, for the debt cannot be delivered. The assignor is deemed a trustee for the as- signee, and the trust created stands in lieu of delivery ; but there are many authorities to show that constructive delivery, such as notice to the debtor, is necessary. "Whether this he requisite in Pennsylvania, we will not inquire, but the circumstances attending the retention of the evidences of debt, and the assignments, are to be considered, in order to ascertain the character of the latter. Though the modes of transfer in equity and law may differ, the analogies must be preserved. An assign- ment of a chose in action , however complete the instrument, accompanied by the declaration that it shall not operate before the assignor's death, and the evidences of debt together with the assignment remaining in his possession, would not constitute a transfer enforceable in equity, and the present case seems to be entirely parallel, whether we look to the written directions of the assignor, or to his acts generally. An equitable assign- ment of a chose in action is said by Butler (Coke Litt. 232, b, note 1) to be a declaration of trust with an agreement to permit the assignee to sue in the assignor's name. C. J. Gibson, in Kennedy's Ex'rs v. Ware, 1 Barr, declares such a transfer to be an executory contract, and emphati- 584 LAW OF SALES OF PERSONAL PROPERTY. was no execution of sucli agreement to send B. a copy of the judgment, with an assignment by C. to A.' cally says it must have a consideration to support it, without which, equity would no more execute it than the law would make the breach of- it a subject of compensation. And he pronounces the assignment of the judgment in the case, being in consideration of love and natural affec- tion, void. The agreement to permit the assignee tosue in the assignor's name is but a promise, and in that view the conclusion is undoubtedly correct, and presents a clear distinction between this case and that of Dennison v. Gochring, 7 Barr, 175, which was a trust relating to real estate, as well as the other cases in our own court cited by the counsel for the complainant, to wit, Parker v. TJrie's Ex'rs, 9Harr. 305; Painter's Estate, in note to Cressman's Appeal, 6 Wr. 155. Parker v. Urie's Ex'rs turned upon the ground that a consideration actually passed to the assignor. And it does not appear that choses in action were the subjects of the transfer in the other cases. The assignments here were under seal, but this gives them no greater vitality than they would have had without. If it be said the legal title was transferred, as well as the equit- able interest, then no trust was created, and if there were no delivery, still necessity existed for a valuable consideration. A delivery either actual or symbolical cannot be pretended. The bonds and assignments were continuously in the possession and under the control of Henry Drake until his death. The legal title may be in one and the equitable interest in another person ; a trust is thus distinguished, and this may be without delivery. When a trust is executed, a consideration is not es- sential. This is abundantly shown by the authorities relied on by the complainant's counsel. But was the trust executed ? According to Kennedy's Ex'rs v. Ware, it is merely executory, for the subjects of the assignments were choses in action. But suppose the ground be too nar- row for that decision to stand on, this case has other features confirma- tory of the executory character of the trust, to which reference will pres- ently be made. It is said in Adams's Equity, 233, " The exact line of demarcation, where the contract ceases to be an executory agreement and becomes a perfect trust in equity, is often difficult to distinguish, but the principle itself is sufficiently clear. If the donor has perfected his gift in the way in which he intended, so that there is nothing left for him to do, and nothing which he has authority to countermand, the donee's right is enforceable as a trust, and the consideration is immaterial." And at page 234, in note, where reference is made to Beech v. Keep, 18 Jur. 97, it is said in a comment on the case of Keekewich v. Manning, the rule is the same where the assignor has not done all in his power, and which the na- ture of the property is capable of, as a transfer of stock, where it has 1 Harris v. Earle, 4 Har. & J. 274. ASSIGNMENT OP CHOSES IN ACTION. 585 § 19. "Where a bill of exchange is assigned by delivery to several persons, one of them may assign his share of it been assigned. To constitute an assignment, either in law or equity, it is necessary that there should be such an actual or constructive appro- priation of the matter assigned, as to confer a complete and present right upon the assignee, even where the circumstances do not admit of its im- mediate exercise. The characteristic of an assignment is the relinquish- ment of all legal or equitable interest in the assignor, and the creation of a new and independent right in the assignee. Leading Cases in Eq. 30, 861-2, H. E. W. notes. Nothing can take effect as an assignment which does not manifest an intention to relinquish the right of dominion on the one hand and create it on the other. lb. 363. To these authorities may be added Lonsdale's Appeal, 5 Cas. 407 ; Grant v. Levan, 4 Barr, 424; Critchfield v. Critchfield, 12 Har. 100 j Plumstead's Appeal, 4 S. & B. 645. The assignor, Henry Drake, had been for some time before his death in failing health, and according to his own declaration he believed that event was not far off. He did not think proper to make a last will and testament. He had a wife and one child. He retained possession of the bonds and certificates of indebtedness, as well as the assignments, in a box, the key of which he kept. One of these bonds was actually assigned and delivered to a third person by him after he had executed an assign- ment of it to the complainant. He received the interest due in 1865, and that received in 1866 by the complainant was paid to him. The bonds and certificates comprised a very large part of his estate. They were inclosed by him in envelopes, one of them sealed and addressed "John M. Jones, Esq., guardian of Howard H. Drake, son of H. Drake, and not to be opened except in the presence of Aram Drake and Tobias G. Haenge." Within this envelope was a smaller one, unsealed, and addressed, "John M. Jones, Esq., guardian of Howard Henry Drake, in care of Aram Drake and Tobias G. Haenge." The following note ac- companies the assignment of July 7th, 1866. " N. B. You will find two other county bonds transferred by me, one for $1500, the other $1137-74." A large portion of the bonds were not known by the complainant to have been assigned to him. It was well understood by the complainant, and Aram Drake and Tobias Haenge, that the box was not to be opened by them until Henry Drake's death. His discourse with the complainant on this subject leaves no room to doubt his intentions. The matter was referred to by them upon the suggestion of a difficulty which might arise after his death, when the complainant should appear and assert his claim. Can it be said with any propriety that Henry Drake divested himself of dominion over the bonds, when the envelopes inclosing them contained a prohibition against even the complainant's interference with them unless in the presence of other persons, to wit, his brother and Tobias Haenge? These indorsements were made after the assignment, and a 686 LAW OF SALES OF PERSONAL PROPERTY. to the rest, by delivery to them, and payment to him of the consideration.' control was thus reserved by Henry Drake, which imports something more than that he was merely the custodian of the bonds, and something beyond a solicitude for their safe keeping. In any aspect they ignore a complete and present right in the assignee. That the instruments of as- signment are completely executed, and contain on their face no power of revocation, cannot be denied. But if the assignor did not intend them to operate during his life, why should immediate effect be allowed them? That he did not was manifest by his conversation with the complainant and with Tobias G. Haenge, by the receipt of interest himself, by the transfer to a stranger of one of the bonds, and by the retention of pos- session of the bonds and assignments, when there was no reason why the latter, at least, should not be delivered, for they would be as safe in the custody of the complainant, before as after the death of the assignor ; by the omission to indorse them on the bonds; by keeping them under his own lock and key ; by never subjecting them to a merely formal delivery even ; by a written indorsement on the sealed envelope inclosing the bonds and assignments, restraining the complainant from breaking the seal unless in the presence of other persons, constituting an injunction inoperative upon himself but prohibitory as to the assignee ; by a note to the last assignment in the following words: "Tou will find two other bonds transferred by me," evidently implying that he would not be pres- ent when the search should be made, and strongly resembling a testa- mentary disposition. But it may be contended that no suggestion can be made against the absolute and complete terms of the instrument creating the trust. If this be conceded, still it may be asserted with great plausibility, if not incontrovertibly, that the written directions accompanying the papers, as they illustrate the intention of the assignor, became a part of and control the operation of the assignments. They impart in writing, surrounding the transaction, an absolute and exclusive dominion, not to be surrendered until death, and though not actually Included in the body of the assignments, under all the circumstances, they form an element in the creation of the trust and give it an executory character. This case, however, may be viewed in another aspect. Even where a trust is completely executed, a court of equity will not enforce it if it be against public policy, in fraud of the rights of others, or in fraud of the law ; and this is especially so in regard to the claim of a volunteer. Lonsdale's Appeal. There the instrument was perfected, but the case was ruled on the ground that the assignment was made in fraud of the contingent rights of the assignor's wife. The principles adopted by the court apply with full force to this case. If it was not the intention of ' Titcomb v. Thomas, 5 Greenl. 282. ASSIGNMENT OF CHOSES IN ACTION. 587 § 20. An order, hill, or draft, drawn for the whole of a particular fund, is an equitable assignment thereof, after notice to the drawee."' Otherwise, where it is for only part of a fund,"" unless accepted by the drawee, expressly the assignor to give to his son more than could be given him by will, or than he would succeed to under the intestate law, it is not easy to find a reason for the transfer. He believed the period of his death was not far off; the property was not in a condition detnanding such a disposition ; the son was a minor, and not about to engage in business. Agreeably to the ruling in Lonsdale's Appeal, thus disposing of a large portion of hia estate, the act operated as a fraud upon the contingent rights of his wife. It matters not whether that was the direct purpose or not, and the case would have been no stronger if the assignments had included the whole of the estate. But though it is denied that a wife has any contingent in- terest in her husband's personal estate, thus to be affected, and suppose the position to be correct, still a court of equity will not enforce a trust though executed when it is designed to evade the law, for this is a fraud upon the law. A man, as we have said, may give away his property in his lifetime to whom he pleases, but he can only make a last will and testament in the form prescribed by law. It has been demonstrated that Henry Drake neither parted with dominion over this property during life, nor intended to do so ; that no immediate interest passed to the complainant, and none was intended to pass, but that the assignments were to have a retrospective operation, and stand in lieu of a last will and testament, relieved from the consequences inseparable from such mode of disposition. This being so, a court of equity cannot sustain the transaction, and the complete form of the instrument of transfer interposes no obstacle to the exposition of the motives which dictated the design, and none to an ex- amination of the circumstances attending the transaction. It is unnec- essary to inquire whether the assignments should have been stamped. On other grounds the complainant's bill is dismissed, and the injunction is refused." • Some of the cases heretofore cited, ss. 15, 16, are of this nature, but, as a special form of assignment, it remains to be separately considered. ^ It is held that an assignment will be protected, though not absolute, or of the whole subject-matter, if it passes a power with an interest. Wheeler v. "Wheeler, 9 Cow. 34. But where A., holding a bond of B., put it into C.'s hands, to collect when due, and, if not paid, to hand it to an attorney for collection, which was done ; and A. then, by letter, stated to C. that he owed D. $200 out o/the money B. owed him, and desired C, when he should collect it, if he (A.) were not present, to pay the whole to D. ; and D. presented the letter to C, who merely told D. that B.'s bond was in the hands of an 588 LAW OF SALES OF PERSONAL PROPERTY. or impliedly. And an order is -prima facie a good assign- ment, though not expressed as for value.' Thus a ship- master drew a bill of exchange upon the consignee of goods for the money which might become due to him for freight, upon delivery of the goods. Before the payee came in possession of the bill, the drawer died ; but it was afterwards accepted and paid by the drawee. Held, the bill, though invalid as such, was a legal assignment of the drawer's claim for freight when it should fall due ; and that the administrator of the drawer therefore could not recover this claim from the consignee.^ So A. gave to B. an order on C, his agent, to pay B. a certain sum from such debts of A. as should be received by C, which order C. accepted. Held, an assignment of the funds to the amount of the order.' So an order, drawn for value, by a legatee, on the executor, for the amount of his legacy, payable out of the fund provided by the testator for that purpose, is an equitable assignment of the legacy.* So the secretary of a corporation received an order for money, payable to himself personally, the money, when paid, to be applied in payment of a debt due the corporation from the dra-n'er. The secretary afterwards passed it over to the treasurer for that purpose, with notice to the acceptor. Held, a good assignment, and that the secretary could not discharge the acceptor.^ So A., an officer, retired from the army, in consequence of which his commission became saleable. Being indebted to the plaintiif in the attorney ; and A. owed D. less than the amount of the bond : held, A.'s letter was neither an equitable assignment to D. of any part of B.'s debt, nor a security for D.'s debt. Clayton v. Fawcett, 2 Leigh, 19. ' Mandeville v. Welch, 5 Wheat. 285; Kobbins v. Bacon, 3 Greenl. 346 ; Corser v. Craig, 1 Wash. 424 ; Adams v. Kobinson, 1 Pick. 462 j Harrington v. Eich, 6 Verm. 666. 2 Outts V. Perkins, 12 Mass. 206. ' Peyton v. Hallett, 1 Caines, 363 j 3 John. 72. « Anderson v. Doer, 6 Gratt. 363. s Twett V. Green, 4 Greenl. 384. ASSIGNMENT OP CHOSES IN ACTION. 689 sum of £500, lie gave Mm a letter to B., army agent, re- questing him to pay the balance of the price of his com- mission to the plaintiff, who sent the letter to B. The plaintiff, having applied twice for payment, received a letter, informing him, that after the 14th of June he might draw on B. for £408 10s. lid., the balance arising from the sale of the commission. In the meantime, C. obtained a foreign attachment from the lord mayor's court against A., and attached the moneys, &c., of A., in the hands of B. The plaintiff then filed this bill ; and, upon an application for an injunction to restrain B. from parting with the money, it was held, that B. had recog- nized the plaintiff's demand, and that it amounted to an appropriation of the money to arise from the sale of the commission ; and an injunction was granted.' So a con- signment of cotton was made, and the consignor drew a bill, on account of the consignment, on the consignee, which was accepted by him, and the bill was discounted by a bank, on the representations of the payee and drawer that the bill was to be paid out of the proceeds of the cotton consigned. Before the arrival of the cotton into the hands of the consignee, he had made an assignment for the benefit of his creditors, and his assignees claimed the cotton as assets. Held, that the consignment was a trust fund, held for the payment of the bills drawn against it.^ So a letter to the consignee of cotton, by the con- signor, stating that he has drawn on the former for $500, payable to A., when the cotton should be sold, is a specific appropriation to the use of the latter, payable on presen- tation of the order. The consignee, upon receiving such letter, having promised the consignor and the payee to honor the draft from the proceeds of the cotton, is bound to retain the proceeds for that purpose. The draft not coming to the hands of the payee for several months, the consignor and consignee in the meantime agreed upon a 1 L'Estrarige v. L'Estrange, 1 Eng. L. & Eq. 153. ' Marine, &c. v. Jauncey, 1 Barb. 486. 590 LAW OF SALES OF PERSONAL PROPERTY. new appropriation of the fund for the benefit of the latter. Held, the obligation of the consignee to the payee was not discharged.' So a judgment-creditor drew an order, payable to his own order, on his attorney, for the amount of the judgment, which was accepted by the attorney, and indorsed by the creditor. The assignee afterwards gave notice to the attorney of the assignment, and he made no objection that he held claims against the assignor. The attorney afterwards received money on the execution. Held, that he received it to the use of the assignee, who might maintain an action in his own name against the attorney therefor, and that the attorney could not set oiF claims against the assignor for services not connected with the judgment.^ § 21. But, in order to constitute an equitable assign- ment, by a debtor to his creditor, of a sum due to the debtor from a third person, there must not only be an agreement to pay the creditor out of the particular fund, but an appropriation of the fund, either by giving an order upon it, or by transferring it in such a manner that the holder would be authorized to pay it to the creditor di- rectly, without the further interference of the debtor.' So where an order is in its terms general, and includes the proceeds of other securities than the one in question, and is accepted subject to certain conditions, it is not an assignment of the note referred to. Thus A., holding the note of B., left it, with other demands, with C, an attor- ney, for collection. A. afterwards drew an order upon C, to pay T>. what he should receive upon the above demands, which order 0. accepted as follows : " I will pay such sums as I receive, after getting my due, to the person present- ing this order." Held, not tO' be an assignment of the » Lowery v. Steward, 26 N. Y. (11 Smith), 239. ' McLellan v. Walker, 26 Maine, 114. ' Hoyt V. Story, 3 Barb. 262 ; Gibson v. Pinley, 4 Md. Ch. 75; Wal- ker V. Mauro, 18 Mis. 564. See Cooper v. Douglass, 44 Barb. 409; Spain V. Hamilton, 1 Wall. 604. ASSIGNMENT OF CHOSES IN ACTION. 591 note, and that 0. was justified in paying it to A.^ So the holder of an order from a lessor to a lessee, for two-thirds of the rent of the premises, cannot maintain an action thereon in his own name.^ So where an order, not nego- tiable, drawn by a debtor, without consideration, in favor of his minor daughter, for money to become payable to him from a third party, and accepted by the latter, is afterwards indorsed by the daughter, at the father's re- quest, and for good consideration received by him, but without the knowledge of the third party, to another per- son; these facts constitute no such assignment, as will enable him to hold the money against other creditors of the debtor.* So a railway company was indebted to A., their engineer, who was greatly indebted to his banker. The latter having pressed for payment or security. A., by letter to the solicitors of the company, authorized them to receive the money due to him from the railway com- pany, and requested them to pay it to the banker. The solicitors, by letter, promised the banker to pay him such money on receiving it. Held, this did not amount to an equitable assignment of the debt.^ So a railway contractor gave his bankers a letter, directing the railway company to pass the check which might become due to him " to his account with the bank." Held, that this was not an equitable assignment, but that it would have been if it had directed the check to be passed to the bank.' So E. delivered to B., master of a whaling vessel, a quantity of slops, for sale to the crew, on joint account of E. and B., the profits to be divided between them. B. sold the slops to the crew, and charged to each the amount that each purchased, and rendered to the owners of the vessel, at the end of the voyage, an account of the slop bills against ' Thayer v. Havener, 6 G-reenl. 212. ' Crosby v. Loop, 14 111. 330. ' Brown v. Poster, 4 Gush. 214. * Eodick V. Gandell, 15 Eng. L. & Bq. 22. » Bell V. London, &c. 21 Eng. L. & Eq. 566. 592 LAW OF SALES OF PERSONAL PROPERTY. the crew, amounting to $653.10, wMcli sum was credited to him, in an account of the voyage, settled between him and the owners, on which settlement there was found due to B., after deducting what he owed them, the sum of $864.82. Before this account was settled, B., drew an order on the owners, as follows : " Pay to M. the whole sum due me for balance of my voyage." E.. gave notice to the owners, that he claimed one-half of the money in their hands derived from the sale of the slops, and re- quested them not to pay it to any other person. M. after- wards sued the owners, in the name of B., for the balance due B. on his voyage ; and, on giving them an indemnity against R.'s claims, they paid to M. said sum of $86'±.82. E,. then brought an action against the owners, to recover one-half of said sum of $653.10. Held, that B.'s order as- signed to M. only B.'s separate and private balance due from the owners to him, and not R.'s interest in the lays of the crew for the slops furnished to them. Held, also, that the owners, by their proceedings, had assented to a severance of the interest of R. and B. in the proceeds of the slops, and were liable therefor to R., in an action brought by him alone.'' § 21 a. The question often arises, whether the assign- ment of a principal claim carries with it the incidental rights attached to such claim in the hands of the as- signor. An assignment of a claim on a steamboat, for supplies furnished, carries with it the statutory lien on » An assignment, of all the loser's interest in a certain claim for a specified amount against the winner, is sufficient to transfer the claim, if the amount be truly stated and the assignor have no other claim against the winner. Hendrickson v. Beers, 6 Bosw. 639. A claim in trespass against A. and B., for their wrongful taking of certain goods, passes by an assignment of "the goods and chattels, as well as all claims and demands for any portion of them, against A. and B." Sherman V.Elder, 24 N.Y. (10 Smith), 381. See Lea v. Eobeson, 12 Gray, 280. » Eichmond v. Parker, 12 Met. 48. ASSIGNMENT OF CHOSES IN ACTION. 593 the boat ; the lien being attached to the debt and not to the person.' So the assignment of a note is held to pass an equitable lien on land.^ And in general it is held, that the purchaser of a debt is entitled to all the seller's secu- rities therefor." ^ § 21 6. A creditor may give to an assignee of his claim the benefit of a pledge made to secure it ; the pledgor not' being thereby injured.* I 21 c. The vendor of land, having in good faith as- signed his contract for a consideration, has no beneficial interest either in the land or the purchase-money, being a payment or security for an old debt ; he is trustee of the one for the vendee, and of the other for his assignee.' § 21 d. An assignment of future wages, without limita- tion of time, will include wages earned by a laborer for nine months thereafter under a contract then existing, by which he was to labor for his employer for an indefi- nite time, although his rate of wages was afterwards increased ; especially if the parties have treated the as- signment as applicable to such wages, and payments thereof have been made to the assignee since the rate was increased." § 21 e. An assignee of a portion of a debt is not a joint owner of the whole.' • Suit by the State Bank of Indiana for the use of the branch at, &c., npop a promissory note. Pending the suit, the charter of the bank ex- pired by limitation; but, before such expiration, the Bank of Salem purchased the claim, and filed a supplemental complaint, averring that the note was given for certain land sold by the State Bank to the defend- ant, the deed of which had been tendered before suit brought, and had since been handed over to the Bank of Salem. Held, the right to keep up and make good the tender by delivery of the deed passed to the Bank of Salem. Bank, &c. v. Caldwell, 16 Ind. 469. ' Strother v. Hamburg, 11 Iowa, 59. » Adams v. Cowherd, 30 Mis. 458. » Foster v. Pox, 4 W. & S. 92. • Chapman v. Brooks, 31 N. T. 75. • Towsley v. McDonald, 32 Barb. 604. • Boylen v. Leonard, 2 Allen, 407. ' Leese v. Sherwood, 21 Cal. 151. 38 594 LAW OF SALES OF PERSONAL PROPERTY. § 22. As already suggested, the assignee of a chose in action, not negotiahle, takes it subject to all the equities which existed between the assignor and the maker at the time of assignment, though not having notice thereof, and all such equities as may attach in favor of the maker before notice of such assignment.'' ' While, on the other * The assignees, for value, of a sealed note, without notice, is not af- fected with a fraud between his assia;nor and the obligee who assigned to such assignor. Taylor v. Gitt, 10 Barr, 428. In case of assignment in writing, a parol agreement of the assignor is held not to bind the assignee. Wetherill's, &c., 3 Grant, 281. In New Jersey, as against the assignee of a bond, the obligor is entitled under the statute to the henefits of any payments, although the assignee took it without notice. The remedy of the assignee is against the as- signor. Decker v. Adams, 4 Dutch. 511. Where an estate in the hands of a trustee has been diminished by violation of the trust, an assignment of his interest, as one of the bene- ficiaries, will not affect the claims of the other cestuis to have their shares madegood to them. Belknap v. Belknap, 5 Allen, 468. The vendee's assignee, of a contract for the sale of land, who enters, but without any agreement, express or implied, to pay the moneys thereafter to become due on the contract, is not liable to pay them. Adams v. Wadhams, 40 Barb. 225. An assignment under seal, subject to payment of a debt to a third person, where the assignee does not promise to pay, and the debt is not a, lien on the thing assigned, will not sustain an action therefor against the assignee. Dingeldien v. Third, &o. 9 Bosw. 79. The assignee of a bond for the conveyance of real estate agreed, in the contract of assignment, to assume and pay the indebtedness of the obligee to the obligor. The latter brought an equitable action against the as- signee, offering to convey the land upon paynaent of the sum due, and in default of such payment seeking to have judgment for said sum, and a foreclosure of the title-bond, &c. Held, upon demurrer, that the assignee was liable upon the agreement to pay the purchase-money. Scott's, &c. V. Gill, 19 Iowa, 187. An assignee of a claim may sue for and recover the whole of it, al- ' Bush V. Lathrop, 22 N. T. (8 Smith), 535; Timms v. Shannon, 19 Md. 296; Olds v. Cummings, 31 111. 188; Portier v. Dorst, 31 111. 212; Smith V. Eogers, 14 Ind. 224 ; Faull v. Tinsman, 36 Penn. 108 ; Guerry V. Ferryman, 6 Geo. 119; Wood v. Perry, 1 Barb. 114; Commercial, &c. V. Cost, 16 Barb. 506; May bin v. Kirby, 4 Kich. 105. (An assignee is not a purchaser for consideration.) ASSIGNMENT OP CHOSES IN ACTION, 595 hand, in a suit brougiit by the assignee, in the name of the assignor, the defendant cannot set tip any claim ac- cruing or procured subsequently.' The rights and inter- ests of a debtor, until notice of an assignment, are in no way affected by it, and the evidence admissible between the original parties is admissible against the assignee.^ § 22 a. But, after assignment, the assignor will not be allowed to defeat the rights of the assignee, whether the assignment be good at law, or only in equity.' A release by the assignor is a nullity.'' The assignee is the real party in interest.' And where an instrument not assign- able is sued on, in the name of one for the use of another, the nominal plaintiff cannot discharge or release the ac- tion. Courts of law will protect the equitable right of the assignee, by compelling the assignor to permit his name to be used as nominal plaintiff. All the assignor can require is an indemnity against costs.* Thus the ob- ligee of a bond, after assigning it, can neither maintain though the assignor is beneficially interested in a part of it. But the latter may intervene. Gradwohl v. Harris, 29 Cal. 150. The assignee of a wife's chose in action, from a husband who has not reduced it into possession, takes it subject to the equity of a due pro- vision thereout for the wife, which may be made by a court of equity, should the subject-matter ever come within the jurisdiction of such a court, and this notwithstanding the wife joins in the assignment. The assignee is supposed to be acquainted with such attaching equity. Norris V. Lantz, 18 Md. 260. If one permits an account into which a usurious item enters to become stated, and then assigns his demands against the .party rendering the account, the assignee will take the claim subject to the right of the party rendering the account to rest upon it as a stated account. Bullard v. Eaynor, 30 N. T. 197. ' Bartlett v. Pearson, 29 Maine, 9 ; Ohio, &c. v. Eoss, Md. Oh. 25. ' Loomis V. Loomis, 26 Verm. 198. ' Blin V. Pierce, 20 Verm. 25. « Parker v. Kelly, 10 S. & M. 184; 1 Hemp. 155. » Pate V. Gray, 1 Hemp. 155. ' Anderson v. Miller, 7 S. & M. 586 ; Duncklee v. Greenfield, &c. 3 Fost. 245. 596 LAW OF SALES OF PERSONAL PROPERTY. an action on it, nor revoke the assignment, without the consent of his assignee/ ' § 23. In regard to the mutual rights and duties of the assignee and the debtor ; upon the giving notice of the assignment to the latter, it is held that the assignee of a chose in action, ov security of any kind, where there has been no fraud, stands in exactly the same situation as the as- signor, as to the equities arising upon it. He must be taken to be cognizant of them. It is his duty to make inquiries, and, as a general rule, the creator of the security thus assigned is not bound, on receiving a simple notice of the assignment, to volunteer information. If a loss arises, it falls upon him whose duty it is to make the inquiries, and who has not made them." ^ But if the notice given by the assignee discloses, on the face of it, that which in- duces the belief that he has been deceived in accepting the assignment, the creator of the security is bound to inform the assignee of the real circumstances ; and, if he should not do so, he will be bound to perform the stipula- tions of the security, and cannot be allowed to take ad- vantage of the equities existing as between the assignor and himself^ » The equitable assignee of a judgment debt assigned it over. Notice of this assignment was not given to the judgment debtor. The original assignee afterwards gave a release to the debtor. Held, such release was good as against the assignee, who had omitted to give notice of the as- signment to him. Stocks v. Dobson, 15 Eng. L. & Eq. 314. (See s. 25, n.) •> On the other hand, under a general assignment of a contract, or of money to come due, as security, the debtor is authorized to pay the as- signee, until notified of a revocation of the assignment, and the party must look to the assignee for money received by the latter in excess of his debt. Myers v. South Eeather, &c. 14 Cal. 268. 1 Keed v. Nevins, 38 Maine, 193. ' Mangles v. Dixon, 18 Eng. L. & Eq. 82 ; Huntington v. Potter, 32 Barb. 300 ; Parks v. Innes, 33 Barb. 37 ; Weinwick v. Bender, 33 Mis. 80. " Ibid. See "Wethrill's, &c. 3 Grant, 281 ; Seabi v. Dugdale, 34 Mia. 99 ; Perre v. Castro, 14 Cal. 519. ASSIGNMENT OF CHOSBS IN ACTION. 597 § 24. In reference to the debtor's right to notice of the assignment ; what kind or degree of notice is necessary, to impose the new obligation upon him, has been a point of somewhat conflicting decisions. § 25. It has been sometimes said, that something equiva- lent to direct and positive notice of the assignment is neces- sary, to charge the debtor with a fraudulent payment to the assignor. But, for the most part, it seems to be held, that an assignment will bind any party who has such knowledge of facts and circumstances as ought to put him on inquiry ; that special notice is unnecessary, nor need the assignee exhibit to the debtor the instrument itself, or any other evidence.* ^ The more rigid rule was adopted, * In Connecticut, the assignment of a note or book-debt is not com- plete till notice to the debtor ; but the property remains liable to creditors of the assignor. Otherwise in Massachusetts, Pennsylvania, and Ken- tucky ; where the assignment itself passes an equitable title, subject only to the duty of notifying the debtor, in season, to enable him to resist a claim made by a creditor of the assignor. Woodbridge v. Perkins, 3 Day, 364, 5, 534 ; Dix v. Cobb, 4 Mass. 512 ; Stevens v. Stevens, 1 Ashm. 190; Stockton v. Hall, Hard. 160. And, in Connecticut, an assignment is good between the parties, without notice ; and one having knowledge of it is not a bonS, fide creditor, who can take the property for his debt. Bishop V. Holcomb, 10 Conn. 444. In reference to the respective equities of successive assignees, as affected by notice, or the want of it ; the second assignee of a claim against the Mexican government, who gave immediate notice of his assignment to the Secretary of State, prosecuted his claim before the commissioners, and obtained an award in his favor, has a better title than a prior as- signee of whom he had no knowledge, and who gave no notice of his as- signment, and took no step to enforce his claim, until after the award had been made. Judson v. Corcoran, 17 How. U. S. 612. (See s. 22 a, n.) If a prior assignee of a chose in action be guilty of any fraud or neg- lect, which enables the assignor to make a second transfer to a bon& fide assignee, the second assignee will be preferred to the first. Maybin v. Eirby, 4 Eich. 105. ' Meghan v. Mills, 9 Johns. 64; Anderson v. Van Alen, 12 John. 343 ; U. S. V. Sturges, Paine, 525 ; lb. 629 ; Kellogg v. Krauser, 14 S- & E. 137 ; Davenport v. Woodbridge, 8 Greenl. 17. 598 LA'^ OF SALES OF PERSONAL PEOPERTr. where the holder of a due-bill assigned it by indorsement in blank ; and the assignee demanded payment, but did not show the due-bill, nor expressly state that it had been assigned ; and the debtor promised to settle it the next week in New York ; but afterwards paid it in N"ew York to the assignor. Held, the assignee could not maintain an action in the assignor's name.' But the assignee of a suit or decree has done everything which can reasonably be required of him, when he has caused the entry to his use to be made ; he does not lose his right, by omitting to cause such entry to be made on every docket on which the suit is entered.^ So, where a debt due to a firm was assigned by one of the partners to a creditor of the firm, and the debtor had due notice, but, on being summoned as trustee of the firm, did not disclose the fact, and was charged ; held, the assignee of the debt might in the name of the firm maintain an action for it.^ jSTotice, either to the selectmen, or to the treasurer, of a town, of the assign- ment of a town order, is sufficient to protect it from at- tachment by the creditors of the assignor by the trustee process ; and an agent, authorized by the assignee to pre- sent it to the treasurer for payment, is thereby authorized to notify the treasurer of the assignment.* So an exhibi- tion to the court of a receipt for goods attached, approved in writing by the plaintiff's attorney, and by him retained, if made in presence of the receiptor, is a sufficient notice to him of the assignment, and will render a discharge from the officer of no avail.' § 25 a. " While the debtor is certainly under no obli- gation to the assignee until he has notice of the assign- ment, and a payment to or settlement with the assignor, made in good faith and without such notice, will dis- charge the debt, yet a court of law will protect the right 1 9 John. 64. s Gill V. Clagett, 4 Md. Ch. 153. » Milliken v. Loring, 37 Maine, 408. ' Thayer v. Lyman, 35 Vt. 646. ' Jewett V. Dockray, 34 Maine, 45. ASSIGNMENT OF CHOSES IN ACTION. 599 of the assignee against any fraudulent or collusive settle- ment between tke assignor and the debtor. "'■^ And an as- signor cannot defeat the rights of the assignee, whether the assignment be good at law or only in equity.^ So proceedings in bankruptcy do not affect the previously ac- quired right of an assignee to sue in the bankrupt's name.' § 26. Where the assignment of a chose in action is law- fully rescinded^ notice to the debtor will complete the effect of such rescinding, and restore to the assignor the ownership and control of the debt. Thus an infant as- signed a chose in action in payment for goods, and after- wards offered to return the goods, and take back the chose. The debtor received notice that the contract was thus ■ Where one of several obligees in a bond assigns all his interest to his eo-obligees, they have the right to use his name in a suit on the bond, and he has no right to interfere, unless it be to require indemnity against costs. Southwick v. Hopkins, 47 Maine, 362. Declaration by ship-owner, upon a charter-party, for non-payment of freight by charterer, and on a common count for money payable for freight, and on an account stated. Pleas: 1, to first count, discharge of defendant by plaintiff before breach ; 2, to residue of declaration pay- ment. 3, (on equitable grounds) to whole declaration, parol release by plaintiff of defendant after cause of action accrued. Keplications, on equitable grounds, to these pleas : That before cause of action accrued, and before release of defendant by plaintiff, or payment, all the title of plaintiff in the said ship and charter-party was assigned to S., and then became vested in him, of which defendant had notice before the alleged release or payment; that plaintiff released defendant, who made the payment, without the authority or knowledge of S. ; that the release was given and obtained, and the payment made, fraudulently, and with the intent to defraud S., and prevent him from recovering in respect of the said causes of action, and that the action was brought by S. in the name of plaintiff, on behalf of S. ; that plaintiff had no interest in the said action, and that it had been commenced and carried on for the sole use and benefit, and at the sole expense and cost, of S. On demurrer, held a good replication on equitable grounds, within g 85 of the Common Law Procedure Act, 1854 (17 and 18 Vict. c. 125). De Pothonier v. De Mattos, 1 Ell. B. & B. 461. ' Per Hoar, J., Stevens v. Parker, 3 Allen, 267. * Chapman v. Haley, 43 N. H. 300. » Hayes v. Pike, 17 N. H. 564. 600 LAW OF SALES OF PERSONAL PROPERTY. rescinded. Held, the chose ther^eby ceased to be the prop- erty of the assignee, and the infant might validly dis- charge it.' § 27. The right of an assignee is subject to the further qualification, that the debtor may offset any claim, or make any other equitable defence, in a suit by the assignee, or by a second assignee, which he might have done, had it been brought by the assignor ; unless he acquire such claim after receiving notice of the assignment, or promise, without exception, to make payment to the assignee.' ^ And on the other hand it is held that the debtor may ofltset a demand against the assignee, thoiigh the suit is in the assignor's name.' But the debtor cannot offset a de- mand held by him at the time of assignment, if he had notice from the assignee or his agent even that it was about to be made, and did not disclose such demand.^ Nor, in general, where his conduct is such as in equity to deprive him of the right of set-off.^ Nor, though the con- tract under which the offset is claimed, was previous, if the debt became due after the assignment, unless there was an agreement for an offset.^ Thus A. gave B. a receipt * If the assignee bring his action in the name of the assignor against the other party to the account, who brings his cross-action, and judgment is recovered in both actions; the judgment debt in the cross-action may by leave of the court be set off against the judgment in favor of the as- signee, but the costs of suit in the cross-action cannot be so set off. Bartlett v. Pearson, 29 Maine, 9. ' Willis v. Twambly, 13 Mass. 204. ' Goodwin v. Cunningham, 12 Mass. 193, 195 ; Mowry v. Todd, lb. 281 ; Jenkins v. Brewster, 14 lb. 291 ; "Webster v. Wise, 1 Paige, 319 ; Bacon v. Warner, 1 Koot, 349; Chamberlain v. Gorham, 20 John. 144; Greenough v. Walker, 5 Mass. 215 ; Ainslie v. Boynton, 2 Barb. 258; Phillips V. Bank, &c. 18 Penn. 394; Mangles v. Dixon, 18 Eng. L. & Eq. 82; Thompson v. Emery, 7 Post. 269; Stocks v. Dobson, 19 Eng. L. & Eq. 96. But see Patterson v. Atherton, 3 MoL. 147. » Corser v. Craig, 1 Wash. C. 424. ' King V. Powler, 16 Mass. 397. » Kemp V. McPherson, 7 Har. & J. 320. « Watson V. Mid. Wales, &c. Law Rep. 2 C. P. 593 ; Amn. Law Rev. Apr. 1868, p. 463. ASSIGNMENT OP CHOSES IN ACTION. 601 for lumber to a certain amount, to be applied in payment of a debt due from B. to A. B. assigned the receipt to C, who notified A. thereof, and then brought an action against him in B.'s name for goods sold and delivered. Held, although the receipt was not at first assignable, being appropriated to payment of B.'s debt, yet, as cir- cumstances showed that the parties had changed this ap- plication, and A. had disabled himself to make it ; the action would lie, notwithstanding a settlement between A. and B.* So A., having a claim for goods sold against B., became surety in a note given to B. by C, which, not being negotiable, was afterwards assigned, by delivery, to D. D. demanded payment of A., who referred him to C. as the principal, but was silent as to his own claim against B. Held, A. hereby waived his right to ofifeet such claim against the note in the hands of D.^ So A. gives a bond to B., who assigns it to C, there being at the time of as- signment a running account between A. and B. After commencement of a suit upon the bond, A. and B. made a settlement, and B. promised at the foot of the account to pay the balance found due in three years. Held, this balance could not be set off against the bond.' So an as- signed bond is a good discount against another. But if the plaintiff can show by a receipt that the former has been paid, such receipt will not be barred by the Statute of Limitations, and a set-off will not be allowed.* But where A., having given a bwnd to B., took an assignment of a bond for the same amount, made by B. ; and A. offered to offset his claim against the other, but B. refused, on the ground that he had an equitable counter-claim against the assignors ; and A. afterwards reassigned to C, for valuable consideration and without notice : held, B. by his conduct had not waived his right of discount, but » Eels V. Pinch, 5 John. 193. « Merrill v. Merrill, 3 Greenl. 463. ' Scott V. Jones, 1 Brook. 244. * Compty V. Aiken, 2 Bay, 481. 602 LAW OF SALES OF PERSONAL PROPERTY. miglit offset a judgment recovered upon the bond of A. against a suit upon his own bond.' And the assignee of a contract is concluded in equity by a judgment at law against the assignor, if he had notice of the suit.^ § 28. As already suggested, the assignee of an instru- ment not negotiable cannot sue upon it in his own name, though expressly made payable to assigns." But judg- ment will not be arrested for this cause. And it is held, that, if the assignor is insolvent, and a suit is pending in his name for the assignee's benefit, the court will allow the defendant to suggest on the docket for whose use the suit is brought, and will rule the assignee to respond costs." § 29. Although, where one who holds a contract ob- tains the money due upon it, he is entitled to retain the money, if he has an equitable right to it, though there has been no assignment in writing; yet, unless the debtor agrees to pay him, an action must be brought in the name of the assignor.^ § 30. If the assignor of a chose in action die, the as- signee may sue in the name of his executor, &c. On the other hand, if an executor promise an assignee of a claim against the testator, to pay such claim, in consideration of the assignment and of assets ; he is personally liable.* § 31. It is held that the assignee of a chose in action may sue in chancery in his own name, though the assignment were without consideration. But the assignee of an in- » The assignment of a claim passes with it all the remedies for its re- covery, though not specially mentioned. Mehaffy v. Share, 2 Penn. 361. ' A court of law regards the interest created by an assignment as in the nature of a trust. Winch v. Keeley, 1 T. K. 619 ; Graham v. Gracie, 13 Qu. B. 548. 1 Picket V. Morris, 2 Wash. 255. > Curtis V. Cisna, 1 Ham. 429 ; 3 Greenl. 302 ; 1 Paige, 41. » 1 McCord, 219; Gould v. Newman, 6 Mass. 239; Porter v. Millet, 9 lb. 101 ; Skinner v. Somes, 14 lb. 107 ; Canby v. Eidgway, 1 Binn. 496. * Mowry v. Todd, 12 Mass. 281. ' Dawes v. Boylston, 9 Mass. 337 ; Hoar v. Wright, 1 Verm. 57 ; Cutts V. Perkins, 12 Mass. 206. ASSIGNMENT OF CHOSES IN ACTION. 603 solvent debtor cannot sue in the United States court, un- less his assignor might have done the same. Nor can an assignee bring a suit in equity, merely on the ground that law does not allow him to sue in his own name ; unless the assignor prevents him from using his name, or would himself have had the right to sue in equity.' The right to proceed in equity is said to mean merely that an as- signee may proceed in equity in his own name, if under the circumstances he has the right to proceed in equity at all. But, contrary to some weighty authorities the other way, the rule appears to be now well settled, that in this as in other cases equity will interpose, only when there is no adequate remedy at law, which remedy is understood to exist, unless there is some special obstacle to a suit at law for the benefit of the assignee, in the name of the as- signor.'' § 32. In England, the king may sue in his own name upon a chose in action assigned to him. And the same principle would apply to the United States. But they would be barred by the Statute of Limitations, if the assignor were thus barred.* § 33. In Mississippi, the assignee of a chose in action may sue in his own name. Hence, where an executor, having proved the will in Kentucky, assigned a note due the estate from a citizen of Mississippi, held the assignee might sue, without proving the will in that State.* § 34. Where one of several joint promisees is also promisor, neither the assignee of the other nor of all the promisees can sue at law, but only in equity.^ § 35. With reference to the defence which may be made against an assigned claim ; an assignment of a chose in ' Ensign v. Kellogg, 4 Pick. 1 ; Sere v. Pitot, 6 Cranch, 335; Moseley T. Boush, 4 Rand. 892. " 1 Pars, on Contr. 193, n. ; Story, Eq. 1057 a. ' U. S. V. Buford, 3 Pet. 18. * Harper v. Butler, 2 Pet. 239. See Defrance v. Davis, "Walker, 69. ' Gatewood v. Lyle, 5 Monr. 7 ; Eamsey v. Johnson, Minor, 418 ; Justices Y. Armstrong, 8 Dev. 288. 604 LAW OP SALES OF PERSONAL PROPERTY. action, founded on illegality, tliough made without notice, does not preclude the defendant from setting up such illegality in defence.' So chancery will set aside an as- signment void at law, and necessarily leading to fraud and corruption. Thus T>. assigned all his claim and right of action against A., for a quantity of wine, to S., in trust for the creditors of D. P., an attorney, having learned the grounds of the claim from D. and S., purchased the right of action from S., who supposed it desperate, for a small sum, and then prosecuted the suit for his own bene- fit, and obtained a judgment for the whole amount. Held, the agreement and assignment were void for champerty ; and, on condition that S. should refund to P. the sum paid, a perpetual injunction was awarded.^ § 36. Payment to the assignor is held a good defence, if the assignment was without consideration ; even though the debtor has previously been summoned as trustee of the assignor, and discharged, upon disclosing the mere fact of an assignment.^ But, on the other hand, it is held, that the assignee (in New York) may recover in his own name, without proving any consideration. A gratui- tous assignment is sufficient." And, in general, that, when the title of the assignor is unimpeached, it is immaterial as between the debtor and the assignee what consideration was paid.' § 37. An assignee cannot hold the assignor liable, on account of an offset set up against the assigned demand, unless he have given him notice thereof.^ § 38. If the defendant in a suit upon an assigned de- maud prevail, he cannot bring an action against the assignee, who sued in the assignor's name, for the costs.' ' Fales V. Mayberry, 2 Galli. 560. ' Arden v. Patterson, 5 John. Cha. 44. ' Dunning v. Sayward, 1 Greenl. 366. * Eiehardson v. Mead, 27 Barb. 178. ' Whittaker v. Johnson, 10 Iowa, 161; • Drayton v. Thompson, 1 Bay, 265. ' Bennet v. McFall, 2 Eep. Con. Ct. 198 ; 2 Con. E. 769. ASSIGNMENT OF CHOSES IN ACTION. 605 § 39. To a plea of former recovery, the assignee may- reply the assignment and notice to the debtor ; alleging also that the former action was not prosecuted by author- ity and for the benefit of the assignee.' § 40. After assignment, a plaintiff cannot discontinue his action upon the assigned demand. Nor bar a future action, by collusively dismissing the present one.' ^ And where the debtor, after notice of an assignment, pays the assignor, and takes a discharge in writing, and the as- signee then brings an action against the assignor and recovers the consideration paid; the assignee may still recover from the promisor the balance due, after deduct- ing the amount of such consideration.^ § 41. The question of warranty, the most important incident of a sale, has often arisen in connection with the assignment of choses in action. § 41 a. With reference to the liability of the assignor of a chose in action to the assignee, as in the nature of a warranty of title, quality, or amount ; it is held, that the vendor of a bill of exchange or promissory note, whether by indorsement or delivery, impliedly warrants, that it is genuine and not a forgery, and of the kind and descrip- tion that it purports.'' Where, therefore, an unstamped bill of exchange, purporting to be a foreign bill drawn at Sierra Leone, but really drawn in London, was sold, and refused payment by the acceptor; the vendee re- covered back the price of the bill, on the ground of fail- • Where injury might result to one claimant, if the sheriff paid money in his hands to another, the court will order an issue to try the rights of the parties ; and, when an assignment comes into question in the trial of tuch issue, it will, if fraudulent, be regarded as a nullity. Maddox v. ■Williamson, 1 Strobh. 23. ' Dawson v. Coles, 16 John. 51. ' McCullum V. Coxe, 1 Dall. 139; "Welch v. Mandeville, 1 "Wheat. 236. • "Willis T. Twambly, 13 Mass. 204; Dix v. Cobb, 4 lb. 508; Jones v. "Witter, 13 lb. 304. * Bell V. Cafferty, 21 Ind. 411 ; Merriam v. "Wolcott, 3 Allen, 258. 606 LAW OF SALES OF PERSONAL PROPERTY. ure of consideration.' So the vendor of a bill, though no party to it, is responsible for its genuineness ; and if the name of the party is forged and the bill becomes valueless, he is liable to the vendee, as upon a failure of consideration. Thus the defendants, bill-brokers, hav- ing received from A. a bill of exchange, drawn and in- dorsed by A. for the purpose of being discounted, took it to the plaintiffs, money-lenders, with whom they had had similar dealings, and, acting as principals, procured the bill to be discounted by the plaintiffs, without indors- ing or guaranteeing it, though asked by the plaintiffs to do so. The rate of discount charged by the defendants to A. exceeded that charged by the plaintiffs to the de- fendants. The acceptance turned out to have been forged by A., and the bill proved valueless. Held, the plaintiffs might recover the sum paid to the defendants upon the discount of the bill.'' So where the defendant executed to the plaintiff this assignment: " I hereby assign to Reuben R. Thrall a note in my favor against Theodore Woodward and John H. Phillips, dated 13th Novepber, 1838, for one hundred and fifty dollars, payable in one year from date, with use, for value received ;" held, the words " for value received " were not merely descriptive of the note, but prima facie, at least, imported a sufficient legal con- sideration for the assignment ; and that the desci-ibing of the property as " a note," was an express warranty that it was a valid note, and that the signers were of sufficient capacity to contract.' § 41 b. If an indorsement turns out to be forged, the seller is liable to the vendee for what he has received from him for the instrument, with interest from the receipt.* ' Gompertz v. Bartlett, 24 Eng. L. & Eq. 156; ace. Thompson v. McCullough, 31 Mis. 224. ' Gurney v. Womersley, 28 Eng. L. & Eq. 256. ' Thrall v. Newell, 19 Verm. 202. ' Aldrich v. Jackson, 5 K. I. 218. ASSIGNMENT OF CHOSES IN ACTION. 607 § 41 c. It is remarked, in a late case, by Sharswood, J.,' " The doctrine that the vendor of chattels in possession impliedly warrants the title, extends to choses in action.* As in the sale of other things he undertakes not for their quality, that they are really worth the money they repre- sent, but that they are what they purport to be. In other words, he warrants the genuineness of the claim upon them.' Every obligee or holder of an obligation, who assigns it to another, especially if he does so for a valu- able consideration, impliedly at least, thereby engages that it is genuine and binding upon the obligor, unless he discloses fully and truly to the assignee, in treating for the assignment, all the facts and circumstances connected with the execution and delivery of the obligation, and after being thus advised the assignee agrees to take it at his own risk.' If the assignee of a bond cannot recover it from the obligor by reason of the consideration of it having failed before the assignment of it was made, he may recover back from the assignor the money he paid for the assignment, whether he hold his guaranty or not.* Like other warranties of title, as of seisin or right to convey, it is broken as soon as it is made, if in point of fact it is not a valid security. The assignee need not wait until it is due before bringing suit. His right of action accrues immediately.* Nor is it necessary to tender a return of the security before the commencement of the action.'' This was a special action on the implied war- ranty, and not for money had and received, founded on a rescission of the contract, in which the rule may be dif- ferent." } Penn. Supreme Court, Plynn v. Allen, Leg. Intell., Jan. 29, 1869. ' Eitchle V. Summers, 3 Teates, 531 ; Charnley v. Dulles, 8 W. «& S. 361 ; Swansey v. Parker, 14 Wright, 450. ' Lyons v. Divelbis, 10 Harris, 185. * Strak V. Hess, 1 W. & S. 153. ' Kauffelt V. Leber, 9 "W. & S. 93. « Holden v. Taylor, Hob. 12 ; Bender v. Fromberger, 4 Ball. 438 ; Stewart v. West, 2 Harris, 336. ' Eitcbie V. Summers, 3 Yeates, 531 ; Fielder v. Starkin, 1 H. Blacks. 19 608 LAW OF SALES OF PERSONAL PROPERTY. § 41 d. But, on the other hand, in the absence of fraud, there is no implied warranty, of the past or future sol- vency of the maker of a note, from a mere exchange of it, without indorsement, for merchandise. Hence, where an exchange of a specified lot of cotton for a specified note of a third person, at an agreed price for the cotton, has been made through a broker acting for both parties, the note of the purchaser of the cotton to be given for the difference, and nothing remains to be done but to deliver the cotton and receive the notes ; it is no defence to an action upon the contract for not delivering the cotton upon tender of the notes, that, before the contract was entered into, the maker of the first-named note had failed, both parties and the broker being at the time of contract ignorant of the failure.' So, if a bank-bill, purchased by a broker, who deals in depreciated bills, as an article of com- merce, proves to be of less value than the price given for it, he is not bound to make it good, especially where the transaction is in good faith.^ So, where the plaintitF pur- chased of the defendant a note made by a feme sole, who, since the making of the note and before this purchase, had married the defendant, which fact the defendant stated to the plaintiff" before completion of the purchase ; held, there was no implied warranty by the defendant, either of the validity of the note, or of the legal effect of the facts.' So, on a bond fide sale of a promissory note, one party offering and the other requiring a discount, in view of the risk of payment, after the note has been accepted and a check given for the agreed price, the pur- chaser cannot stop payment of the check, on the mere ground that the makers of the note had stopped pay- ment before the sale, and therefore there was a failure of consideration.'' 1 Bicknall v. Waterman, 5 E. I. 43; Burgess v. Chapin, lb. 225; Beckwith v. Farnum, lb. 230. 2 Hinckley v. Kersting, 21 111. 247. ' Curtis V. Brooks, 37 Barb. 476. * Elwell V. Chamberlain, 4 Bosw. 320. ASSIGNMENT OF CHOSES IN ACTION. 609 § 41 e. "Where one gives his note in exchange for notes of a bank ; upon the question, whether he or the payee took the risk of the solvency of the bank, the fact, that a very heavy discount was made from the face of the bank- notes, tended to show an agreement, that the maker took the risk.^ § 41/. The defendant, a bank, being the holder of the note of an insolvent, and of stock as collateral security, delivered to the plaintiff the shares, at the written request of the insolvent that they should so do, upon payment of the note. The plaintiff paid the note, and received the certificates of stock, which afterwards were discovered to be spurious, both parties being ignorant of this fact at the time of the transfer, and the facts tending to prove, not a sale of the stock and note, but a transfer of col- lateral security upon payment of the debt. Held, there was no implied warranty of the genuineness of the stock, and the plaintiff could not recover.' § 41 g. But the general rule applies to the sale of choses ' in action, that a representation made by the vendor at the time of a sale, in respect to the quality of the thing sold, which is rehed upon by the vendee, amounts to a warranty. Thus, upon the sale of a note and mortgage, the maker of which is known by both parties to be insolvent, if the vendor represents the mortgage to be good, as an induce- ment to buy, and the vendee buys, relying upon such representation, but the mortgagor has no title ; the vendor is liable for the consideration paid.* § 42. The assignment of a chose in action imposes on the debtor an equitable and moral obligation to pay the assignee ; which, though constituting merely an implied assumpsit, is a good consideration for an express promise, that will authorize a suit in the assignee's own name.^ ' Johnson v. Barney, 1 Clarke (Iowa), 531. ' Ketchum v. Stevens, 19 N. T. (5 Smith) 499. » Hahn v. Doolittle, 18 Wis. 196. * Barnett v. Union, &o. 7 Cash. 175 ; Clarke v. Thompson, 2 B. 1. 146 ; 39 610 LAW OF SALKS OF PERSONAL PROPERTY. And the debtor cannot in sueh action avail himself in set- off of any claims against the assignor/ ' And it makes no difference, whether the debt be a written obligation, or founded upon an express or implied promise by parol, as for goods sold or services performed, or whether the assignment is to the assignee for his own benefit or the benefit of creditors.^ But, if the assignee of a note, void for an illegal consideration, takes a new note for the amount from the maker, the new note will be void also, and a judgment thereon will also be void. So, it seems, whether the assignee knew the consideration of the note when he received it or not.' § 43. As already repeatedly stated in other connections, the assignee of a chose in action may maintain an action thereon in the name of the assignor. And this rule ap- a Count for money paid. Plea, that A., a joint debtor witli the de- fendant, resided in California; that by the law of California a creditor might assign his debt to a third person, which third person might sue in his own name, and recover ; that the plaintiff, being in California, as- signed the debt to B. there, who there, in his own name, sued the de- fendant and his co-debtor, &c.,and recovered; and that there was a levy of part in satisfaction. Eeplication, that, by the law of California, the assignee of a debt might re-assign to the creditor the debt, or so much thereof as was unsatisfied, and the creditor might sue in his own name for so much, as if no assignment had been made, notwithstanding the assignee in the meantime had recovered judgment, unless the whole was actually levied ; and that the assignee, before he had received any part, or before any sum applicable thereto had been levied, re-assigned to the plaintiff, &c. Held, if the plea was good, the replication was good, be- cause the assignment is in each the same; and that the plea was good, if it amounted to an averment that the assignee had the exclusive right to sue. Thompson v. Bell, 25 Eng. L. & Eq. 171. Palmer v. Merrill, 6 Cash. 282 ; Crocker v. Whitney, 10 Mass. 316 ; Moury V. Todd, 12 lb. 281 ; Usher v. D'Wolfe, 13 lb. i290 ; Jones v.Witter, 13 lb. 304; Skinner V. Somes, 14 lb. 107; Coolidgev. Buggies, 15 lb. 387; Bar- ger V. Collins, 7 Har. & J. 213 ; Currier v. Hodgdon, 3 N. H. 82 ; Bucklin V. Ward, 7 Verm. 195; Matheson v. Crain, 1 McCord, 219; Compton v. Jones, 4 Cow. 13; Lang v. Fiske, 2 Pairf. 385. 1 Thompson v. Emery, 7 Fost. 269. = Clark V. Thompson, 2 R. I. 146. » Martin v. Terrell, 12 S. & M. 571. ASSIGNMENT OF CHOSES IN ACTION. 611 plies to a sealed instrument, and does not require special authority to bring a suit.' So authority, in an assign- ment, to the assignee, to sue in the name of the assignor, is held to justify joining the assignor as co-plaintiff.^ So the purchaser of an interest in a chose in action, thus authorized to bring a suit at law in the name of the as- signor, may also, in the same name, prosecute any action growing out of, and collateral to it ; as, for instance, an action against a sheriff, for not serving in due time a no- tice to take depositions, placed in his hands by such as- signee.' And where an assignee or person beneficially interested brings an action in the name of the assignor, the defendant cannot avail himself of the plaintiff's want of interest.^ And an assignee is bound only to show a right to recover in the plaintiff on the record.^ The as- signee acquires a right to maintain an action by the trans- fer ; and a charge, which assumes that the assignee must have a right to maintain the suit as plaintiff, is properly refused." § 44. "Where a demand is due or becoming due, and the claimant assigns part of it to different persons, one of the assignees may bring a suit in equity to recover his part of it.' § 45. If a creditor, with the debtor's assent, assign a portion of the debt, and bring an action for the re- mainder ; the debtor cannot claim allowance for alleged errors in the adjustment of that part of the whole debt assigned. His remedy is to have them deducted from the debt assigned.' § 46. If the assignee of a demand brings a suit and ob- ' Sater v. Hendershott, 1 Morris, 118 ; Koberts v. Halferty, lb. 426. ' Kees V. Eees, 23 Eng. L. & Eq. 561. " Waterman v. Williamson, 13 Ired. 198. " Labeaume v. Sweeney, 17 Mis. 153. ' Hamilton v. Brown, 18 Penn. 87. ' Saltmarsh v. Bower, 22 Ala. 221. ' Field V. Kew York, 2 Seld. 179. ' Haggerty v. The Allaire Works, 5 Sandf. 230. 612 LAW OF SALES OF PERSONAL PROPEKTT. tains judgment thereon, in the name of the assignor, hut for his own benefit ; he is bound, on a reversal of the judgment, to refund the money which he has collected on the execution.' § 47. An assignee of claims in the hands of a collect- ing agent maj bring, in his own name, against the agent, an action for money collected thereon, as for money had and received.^ § 48. When a note under seal is executed by husband and wife, and is transferred for valuable consideration by delivery merely, the transferrer and transferree may join in a bill to enforce its payment out of the wife's separate estate upon which it is a charge.^ 1 Langley v. Warner, 3 Comst. 327. » Bullitt V. Meth. Episc. Church, 26 Penn. 108. s Blevins v. Buck, 26 Ala. 292. STATUTE OF FRAUDS. 613 CHAPTER XXV. STATUTE OF FRAUDS. 1. QEKERAL APPLICATION AND CONSTKUCTION OF THE STATTJTE. 3. EXECUTED AND EXECUTORY CONTRACTS. 4. CONTKACTS OF SALE AND MANUEACTURE. 6. SALE or SHARES, STOCK, ETC. ; CHOSES IN ACTION. 9. rORM OE EXECUTION, SIGNATURE, ETC. J WRITTEN ACKNOWLEDG- MENT ; SEPARATE PAPERS, ETC. 17. AGENTS. 19. BROKERS, 20. AUCTIONEERS; WHETHER AUCTIONS ARE WITHIN THE STATUTE; EFFECT OF THE AUCTIONEER'S MEMORANDUM, ETC. 29. ACCEPTANCE. 61. PAYMENT. § 1. The Statute of Fraud,s has been often incidentally referred to in previous chapters of this work. Indeed its provisions so far modify the law of sales of personal prop- erty, that an express or tacit reference to them becomes necessary, in treating of almost every title of that law. It remains to consider some points more directly and ex- clusively regulated by the act in question. § 2. The seventeenth section of the English Statute of Frauds, 29 Car. 2, ch. 3, provides, that " no contract for the sale of any goods, wares, and merchandises, for the price of £10 sterling 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-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." 614 LAW OF SALES OF PERSONAL PEOPERTT. And, with some verbal variations, these provisions have been re-enacted in nearly every State of the Union ; thus, as it were, incorporating them into the American com- mon law, and giving general authority to the numerous judicial decisions by which they have been interpreted and illustrated.' • As to the distinction between a sale at common law, a sale as affected by the statutes relating to fraudulent conveyances, and a sale as affected by the statutes commonly termed Statutes of Frauds; see 2 Pars, on Contr. 320. See also p. 616, n. On the one hand, the Statute of Frauds does not require a delivery where the contract is in writing. Pierce v. G-ibson, 2 Cart. 408. And, on the other hand, a delivery, on a parol sale, whether actual or constructive, and an acceptance by the vendee, is a performance of the contract ; and the vendor cannot afterwards retract and avoid the sale as being within the statute. Johnson v. Watson, 1 Kelly, 348. Words alone do not answer the requirements of the statute. The con- struction, that acts must be done, is the only one which can secure the benefits intended to be secured, and prevent the evils intended to be pre- vented, by that statute. Ely v. Ormsby, 12 Barb. 570. It may be useful to present, in a connected form, some of the opinions of eminent judges, in relation to the purposes and rules of construction of this very important statute. Mr. Chief Justice Best remarks, that " the Statute of Frauds and the Statute of Limitations were both so much objected to when they were passed, that the judges appeared anxious to get them off the statute book. But, in later times, they have become desirous to give them their full effect. I think the Statute of Frauds is a good and wholesome statute. In other countries contracts are made in writing." Proctor v. Jones, 2 C. & P. 534. Mr. Justice Bayley remarks, that the Statute of Frauds is a remedial law, and that the court ought not to endeavor to strain words to take a case out of it. Carter v. Toussaint, 5 B. & A. 859. Abbott, Chief Justice, says, "The Statute of Frauds was made for wise and beneficial purposes, and ought to be construed according to the plain meaning of the legislature. It is a highly beneficial and remedial statute." Cory v. Scott, 3 B. & A. 328; Tempest v. Fitzgerald, lb. 683; Baldey v. Parker, 2 B. & C. 40. And, in another case, "So far from being disposed to restrain the pro- visions of this statute, I should be inclined to extend them." "It is better to adhere to the words of the statute, unless we plainly see that the words used do not express the meaning of the Legislature." Howe V. Palmer, 3 B. & A. 326. STATUTE OF FKAUDS. 615 § 3. With reference to the construction of this statute, it has heen sometimes held applicable only to contracts which are to be immediately performed, not to executory agreements.^ But the contrary seems to be well estab- lished by the more recent authorities.^ Thus an agree- ment to sell a boat-load of wheat, to be delivered at a fu- ture time, is within the statute, if none is delivered at the time, no earnest paid, or note given.* And the remark is very justly made, "It is singular that an idea could ever prevail, that this section of the statute was only applica- ble to cases where the bargain was immediate, for it seems plain, from the words made use of, that it was meant to regulate executory, as well as other contracts. The words are ' no contract for the sale,' &c. And, indeed, it seems that this provision of the statute would not be of much use, unless it were to extend to executory contracts ; for it is from bargains to be completed at a future period, that the uncertainty and confusion will probably arise, which the statute was designed to prevent."* Lord Kenyon says, " It is of great consequence to preserve unimpaired the several provisions of the Statute of Frauds, which is one of the wisest laws in our statute book." Chaplin v. Rogers, 1 E. 194. So it is said, in an American case, " The Statute of Frauds is a very beneficial act; and its objects are best secured by adhering strictly to its provisions, unless in cases which clearly do not fall within the meaning.' ' Phillips V. Hunnewell, 4 Greenl. 379. Lord Ellenborough remarks, that the Statute of Frauds, and the rule excluding parol evidence in relation to written contracts, are subjects quite distinct in their nature. Cuff v. Penn, 1 M. & S. 26. See p. 614, n. Also, that " the principal design of the Statute of Frauds was, that parties should not have imposed upon them burdensome contracts which they never made, and be fixed with goods which they never contemplated to purchase." lb. 1 Towers v. Osbone, 1 Str. 506 ; Alexander v. Comber, 1 H. Bl. 20 ; Clayton v. Andrews, 4 Burr. 2101. » 48 Maine, 379 ; Carman v. Susick, 3 Green, 252 ; Newman v. Morris, i Harr. & McH. 421 ; Cooper v. Elston, 7 T. B. 14. » Jackson v. Covert, 6 Wend. 139. * Per Lord Loughborough, Kondeau v. Wyatt, 2 H. Bl. 63. 616 LAW OF SALES OF PERSONAL PROPERTY. § 4. It has been a question mucli agitated, whether the statute is applicable to an agreement for the sale of arti- cles not in existence at the time of such agreement, or upon which, though in existence, work is to be subsequently per- formed by the vendor, prior to a delivery to the purchaser." The distinction has been sometimes made, that the stat- ute does not apply to articles which are to be manufac- tured in a particular manner ; ' but that it does apply to the sale of things already existing, but to be prepared for delivery by work done upon them.' But the more recent prevailing doctrine is, that the statute is applicable, although the subject-matter of the contract does not exist at the time when the contract is made.^ A brief review of the decisions will show the differences of opinion upon this subject, and the grounds upon which such differences rest." § 5. The plaintiffs, millers, verbally agreed with the de- fendant, a corn-merchant, for the sale of one hundred sacks of flour, to be prepared for shipment in three weeks. In part upon the ground, that the plaintiffs were proceed- ing to grind the flour for purposes of general sale, and con- tracted with the defendant in the course of their ordinary business, the statute was held to apply.^ So a contract, * When one party is bound to receive an article bought or procured by the other after the contract, it is within the statute. Edwards v. Grand, &c. 48 Maine, 379. Thus a contract by a railroad " to take all the wood a person would put on the line of their road during the season, at the same price they had paid him before for wood, or more, if the wood was better." *• More especially, if the particular person who is to manufacture them, or the mode, or material^, enter into and make part of the contract. Edwards v. Grand, &c. 48 Maine, 379. "= In a late case, the comparative value of the work and the material is said not to be a correct test. Lee v. Griffin, 1 Ell. B. & S. 272. 1 48 Maine, 379; Crookshank v. Burrell, 18 John. 58; Bronson v. "Wiman, 10 Barb. 406. ' Watts V. Friend, 10 B. & 0. 446 ; Smith v. Surnam, 9 lb. 561 ; Wilks V. Atkinson, 6 Taun. 11. ' Garbutt v. Watson, 5 B. & Aid. 613. STATUTE OF FRAUDS. 617 to make and deliver at a specified time one thousand molasses shocks and heads, was held within the statute.' So an agreement for delivery of a quantity of planks for ship-building, at a future time, and at a specified price." So, where a contract was made for a crop of cotton, to be delivered when gathered and prepared for market : upon the ground that the work and labor to be performed by the vendor were in his regular line of business, and would have been exercised in the same way had this particular agreement not been made, and would not be lost or wasted though the sale should not take elFect ; the case was held within the statute.^ So a contract for cider, to be obtained by the seller from farmers and refined before delivery, is within the statute.* So in case of wheat to be threshed' (a leading case, in which the authorities are largely re- viewed). So the plaintiif asked the defendant his price for candles, the defendant named it, the plaintiff said he would take a hundred boxes, and the defendant said the candles were not manufactured, but he would manufac- ture and deliver them during the summer. Held, the contract was substantially a sale, the conversation con- cerning the manufacture being designed merely to fix the time of delivery ; and that the Statute of Frauds applied." So a contract to make a set of teeth. Hence, where A. or- dered of B. a set of artificial teeth, to be fitted to her mouth ; and before they were so fitted A. died : held, B. could not sue A.'s executor in an action for work and labor done, and materials provided, for his testatrix.' § 5 a. But, on the other hand, it has been held, that the ■ Eobertson v. Vaughn, 5 Sandf. 1. ' Waterman v. Meigs, 4 Cush. 497. ' Cason V. Cheely, 6 Geo. 554 ; aoc. Buxton v. Bedall, 3 B. 303 ; Bird T. Muhkinbrinlc, 1 Rich. 197. * Seymour v. Davis, 2 Sandf. 239. " Downs V. Boss, 23 Wend. 273. See p. 619. • Gardner v. Joy, 9 Met. 179. Contra, Cummings v. Dennett, 26 Maine, 401. ' Lee V. Griffin, 1 BU., B. & S. 272. 618 LAW OF SALES OF PERSONAL PROPERTY. statute does not apply, where articles are to be manufac- tured from materials to be supplied by the manufacturer.' ISTor to works of art ; as in case of work and materials fur- nished in the printing of a book.^ Though it has been in- timated that it might be otherwise in the manufacture of a suit of clothes? So in case of a contract, by a mechanic, to furnish materials and do the carpenter-work and turn- ing, according to a particular plan and specification, for certain buildings to be erected on the land of another per- son ; held, as the work was to be done, not for the vendor, but for the vendee, the contract was not within the stat- ute.* So an agreement to procure and deliver, at a certain time and place, one-half of a frame for a vessel, to be hewn and fashioned according to certain moulds, is not within the statute.' So the defendant went to the shop of the plaintiiF, and selected a lining for a carriage, the plaintiff having on hand, at the time, the body of a carriage nearly completed, but not lined. After a conversation between the parties, it was understood that the plaintiff should finish a carriage for the defendant in a fortnight. The one on hand was accordingly completed, and the defendant notified, and requested to take it. Held, this was not a contract of sale, within the Statute of Frauds, but the agree- ment of a workman to manufacture an article for his em- ployer ; and therefore that it was valid, though not in writ- ing. It was remarked, that the carriage intended to be sold did not exist at the time, as the materials, though partly wrought, had not been put together ; that it would be otherwise with a contract of sale, either of a thing ex- isting at the time, or of articles which the vendor usually has in his business, though to be executed mfuturo ; and, even in this case, there must be an actual or constructive ' Bennett v. Nye, 4 Greene. 110; Mattison v. "Westcott, 13 Verm. 261 ; Allen v. Jarvis, 20 Conn. 38 ; Spencer v. Cone, 1 Met. 283. 2 Clay V. Yates, 36 Eng. Law & Eq. 540. » Scott V. Eastern, &c. 12 M. & W. 33. • Courtright v. Stewart, 19 Barb. 4.55. ' Abbott V. Gilchrist, 38 Maine, 260. STATUTE OF FKAUDS. 619 delivery and acceptance, to justify an action for the 'price. But the plaintiff, having declared originally for a carriage sold and delivered, and for labor and materials, was allowed to amend, by adding a count upon an agreement to take and pay for a carriage to be built by his order.' So the plaintiffs, by their agent, contracted with the defendants to sell him nails. The defendants' clerk, with whom the bargain was made, said that the nails were not then on hand, but could be soon knocked off and procured from the factory upon the opening of navigation. Held, this was a contract for work and materials, and not within the stat- ute.^ So the defendants agreed to furnish, as soon as pos- sible, a quantity of malleable hoe shanks, conformably to patterns left with them, and a larger quantity, if required, at a less price. Held, as this was a contract for the man- ufacture of the article by the defendants, and the plaintiff would not be bound to accept even a better one of the same kind, manufactured by a third person, the statute did not apply.' So an agreement to deliver wheat at a future day, the wheat being at the time of the agreement un- tbreshed, was held not to be within the statute.^ So, where the defendant bespoke a chariot, and refused to take it after it was made ; the statute was held not to apply." So the statute was held not to apply to a contract for the purchase of oak pins, to be cut out of slabs." ^ ' In view of the uncertainty attending the application of the statute to the particular class of contracts refer;red to in the text ; by statute 9 Geo, 4, c. 14, 5 7, it is provided, that the Statute of Frauds shall apply, though the goods are to be delivered at a future time, or are not, at the time of the contract, made, provided, or fit or ready for delivery, or though some act is requisite to complete them. See Harman v. Keeve, 37 Eng. L. & Eq. 302. This act, of course, has no binding force in the ' Mixer v. Howarth, 21 Pick. 205. ' Sewall V. Pitch, 8 Cow. 219 ; ace. Eobertson v. Vaughan, 5 Sandf. 1. ' Hight V. Bipley, 19 Maine, 139. * Clayton v. Andrews, 4 Burr. 2101. See p. 617. " Towers v. Osborne, 1 Str. 506. ' Groves v. Buck, 3 M. & S. 178. 620 LAW OF SALES OP PERSONAL PROPEKTT. § 6. It has been a disputed point, whether the Statute of Frauds is applicable to a contract concerning the sale of shares or stock ; or of any ehoses in action or mere evi- dences of value, without intrinsic worth. The question has turned, to a great extent, upon the true definition of the terms " goods " and " merchandise," as used in the statute, these words, on the one hand, more especially the former, being interpreted to include, as in the civil law (bona), all subjects of dominion or ownership ; or (in reference to " merchandise ") all subjects of traffic ; and, on the other, to be restricted to the ordinary subjects of traffic or com- merce, which have intrinsic elements of worth and valu- ation/ § 7. In an early ■ease, relating to shares or stock, all the United States. But the following remarks have been made, in a late case, with reference to it, as a key or guide to the construction of a State statute: " The English Statute of Frauds, of which the statute of "Wis- consin contains the substance, has been variously adjudged, both in Eng- land and in this country, in its application to contracts to be performed in futuro, where no note or memorandum was made, nor consideration paid. But contracts having this aspect, and where something was re- quired to be done, in manufacturing the thing to be sold, or doing any other act to fit it for delivery, have been the most fruitful source of liti- gation. The courts of England and this country have taken the same direction, and are pretty uniform in holding that cases standing in the condition last mentioned, are not within the statute. But inasmuch as the court is not trammelled by decisions of its own, nor bound by those of other States, it deems it most wise to adopt the statute of England, of 9 Geo. 4, which declares that all goods of a certain value, or upwards, contracted to be sold, where anything remains to be done to fit them for delivery, falls within the statute, and cannot be enforced unless in writ- ing, or on some consideration paid. Interposing this declaratory statute, as the rule of decision of the court in cases falling within it, is regarded as the best policy for the prevention of litigation, and the establishment of business relations on a stable foundation." Hardell v. McClure, 1 Chand. 271. The Statute of Frauds does not apply to a contract to procure and de- liver. Cobhold v. Caston, 8 Moo. 456. 1 See Clark v. Burnham, 2 Story, E. 15; Beers v. Crowell, Dudl. 28; Sewall V. Allen, 6 Wend. 335. STATUTE OF FRAUBS. 621 judges of England were divided upon this question.' But it is now settled in England, that the statute does not apply; upon the ground that property of this description is not susceptible of delivery and acceptance.' So it is held in New Hampshire, that a promissory note is not in- cluded in the terms " goods, wares, and merchandise," and an agreement to sell one is not within the Statute of Frauds.* § 8. But, on the other hand, in Massachusetts, it is said, "There is nothing in the nature of stocks or shares in companies which, in reason or sound policy, should ex- empt contracts in respect to them from those reasonable restrictions designed by the statute to prevent frauds in the sale of other commodities. On the contrary, these companies have become so numerous, so large an amount of the property of the community is now invested in them, and as the ordinary indicia of property arising from delivery and possession cannot take place, there seems to be peculiar reason for extending the provision of the statute to them.""* So the sale of promissory notes is held to be within the statute.' So, in Maine, where A. agreed to buy certain bank-bills belonging to B., but in the hands of C, and thereupon received an order on C. for the bills, but paid no part of the price, and the order ■ A promise to accept and pay an order for the delivery of stock in a corporation, which the drawee had agreed to pay for goods sold to him, is not within the statute, if those goods have been delivered; otherwise, if they have not. Eastern v. Benedict, 10 Gray, 212. ' Pickering v. Appleby, 1 Com. 354. See Cott v. Netterville, 2 P. Wms. 304; Mussell v. Cooke, Free. Ch. 533. ' Hesseltine v. Siggers, 1 Wels. H. & G. 856 ; Bradley v. Holdsworth, 3 M. & W. 422; "Watson v. Spratley, 28 Eng. Law & Eq. 507; Duncuft v. Albrecht, 12 Sim. 189. ' Whittemore v. Gibbs, 4 Fost. 484. * Per Shaw, C. J., Tisdale v. Harris, 20 Pick. 13. Ace. North v. Forest, 15 Conn. 404; Calvin v. Williams, 3 Har. & J. 38. ' Baldwin v. Williams, 3 Met. 367. See Clapp v. Shephard, 23 Pick. 228; Mills v. Gore, 20 lb. 28; Biggs v. Magruder, 2 Cranch, 143; Hud- son v. Weir, 29 Ala. 294. 622 LAW OF SALES OF PERSONAL PROPERTY. was never presented nor the bills received ; held, upon a suit by B., that there was no sale or delivery, but a con- tract for sale, void by the Statute of Frauds.' So a parol agreement, wholly executory, for the sale of a judgment for a sum exceeding $50, is within the Statute of Frauds of New York.'2 » Where a statute used the words " personal property," it was held to include shares. So, L. Ins. &c. v. Cole, 4 Florida, 360. In New York, choses in action are expressly included. See Hagar v. King, 38 Barb. 200 ; Thompson v. Alger, 12 Met. 436 ; Allen v. Aguirre, 8 Seld. 543 ; 10 Barb. 74. But a contract under which A. purchases and pays for stock, for the joint benefit of himself and B., under an express agreement that B. should repay him one-half of the purchase-money, he in the meantime holding the slock as collateral, is not within the statute. Stover V. Flack, 41 Barb. 162. With reference to the applicability of the statute to some other pecu- liar subjects of sale ; it has been held that a parol contract for goods on shipboard, without delivery, is void. Stevens v. Stewart, 3 Cal. 140. Under the statute laws of North Carolina, a parol gift of slaves is null and void. MeCuUough v. Walker, 20 Ala. 389. A. entered into a contract, in writing, to deliver to B. a certain quan- tity of pork at Fairhaven, for certain prices, and delivered a portion of it, when a verbal agreement was made by the parties, that the residue on the contract, and all A. had, be delivered at Hamilton, for a higher price, within a reasonable time. Assumpsit was brought, for the failure of A. to so deliver the pork at Hamilton. There was no averment or proof of a waiver by B. of his right to demand a delivery of the remainder under the written contract, or that such a waiver formed a part of the con- sideration of the contract on which the suit was brought, or was accepted by A. Held, the contract was void under the Statute of Frauds, and B. could not recover. Bailey v. Epperly, 2 Cart. 85. A. agreed, by parol with B., to exchange a span of horses for two yoke of oxen of the latter, worth eighty dollars each, and B.'s note for twenty dollars. The property, though of greater value than fifty dollars, was not exchanged, nor any delivery made. In an action against B. upon the note, held, the agreement was within the Statute of Frauds, and, the only consideration for the promise of B. being the agreement of A. to ex- change his horses for the oxen of B., such promise was without consider- ation and void, and no action could be sustained thereon. Combs v. Bateman, 10 Barb. 573. Growing crops are held not to be goods or chattels, within the mean- 1 Gooch V. Holmes, 41 Maine, 523. ' People V. Beebe, 1 Barb. 379. STATUTE OF FRAUDS. 623 § 9. The form of execution of a contract, necessary to its validity under the Statute of Frauds, has been a prolific subject of doubt and • dispute. Many of the cases, how- ever, in which the question is raised, do not pertain to sales of personal property, and are therefore foreign from the plan of the present work." § 10. It is sufficient, under the statute, that the party defendant signed the contract, whether he be vendor or vendee ; though the plaintiff did not, and therefore the former has no remedy against the latter. In relation to the plaintiff, in such case, the statute merely interposes an obstacle in the way of evidence, but does not affect the substance of the contract. The defendant is to suffer from his own neglect to obtain the proof necessary to charge the plaintiff.' So a contract for the sale of goods binds a party who signs the memorandum, though he receives no counterpart from the other, though his signature is above the body of the memorandum, and though it does not specify the weight of the goods. But such a contract, without delivery, does not pass the title to the goods.^ § 11. But where a broker, acting for the plaintiff, ver- bally contracted to buy certain hemp of the defendant, ing of the Statute of Frauds, and will pass by deed or conveyance, not being susceptible of manual delivery. Bours v. Webster, 6 Cal. 660. Where a party has entered upon and improved lands, under a verbal contract of sale, and afterwards verbally contracts with his vendor to deliver back possession and improvements for a consideration; a suit may be maintained on the second contract by the vendee, it not being a contract for the "sale of lands." If it is to be regarded as a sale of goods, part of the consideration being a horse delivered by the vendor, he could maintain an action on the contract, and, as the remedy must be mutual, the vendee can also. Sutton v. Sears, 10 Ind. 223. ■ Evidence is not admissible of a custom to supply the deficiency of a written memorandum. Boardman v. Spooner, 13 Allen, 353. • Thornton v. Kempster, 5 Taunt. 788; Bussell v. Nicholl, 3 Wend. 112; Fenly v. Stewart, 5 Sandf. 101. ' Penniman v. Hartshorn, 13 Mass. 87. 624 LAW OF SALES OF PERSONAL PROPERTY. and sent him a note stating the terms, commencing thus : " Sold for Mr. C. (the defendant) to Mr. M. (the plain- tiff);" and the defendant sent back another note, com- mencing: " I have this day sold through you to Mr. M.," &c. ; and the terms of the sale, as stated in the two notes, varied materially : in an action against the defendant for non-delivery, treating the note signed by him as the con- tract, it was held, that, if the note signed by him was intended by both parties to be the contract, he would be liable ; otherwise, if he only intended to be bound as the seller, provided the plaintiff should also sign a note to bind himself as buyer.' § 12. The statute requires merely that the contract shall be proved, not created, by some writing. Hence the memo- randum may be executed at any time subsequent to the contract, and before action brought.^ And, to satisfy the statute, the whole terms need not be in one memorandum. It is sufficient, that they may be collected from several writings referring to one agreement, or from subsequent letters which refer to each other, whereby the transaction is admitted.' Thus, where the purchaser of a quantity of flour, after part-delivery, notified the vendor in writing that the flour was bad and unsaleable, and that be must come and take it away ; which notice stated the quantity, quality, price, and time of delivery ; and the vendor's at- torney replied to the notice in writing, that the vendor had performed the agreement as far as it had gone, and was ready to complete it : held, there was a sufficient memorandum within the Statute of Frauds.'' So, whether or not a bill of parcels, in which the name of the vendor is printed, delivered to the vendee at the time of an order 1 Moore v. Campbell, 26 Eng. L. & Eq. 622. ^ Browne, I 348 a. 3 Brettel v. Williams, 4 Wels. H. & G. 623 ; Salmon, &c. v. Goddard, 14 How. 447 ; Chitty on Con. 314. * Jackson v. Lowe, 7 Moo. 219 ; Schneider v. Norris, 2 M. & S. 288, ace. STATUTE OF FRAUDS. 625 for future delivery, is a sufficient memorandum within the statute ; a subsequent letter, written and signed by the vendor, and referring to the order, may be connected with the bill of parcels, so as to take the case out of the statute.' So an order for goods, written and signed by the vendor in the book of the vendee, may be connected with a letter of the vendor to his agent, mentioning the name of the vendee, and with a letter from the vendee to the vendor, claiming performance of the agreement.^ And, in general, where a contract in writing or note exists, which binds one party, any subsequent note in writing signed by the other binds him, if it either contains in itself the terms of the contract, or refers to a writing which contains them.^ §13. The defendant, having purchased a lease at auc- tion, wrote to the auctioneer, to send the key of the prem- ises, stating further, that his auctioneer wished to take an inventory of the fixtures. The two auctioneers met, and, having disagreed as to the valuation, appointed an umpire, and inclosed the inventory to him, stating the fixtures as belonging to the plaintift" and valued to the de- fendant. The umpire made a valuation, appraised the fixtures, and returned the inventory, with the appraise- ment, stamped. The defendant, by letter, requested the plaintiff's auctioneer to remove the fixtures, which was done ; and the next day he wrote to the plaintiff that he would attend at the house, and pay the amount due for the fixtures, as appraised. The first and last letters were signed by the defendant, but the first only was stamped. Held, the inventory, appraisement, and letters constituted together a sufficient memorandum under the statute.'' So a prayer, that there was no evidence of a sale and de- 1 Sannderson v. Jackson, 2 B. & P. 238. See Kenworthy v. Sohofleld, 2 B. & C. 947. ' Allen T. Bennet, 3 Taun. 169. ' Dobell V. Hutchinson, 3 Ad & El. 371. * Hemming v. Perry, 2 M. & P. 375. 40 626 LAW OF SALES OF PERSONAL PROPERTY. livery, is rightly rejected, where a letter is introduced from the defendant, requesting a bill of articles furnished, which, though not evidence in itself sufficient, will, with other circumstances, tend to establish the contract.' So an agent, in Massachusetts, of coal-merchants in Philadel- phia, made a contract in Massachusetts for the sale of coal, and a month later, in answer to the purchaser's re- quest for " a statement of our coal engagement," wrote the purchaser a letter, stating the kinds, amounts, and prices of the coal, deliverable at Philadelphia, requesting the purchaser to forward vessels, and saying, " we will put the coal on board ; our people will use all exertions to procure vessels," but not otherwise mentioning his principals, and signed the letter with his own name. Held, this letter was a sufficient memorandum of the con- tract, and the purchaser might maintain an action against the principals for not delivering the coal, although the entry made by the agent in his books, and his letter to his principals on the day of the contract, differed some- what, in the particulars of the contract, from his letter to the purchaser.' § 14. But a letter from the purchaser to the vendor, alluding to a parol agreement for the sale of goods, and inquiring whether they will be ready at the time agreed upon, but not mentioning the quantity, quality, or price of the goods, or the time of payment, is not a sufficient memorandum.*' So, after a defective memorandum of a * A buyer and seller signed the following memorandum ; " Sept. 19, "W. W. Goddard, 12 mos. 300 bales S. F. drills, 7J; 100 cases blue do. 8|. Credit to commence when ship sails ; not after December 1st ; de- livered free of charge for truckage. The blues, if color satisfactory to pur- chasers. K. M. M. W. W. G." Held, sufficient to take the case out of the statute; and that, on proving by parol evidence, and by the bill of parcels delivered by the seller to, and accepted by the buyer, that E. M. M. signed for his firm, who were the agents of a manufacturing corpora- 1 Atwell V. Miller, 6 Md. 10. « "Williams v. Bacon, 2 Gray, 387. ' Waterman v. Meigs, 4 Cush. 497. STATUTE OF FRAUDS. 627 contract between the plaintiff and defendant, the defend- ant wrote a letter, admitting the order, but insisting that there had been no seasonable delivery, and therefore he was not bound by the contract. Held, the letter did not aid the memorandum, and that the plaintiff was not at liberty to show, by parOl evidence, that there was no agreement to deliver within a certain time." ' So the de- fendant, having agreed verbally with an agent of the plaintiff, to transfer certain shares in a manufacturing corporation to the plaintiff, wrote to his own agent, di- recting him to transfer them into the plaintiffs name, and send the certificate to him, the defendant. The plaintiff's agent afterwards agreed in writing to pay the defendant the stipulated price, when the latter should furnish a cer- tificate. Held, the case showed no written agreement by the defendant, and that parol evidence of his contract was admissible." And where it is attempted to charge a party through some indirect admission subsequent to the origi- nal agreement, such admission must be taken all together, so as to give him the benefit of any part of it which is favorable to himself. Thus A. agreed with B. to sell him twenty-five hogsheads of rum at an agreed price, and to furnish the casks. I^othing was specified as to the size of tion ; that the figures 7\ and 8| meant so many cents a yard; and that it was the uniform custom of said firm, one of whose customers the defend- ant was, to take notes for goods of this description, for the time of the credit; — the manufacturing corporation might, in a reasonable time after tendering delivery of the goods, maintain an action against the purchaser, if he refused to give a note for the price. [Curtis and Catron, J J., dis- senting] Salmon, &c. v. Goddard, 14 How. 446. * The above case was recognized in Richards v. Porter (6 B. & C. 437), where the defendant admitted receipt of the invoice, but alleged that it was not seasonably sent. In Smith v. Surman (9 B. & C. 561), the letter of the vendee did not acknowledge the absolute agreement described in that of the vendor, but stated one which was conditional as to the quality. Held, this was a discrepancy, and there was no sufficient mem- orandum. 1 Cooper V. Smith, 15 B. 103. * Tisdale v. Harris, 20 Pick. 9. 628 LAW OF SALES OF PERSONAL PROPERTY. the casks, but the usual size was from one hundred and eight to one hundred and twelve gallons, l^o rum was delivered, no payment made, nor any memorandum given. ISTine days afterwards, the price of the article having in the meantime risen, A. informed B. that the rum was ready for him, presented a hilt of parcels of twenty-five hogsheads, averaging ninety-seven gallons, and demanded payment. B. paid $1000 in part satisfaction, remarked that the casks were small, but did not object to receiving them, and the next day sent for and received the rum. Afterwards, B. expressed himself as dissatisfied with the quality of the rum, and A. thereupon offered to take it back and pay the expenses incurred ; but B. did not accept the offer. B. then brings an action to recover the amount of the difference of price in the number of gallons deficient. Held, the action could not be maintained. The bill of parcels constituted the only binding contract, and the plaintiff, in availing himself of this, must be governed strictly by its provisions. He could iiot be permitted to accept the acknowledgment of the defendant, made by a specification of twenty-five hogsheads as ready for the plaintiff, as a performance of the agreement confessed by the defendant, and then to make use of the same act as evidence to prove another and different contract.* § 15. It is held, with regard to the form of signature re- quired by the statute, that where a bill of parcels is given, in which the vendor's name is printed, and the vendee's written by the vendor, the latter is bound." ^ So the memorandum may be written with a pencil.^ And the making of a mark may be a sufficient signing, where the • But the statute is not complied with, where the purchaser produces on notice a bill of sale, bearing his name, stamped with a press. Board- man V. Spooner, 13 Allen; Law Eeg., Jan., 1868, p. 189. 1 Whitwell V. Wyer, 11 Mass. 6. * Schneider v. Norris, 2 M. & S. 286. ' Browne on St. of Frauds, s. 348, and authorities. STATUTE OP FRAUDS. 629 party cannot write, and is identified.^ So, it seems, where one draws up an agreement with his own hand, and it is thus expressed, — " I, A., agree, &c. ;" or " A. agrees, &c. ;" it is a binding contract, though not signed by him." ' So, it seems, a signing by one who purports to be a party is sufficient, though he profess to sign as a witness.' But a letter without signature is no sufficient memorandum of an agreement within the Statute of Frauds. Thus a letter by a mother to her son, beginning " My dear Robert," end- ing " Your affectionate mother," and containing a full di- rection of the son's name and residence, is no sufficient note of an agreement.* § 16. The memorandum must mention the names of both parties or their agents, and the price f also the time of performance.* But an order for goods " on moderate terms" is a sufficient statement of price.' And in case of • Upon this subject it was once lield, in reference to the substitution of tha word "subscribed" for the word "signed," in a. State Statute of frauds, that such alteration did not intend to change the previous law, in respect to the method of signing the note or memorandum. Hence a bill of sale in this form, "Albany, March 12, 1847, Mr. Thomas James, bought of M. & S. Patton (for the relief committee) 3000 bushels of yellow corn (fifty-six pounds per bushel), to be delivered at the opening of the Hudson Kiver navigation, at our store, in Albany, at eighty-one cents per bushel, $2430," in the handwriting of one of the vendors, was held sufScient, although the names of the vendors were not subscribed at the bottom. James v. Patten, 8 Barb. 344. But the later decision is, that the note or memorandum must be sub- scribed underneath, or at the end of such note. James v. Patten, 2 Seld. 9. See Vielie v. Osgood, 8 Barb. 132. ■ Chit, on Con. 316. « lb. 316, 317. Mb. * Selby V. Selby, 15 E. 103. ' Champion v. Plummer, 1 N. E. 252; Elmore v. Kingsoote, 5 B. & C. 583; Bailey V. Ogden, 3 John. 399. See Salmon, &c. v. Goddard, 14 How.446;Ide V.Stanton, 15 Verm. 691; McFarson's, &c. 11 Penn. 503 ; Kinloch v. Savage, 1 Speers, Eq. 470. « Davis V. Shields, 26 "Wend. 341. ' Ashcroft V. Morrin, 4 Man. & G. 450. 630 LAW OF SALES OF PERSONAL PROPERTY. a sold note for " eighteen packets of hops at 100s. ;" parol evidence was held admissible, that the 100s. was under- stood in the trade to mean the price per cent.' So it is held, that, where one agrees in writing to buy goods at a certain price, he will be bound, although no consideration is proved, except what may be inferred from this agree- ment." ^ § 17. In reference to the signing of a contract by an agent, which the statute expressly authorizes ; it is held, that, where a commission merchant sells goods for his principal, and the vendee accepts a bill of parcels, stating him to be the purchaser, such bill is a sufficient memo- randum of the agreement. If the sale is for and on ac- count of the principal, it is valid, though the bill does not show his name, and is made out in the name of the agent. Acceptance of the bill is a sufficient recognition by the vendee of the agent's authority to sign. And, the bill of parcels being evidence of a contract, and a suffi- cient memorandum, parol evidence is not admissible sub- stantially to vary it.^ § 18. The general principle of the law of agency, that a subsequent ratification of an agent's doings is equiva- lent to a previous authority, applies to the signing of a contract under the Statute of Frauds. It is held, that the statute leaves it to the common law, to determine » A question of much interest and importance has been raised, relating to the true construction of the word agreement in the statute; viz., whether the consideration of a promise must bo expressed, as well as the promise itself. The leading case of Main v. Warlters, 5 E. 16, decided this question in the aflBrmative. But, in later cases, different courts have been directly at issue on the question, and, as a point of general law, it must still be regarded as quite unsettled. Having little imme- diate connection, however, with that section of the statute which we have to consider, the subject does not require to be further noticed. See 1 Hilliard on Vendors, 103, n. ' Spicer v. Cooper, 1 Gale & Dav. 52. 2 Egerton v. Mathews, 6 E. 307. ' Batturs v. Sellers, 5 Har. & J. 117. STATUTE OP FRAUDS. 631 how an agent shall be authorized ; and that, in one re- spect, a ratification is more satisfactory than a previous authority ; in the former case, the principal knowing pre- cisely what has been done, while in the latter he must trust to the agent. Hence, where A., without authority, purchased goods for B. in writing, and B. afterwards rati- fied the purchase ; it was held sufficient under the statute.* So it has been held, that a broker, who signed the broker's note upon a sale of corn, was the agent of the seller ; and, if the buyer act upon the note, this is a sufficient adop- tion of the contract to make it binding under the stat- ute.^ § 19. In reference to the frequent mode of buying and selling through the intervention of brokers; where a broker, employed to purchase goods, writes with a pencil in his book the terms in the body of the memorandum, in presence of both parties ; this is held sufficient to bind the bargain.' And a broker, through whom a sale of goods is effected, though first employed by one party, becomes agent of the other also, when he treats with him; it being the practice of brokers to keep books, in which the terms of the contract and names of the parties are en- tered.* But a broker cannot delegate his authority with- out the assent of the principal. Thus A. employed a broker to sell goods. B., wishing to purchase, authorized the broker's salesman to offer a certain price. The sales- man brought the parties together, and they concluded an agreement in his absence, and dictated the terms to him. He made an entry, accordingly, in the book of his em- ployer, but did not sign it. He also informed the broker of the facts, who ordered his clerk to enter and sign the contract in his book, and sent a sale-note, signed by him- self, to A. ; but no bought note was sent to B. Held, an ' Maclean v. Dunn, 4 Bing. 722. ' Paley on Agency, 143 ; Maclean v. Dunn, 4 Bing. 722. ' Clason V. Bailey, 14 John. 484; Merritt v. Clason, 12 lb. 102. ♦ Hinde V. Whitehouse, 7 E. 658; Heyman v. Neale, 2 Camp. 337. 632 LAW OF SALES OP PERSONAL PROPERTY. insufficient contract under the statute.^ So, where lie does not, according to the usual course, deliver to the respec- tive parties bought and sold notes, transcribed from the books and signed by him. The entry in the book is prop- erly the original, and should therefore be signed. The bought and sold notes should be mere copies ; although per- fect notes, signed by him, and delivered to the parties, may constitute a valid contract, though there be no entry or an unsigned one in the book.^ So where a broker, by mistake, delivers to the parties, respectively, sale-notes, which diflerently describe the goods or the terms of con- tract ; the agreement is not binding.' ' Thus a broker, employed by the plaintiiF to sell Petersburgh clean hemp, and by the defendant to buy hemp, made a sale to the de- fendant, and by mistake gave him a sale-note of Riga Rhine hemp, which differed in quality from the Peters- burgh, and to the plaintiff a note of sale of Petersburgh clean hemp. Held, a void contract.^ And the statute is • Whether a material variation between the bought and sold notes, de- livered to the parties, can be corrected or aided by an entry in the book of the broker, see Thornton v. Meux, Moo. & M. 4^ ; Siveright v. Ar- chibald, 6 Eng. L. & Eq. 286. But where a bought and sold note, given to the defendant, mentioned July 1 as the day for cash with discount, at the end of both the sold and bought notes ; and the note given to the plaintiff specified this day only at the end of the bought note; and the plaintiff's note was all written on one sheet : held, the day named at the end of the bought note applied also to the contract in the sold note; and therefore the plaintiff's note sufficiently corresponded with the defen- dant's, to make a binding contract. Maclean v. Dunn, 4 Bing. 722. In reference to this subject, the following distinction has been pointed out between brokers in England and the United States: " A broker in England is a known legal public officer, governed by statute; and those who deal with him are to find out who his principals are. He cannot act as principal without violating his oath ; and he is also liable to a penalty if he does." Per "Wilde, J., Shaw v. Pinney, 13 Met. 453. ' Henderson v. Barnewall, 1 Y. & Jer. 387. 2 Grant v. Fletcher, 6 B. & G. 437; Goom v. Aflalo, 6 B. & C. 117; see Smith v. Sparrow, 2 C. & P. 544; 4 Bing. 85; 12 Moo. 266. » Grant v. Fletcher, 5 B. & C. 436 * Thornton v. Kempster, 5 Taun. 786. STATUTE OF FRAUDS. 633 not complied with by a broker's note of tbe sale, the oral sale being subject to the buyer's approval ; and evidence is not admissible of a usage of trade, by vs^hich, unless the goods are examined within a certain time, and ob- jected to, the sale shall be held complete.' § 20. Thequestionhas been often raised, whether awc^ion sales are within the statute ; and if so, what is a sufficient compliance with the requisitions of the statute. Upon these points, very eminent judges have expressed con- tradictory opinions. § 21. It was remarked by Lord Mansfield, that the solemnity of an auction sale precludes all perjury as to the fact of the sale ; and he expressed it as the inclination of his present opinion, that auctions in general are not within the statute. "Wilmot, J., was inclined to think that sales by auction, openly transacted before five hun- dred people, were not within the statute. But in a sub- sequent case Lord EUenborough remarked, that, with all due deference, it was no sufficient reason to dispense with the statute, merely because the quantum of parol evidence diminishes the danger of perjury. The same argument would apply to 9,11 sales in market overt. If we get loose from the words of the statute, the question turns upon the quantum and degree of danger of perjury, the time of sale, and the number of persons present. This construc- tion would render the statute more mischievous than beneficial to the trading world. He concluded by saying, that he was not prepared to say that sales by auction were not within the statute, or to give a conclusive opinion to the contrary.^ And upon the same point an- other distinguished judge remarks as follows : " From the public nature of a sale by auction, it does not follow that what passes there must be a matter of certainty ; so far from it, that I never saw more contradictory swearing 1 Boardman v. Spooner, 13 Allen; Law Eeg., January, 1868, p. 189. » Simon v. Motives, 1 Bl. K. 599 ; Hinde v. Whitehouse, 7 E. 568. See Davis V. Rowell, 2 Pick. 64. 634 LAW OF SALES OF PERSONAL PROPERTY. than in those cases where attempts were made to intro- duce evidence of what was said or done during the course of the sale.'" § 22. Upon the point, whether an auctioneer is to be considered the agent of both seller and purchaser, so as to make his memorandum a sufficient signing under the statute ; it is said to have been uniformly so held since the case of Simon v. Motivos ; that it would be dangerous to break in upon a rule affecting a broker's sales, where a memorandum in his book, and bought and sold notes transcribed therefrom and delivered respectively to the buyers and sellers, have been held a sufficient compliance with the statute ; that all great transactions of the city (of London) are thus conducted; and it is too late to question the practice.' § 23. Certain sugars, deposited in the king's ware- house, under locks of the king and the owner, and not removable till payment of the duties, were advertised to be sold at auction, September 20. Samples of half a pound from each hogshead, drawn out after weighing at the king's beam, and fixing the duties accordingly, were shown to the bidders. The auctioneer had before him a printed catalogue, containing the lots, marks, and number of hogsheads, and the gross weight. Written conditions of sale were also read, as applying to the sugars in the catalogue, but the two papers were not annexed, and did not refer to each other. The auctioneer wrote on the catalogue the name of the purchaser, and the bid for each lot, first remarking that the duties were unpaid, and to be paid the next day by the vendor. The biddings having closed, samples were delivered to, and accepted by the purchaser according to usage, as a part of his pur- chase, and to make up the quantity marked as weighed. September 22, before the duties could be paid, without default of the vendor, the sugars were burnt. Held, by ' Per Sir William Grant, Blagden v. Bradbear, 12 Ves. 466. » Hinde v. Whitehouse, 7 E. 569. STATUTE OF FRAUDS. 635 the principles of the common law, the auction sale passed the property, such being the intention of the parties, though it was known that payment of the duties was a necessary preliminary to delivery, and the vendee must bear the loss ; that, if the Statute of Frauds was applica- ble to auction sales, then delivery and acceptance of the sample were sufficient to pass the property ; and (it seems) that the auctioneer was the agent of both parties, and his signature therefore equivalent to theirs.' § 24. An auctioneer is so far the agent of both parties, though the vendee is himself only an agent, that the auc- tioneer's signing the name of the vendee or his agent will be a sufficient compliance with the statute; unless the auctioneer's authority be revoked by a retraction in his hearing, before the hammer is knocked down or the sig- nature made.'' And where a statute provided that the auctioneer should enter the name of the person on whose account the sale is made ; it is sufficient to enter the name of an agent, consignee, or any party having authority to sell. And the true owner may maintain an action on the contract, though not named in the entry.' § 25. An auctioneer, like any other agent for the ven- dor, need not have a written authority, to render his sig- nature sufficient under the Statute of Frauds.'' § 26. But an auctioneer's signing the name of the ven- dee in his catalogue is not a sufficient compliance with the statute, unless the conditions of sale are annexed to, or referred to by, such catalogue." And the qualified general rule is laid down, that the book of an auctioneer is a sufficient memorandum, if so headed and otherwise arranged, that the entry is intelligible, and shows what 1 7 E. 558. « Chit, on Con. 318, 319. » 12 Wend. 548. * Rucker v. Cammeyer, 1 Esp. 105 ; Chiran v. Cooke, 1 Soh. & L. 22. ' Kenworthy v. Schofield, 2 B. & C. 945. 636 LAW OF SALES OF PERSONAL PROPERTY. the transaction is.' Thus, at an auction sale of a slave, the name of the purchaser, the price and name of the slave, and the terras of sale announced at the opening of the auc- tion, were each in writing. Held, the sale was not within the Statute of Frauds.* And, in order that a signing hy an agent may bind a party, such agent must be some third person, not the other party to the suit. Thus, where an auctioneer wrote the name of the vendee, by his authority, opposite to the lot purchased, and an action was brought against the vendee in the name of the auctioneer ; held, an insufficient signing to charge the defendant.^ ^ § 27. An auctioneer's clerk is a third person authorized to sign for the vendee, if done in his presence, and with- out objection ; and the auctioneer may then maintain an action in his own name.* And the purchaser's assent may be inferred, where the clerk acts openly, and his action is acquiesced in by the company. He is then constituted deputy by the whole room, and thereby the necessity is prevented of each person making the entry for himself.' But an entry made by the clerk of the plaintiff at an exe- cution sale, who is not the clerk of the auctioneer, is not sufficient." § 28. The question has been made, whether the memo- randum of an auctioneer must be made at or immediately after the sale or descent of the hammer.'' Thus a brig » The rule that a memorandum of a sale of goods, made by an agent having merely parol authority, satisfies the Statute of Frauds, means that he should be an auctioneer or broker, or other agent of both parties ; not the mere agent of the vendee, or the agent of either party singly ; e. g. a commission merchant authorized to buy goods in behalf of a dis- tant correspondent. Sewall v. Fitch, 8 Cow. 215. 1 Gill V. Bioknell, 2 Cush. 358. See Ijams v. Hoffman, 1 Md. 423. 2 Simmons v. Anderson, 7 Rich. 67. ' Farebrother v. Simmons, 5 B. & Aid. 333. See E. & M. 325 ; 2 Camp. 203. « Bird V. Boutler, 1 Nev. & M. 313 ; 1 Md. 423. « Ijams V. Hoffman, 1 Md. 423. « lb. ' See Smith v. Arnold, 5 Mass. 419 ; Browne, s. 349. STATUTE OF FRAUDS. 637 was sold by auction at the Merchants' Exchange, in N"ew York. Immediately after the sale, the auctioneer went to his counting-room in a different building in the same street, and made the entries in his sale-book. Held, insuffi- cient to bind the bargain.' So a memorandum of sale made by an auctioneer, in which the name of the pur- chaser was not inserted until some hours after the sale, was held not so made at the time of the sale as to bind the seller under the Revised Statutes of E'ew York, 136.^ So it has been held in California, that the memorandum of an auctioneer is looked upon as a written contract between the vendor and vendee, executed by their mutual agent, whose agency closes after the sale is made. Hence the memorandum, required by the Statute of Frauds to be entered by an auctioneer in his sale-book, must be made at the very time of sale. If the sale took place in the forenoon, an entry made in the evening of the same day is too late.' § 28 a. The following is believed to be a correct state- ment of the law in reference to auction sales of real prop- erty, and is equally applicable to sales of chattels. " The weight of authority is, that an auctioneer is by impli- cation an agent, duly authorized to sign a contract for the purchase of real estate, on behalf of the highest bid- der. Writing the name of the highest bidder in his book, or memorandum of sale, is a sufficient signature, more especially if done immediately on receiving the bid and knocking down the hammer. And if the highest bidder is agent for another, and if the terms and conditions are stated, the writing of the bidder's name will bind the principal; at least if the principal is present and con- sulting with the agent during the sale, and makes no objection before the entry made in the book. The auc- tioneer's authority is given by the buyer's bidding aloud, 1 Hicks V. Whitmore, 12 "Wend. 548. » Goelet V. Cowdrey, 1 Duer, 132. » Craig V. Godfrey, 1 Cal. 415. 638 LAW OF SALES OF PERSONAL PROPERTY. or giving his name, and specific performance will be de- creed against tlie purchaser, upon the note made by the auctioneer." ' And the well-settled rule upon the general subject, with the reasons upon which it rests, is thus laid down by a late learned Chief Justice of Massachusetts : " It is now well settled by authorities, that a sale of real estate at auction, where the name of the bidder is entered by the auctioneer, or by his clerk under his direction, on the spot, and such entry is so connected with the subject and terms of the sale, as to make a part of the memorandum, is a contract in writing, so as to take the case out of the Statute of Frauds. The true reason probably is, that a sale at auction, being open and visible, and in presence of witnesses, either competitors, or persons present and closely watching the proceeding, there is less danger of fraud and perjury, in proving the making and terms of the contract, and BO the main reason for requiring a memorandum in writing does not exist. The technical ground is, that the purchaser, by the very act of bidding, connected with the usage and practice of auction sales, loudly and notori- ously calls on the auctioneer or his clerk to put down his name as the bidder, and thus confers an authority on the auctioneer or clerk to sign his name ; and this is the whole extent of the authority."' § 29. We have already considered the subject of accept- ance of goods sold, as one of the requisites to a complete sale. As this formality depends, for the most part, upon the Statute of Frauds, the same topic may in this connec- tion be somewhat further noticed. § 30. The question of delivery and acceptance, on a parol sale, is for the jury.^ § 31. Bare acceptance by the vendee as owner is suffi- cient, although he immediately states that he accepts on ' 1 Hill. Vend. 88. 2 Per Shaw, C. J., Gill v. Bicknell, 2 Cush. 358. * Johnson v. Watson, 1 Kelly, 348. See Castle v. Sworder, 6 Hurl. & N. 828. STATUTE OP FRAUDS. 639 terms different from those on which the vendor delivered • and, in an action for the price, the sale having been estab- lished by the acceptance, parol evidence of its terms is ad- missible. Thus, in an action for the price of a piano, it was proved that the piano was delivered on the defend- ant's premises ; that the plaintiff then asked ready money for the piano, but the defendant said he was entitled to keep it as security for the payment of certain bills, and refused to deliver it up again to the plaintiff. There was no memorandum in writing of the sale, but there was con- flicting parol evidence as to the terms. The jury found for the plaintiff. Held, there was no ground for disturbing the verdict.' § 32. Under a contract to sell and deliver goods in a warehouse in Liverpool, the giving a delivery order of "about" the quantity is a sufficient delivery, evidence of a known usage of warehouse-keepers not accepting de- livery orders in any other form being admissible.^ § 33. A. agreed, by parol, to sell to B. four hogs, to be taken by B. into his possession, slaughtered and dressed, and paid for at the rate of $5 per cwt., by an approved note. The hogs were delivered by A. to B., who took them to his slaughter-house, killed and dressed them, and they were found to weigh 1511| pounds, and a note for the stipulated price was tendered. Held, a complete de- livery, and that A. could not rescind the contract.^ § 34. The plaintiff and defendant bargained renpecting the sale of lumber by the former to the latter. Having agreed as to the price, the plaintiff said to the defendant, "The lumber is yours," and the defendant replied, "Get the inspector's bill and take it to H. and he will pay you the amount." This was done, and payment refused. The price was over fifty dollars, and the plaintiff sued the de- fendant in the Justices' Court, whereupon the plaintiff's • Tomkinson v. Staight, 33 Eng. Law & Bq. 328. ' Moore v. Campbell, 26 Eng. L. & Eq. 622. ' Gray v. Payne, 16 Barb. 277. 640 LAW or SALES OF PERSONAL PROPERTY. attorney and H., professing to act as tlie attorney of the defendant, but without authority from him, settled the suit for forty-one dollars, and H. gave his check on a bank, post-dated one month, to the plaintiff's attorney, who gave a receipt therefor in full, as for so much money. The de- fendant, with full knowledge of this settlement, took pos- session of the lumber and carried it to the market. Held, the taking possession was a completion of the purchase, and a ratification of the act of the agent.' The check having been dishonored, for want of funds, and the drawer being insolvent, and having obtained his discharge in bank- ruptcy, it was held, further, that, on surrendering the check, the plaintiff was entitled to recover as for goods sold.' § 35. A verbal purchaser cannot avoid payment of the purchase-money, by pleading want of delivery under the statute, when he has resold the property and received the price.' § 35 a. Where, in accordance with a verbal agreement, lumber is delivered on board of a vessel, and a bill made out at the request of the vendee, and the latter takes possession, and sells what has been saved from the wreck of the vessel ; he cannot set up the statute as a defence to. a suit for the price.^ § 36. A. sold by a written contract certain trees stand- ing upon his land to B., who, having cut and removed some of them, resold the residue to A., by parol con- tracts. Held, both were sales of " goods," but, as A. was owner and in possession of the land, the resale, eo instanti, by force of law, gave possession of the trees to him, and the delivery was perfect.' § 87. The seller and purchaser of ninety-three tons of iron, lying by itself, met at the place where the iron was, 1 Houston V. Shindler, 11 Barb. 36. = lb. ' Marshall v. Ferguson, 23 Cal. 65. * Goddard v. Demerritt, 48 Maine, 211. ' Smith V. Bryan, 6 Md. 141. STATUTE OF FRAUDS. 641 and agreed upon tlie price and the mode of payment ; they then stepped up to the iron, and the vendor said to the vendee, "I deliver you this iron, at that price;" after which, before the iron w&a moved, it was claimed and taken away by a third person. Held, an actual delivery and receiving.' § 38. Goods are received and accepted when transported by the seller to the place of delivery appointed by the agent who contracted for them, and there delivered to another agent of the purchaser, and by him shipped to a port, where the purchaser had given him general direc- tions to ship goods of the same kind.'' § 39. Goods were sold, to arrive by a certain . ship, and be taken from the quay. The purchaser afterwards ver- bally consented to the goods being warehoused, instead of being delivered from the quay. Held, in an action for non-delivery of the goods, that such consent did not sup- port a plea of rescission of the contract.' § 40. Upon the sale of a horse by the plaintiff to the defendant, the plaintiff, before actual delivery, asked the defendant to lend him a horse for a short time, as he had two or three journeys to make. The defendant assented, and the horse remained for a fortnight with the plaintiff, and was used in those journeys, and afterwards sent to the defendant, who refused to receive him. Held, a suffi- cient acceptance.^ § 41. "Where an auction sale of sheep was entered by the clerk in his book, and the sheep, at the request of the vendee, who said that he " would run the risk " and "pay the bills," were put into the vendor's yard till the weather permitted their removal; held, not within the statute.^ 1 Calkins v. Lockwood, 17 Conn. 154. ' Snow V. Warner, 10 Met. 132. » Moore v. Campbell, 26 Eng. L. & Eq. 522. * Marvin v. Wallace, 37 Eng. L. & Eq. 6. ' Green v. Merrian, 2 Wms. 801. 41 642 LAW OF SALES OF PERSONAL PKOPERTY. § 42. While entire delivery takes a case out of the statute ; ' so even partial delivery is held sufficient.^ And delivery may be subsequent to the agreement." ^ § 43. Where cash is to be paid on delivery, payment is sufficient evidence of delivery.^ So where one agreed to deliver merchandise at a certain place and time and price, and he received a part of the price, and agreed to be pres- ent on the following day, to receive a further sum, and reduce the agreement to writing, but failed to be present, - In an action for goods sold and delivered, it appeared that the de- fendant went to the plaintiffs, at Liverpool, and said he wanted to buy from 150 to 200 firkins of butter. He then went with one of them to their cellar, where he was shown a lot of 156 firkins, six of which he opened and inspected. Afterwards, on the same day, the plaintiffs and defendant made a verbal agreement, by which the defendant agreed to buy that specific lot at 77s. per cwt. The defendant took a card, on which his name and address in London were written, "Edmund Eobin- son, 1 Wellington Street, London Bridge, London," and wrote on it " 156 firkins butter, to be delivered at Fenning's Wharf, Tooley Street." He gave this to the plaintiffs, and at the same time said that his agents, Messrs. C, at Liverpool, would give directions how the goods were to be forwarded to Penning's Wharf. The plaintiffs, by C.'s directions, delivered the butter to P.'s carts, to be forwarded to the defendant at Fenning's Wharf. The plaintiffs sent an invoice, dated the 25th of Oc- tober, 1860, to the address on the defendant's card. They received, in answer, a letter purporting to come from a clerk in the defendant's office, acknowledging the receipt of the invoice, and stating that on the de- fendant's return he would no doubt attend to it. A clerk at Fenning's Wharf proved that Messrs. Fennings stored goods for their customers, and had a butter warehouse; that the defendant had used the warehouse for fifteen years, and was in the habit of keeping his butters there till he sold them. On the 26th of October P. & Co. had delivered a part of the 156 firkins in question at the warehouse, and delivered the residue after- wards. The witness could not say whether any one came to inspect them or not, but he proved that they were delivered up by Fenning to P. & Co. under a delivery order from the defendant, dated 27th October. Held, there was evidence of an acceptance, and actual receipt, sufficient to satisfy the statute. Cusack v. Eobinson, 1 Ell., B &. S. 299. 1 Houghtaling v. Ball, 19 Mis. 84. ' Dennison v. Carnahan, 1 E. D. Smith, 144. s Marsh v. Hyde, 3 Gray, 331 ; 1 EU. B. & S. 299. * Aguirre v. Allen, 10 Barb. 74. STATUTE OF FRAUDS, 643 and refused to perform his agreement, and the other party was present and ready ; held, the agreement was a com- pleted one, and the part-payment took the case out of the statute.' § 44. But while a parol sale, unaccompanied by any act of the vendee indicating acceptance, is void ;- on the other hand, acceptance and actual receipt must be shown, to take a case out of the statute.' § 45. And acceptance requires some unequivocal act,^ so that the buyer can take no exception to the quantity or quality.* Thus where wood is to be " measured and in- spected the next spring," there is no acceptance, if there has been no such measuring and inspecting.^ A promise or declaration of the buyer, that he will take the goods then left for him at another place, at a future day, is not an acceptance, or an admission of acceptance.' So, if a bargain be made between two persons for the sale of cattle which they are looking at in the field, and it is agreed that the cattle shall be from that tim* the property of the purchaser, and be kept at his expense by the vendor, but the payment and delivery are postponed to a future day ; it is no sale within the statute.* § 45 a. An action does not lie for the value of a span of horses alleged to have been sold, under a verbal con- tract that the plaintiff should remain in possession, no act having been done by either party indicating any change in the character of the possession.' § 46. The purchase of personal property of greater value than thirty dollars, without delivery, vests no title ' White V. Allen, 9 Ind. 561. 2 Alderton v. Buchoz, 3 Mich. 322; 1 Cal. 399. ' Shepherd v. Pressey, 32 N. H. 49 ; 1 Ell. B. & S. 299. ♦ Denny v. Williams, 5 Allen, 1. » 48 Maine, 379. ' Edwards v. Grand, &c. 48 Maine, 379. ' Shepherd v. Pressey, 32 N. H. 49. « Kirby v. Johnson, 22 Mis. 854. 9 Malone T. Plato, 22 Cal. 103. 644 LAW OP SALES OF PERSONAL PROPERTY. in the purchaser, to enable him to sell it, as against a mortgage to the vendor, made simultaneously with its de- livery to such purchaser/ § 47. A. being in possession of machinery, as bailee for hire, by an agreement with B., the owner, a parol contract was made, that A. should have it for a specified sum, but was not to remove it until he paid for it. B., by notice, put an end to the contract for hire ; and at the expiration of the notice A. tendered the price agreed on, which B. refused to receive, alleging there was no contract. Held, there was no acceptance.^ § 48. Where a person agrees to buy goods to be sepa- rated from the bulk, and directs them to be sent, when separated, to a particular place, the mere delivery at that place by the vendor is not of itself a sufficient acceptance or receipt within the Statute of Frauds ; for the pur- chaser must have the opportunity of exercising his op- tion, after the separation has been made, unless he has done some act to deprive himself of that option.' § 49. The plaintiff sent twenty sacks of seed to the de- fendants, in part -performance of a verbal contract for the sale of seed, to the value of more than £10. On the same day, one of the defendants informed the plaintiff, that he had heard the seed had arrived out of condition. The plaintiff" asserted it was in condition. Immediately after- wards the defendants wrote to the plaintiff rejecting the seed, and in one of the letters informed him that " the twenty sacks which you authorized us to receive for you, and to lay out thin in consequence of its being hot and mould}'," would be returned. On the trial, the above facts being proved by the plaintiff, who gave evidence that he gave no authority to spread it out, and that the seed was not hot and mouldy, the judge directed a non- suit, with leave to enter a verdict if there was any evi- 1 Head v. Goodwin, 37 Maine, 181. 2 Taylor v. Wakefield, 37 Eng. L. & Eq. 101. ' Hunt V. Hecht, 20 Ejig. L. & Eq. 524. STATUTE OF FRAUDS. 645 dence of an acceptance of part of the goods. Held, by- Lord Campbell, C. J., Erie J., and Crompton, J. (Wight- man, J., dissenting), that there being evidence to go to the jury that the seed was spread out thin, neither be- cause it was out of condition, nor by the plaintiff's au- thority, there was evidence that it was spread out thin as an act of acceptance ; and, therefore, the nonsuit was wrong. But the court thought the evidence too slight to justify them in entering a verdict for the plaintiff, and directed a new trial .^ § 49 a. The statute is not complied with by accept- ance, in Massachusetts, of a bill of goods which are in a warehouse in New York, with an order for them on the warehouseman without notice to him.'' § 50. Goods ordered by parol were shipped on board a general ship, consigned to a carrier named by the vendee, to forward them, notice being sent to the vendee of the shipment, and the bill of lading being also sent to the carrier, which was not returned, nor was any step taken to repudiate the bargain, until after news arrived of the loss of the ship and goods. Held, there was no sufficient receipt and acceptance of the goods, and the vendees were not hable for the price.' So where the defendant verbally agreed for a cargo of coal, and the plaintiff was to find a vessel for its transportation, which was wrecked on the passage ; held, acceptance was necessary as well as deliv- ery, and an action for the price could not be maintained.'' So A., the agent in Boston of the plaintiffs, doing busi- ness in Baltimore, received from the defendants a verbal order for a cargo of coal, to be shipped by the plaintiffs from Baltimore in a vessel drawing not more than ten feet of water, at a freight not over $2.25 a ton. This order was duly forwarded by A. to the plaintiffs, and a cargo 1 Parker v. Wallis, 37 Eng. L. &Eq. 26. 2 Boardman v. Spooner, 13 Allen ; Law Keg., Jan., 1868, p. 188. » Meredith v. Meigh, 22 Eng. L. & Eq. 91. * Maxwell v. Brown, 39 Maine, 98. 646 LAW OF SALES OF PERSONAL PROPERTY. was shipped on board a vessel whose draught did not ex- ceed ten feet. A bill of lading was forwarded to A., and by him received in due course of mail, by which the cargo was consigned to A., or his order, for the defendants, and the freight was specified to be §2.45 a ton. On the day the bill of lading was received, A. indorsed it to the de- fendants, and delivered it to them, together with a bill of the coal, in which the price was reduced twenty cents a ton, to offset the increase of freight beyond the limits of the defendants' order. The defendants promptly sent back the bill of lading, and refused to receive the coal. On the passage from Baltimore to Boston, the vessel in which the coal had been shipped foundered, but was raised and re- paired, and arrived in Boston, whereupon A. tendered the coal to the defendants, who refused to receive it. In an action for goods sold and delivered, in addition to the above facts, a usage of the coal trade between Baltimore and Boston was proved, by which, when coal is ordered in Boston from Baltimore, the delivery of it, on board a vessel consigned to the person ordering it, was a compliance with the order, and the coal was thereafter at the risk of the party ordering it ; but it was held, that there was, in this case, no actual or constructive acceptance and receipt of the coal.' § 50 a. A. verbally purchased wheat by sample from B., delivery to be in L. B. sent the wheat to L. by railroad, consigned to A., and notified A. The railroad stored the wheat and entered it in their books as " from B. to A." Usually the company kept stored grain for fourteen days free of charge, and then, if not removed by the consignee, they delivered it to him at his expense, and consignees customarily, before accepting, took a bulk-sample to com- pare with the purchase-sample. The day after arrival, A. sent for a bulk-sample, examined it, and on the next day said, " Don't work it {i. e. bring it home) at present." 1 Prostburg, &c. v. New England, &c. 9 Cush. 115. STATUTE OF FRAUDS. 647 Later on the same day, A. being embarrassed, called a meeting of his creditors on the day following, at which B. attended and asked for an order for the wheat, which the interference of the other creditors alone prevented his re- ceiving ; he then went to the station, stopped the wheat, and directed the company to hold it for his order. In a suit by A.'s assignees to recover from B., held, assuming the transitus to have been at an end on arrival of the wheat at the warehouse, yet there was no acceptance by A., and the property never vested in him.' § 51. In reference to payment, as satisfying the statute ; a part-payment will not be sufficient, unless made at the time of the contract.'' § 52. A. made a parol agreement to sell to B. cattle then on A.'8 farm, near by, but not in sight ; the price to be paid on a future day, unless B. took the cattle away sooner. A. agreed to keep the cattle till that day, unless B. took them away before. B. never took any of them away. In an action for the price, held, there was no delivery and ac- ceptance.' § 53. Where M. & Co., being indebted to W., sold him goods, and there was no proof that the price should be, or that it was, applied by receipt or otherwise to the debts, but it appeared from the bill of parcels that W. was to give a note at ten months, payable to his own order ; held, there was no payment sufficient to take the case out of the statute.* § 54. If earnest is paid, parol evidence is admissible, as to a change of time.^ 1 Nicholson v. Bower, 1 Bll. & E. 172. ' Bissell V. Balooni, 40 Barb. 98. » 40 Barb. 98. « Wylie V. Kelly, 41 Barb. 594. > Packer v. Steward, 34 Verm. 127. INDEX. A. ABJTJEATION, of husband, sale In case of, 76. ACCEPTANCE, under the Statute of Frauds, — constructive acceptance, 222, 637. what is not an, 224. in case of part-delivery, 154, 215, 226. sale by sample, 228. question of, is for the jury, 229. of offer, 18. and lien for price, 265. whether suflScient to sustain an action for goods sold, &c., 518. ACCEPTED, meaning of the tsrm, 222. ACCEPTOR, stoppage in transitu by, 307. ACCESSION, title by, 203. A ceo UNT ANNEXED, action on, 537, n. ACT OP LAW, sale by, 12. ACTIO ESTIMATORIA, 325. ACTION (see Remedies), 503. when purchaser must bring, against third person, 7. when commenced, 248. in case of warranty, 374. upon chose in action assigned, 602, 610. ACTUAL AND CONSTRUCTIVE DELIVEEY,— distinction, 202. fraud, 457. ADMISSION, of agent, 90. ADULTERY, sale in case of, 74, 75. ADVERSE POSSESSION, sale in case of, 16 n., 500. 650 INDEX. AFFIRMATION, whether a warranty, 341. AGENCY of partner, in a sale, 110. AGENT, sale, in case of, 71, 83, and n., 510. possession of, dispenses with delivery, 140. security given to, whether binding on principal, 235. stoppage in transitu by, 280, n. sale by sample by, 359. warranty by, 385. execution of contract by, 630. ALIEN ENEMY, sale in case of, 83. stoppage in transitu by, 320. ALIMONY, sale in case of, 75 and n. ALTERNATIVE SALE, 65, 219. allegation of, 544. APPOINTMENT OF AGENT, form of, 86. ARBITRATION, price determined by, 230 and n. ARRIVAL, condition as to construction of, 42 and n. what defeats stoppage in transitu, 292. ASSIGNEE, lien of vendor against, 272. ASSIGNMENT, of contingent debt, 16. choses in action, 556. what are assignable — wrongs, accounts, policies, shares, judg- ments, &c. ; statutory law, 557. form or mode of; whether written ; order upon a third person, &c., 574. effect of; liability of the debtor ; notice, set-off, &c., 587. remedy in case of; proceedings in law and equity; liability of assignor to assignee ; warranty, &c., 599. ATTACHMENT, sale in case of, 129 and n. stoppage in transitu, paramount to, 289. AUCTION, 249. — sale by sample no warranty, 364. whether Statute of Frauds applies to, 633. what is, 249. bidding at, 250. INDEX. 661 AU CTWN— continued. what avoids, 256. misrepresentation, 256. puffing, 258. combination of bidders, 262. AIJCTIONEEE, a factor, 84, n. rights and duties of, 251. interest of, in goods, 255. signing by, under the Statute of Frauds, 634. B. BAILEE, when a seller becomes a, 22, n. BAILMENT AND SALE, distinction, 22, 513. BANKRUPT, property in the order, &c. of 7, n. possession of — fraudulent conveyance, 177, n., 183, 212, n. BANKRUPTCY, sale in contemplation of, 460, 472. BARTER AND SALE, distinction, 2, n., 10, 514. BEZOAR-STONE, case of, 365 and n. BIDDING AT AUCTION, what, 250. effect of, 250. BILL OP SALE, whether necessary, 4 and n. a substitute for delivery, 135. BILL OF LADING, whether necessary, 4. equivalent to delivery, 141. effect of, 212, n. indorsement of — stoppage in transitu, 307, 309. BILL OF EXCHANGE, ETC., payment by, 235, 236, n., 239, 244. for warranted goods, defence, 375. BONA FIDE PURCHASER, in case of fraud, 441. sale must be, though for consideration, 454, 466. BOND, defence to, 548. 652 INDEX. BOOKS OP ACCOUNT, charges in, 537. BOUGHT, meaning of the term, 56. and sold notes, sale by, 98, 360. BREACH OF WARRANTY, 370. BROKER, sale by, 48. and factor, distinction, 83 and n., 96. authority of, 97. sale by sample by, 359. execution of contract by, 631. BURDEN OP PROOF, as to fraudulent conveyance, 471. warranty, 384. CAPTAIN OF SHIP (see Master), sale to, 94. CAPTURE, sale in case of, 51. CARRIER, delivery to, 6, n., 168. stoppage in transitu after, 299 and n . , 309 . and warehouseman — distinction, 300, n. CARTER, ■ sale by, 99. CASH, sale presumed to be for, 242 and n. CAVEAT EMPTOR, 48, 323, n., 324, n. in case of sale by sample, 360, S62. of provisions, 365. as to title, 388, n. venditor, 322, ii. CERTAINTY OF PRICE, 230 and n. CERTIFICATE, sale by, 5. CHAMPERTY, 604. CHANCERY (see Equity), decree, assignment of, 571. suit in, upon a chose in action assigned, 602. CHECK, payment by, 233, 236. INDEX. 653 CHOSE IN ACTION ANB IN POSSESSION.-ihtincUon, 55. sale of, 556. (See Assignment.) definition of, 556. CEOSES IN ACTION, sale of, whether the Statute of Frauds applies to, 620 CIVIL LAW, as to delivery, 119, n. warranty, 822 n. CIVILITER MORTUUS, husband and wife, 76. COLLUSION, in case of fraudulent conveyance, 466. COMBINATION, at auction sale, 262. COMMENCEMENT OP SUIT, what, 248. COMMON LAW (see Civil Law), as to delivery, 119 and n. warranty, 323 and n., 326. COMPENSATION, agreement for, at auction, 257. COMPOUNDING A FELON T, sale for, 480, n. CONCEALMENT, 114, 433, n., 447. CONDITION OF SALE, whether waived by delivery, 36. construction of, 42. and lien, distinction, 267. CONDITIONAL SALE, 31, 267. delivery in case of, 61. construction of, 65. possession in case of, 178 and n. of manufactured article, 200 and n. return of property, 377. and fraudulent sale — distinction, 442. and absolute sale, distinction as to fraud, 456. delivery, 31, 157. and stoppage in transitu — distinction, 284. CONSIDEEATION, effect of, upon sale, 454, 466. good or valuable, 454, 467. statement of, under the Statute of Frauds, 630, n. inadequacy of, 456, 466, 546, n. what sufficient, 456. illegality of, 480 and n. failure of, 547, n. of assignment of chose in action, 604. 654 INDEX. CONSIGNMENT AND SALE, distinction, 27, 513. eONSTEUCTION OP SALES, 53. in case of manufacture, 58. as affected by delivery, 61. want of identification, 63. in case of alternative or condition, 65. contract for sale and delivery, 65. by the risk, 67. ability of the seller to perform, 68. notice, usage, and statute, 68. ■ of bill of sale, &c., 5. doubtful contract, 68. Statute of Frauds, 614, n., 616. CONSTKTJCTIVB DELIVERY, 123, 155, 266. and actual delivery, in case of incomplete sale, 201. delivery, stoppage in transitu in case of, 285, 288. fraud, 457 and n. CONTEMPLATION OF BANKRUPTCY, 460, 472. CONTRACT AND OFFER, distinction, 18. and tort, in case of infants, 82, n. CORPORATIONS, shares in, assignment of, 568. COTTON, sale of, 360, 362, 508, n. CREDIT, sale on, 242. must be proved, 242. in case of sale and return, 244. expiration of — suit, 244. by bills, &c., on time — suit, 244. election as to, 246. coinmencement of suit in case of, 248. sale on, no lien in case of, 274. time of action in case of, 521. CREDITOR, who is, in relation to fraudulent conveyance, 465. CROP, sale of, 575, n., 622, n. CUSTOM (see Usnge), as to warranty, 329, 342, n. memorandum under Statute of Frauds, 623, n. CUSTOM-HOUSE, goods in, whether liable to stoppage in transitu, 293, n. INDEX. 655 D. DAMAGES, nominal, in action for goods sold, &c., 549. measure of, 549. in action by purchaser against seller, 551. remote, whether recoverable, 552. in case of warranty, 386. mitigation of, in suit by seller, 546 and n. DECEIT, action of, in case of warranty, 382 and n. and warranty, distinction, 382 and n. of seller, as ground of defence, 546 and n. action for, damages in, 552, n. DECLARATION, in case of warranty, 382 and n. actions on sales, generally, 536. DECREE IN CHANCERY, assignment of, 571. DEED, not necessary to a sale, 4. assignment by, 574. DEFENCES, in actions on sales, 545 and n. DEFINITION OF SALE, 1. DELEGATION OP AGENCY, 86. DELIVERY, whether necessary to a sale, 1 and n., 119. effect of, as constituting an executed sale, 61. entire contract for sale and, 64. assignment of chose in action by, 574. of property not easily deliverable, 186. successive sales, delivery to one purchaser, 186. of ships, &c., at sea, 211. time and place of, 215. construction of the term, as to time, &c., 218. to carrier, 7, n., 168. (See Cari-ier.) by and to infant, effect of, 81, n. and acceptance, distinction, 222. effect of, on lien, 266. what, terminates the right of stoppage in transitu, 285, 288. necessary to action for goods sold and delivered, 518, 524. in auction sales, 122. a question for the jury, 122. possession of the buyer, constructive delivery, 122, 123. 656 INDEX. DELIVERY— conrtn!iC(i. by marking, 127. in case of tenancy in common, 128, 140. lien or attachment, 129. execution, 122. by an order, &c., 130. written instrument, 135, 141. delivery of key, 137. lease of building, 138. in case of possession of the purchaser, 139. by bill of lading, 141. of property in possession of a third person, 146, 183. in case of agreement for future possession, 148. in part, 152, 226. of a sample, 156. conditional, 157. in relation to creditors, 176. want of, whether conclusive evidence of fraud f distinction between absolute and conditional sales, 177. change of possession must be substantial, 184. execution sale, 184. purchase, with the goods as security, 185. successive sales to creditors, 185. notice of sale to a creditor, 186. DELIVERY ORDER, stoppage in transitu in case of, 317. DEMAND, necessity of, to maintain an action, 503, 538. DEPOSIT, in auction sale, 252. DESCRIPTION, warranty by, 337, 343, 351, 353. and warranty, distinction, 356, n. and sale by sample, 352, 359, n., 361. DISCHARGE, of debt, after assignment, 570, 596, 606. DISEASE OF HORSES, warranty in case of, 370. DIVORCE, sale in case of, 76. DOLUS VERSATUR IN GENERALIBUS, 454. DURESS, as affecting a sale, 83. INDEX. 557 E. EAR-MARK, money has no, 99. EARNEST, 20. ELECTION, as to time and place of delivery, 219. credit, 246. ELOPEMENT, sale in case of, 74, 75. ENEMY, sale, by or to, 491, n. EQUITY, stoppage in transitu in, 282, n. jurisdiction of fraud, 432, 457, n., 470. assignment of choses in action in, 561, 576. EQUITIES, assignee of chose in action takes subject to, 594. EVICTION— warranty of title, 392. allegation of, 538. EVIDENCE, In case of warranty, 384 and n. of fraud, 446, 470. in law and equity, 457, n., 470. in action for goods sold, &c., 51'2, n. EXCHANGE AND SALE, distinction, 2, n., 10, n., 514. of securities, and sale, distinction, 11 and n. by agent, 88. EXECUTED AND EXECUTORY, contract, distinction, 53, n., 54 and n. application of Statute of Frauds to, 225, ii., 615. EXECUTION SALE, 107. possession of debtor after, 184. stoppage in transitu paramount to, 289. sale, whether warranty of title in, 389, n. EXECUTOES, ETC., sale by, 104. EXPRESS AND IMPLIED TRUST, distinction as to fraud, 455. 42 658 INDEX. F. PAOTOK, sale in case of, 83 and n. and broker, distinction, 83, n., 96. stoppage in transitu by, 305. lien of, 306, n. PAIE, sale in a, 45, n. PATHEE, liability of, 78 and n., 510 /n. (See Infant.) PBLONY, and fraud, distinction, 438, 443, n. FOREIGN SALE, 51. FOEEIGNEE, sale by and to, 491. FOEM OF SALE, 4. assignment, of choses in action, 574. contract, under the Statute of Frauds, 623. FEAUD, of seller or buyer, 431, 545, n. buyer, whether it avoids the sale— rescinding for, 409, 236, 405 and n. insolvency, intent not to pay, &c., 244, 439. effect upon purchasers from him ; distinction between fraud and a condition, 441. evidence to prove ; other similar transactions, 446. action for, against third persons, 447. what secret arrangement by the seller is a, 447. property obtained by, suit for the price of, 450. taking of, whether a trespass, &c., 451. and warranty, 881, 384, n., 545. contract implied from, 11. of infant, 80 and n. agent, 96. partner, 113, 114. prior to sale, effect of, 384, n. and felony, distinction, 438, 443, n. in law and fact, 457, 465. action for goods sold, &c., in case of, 523, 529. on creditors, 452. at common law and by statute, 453. Twyne's case, 454. a trust is evidence of, 455. in case of absolute and conditional sales, 456. INDEX. 659 FRAUD — continued. on creditors, whether actual or constructive, 457 465. in law and equity, 457, n. as to subsequent creditors, 458. how defeated, 460. in case of bankruptcy, 460. in reference to delivery, 120. possession, 176. FEAUDULENT AND CONDITIONAL SALE, distinction, 443. conveyance, 452. good between the parties, 468. FUTURE PEOPEETY, sale of, 14, 494. debt, assignment of, 573, n. G. GENERAL AND SPECIAL AGENTS, 85, 89 and n. GIFT AND SALE, distinction, 2, n. GOOD CONSIDERATION, 454, 467. GOODS, 508, n., 620. GOODS BAEGAINED AND SOLD, 531. GOODS SOLD AND DELIVERED, action for, in case of bill, &c., for the price, 244 and n. election as to credit, 246. action for, 508. no express promise necessary, 509. in case of sale or return, 509. party liable to, 510 and ii. requires a sale, 512. and by the plaintiff, 516. lies, for goods not received, through the pur- chaser's fault, 516. in case of special contract, 518, n., 519. not in case of incomplete sale, 624. in case of bill, &c., for the price, 244. at what time, 521. in ca.se of fraud of the purchaser, 527. delivery necessary to, 624. in case of part-delivery, 525. tort, 527. inspection of goods in, 530. GOOD-WILL, sale of, 499. GRAND BILL OF SALE, 212, n. 660 INDEX. H. HOESE, warranty of, 338, 353, 370. HUSBAND AND WIFE, 6ale in case of, 71. conveyance by, to wife, 467. I. IDIOTS, sale in case of, 81. ILLEGAL SALE (see Void, ^-c), 479. and voidable sale, distinction, 460. assignment of chose in action, 604. IMMOKAL SALE, 375. IMPLIED SALE, 11. authority of agent, &c., 86. acceptance, 223. price, 231. warranty, 322 and n., 387 and n. trust for vendor, 456. INADEQUACY, of consideration, 456, 466, 546, n. INCOMPLETE SALE, 189, 520, 524. acts to be done before delivery, 189. of an unseparated portion, 191. of the whole property, but unweighed, &c., 195. of a single article, 199. in case of actual delivery and payment, 201. exceptions to the general rule; intention; substantial completion, &G., 204. stoppage in transitu in case of, 290 and n. INDORSEMENT OF BILL OF LADING, 212, 307, 309. INFANTS, sale in case of, 71, 76, 510. INSOLVENCY, stoppage in transitu, 280, 291. contemplation of, 460, 472. INSPECTION OF GOODS, order for, 530. INSURANCE, representation and warranty in, 346. policy of, assignment of, 567. INTENTION, gathered from the whole of a writing, 53, n. eft'ect of, in inconjplete sale, 204 and n. as to payment — fraud, 439. delivery a question of, 121, n. INDEX. 661 INTEREST ON AUCTION DEPOSIT, 254. for goods sold, 551. INVOICE, sale by, 5, 137, 316. JOINT AND SEVERAL "WARRANTY, 372. action, by assignor and assignee of chose in action, 612. JUDGMENT FOR DAMAGES, transfer of title by, 12, 13, ii. assignment of, 569, 576, 583. JUDICIAL SALE, 106. no warranty in, 364. JURY, delivery a question for the, 122, 126, n., 154, 212, 637. fraudulent conveyance, whether a question for the, 177 andn. intention is a question for the, 204, n., 440. acceptance is a question fpr the, 229, 637. question for, in sale by sample, 362. assignment of chose, a question for the, 574, n. K. KEY, delivery of, 124, 137, 156, n. KING, suit by, on chose in action assigned, 603. LAW AND EQUITY, in case of fraud, 432, 457, n., 470. assignment in, of choses in action (see Assignment, Choses, #e.). LEASE, delivery by, 138. LETTER OF ATTORNEY, assignment by, 682. LICENSE, assignment of, 574, n. LIEN OP SELLER FOR THE PRICE, 265. founded on possession, 266. distinction between, and condition, 267. how lost or forfeited, 271. against whom enforced, 272. effect of part-delivery upon, 273. in case of sale on credit, and security for the price, 274. whether affected by suit against the purchaser, 276. 662 INDEX. LIEN OP SELLER FOE THE 7B,ICE— continued. between part-owners, 277. on ship, 61, n. delivery in case of, 156, n. and stoppage in transitu, distinction, 280. , of factor, 306, u. LIQUIDS AND SOLIDS, distinction as to the sale of, 191. LORD'S DAY, sale on, 500. LOTTERY TICKETS, sale of, 485 and n. M. MANUFACTURE AND SALE, 58. distinction of, 11. contract of, whether a sale or a bailment, 22, 38. conditional sale in case of, 38, 200 and n. warranty in case of, 334. whether Statute of Frauds applies to, 616. MARITIME LIEN, 271, n. MARKET OVERT, 44, 88. MARKING OF GOODS, 127, 155. MASTER AND SERVANT, sale in case of, 86. of ship, sale to, 94. by, 214. MEMORANDUM, what sufficient under the Statute of Frauds, 623. MERCHANDISE, what, 620. MERCHANTABLE PRICE, effect as to warranty, 380. whether thing sold must he, 335. MIDDLEMAN, stoppage in transitu in case of, 304, 309, n. MISREPRESENTATION, of partner in sale, 114. in auction sale, 256. by seller (see Fraud). MITIGATION OP DAMAGES, in sale, 545 and n. MISTAKE, suit for property taken by, 50. in case of sale, 437, n., 479, n. effect of, on price, 552. MONEY, stoppage in transitu of, 320. had and received, suit for, 426, 533. INDEX. MOEALITY, ETC., • sale against, 492. MORTGAGE, possession in case of, 178 and n. of ship, delivery, 212, u. security and payment by, 238. MUNIMENTS OF TITLE, possession of, 98. MUTUAL EESCINDING (see Rescinding). N. NECESSAEIES, sold to wife, 72 and n., 510 and n. infant, 77, 78, 79, n. for ship, 94. NEMO IN ALIUM, ETC., 45, 51. NOMINAL DAMAGES IN CASE OP SALE, 549. NOTE, fraud in case of, 547. NOTICE, construction of sale by, 68. of assignment of chose, 596. NUDA LAVS, 325, n. O. OEFEE, and contract, 18. to return, when sufficient, 376. OFFICE, sale of, 493. OFFICEE OF THE LAW, no implied warranty in case of, 326, u. assignment by, 575, n. OPINION AND WAEEANTT, 341 and n. OEDEE, sale by, 9, 131, 192. and disposition of bankrupt, 177, 306. assignment of chose by, 587. PACKER, sale by, 99. PAEOL EVIDENCE, as to writing, 70, n. price, 232. auction sale, 257. 663 664 INDEX. PAROL — continued. warranty, 349, 384. evidence, as to sale by sample, 360. assignment of chose in action, 575. PART EXECUTION OP SALE, 8, 517, n., 519. delivery, 152, 156, 213, 226, 273, 286, 313, 641. acceptance, 215, 226. -owners of ship, sale in case of, 95. sale by, 112, 114. lien between, 277. payment, 20, 273, n., 319. rescinding, 427. of consideration, illegal, 480 and n. PARTIES, to a sale, husband and wife, 71. infants, 76. idiots, lunatics, &c., 81. persons under duress, 83. alien enemies, 83. agents, &c., 83. executors, &c., 104. ofScers of law, 106. partners, 110. to a suit on a warranty, 383, n. action for goods sold, &c., 510 and n. PARTNERS, sale in case of, 110, 511, n. PAUPER, assignment of, 673. PAYMENT, whether necessary to a sale, 3, 5, 20. condition of, 157. in case of incomplete sale, 193. must generally be in cash, 232. by check, &c., 233. stoppage in transitu in case of, 319. delivery of goods in, 549. effect of under Statute of Frauds, 647. PENDENTE LITE, sale, 454, 458. PICTURE, warranty as to, 352, 354. PLACE OE DELIVERY, 215, 217. stoppage in transitu, 294. PLEADING, in case of sale, 382, 536. INDEX. 665 PLEDGE OF BILL OF LADING, 307. POLICY OF INSURANCE, assignment of, 6G7. PONDEEOUS GOODS, sale of, 124, 126 and n. POSSESSION, and property, distinction, 6, 7, 265. of buyer, delivery in case of, 139 and n. agent, delivery in case of, 140. third person, delivery in case of, 146, 183, 192. retained by seller, 148. fraud inferred from, 176, 454, 470. of one of several purchasers, 186. change of — acceptance, 223. and lien, 266. what sufficient for stoppage in transitu, 285, n. in reference to warranty of title, 387 and n. POSSIBILITY, sale of, 14. PEEFEEENCE, 460, 466, 472. PEESTJMPTION, of sale for cash, 242. of fraud, 432, 470. PEICE, in sale, 1, 230. necessity and certainty of, 230. mention of, under Statute of Frauds, 629. reasonable, when implied, 231. parol evidence of, 232. payment of, when in cash, 232. by bills, &c., effect on righl of action, 235, 239. other securities, 238. payment of a debt, 239. paid in advance, 240. amount of, in case of defect, 339. variance as to, 543. reduction of, 545, n. PEINCIPAL AND AGENT (see Agent), stoppage in transitu in case of, 305. PEIVITY, in case of warranty, 883, n. action for goods sold, &c., 532. PEOHIBITION BY STATUTE, effect on sale, 480. PBOPEETY AND POSSESSION, distinction, 6, 7 and n., 9, 20, 265. 666 INDEX. PROPRIETAS TOTIVS NAVIS, ETC., 17, 60, 61, n. PEOVISIONS, sale of, 334, 365. PUBLIC AGENTS, liability of, 92. policy, sale against, 493 and n. Q. qVANTI MINORIS ACTION, 246, n. quantity, warranty of, 348, n. quifacit, ^c, 62. E. EATIPICATION, of act of agent, 87. partner, 112. EEADINESS, when equivalent to a tender, 506. EEASONABLE, time for delivery, 217. price, implication of, 231. time, in case of sale or return, 244. of rescinding, 409, 415, 417. EECEIPT, a substitute for delivery, 136. REDHIBITORY ACTION, 324. EEPUSAL, contract for, 30, n. RELATION, sale to, 467. EELEASB, by assignor of chose in action, 595. EEMBDIES, 503. EEPEAL OF STATUTE, effect on sale, 487. EEPEESENTATION, of agent, 90. whether a warranty, 341. and warranty, in insurance^ 346, n. EESALE, delivery in case of, 156, n. stoppage in transitu in case of, 317. by vendor, action for goods bargained, &o., in case of, 531. INDEX. QQiJ KESOINDING OP SALE, 395. by mutual consent, 395. distinction between, and stoppage in transitu, 281, 398. „ not affected by subsequent insolvency of the purcliaser, 400. in case of part-payment, 402. in part, 403. by resale or re-exchange, 408. by vendor for non-payment, fraud, &o., 236, 405. by vendee, 414. legal effect of, 428. by auctioneer, 252. demand or tender in case of, 504. action for goods sold, &c., in case of, 518, n., 519. of assignment of chose in action, 599. BESTEAINT OF TRADE, contract in, 499. RETURN, when necessary to actions for goods sold, &c., 521, of execution sale, 108. in case of fraud, 504. by vendor, in case of rescinding, 405, 409, n. vendee, 376, 415, 421, 547, 551. of note given for the price, 438. REVENUE, sale injuriously affecting, 488. KEVOCATION, of agent's authority, 90. assignment of chose in action, 596, n., 599. RISK, after sale, 9, 64 and n. , 67. 8. SALE, what constitutes a, 1. or return, contract of, 28, 509, 514, 532. of several articles together, whether joint or several, 8. risk after, 9, 54, 67. and exchange, 2, 10. by implication, 11. and manufacture, distinction, 11, 58, 616. by act of law, judgment, &o., 12. of future property, 14. in market overt, 44. made abroad, 51. of captured goods, 51. and delivery, entire contract of, 64. and contract to sell, distinction, 53. 668 INDEX. SALE — continued. incomplete, 189. and consignment, distinction, 513. and bailment, distinction, 513 (see Bailment). and barter, 514 (see Barter). of choses in action, 556 (see Assignment, Choses in Action). SELECTION, in case of sale, 124, 531. SEPARATE MAINTENANCE, sale in case of, 75. SEPARATE WRITINGS, contract by, under Statute of Prauds, 624. SEPARATION, necessity of, in case of sale, 63 and n., 191. SERVANT, assignment of, 573. SET-OFF, buyer may claim for price, 239. in case of assignment, 600, 605. SETTING APART, in case of sale, 125 and n., 155, n. SHARE OF SHIP, sale of — delivery, 213. SHARES, assignment of, 568. whether the Statute of Frauds applies to, 620. SHIP, sale of, 17, 94, 111, 114, 211. contract to build, and sale of, 60. lien upon, 271, u. SHIPMENT, stoppage in transitu in case of, 287. SHIPPING-NOTE, stoppage in transitu in case of, 316. SIGNATURE OF CONTRACT, under Statute of Frauds, 628. SIMPLEX COMMENDATIO, 325, n. SLAVES, parol sale of, 622, u. SMUGGLING, sale in connection with, 403, 489. SOLD, meaning of the term, 56. SPECIAL CONTRACT, action for goods sold, &o., in case of, 518, n. , 519, 521. SPECIALTY, ground for avoiding, 548. INDEX. 6gy SPIRITUOUS LIQUORS, Bale of, 436, 491, n. STATE, contract illegal in one, whether valid in another, 491 „ STATES, ' laws of, relating to assignment of choses in action 563 STATUTE, construction by, 69. definition, of auction, 249. prohibition, effect on sale, 481. repeal of, effect on sale, 487. STATUTE OP FRAUDS, 613. general application and construction of, 615. whether applicable to executory contracts, 55, 615. manufacture and sale, 616. sale of choses in action, 620. form of execution under, 623. signing by an agent, 630. a broker, 631. as applicable to auctions, 633. acceptance under, 222, 637. as to delivery, 2, 120. price, 232. and statutes relating to fraudulent conveyance, distinction, 614, n. STATUTES, , relating to fraudulent conveyance, 177, n., 453, 465. assignment of choses, 663. STOCKS, sale of, what passes by, 16, n. whether the Statute of Frauds applies to, 620. STOPPAGE IN TRANSITU, 279. general nature of, distinction between, and lien, 279. and rescinding compared, 282, 398. how exercised, 284. at what time, 284. how affected by delivery ; nature of the delivery ; constructive de- livery, 285. paramount to a lien against the purchaser, 289. in case of incomplete sale, 290. notice of insolvency ; waiver of the right, 291. by what arrival terminated, 292. delivery to carrier, warehouseman, &c., 299. in case of principal and agent, 305. how affected by bill of lading, &c., 309. part-payment, 319. in case of goods sent to a creditor, 320. by whom exercised, 320. 670 INDEX. STOEAGE, by vendor ; eflFeot of, as to sale, 149, 192, 194, n. STUM PAGE, lien for, 272. SUB-AGENT, when allowable, 86. SUBSEQUENT CREDITORS, validity of sale as to 458, 469. purchaser, 469. SUGGESTIO FALSI, 432, 434, n. SUNDAY, sale on, 500. SUPPRESSIO VERT, 432, 434, n. SURVIVORSHIP, the test of assignability, 558. SUSPENSION OP STATUTE, efl'ect on sale, 487. TENANCY IN COMMON, sale in case of — delivery, 128 and n., 140, n. TENDER, necessity and effect of, 503 and n. , 540. TIME, condition as to, construction of, 41. contract as to, 6, 9. and place of delivery, 215. of performance, mention of, under Statute of Frauds, 629. of stoppage in transitu, 284. fraudulent representation, 384, n., 409, 410 and n. rescinding, 409, n., 410, 415, 417. warranty, 409. effect of rescinding on account of, 428. of avoiding sale for fraud, 436, n. demand, 506. action for goods sold, &c., 521. TITLE, warranty of, 387, 538. whether seller must prove, 549. to judgment, warranty of, 572, n. land, assignment of, 574, n. TORT, liability of infant for, 82, n. waiver of, action for goods sold, &c., 527. money had and received, 534. claim for, whether assignable, 558. TRIAL, sale on, 41. INDEX. TKUST, inferred from possession— fraudulent conveyance, 177. evidence of fraud, 454, 455. assignment of chose creates a, 602, n. TRUSTEE, sale by, 99, 114. TWYNE'S CASE, 453. U. UNFINISHED ARTICLE, sale of, 17, 68. •whether within the Statute of Frauds, 616. UNITED STATES COUET, suit in, upon chose in action assigned, 602. by, upon chaise in action, 603. USAGE, construction by, 68. as to warranty, 85, n., 342, n. sale by agent, 88. lien, 272 and n. Y. VAEIANCE, 382, n., 290, n., 541. VISIBLE DEFECTS, warranty as to (see Warranty). VOID AND VOIDABLE SALE, 479. contract of infant, 79 and n. or voidable, whether fraudulent sale is, 442, 460, 468. for illegality, eflfeot of statutory prohibition, &o., 480. mistake, 479, n. (see Mistake). sales contrary to morality, &c., 492. public policy, 493. of property not in existence, &c., 494. good-tmll, 49. property held adversely, 500. made on Sunday, 500. VOIDABLE AND ILLEGAL SALE, distinction, 460. W. WAGER, whether sale is a, 16 n. in sale, 495 and n. WAGES, assignment of, 573, n. 671 672 INDEX. WAIVEK, of lien, 276, 277, n. stoppage in transitu, 292. warranty, 361. tort, action for goods sold and delivered, 527. money had and received, 534. WAEEHOUSEMAN, sale by, 99. possession of — stoppage in transitu, 300, u. and carrier, distinction, 300, n. WARRANT, whether the word is necessary to a warranty, 341. WAEKANTY, 322. general principles of, 322. by the civil and the common law, 322 and n. as connected with fraud, concealment, a sound price, &c., 322 and n. in case of articles manufactured, &o., 334. words necessary to — representation — intention of parties, &c. , 341. parol, 349. and description, 351, 355, n. upon sale by sample, 357. of provisions, 365. breach of, 370. remedy in case of; action, defence, &c., 374. of title, 387, 536. ai^d representation, in insurance, 341, n. fraud, 382, 384, n. by agent, 85, n., 385 (see Agent). in assignment of judgment, 572, n. chose in action, 664. by partner, 113. WHAEPINGER, sale by, 99. delivery to — stoppage in transitu, 299, 304, 305. WIPE, necessaries furnished to, 510, n. (see Husband, ^-c.). WORDS OF WARRANTY, 341. WRECK, sale in case of, 51. WRITING, a substitute for delivery, 135. in case of warranty, 384. whether necessary to assignment of a chose in action, 574. KF 915 H65 1869 Author Hilliaxd, Francis Vol. Title !Ehe law of sales of personal Copy ijrujjei' '^ Date Borrower's Name