UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LffiRARY
 
 ADAMS' 
 
 ILLUSTRATIVE CASES 
 
 ON 
 
 THE LAW OF SALES 
 
 Selected by Professors of Leading Law 
 Schools 
 
 St. Paul, Minn. 
 WEST PUBLISHING CO. 
 
 1893
 
 COPYRIOHT. 1893, 
 
 WEST PUBr-ISHING COMPA>fY. 

 
 PREFACE. 
 
 Adams' Illustrative Cases on Sales is one of a series of "Selected Cases" 
 issued by the publishers for the use, more especially, of law students. The name 
 "Adams," given to this volume, is not the name of editor or compiler; but since 
 every book, like every person, must have a name for identification, this title has 
 been arbitrarily chosen for that purpose, and for advantages in cataloguing. The 
 cases are not the selection of one person, but of leading law-school professors. They 
 are published without headnotes, but a table of contents by subject and an index 
 are given. The cases named by ditfereut instructors as most desirable for illus- 
 trating any one branch of the law naturally differ, and, in order that this collection 
 may be most useful to different classes, it has been made very comprehensive. As , 
 a natural consequence, it will be found to contain more cases than will probably be 
 required by any one school. But the cases not used by one school may be the very 
 ones most wanted in another, and it is hoped that many teachers will thus find 
 among the cases here given all that they would have selected. The matter has been 
 so arranged typographically that each case begins at the top of a new page, and is 
 fronted by a blank page or two, to be used for annotations in the class room. This 
 makes a note book in conjunction with a volume of selected cases, and it is be- 
 lieved that this feature will be found peculiarly valuable by the careful student. 
 St. Paul, Minnesota. 
 
 (iii)* 
 
 72H<iz:>
 
 TABLE OF CONTENTS. 
 
 [the numbers refer to page.--.] 
 
 THE CONTRACT, 
 I. In General, 
 
 o. What is a sale, 173, 187, 391, 395, 501, 509, 533, 535, 553, 739. 
 6. Who may make, 125, 159, 593, 677. 
 
 c. Mutual assent, 185, 217, 2r,5, 263, 333, 391, 403, 445, 673, 731, 
 
 733. 
 
 d. The price, 3, 503, 531, 539. 
 
 e. Time and place of performance, 133, 147, 355, 487. 
 
 II. Under the Statute of Frauds, 
 
 a. What are goods, wares and merchandise, 23, 187, 337, 443, 641, 
 
 879. 
 h. Goods of the value of fifty dollars, 3, 879. 
 
 c. Acceptance and receipt, 3, 19, 59, 63, 87, 135, 313, 349, 387, 491, 
 
 609, 737, 807, 837. 
 
 d. Earnest or part payment, 441, 467, 879. 
 
 c. The memorandum, 65, 125, 126, 159,165,267,469,509,549,601, 
 685, 817, 893. 
 
 III. Wlien Title Passes, 
 
 1. What CoNsxiTrTEs Transfer, 15, 25, 151, 175, 203, 309, 323, 445, 
 
 473, 527, 531, 541, 631, 657. 
 
 2. Delivery, 
 
 a. Necessity of, 47, 73, 91, 197, 359. 
 
 6. What constitutes, 7, 47, 59, 63, 99, 181, 225, 233, 313, 317, 341, 
 349, 411, 419, 513, 573, 581, 781, 789, 799, 809, 813, 849. 
 
 c. Sufficiency of, 77, 207, 407, 419, 453, 563, 587, 595, 867. 
 
 d. By agent, 669, 777. 
 
 e. To carrier or agent, 3, 43, 77, 387, 423, 463, 635, 669, 697, 767, 
 
 771. 
 {. Weighing and measuring, m, 303, 42i, 527, 587, 689, 697,205^ 
 
 845, 825, 901. 
 
 g. Effect onHfen, 7, 367, 523. 
 
 IV. Inspection and Acceptance, 
 
 a. Right to inspect, 245, 271, (S'.U. 
 
 b. What constitutes acceptance, 3, 19, 61, 105. 135, 221, 233, 403, 427, 
 
 567, 675. 
 
 c. Necessity of acceptance, 3, 403, 419, 567. 
 
 d. Refusal to accept, 25, 47, 87, 161, 387, 487, 557, 691, 727, 837. 
 
 LAW SALES. (V)
 
 vi TABLE OF CONTENTS. 
 
 [The numbers refer to pases.] 
 
 AVOIDANCE OF CONTRACT, 
 
 I. By Seller, 
 
 a. For fiaud, 27, 29, 33, 211, 233, 237, 249, 275, 299,391,631,6(15. 
 
 743. 
 6. For insolvency of buyer, 51, 449, 519, 767, 789, 793, 803. 
 
 c. For failure to pay price, 293, 539, 619. 
 
 d. For n)istake, 4:)3, 445, 673, 733, 915. 
 
 II. By Buyer, 
 
 o. For fraud, 515, 561. 
 
 b. For failure to deliver, 595, 841. 
 
 c. Fur mistake and defective quality, 1S5, 623, 839. 
 
 WARRANTY, 
 
 I. Express Warranty, 
 
 <i. What constitutes, 83, 141, 371. 
 
 /). As to quality of goods, 251, 333, 371, 849, 883. 
 
 II. Implied Warranty, 
 
 a. Of title, 283, 359, 605, 623, 701. 
 
 b. Of fitness and quality, 77, 83, 111, 289, 345, 389, 483, 550, 651, 
 
 700, 709. 745, 911. 
 
 c. Breach, 307, 785. 
 
 REMEDIES, 
 
 I. Of Seller against Buyer, 
 
 a. Action for price, 25, 47, 121, 327, 349, 437, 487, 557, 587, 709, 
 
 727, 809, 813, 837, 867. 
 
 b. Action for damages, 25, 47, 87, 327, 391, 437, 561, 691, 837, 903. 
 
 II. Of Seller against Goods, 
 
 o. Resale, 27, 73, 271, 539. 
 
 6. Lien, 7, 143, 221, 367, 523, 539, 613, 675, 827. 
 
 c. Stoppage in transitu, 11, 43, 51, 411, 449,481,497,577,579,665, 
 
 767, 789, 793, 825. 
 
 m. Of Seller against Third Persons, 
 
 a. Trover and conversion, 289, 391, 453, 481, 617, 759, 763, 777, 799. 
 
 b. Recovery of goods, 249, 407, 637. 
 
 rV. Of Buyer before Obtaining Possession of Goods, 
 
 a. Action for damages, 323, 403, oO:;, 879. 
 
 b. Replevin of goods bought, 705. 
 
 V. Of Buyer when Title to Goods has Passed, 
 
 a. For breach of warranty, 37, 199, 251, 289, 293, 307, 363, 651, 785, 
 
 849, 883. 
 6. Action for damages, 283, 287, 323, 353, 403, 503, 605, 841.
 
 TABLE OF CONTEXTS. vii 
 
 [The numbers refer to pages.] 
 
 BONA FIDE PURCHASERS, 
 I. Who are, 299, 497, 677, 743, 861. 
 
 n. Rights of, 27, 29, 33, 43, 237, 275, 435,541,613,657,665,751,759,821, 
 871. 
 
 CONDITIONAL. SALES, 
 I. Title in Property, CI, l.JS, 175, 541, 545, 757, 823. 
 II. Performance of Conditions, 37, 61, 71, 151, 169, 203, 293, 395. 
 
 GIFTS, 
 I. Inter Vivos, 55, 79, 379, 591, 627, 661, 747, 755, 831, 907. 
 II. Donatio Causa Mortis, 117, 383, 415, B95, 855, 887.
 
 CASES REPORTED. 
 
 Allanl V. Greasert (01 N. Y. 1) 
 
 Arnold v. Delano (4 Cush. 33; 
 
 Babcoek v. Bonnell (80 N. Y. 244) 
 
 Bailey v. Hudson U. U. Co. (49 N. Y. 70) 
 
 Baldev v. Parker (2 Barn. & C. 37) 
 
 Baldwin v. WiMinnis (3 Mete. [Mass.] 3G5) 
 Ballciiline v. Udiinson (40 Pa. St. 177)... 
 
 Barker v. Dinsmore (72 Pa. St. 427) 
 
 Barnard v. Campbell (.->;") N. Y. 4.-i6) 
 
 Barnard v. Camuhell (58 N. Y. 73) 
 
 Beaeli'.s Appeal (20 All. Rep. 475, .'jS Conn. 
 
 4(H) 
 
 Becker v. HallKarten (86 N. Y. 167) 
 
 Bement r. Smith (15 Wend. 493) 
 
 Benedict v. Schaettle (12 Ohio St. 515). . . 
 Bennett v. Cook (6 S. E. Rep. 28, 28 S. (\ 
 
 :»3) 
 
 Bentall v. Bum (3 Barn. & C. 423) 
 
 Bianclii v. Nash (1 Mees. & W. .54.5) 
 
 Bill V. Banient (9 Mees. & W. 3(>l 
 
 Bird V. Mnnroe (OG Me. ."..".7) 
 
 Bishop V. Shillifo (2 Barn. & Aid. 329 n. a) 
 Hlii\:mi V. SainliTs (4 Barn. & C. 941)... 
 
 Boollihy V. Plaisted (51 N. H. 430) 
 
 I'.rnhrciok v. Hciston Five Cents Savinj;.* 
 
 Bank (104 Mass. 228) 
 
 Bradford t. Manlv (13 Ma.ss. 139) 
 
 Bridsford v. Crocker (00 N. Y. 027) 
 
 Brooks V. Powers (15 Mass. 244) 
 
 Brown v. Northcutt (13 Pac. R<'p. 4.S.-., 14 
 
 Or. 529) 
 
 Browne v. Hare (3 Hurl. & N. 484, 4 Hnrl. 
 
 & N. 822) 
 
 Bniwnfield v. Johnson (18 Atl. Rep. 543, 
 
 128 Pa. St. 2.54) 
 
 Butlington v. (Jerrish (15 Mass. 151!)... 
 Bnlwinkle v. Cramer (3 S. E. Rep. 770, 27 
 
 S. C. 370) 
 
 Bunn T. Markham (7 Taunt. 224) 
 
 Buller V. Butler (77 N. Y. 472) 
 
 Butler T. Thomson (92 U. S. 412) 
 
 C'amplioll Print ing-Press Co. v. Thnrp. CV; 
 
 Fed. Rep. 414) 
 
 Cardinell v. Bennett (.52 Cal. 470) 
 
 Caulkins v. Hellman (47 N. Y. 44ti) 
 
 Chandelor v. Lopus (2 Cro. Jae. 2) 
 
 Chapman v. Murch (19 .Tohna. 291)| 
 
 Clark V. Draper (19 N. H. 419) 
 
 Clark V. I''ey (24 N. E. Rep. 703, 121 X. Y. 
 
 470) 
 
 Clarkson v. Stevens (1 Sup. Ct. Rep. 200, 
 
 100 U. S. 50.5) 
 
 Coddinpton v. Goddard (16 Grav. 4.30)... 
 Coe V. Toufe'h (22 X. E. Rep. 5.50, 116 N. 
 
 Y. 273) • 
 
 Comer v. Cunningham (77 N. Y. 391).... 
 Commercial Nat. Bank v. Oill.'tte (90 Ind. 
 
 208) 
 
 (^ominonwealth v. Fleming (18 Atl. Rep. 
 
 (;22, 130 Pa. St. 1 3S) 
 
 Commonwealth v. Miller (IS Atl. Rep. 938, 
 
 131 Pa. St. 118) 
 
 Conner v. Henderson (15 Mass. 319) . . 
 t%)oke V. Millard (05 N. Y. 352) 
 
 Pii' ■■ P«pe 
 
 3 Cusack V. Robinson (1 Best & S. 299) 221 
 
 7 Gushing v. Bree<l (14 Allen, 370) 225 
 
 Coon V. Spaulding (10 N. W. Rep. 183, 47 
 Mich. 102) 
 
 Oiplay Iron Co. v. Pope (15 N. E. Rep. 
 .335, 108 X. Y. 232) 
 
 Crawcour, Kx iKirle (9 Ch. Div. 419) 
 
 Crofoot V. Bennett (2 N. Y. 258) 
 
 Cross V. Peters (1 Greenl. 370) 
 
 Cunningham v. Ashbrook (20 Mo. 553)... 
 
 \j\\V SAI.liS. 
 
 ir>5 
 169 
 
 173 
 
 Davis V. Russell (52 Cal. Oil) 
 
 Denny v. Williams (5 Allen, 1 ) 
 
 Devoe v. Brandt (.53 N. Y. 402) 
 
 Dexter v. Norton (47 X. Y. 02) 
 
 Doano v. Dunham (79 III. 131) 
 
 Donaldson v. Farwell (93 U. S. 631) 
 
 Dorr V. Fisher (1 C\Lsh. 271) 
 
 Dows V. National Exch. Bank of Milwau- 
 kee (91 U. S. 018) 
 
 Drake, Ex parte (5 Ch. Div. 800) 
 
 Drury t. Young (58 Md. 546) 
 
 Dustan v. McAndrew (44 N. Y. 72) 
 
 229 
 2.« 
 237 
 241 
 245 
 249 
 251 
 
 255 
 263 
 
 207 
 271 
 
 Easter v. Allen (8 Allen. 7) 275 
 
 Edgerton v. Hodge (41 Vt. (570) 279 
 
 Ki.hholz v. Bannister (17 C. B. [N. S.] 708 283 
 
 Ellis v. Andrews (50 N. Y. 8,3) 2S7 
 
 Ellis V. Hunt (3 Term. R. 464) 289 
 
 Empire State Type Founding Co. v. Grant 
 (21 N. E. Rep. 49, 114 N. Y. 40) 293 
 
 Fairbank Canning Co. v. Metzger (23 N. 
 E. Rep. 372, 118 N. Y. 200) 295 
 
 Farley v. Lincoln (51 N. H. 577) 299 
 
 Farmers' Phosphate Co. v. Gill (16 Atl. 
 Rep. 214, 09 Md. 537) 303 
 
 Fielder v. Stnrkin (1 H. Bl. 17) 307 
 
 First Nat. Bank of Cairo v. Crocker (111 
 Mass. 163) .309 
 
 First Nat. Bank of Green Bay v. Dear- 
 born (115 Ma.ss. 219) 313 
 
 First X.Mt. Bank of Toledo v. Shaw (01 N. 
 Y. 283) 317 
 
 Foot V. Marsh (51 N. Y. 288) 323 
 
 327 
 333 
 337 
 
 341 
 
 345 
 349 
 353 
 
 Ganson v. Madigan (15 Wis. 144) 
 
 Gardner v. Lane (9 Allen, 492) 
 
 Giles V. Simonds (15 Grav. 441) 
 
 Gill V. Benjamin (25 N. W. Rep. 445, 64 
 
 Wis. 302) 
 
 Giroux V. Stedman, three cases (14 N. E. 
 
 Rep. 538, 145 Mass. 439) 
 
 Goddard v. Binnev (115 Mass. 4.50) 
 
 Gompertz v. Bartlett (2 El. & Bl. 849)... 
 Goodman v. Nordnutt (13 Pac. Rep. 485, 
 
 14 Or. .529) 93 
 
 Goodwin v. Holbrook (4 Wend. 377) 355 
 
 Gould v. Bourgeois (18 Atl. Rep. 64, 51 
 
 N. .T. Law. 301) 359 
 
 Gould V. Stein (22 N. E. Rep. 47, 149 
 
 Mass. 570) 363 
 
 Gregory v. Morris (96 U. S. 619) 367 
 
 Grieb v. Cole (27 N. W. Rep. 579, 60 
 
 M ieh. ."«)-) 371 
 
 Groat V. Gile (51 N. Y'. 431) 375 
 
 Grover v. Grover (24 Pick. 2('il) .379 
 
 Grymes v. Hone (49 N. Y. 17) 383 
 
 Hague V. Porter (3 Hill. 141) 387 
 
 Hanson v. Busse (45 111. 49()) .3,89 
 
 Hardman v. Booth (1 Hurl. & C. 803) 391 
 
 Ilarkness v. Russell & Co. (7 Sup. Ct. 
 
 Hop. 51, lis II. S. 6(!.3) 395 
 
 Hastie v. Couturier (9 Exch. 102) 403 
 
 Hatch V. Bayley (12 Cush. 27) 407 
 
 Hawes v. Watson (2 Barn. & C. 540) 411 
 
 Henschel v. Maurer (34 N. W. Rep. 926. 
 
 69 Wis. 576) 415 
 
 Higgins V. Delaware, L. & W. R. Co. (60 
 
 N. Y. 553) 419 
 
 Higgins V. Murray (73 N. Y. 2,"i2) 42."
 
 CASES EEPOKTEL). 
 
 Hillestad t. Hostetter (49 N. W. Rep. 192, 
 
 4ti Minn. 393) 425 
 
 Ilinohman v. I^incoln (8 Sup. Ct. Rep. 309, 
 
 124 U. S. 3S) 427 
 
 Uoiton V. Biillinton (105 Mass. 399) 435 
 
 Hosmer v. Wilson (7 Mich. 294) 437 
 
 Howe V. II:iv\vard (108 Mass. .'54) 441 
 
 IIi.nil)lp V. .Mitclidl (11 Adol. & E. 20.5). . . 443 
 Hiillmiaclier v. Harris's Adm'rs (38 I'a. 
 
 St. 491) 445 
 
 Ilsle.v V. Stnbbs (9 Mass. 6.5) 449 
 
 lufralls V. Ilcrrick (108 Mass. 351) 4.53 
 
 Inslis V. Stock (10 App. Cas. 263) 457 
 
 Iron Cliff Co. v. Buhl (3 N. W. Rep. 269. 
 
 42 Mich. SO) 403 
 
 Jackson v. Tiipper (5 N. B. Rep. 65, 101 
 
 N. Y. 51.5) 467 
 
 .lames v. Patten (6 N. Y. 9) 469 
 
 .Tenner v. Smith (L. R. 4 C. P. 270) 473 
 
 .lohnston t. Trask (22 N. E. Rep. 377, 
 
 116 N. Y. 136) 477 
 
 .Tones v. Earl (37 Cal. 630) 481 
 
 .Tones v. Padffelt (24 Q. B. Div. (>.->0) 483 
 
 Jones V. U. S. (90 U. S. 24) 487 
 
 KimberLv v. Patchin (19 N. Y. 330) 491 
 
 Iviiiirman v. Denison (48 N. W. Rep. 26, 
 
 84 Mich. 60S) 497 
 
 Ivinney v. MoDermott (8 N. W. Rep. 656, 
 
 55 Iowa, (174) .501 
 
 Kountz V. Kirkpatrick (72 Pa. St. 376) . . 503 
 
 r^ee V. Griffin (1 Best & S. 272) 509 
 
 Lincoln v. (Gallagher (8 Atl. Rep. 883, 79 
 
 Me. ISO) ........ 
 
 Litchfield v. Hutchinson (117 Mass. 195). . 
 
 I^oeb V. I'eters (63 Ala. 243) 
 
 liUpin V. Marie (6 Wend. 77) 
 
 McConnell v. Hughes (29 Wis. 537) 
 
 McCrory v. Hamilton (SS 111. App. 490). . . 
 
 Macomber v. Parker (13 Pick. 175) 
 
 Mallnry v. Willis (4 N. Y. 70) 
 
 Marlindale v. Smith (1 Q. B. 389) 
 
 Marvin Safe Co. v. Norton (7 Atl. Rep. 
 
 418, 48 N. J. Law, 410) . 
 
 MeUlrura v. Snow (9 Pick. 441) 
 
 Mews T. Carr (1 Hurl. & N. 484) 
 
 Mitchell V. Cile (12 N. H. 390) 
 
 Moody V. Brown (34 Me. 107) ."ir.T 
 
 Moore v. McKinlay (5 Cal. 471) 7i7,'.> 
 
 Morse v. Shaw (124 Mass. 59) 5(;i 
 
 Morse v. Sherman (100 Mass. 430) 5^3 
 
 Morton v. Tibbett (15 Q. B. 428) . . 567 
 
 513 
 515 
 519 
 523 
 
 531 
 533 
 .527 
 535 
 539 
 
 .541 
 .545 
 549 
 
 553 
 
 National Bank v. Day(on (102 U. S. 59). . 573 
 Newhall t. Central Pac. R. Co. (51 Cal 
 
 345) 577 
 
 Newhall v. L/jingdon (39 Ohio St. 87) .581 
 
 Nicholson t. Taylor (31 Pa. St. 128) 585 
 
 Nigbtinpale v. Eisoman (24 N. E. Rep. 
 
 475, 121 N. Y. 288) .587 
 
 Noble T. Smith (2 Johns. 52) 591 
 
 Norrington t. Wright (6 Sup. Ct. Ren. 12, 
 
 115 U. S. 188) :...: 595 
 
 Oliver v. Hunting (44 Ch. Div. 205) 601 
 
 Ormrod v. Huth (14 Mees. & W. 051). .. 005 
 
 Page v. Morgan (15 Q. B. Div. 228) 009 
 
 Palmer v. Hand (13 Johns. 434) 013 
 
 Parker v. Patrick (5 Term R. 175) 617 
 
 Paul V. Reed (52 N. H. 130) 619 
 
 Pecord v. Stedman (14 N. E. Rep. 538, 145 
 
 Mass. 43! I) 345 
 
 Perley v. Balch (23 Pick. 283) '.'.'.'.'.'. 623 
 
 Peters v. Ft. Miulison Const. Co. (34 N 
 
 W. Rep. 190, 72 Iowa, 405) 627 
 
 Peters Box & Lumber Co. v. Lesh (20 N 
 
 E. Rep. 291, 119 Ind. 98) 631 
 
 Philadelphia & R. R. Co. v. Wireman (88 
 
 Pa. St. 2(J4) 63,-, 
 
 Phillips V. Reitz (16 Kan. 396) .'. 037 
 
 Page 
 
 Pitkin v. Noyes (48 N. H. 294) 641 
 
 Pope V. Allis (6 Sup. Ct. Rep. 69, 115 U. 
 S. 363) 647 
 
 Randijll v. Newson (2 Q. B. Div. 102) 051 
 
 Robertson, In re (9 Ch. Div. 419) 203 
 
 Rodliff V. Dallingcr (4 N. E. Rep. 805, 
 
 141 Mass. 1) 657 
 
 Ross V. Draper (55 Vt. 404) 0()1 
 
 Rowley v. Bigelow (12 Pick. 307) 0(i.". 
 
 Ruhl V. Corner (63 Md. 179) OOlt 
 
 Rupley V. Daggett (74 111. 351) 073 
 
 Safford v. McDonondi (120 Mass. 200).. 675 
 
 Saltus V. Everett (20 Wend. 2(17) 677 
 
 SanlMjrn v. Flagler (9 Allen, 474) 685 
 
 Sanger v. Waterbury (22 N. E. Rep. 404, 
 
 110 N. Y. 371) 689 
 
 Sawyer v. Dean (21 N. E. Rep. 1012, 114 
 
 N. Y. 469) 691 
 
 Scott V. Eauman (104 Pa. St. 593) 695 
 
 Scott v. Wells (6 Watts & S. 357) 097 
 
 Scranton v. Clark (39 N. Y. 220) 701 
 
 Scudder v. Worster (11 Cush. 573) / 705 
 
 Seitz V. Brewers' Refrigerating Mach. Co. 
 
 (12 Sup. Ct. Rep. 46, 141 U. S. 510) 709 
 
 Sewell V. Burdick (10 App. Cas. 74) 713 
 
 Shawhan v. Van Nest (25 Ohio St. 49(j). . 727 
 
 Sheldon v. Capron (3 R. I. 171) 731 
 
 Sherwood v. Walker (33 N. W. Rep. 919, 
 
 66 Mich. 508) 733 
 
 Shields v. Pettie (4 N. Y. 122) 739 
 
 Shufeldt V. Pease (10 Wis. 059) 743 
 
 Sinclair v. Hathaway (23 N. W. Rep. 459, 
 
 57 Mich. CO) 745 
 
 Smith V. Ferguson (90 Ind. 220) 747 
 
 Smith v. Lynes (5 N. Y. 41) 751 
 
 Smith V. Smith (2 Strange, 955) 755 
 
 Spooner y. Curamings (23 N. E. Rep. 839, 
 
 151 Mass. 313) 757 
 
 Spooner v. Holmes (102 Mass. 503) 759 
 
 Spraights v. Hawley (39 N. Y. 441) 703 
 
 Stanton v. Eager (10 Pick. 407) 767 
 
 State of Vermont v. Four Jugs of Intox- 
 icating Liquor (2 Atl. Rep. 580, 58 Vt. 
 
 140) 771 
 
 State of Vermont v. O'Neil (2 Atl. Rep. 
 
 586, 58 Vt. 140) 771 
 
 State of Vermont v. Sixty-Eight Jugs of 
 
 Intoxicating Liquor (2 Atl. Rep. 586, 58 
 
 Vt. 140) 771 
 
 Siollcnwerck v. Tliacher (115 Mass. 224).. 777 
 
 Straus V. Wessel (30 Ohio St. 211) 781 
 
 Stuart V. Wilkins (1 Doug. 18) 785 
 
 Stubbs V. Lund (7 Mass. 453) 7S9 
 
 Sturtevant v. Orser (24 N. Y. 538) 793 
 
 Swanwick v. Sothern (9 Adol. & E. 895). . 797 
 Swim V. Wilson (27 Pac. Rep. 33, 90 Cal. 
 
 126) 799 
 
 Talcott V. Henderson (31 Ohio St. 162) ... 803 
 
 Talver v. West (Holt. 178) 807 
 
 Tarling v. Baxter (0 Barn. & C. 360) 809 
 
 Terry v. Wheeler (25 N. Y. 520) 813 
 
 Thompson v. Gardiner (1 C. P. Div. 777). . 817 
 Thompson v. Wedge (7 N. W. Rep. 560, 
 
 50 Wis. 042) . 819 
 
 Towne v. Collins (14 Mass. 5(X)) 821 
 
 Tufts V. Griffin (12 S. E. Rep. 08, 107 N. 
 
 C. 47) 823 
 
 Tufts V. Sylvester (9 Atl. Rep. 357, 79 Me. 
 
 213) 825 
 
 Tuthill V. Skidmore (20 N. E. Reo 348 
 
 124 N. Y. 148)..... ':...' 827 
 
 Twyne's Case (3 Coke, 80) 831 
 
 Unexcelled Fire-Works Co. v. Polites (18 
 Atl. Kep. 1058, 130 Pa. St. 530). ...... 837 
 
 Walker v. Davis (18 Atl. Rep. 190, 05 N. 
 H. 1 (0) 839 
 
 Walter A. Wood Mowing & Reaping 
 Mach. Co. V. Gaertner (30 N. W. Reo 
 100, 03 Mich. 520) '^' 841 
 
 Ward V. Shaw (7 Wend. 4<>4) '.'.'. 845
 
 CASKS lllil'OinEU. 
 
 Pace 
 
 Ware, In re (5 Ch. Div. 866) 263 
 
 Watsou V. Uoodp (40 N. W. Rep. 491, 30 
 
 Nob. 264) &iO 
 
 Wells T. Tucker (3 Bin. .366) 855 
 
 Wheelhouse v. Parr (6 N. E. Rep. 787, 141 
 
 Mass. 503) 8.59 
 
 Wheelwright v. Depcyster (1 Johns. 471) . . 861 
 
 Whitcomb v. Whitm-v (24 Mich. 486) 867 
 
 White V. Spettigue (13 Ue^s. & W. 603).. 871 
 
 Whitehouse v. Frost (12 East. 614) 875 
 
 Whitmarsh v. Walker (1 Mefc. [Mass.] 313) 879 
 
 Wieler v. Schilizzi (17 C. B. 019) 883 
 
 Wilcox V. Matteson (9 N. W. Rep. 814, 53 
 
 Wis. 23) &87 
 
 Williams v. Allen (10 Humph. 330) 891 
 
 Williams T. Bacon (2 Gray, 3.87) 893 
 
 Williams v. .Tackman (16 (Jray, 514) 897 
 
 Williams v. Merle (11 Wend. 80) 901 
 
 WindmuUer v. Pope (14 N. E. Kep. 436, 
 
 107 N. Y. 674) 903 
 
 Winfield v. Dodge (7 N. W. Rep. 900, 45 
 
 Mich. 3.-..->) 905 
 
 Wing V. Merchant (57 Me. 383) 907 
 
 Winsor v. Lombard (18 Pick. 57) 911 
 
 WofKl V. Boyuton (25 N. W. Rep. 42, 64 
 
 Wis. 205) 915 
 
 Wood V. Manley (11 Adol. & E. 34) 919 
 
 Wood Mowing & Reaping Mach. Co. v. 
 
 Gacrtner (30 N. W. Kep. 106, 63 Mich. 
 
 520) Sil
 
 ILLUSTRATIVE CASES 
 
 THE LAW OF SALES 
 
 (1)^
 
 ALLARD V. GllEASEIlT. 
 
 3 
 
 ALLAItn T. GKKASERT. 
 
 (01 N. Y. 1.) 
 
 Commission of Appeals of New York. Sept. 
 Term, 1874. 
 
 Action for got)ds sold and delivered. 
 Defendant film orally OKrced with an 
 af-ent of phiiiitiffs to lui.v by sample the 
 roUowInK bill of liatH and capH: 
 Of c'ase Xo. 'Ml, % doz. child's 
 
 fyOKliorii sylviins, at $11 per 
 
 rloz $ 5 r,o 
 
 Of case No. 312, one doz. harvest 
 
 hats, at 4 50 
 
 Of case No. 371, half doz. Pana- 
 ma huts at 28 50 a doz. 
 
 Of case Xo. 372, half doz. I'ana- 
 
 ma hats at 36 00 a doz. 
 
 Of case Xo. 326, one doz. palm 
 
 leaf hats, at 2 50 a doz. 
 
 Of c.'ise Xo. .'524, one doz. palm 
 
 leaf hats, at 3 00 a doz. 
 
 Of case Xo. 320, one doz. white 
 
 (ileiiwood, at 15 00 a doz. 
 
 Of case No. 159, one doz. black 
 
 Al|)ine, at 24 00 a doz. 
 
 Of case No. 309, one doz. Leg. 
 
 harvest, at 3 25 a doz. 
 
 Tlie SHU' pies were Kliown by the aKent, 
 and tiiepricesof tlicdifferen t stylesnanied, 
 and a nieinorandiim made by the agent 
 of the nuniberof each kind [nirehased. No 
 ineniorandnin was made in writing, and 
 sinni'il l>y either party. When the goods 
 were sent, by express, as ordered, defend- 
 ants refused to receive them because the 
 one dozen harvest were in someslight par- 
 ticular different from the samples shown. 
 Itcfendants moved for a nonsuit because 
 ( 1 )■' that the agreement under which the 
 plaintiffs seek to recover is within the 
 statute of frauds, and void; (2) that the 
 Older for the goods constitutes one entire 
 contract, and the plaintiffs have failed to 
 fulMll, on their part, to ilcliver the harvest 
 hats of the descrijition ordered; that, b.v 
 reason of said failui'e. the defendants had 
 a right to refuse to receive any of tlie 
 goods sent." The court nonsuited plain- 
 tiffs on the last ground. 
 
 Uanid Wood, for appellants. Bowen & 
 I'itts, for respondents. 
 
 EAUL, (y" The judge at the circuit re- 
 garded this ns an entire contract of sale, 
 and not severable; and if ho was right in 
 this, he properly nonsuited the plaintiffs 
 upon that ground. If it was an entire 
 contract, within the meaning of the law, 
 the plaintiffs could recover only by show- 
 ing entire performance, by a full delivery 
 of all the articles iiurchased. But it is not 
 necessary, in this case, to determine wheth- 
 er this was an entire or a severable con- 
 tract, because the defendants also moved 
 for a nonsuit upon the ground that the 
 contract of sale was void uniler the stat- 
 ute of frauds. .Vltliougli the judge did not 
 place the nonsuit uiion this ground, it 
 may he considered here. He nonsuited 
 the plaintiffs, and even if he gave a wrong 
 reason for it. and placed it upon the wrong 
 ground, the nonsuit may be upheld upon 
 any ground appearing in the case. 
 Curtis v. Hubbard, 1 Hill, 3;jG; ijimar v. 
 
 LAW SALES 
 
 Canaday, 53 X. Y. 2'.)S; 13 Am. Rep. 523; 
 Deland v. Richardson, 4 Den. 9.t. 
 
 Even if this were a severable contract so 
 far as relates to the performance of the 
 same, within the meaning of the statute 
 of frauds it is an entire contract. The 
 reasons for holding it to be such are clear- 
 ly set forth in Baldey v. Parker, 2 H. & C 
 41, and Story Sales. § 241. This, within 
 the meaning of the statute of frauds, is a 
 ctHitract for the sale of goods for the price 
 of §.JOorniore,and as there was no noteor 
 memorandum or ])ayment, the (juestion 
 to be determined is. whether the goods 
 were accepted and received by the buyers 
 so as to satisfy the statute. By the terms 
 of the contract, the goods were to be de- 
 livered to the Merchants' Union Kxpross, 
 to be carried to the defendants, and they 
 were so delivered. It is well settled that 
 when there is a valid contract of sale, a 
 deliver.v to a carrier, according to the 
 terms of the contract, vests the title to 
 the property in the buver. It was decided 
 in Hodgors v. Phillips, 40 X. Y. .")1!», that a 
 delivery, according to the contract, to a 
 general carrier, not designated or selected 
 by the buyer, does not constitute such a 
 delivery and acceptance as to answer the 
 statute of frauds. But it has been held 
 that when the goods have been accepted 
 by the buyer, so as to answer that portion 
 of the statute which requires acceptance, 
 a delivery to a carrier selected by the 
 buyer will answer that portion of the 
 statute which requires the buyer to re- 
 ceive. Cross V. O'Dounell, 44 X'. Y. G6I ; 4 
 Am. liep. 721. So far as I can discover, it 
 has never yet been decided in any case 
 that is entitled to respect as authoritj", 
 that a mere carrier designated by the 
 buyer can both accept and receive the 
 goods so as to answer the statute. Benj. 
 Sales, 124. The cases upon this subject are 
 cited and commented ujjon, and the prin- 
 ciples applicable to the ()ucstion are so 
 fully set forth in the two recent cases 
 above referred to that no further citation 
 of authorities or extended discussions at 
 this time is important. It will be found 
 by an examination of the authorities, that 
 in most of the cases where a delivery to 
 a carrier has been held to satisfy the stat- 
 ute of frauds, there had been a prior ac- 
 ceptance of the goods by the buyer or his 
 agent. A buyer may accept ond receive 
 through an agent exi)ressly or Impliedly 
 appointed for that purpose. There is 
 every reason for holding tiiat n designated 
 carrier may receive for the buyer, because 
 he is expressly authorized to receive, and 
 the act of receiving is a mere formal act 
 reijuiring the exercise of no discretion. 
 But tliere Is no reason for holding that 
 the buyer in such case intended to clothe 
 the carrier, of whose agents he may know 
 nothing, with authority to accept the 
 goods, so as to conclude him ns to their 
 quality, and bind him to take them as a 
 compliance with a contract ol which such 
 agents can know nothing. This case fur- 
 nishes as good an illiistrjition an any. 
 The uoods were lioxcil: the carrier could 
 know nothing aliout them: and itsagents 
 had no right to unpack and handle them. 
 Its sole duty and authority was to receive
 
 ALLARD V. GREASERT. 
 
 nnil transport tliem. In such n case, it 
 woulcllie unite absurd to hold that the 
 currier had an inii)lied authority from the 
 buyer to accept the goods for him. If the 
 bu'ver does not accept in person, he must 
 dr)"it through an authorized agent. Here 
 it is not claimed that there was express 
 
 authority conferred upon the carrier to 
 accept, and the circumstances are not 
 su:-h that such authority can be implied. 
 
 Upon this last ground therefore the non- 
 suit was proper, and the judgment must 
 be affirmed, with costs. 
 
 All concur.
 
 AUXOLD V. DELANO. 
 
 ARNOLD v. DELANO. 
 
 (4 Cu.sh. 3.3.) 
 
 Supreme Judicial Court of M.issachusetts. 
 Sept. Term, 1.840. 
 
 This was an action of trover, brought 
 by the plaiutiff ns the aHsiKiiee of Artliur 
 Sowerby, an insolvent deljtor, and was 
 Buliniittetl to tbe court of common pleas 
 upon the followinir airreecl stutement of 
 facts: 
 
 On the 3()th of MQrcii,184S, Sowerby and j 
 one (irunt. who were partners as silk ! 
 manufacturers. In Northanipton, pur- 
 chased of Delano, the defendant, sixty-live 
 cords of wood, then i)iled with a much 
 larmier quantity on Lelano's land. The 
 wood sold was measured off at the time 
 of th(! sale, but no otherwise separateiJ 
 from the residue, than by means of a stake 
 putdo wn to desiKuate the extent of sixty- 
 llveconls. The contract i,\ as made with 
 Sowerby, and a bill (jf the wood was given 
 him by Deluno, as follows: 
 
 " Messrs. Sowerby & tJrant. Bo't of C.\ 
 Delano. 1S4S, March :!Otli. 6.') cords wood, 
 ?'.)7.U(J, Received payment by note at G 
 mos. at Northampton Bank. C. Delano." 
 
 At the time of MiaUing the contract, 
 there Wf.s no formal takin(< possession or 
 delivery c)f the wood, except as above 
 slated, but the purchasers were to remove 
 the san)e before the Ist of April, 1849. 
 
 On the I'Dth of .lune, 1S48. Sowerby np- 
 plied personally for the benelit of the in- 
 solvent la w, an<i a warrant was aceord- 
 ininly issued to Ansel Wright, as mes- 
 sentrer, on the sanie day. Possession was 
 taken of the property at tlie silk works by 
 the niesseuKer, on the ."Kith of .June, and 
 a schedule of assets was furnished him by 
 Sowerby on the same dui'. On the sched- 
 ule was the followinti entry, in tiie hund- 
 writin;: of the nieKsen;jer: "(!.") cords of 
 woixi on V. Delano's lanil." Xo formal 
 possession was taken of the wood liy the 
 niesseuKer; nor was any entry made by 
 him on the land where it was ]iiled, which 
 was distant, in fact, two miles or more 
 from the silk works. On the l.')th of .July, 
 Sowerby furnished a schedule of credit- 
 ors, on which ivas this entry: "(."ornelins 
 Delano, Northampton. Note. Wood. No 
 security. S'.IT " 
 
 On the eveniuK of Saturday, the 1st of 
 July, Delano, havinj; heard of the insol- 
 vent proceedings, nave the messenger no- 
 tice that the wood had not been paid for, 
 and that he cluimecl to hold it, until the 
 price should he paid. Delano also saw 
 Sowerby the same eveninu, and reiiuested 
 him to ;;ive up the bill and take the note. 
 Sowerby took until the next .Monday 
 morniuK for consideration, and beinii then 
 apilii'd to, jinve up the bill to Delano, 
 who thereupon canceled the note. The 
 lii-st publication of notice of the insolvency 
 did not take i)lacc until Monday after- 
 noon. 
 
 On the 17th of June, 1S48, Sowerby nn.l 
 (Jraiit advertised a dissolution of part- 
 nership, and save public notice that Sow- 
 erby was duly authorized to settle all 
 accounts of tlie late lirm. .\s a part of 
 the terms of <liss()lution. Sowerby under- 
 took to pay all the partnership debts, and 
 
 Orant conveyed to him all his right and 
 title in and to the [lartnership property 
 but this conveyance was not known to 
 Deluno. At the time of the dissolution, 
 the partners, severally, as well as the 
 partnership, were, in fact, deeply insol- 
 vent. 
 
 The plaintiff was appointed assignee ol 
 Sowerby in October, ls48; the first meet- 
 ing of creditors having been continued on 
 account of certain legal objections; and 
 the assignment was then first made by 
 the commissioner. 
 
 To the deu:aud made by the assignee on 
 Delano for the wood, Delano answered 
 that lie could have it whenever he paid 
 for it; and Delano has always been will- 
 ing to give up the wood upon poyinent of 
 the price. Siibse(|ucnt to tlie Ist ol April, 
 1840, Delano sold a i.ortion of the wood 
 measured off; but there has always re- 
 mained in the same lot more than sixty- 
 five cords of similar <|unlity, of which he 
 has <jffered to give up that amount, upon 
 payment ot the price agreeil upon. 
 
 Upon the foregoing statement of facts, 
 the court of common pleas gave judgment 
 for the plaintiff, whereupon the defendant 
 appeale.l to this court. 
 
 The case was argued in writing, as fol- 
 lows, on the points considered by the 
 court. 
 
 C. P. Huntington, for pin in tiff. C. Delano, 
 for defendant. 
 
 SHAW, C. J. This is an action of 
 trover, to recover the value of sixty-five 
 cords of wood, brought by the plaintiff, 
 as the assignee of Arthur Sowerby, an in- 
 so'vent del)tor. It is submitted to the 
 court upon an agreed statement of facts, 
 which being clearly stated, It is not nec- 
 essary to recapitulate. 
 
 On these facts, the plaintiff contends, 
 that there was a complete sale and pur- 
 chase of the wood, by which the property 
 became ve.steil in Sowerby and (Jruut; 
 that by the dissolution of partnership be- 
 tween tlieni in June, 1S4S, and the transfer 
 by Grant to Sonerby of &I1 his right, title 
 and interest in the partnership property, 
 .Sowei'by sti[)ulating to pay all the part- 
 nership debts, this property l>ecame vested 
 in Sowerby: and that by his subseijuent 
 insolvency, the procredini;s under it, and 
 tlie assignment to the plaintiff, the same 
 title to the property became vested in 
 him. 
 
 On the other hand, thedefendnnt insists, 
 th.'it thc)ugh the wood was sold and meas- 
 ured off, with a license to the purchasers 
 to come on to his land, an<l take it away 
 as they wanted it, at any time within one 
 year; and though a credit of six months 
 was given for the purchase money, and a 
 note was given to the plaintiff payable at 
 the Nortliaiii|iton ISank In six months; 
 yet as the wood remained as It originally 
 lay on his premises, it was in his actual 
 possession; and, as the ]inrchasers be- 
 came insolvent, and legal proceedings in 
 insolvency were instituted against thera, 
 before the price of the wood had been 
 paiti, he had a right to detain the wood 
 until payment or its etiiiivalent. 
 
 The cause has been extremely well ar-
 
 ARNOLD V. DELANO. 
 
 Riie<l on both sides, unrl many nuthoiitics 
 linve liHcii cited. Bvit without tjoiiiK oviT 
 tlie wliclu )j;r()miil. it in proposed to state 
 only wh'it we uiidei-Htund to l)e the rules 
 of liiw l>euriIl^' upon the snl).icct, and to 
 apply them to the facts of the case as they 
 appear in the a^ieed statement. 
 
 ■J'here is niunifestly amarkeil distinction 
 lietween those arts, which, as hetween 
 the vendor anrl vendee upon a contract of 
 siili'.jio to make a constructive delivery 
 and to vest the property in the vendee, 
 anil that actual delivery by the vendor to 
 the vendee, which puts an enii to the rijilit 
 of the vendor to liold the KO<'Js as secu- 
 rity for the price. 
 
 \Vhen Koods are sold, and there is no 
 Ktipnlatioii for creilit or time allowed for 
 payment, the venilor hiiR liy the common 
 law a lien for the price; in other vi-ords, 
 he is not bound actually t(( part with the 
 possession of the goodH, witiiout beinR 
 paid for them. The term "lieu" Imports, 
 that l)y the contract of sale, and a form- 
 al, symbolical or constructive delivery, 
 the proi)erty has vested in the vendee; l)e- 
 causo nu man can have a lien on his own 
 floods. The very ilehnition of a lien is, a 
 rittht to hold uoods, the property of an- 
 other, in security for some debt, duty or 
 other (ddifiMtioii. If the holder is the 
 owner, the rifjht to retain is a rinht inci- 
 dent to the riftlit of property ; if he have 
 had a lien, it is merged in the general prop- 
 erty. 
 
 A lieu for the price is incident to the con- 
 tract of sale, when there is no stipulation 
 tlierein to the contrary; because a man is 
 not reuuired to part with his jioods, un- 
 til he is jiaid for them. But conventio 
 legeni vincit ; and when a credit is niveu 
 by agreement, the vendee lias a right to 
 the custody and actual possession, on a 
 promise to pay at a future time, lie may 
 then take the goods away, and into his 
 own actual possession; and if he does so, 
 the lien of tlie vendor is gone, it lieing a 
 right incident to the possession. 
 
 I'.ut the law, in holding that a vendor, 
 who has thus given credit for goods, 
 waives his lien for the piice, does so on 
 one implied condition, which is, that the 
 veujlee shall, Jieep his credit gootT ~Tt, 
 therefore, before pay ment, the vendee be- 
 come l)ankru|)t or insolvent, and the ven- 
 dor still I'l tains the custody of the gcjods, 
 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 have not 
 .vet got into his actual possession, and the 
 vendor, before tliey do so, can regain his 
 oclual /x.ssession, by a stoppage in tran- 
 situ; tiien his lien is restored, and lie may 
 hold the goods as security for the price. 
 
 The princiide we take to be well settled, 
 but the dilliculty which arises in practice, 
 — one which has given rise to so many 
 cases, — lies in iletermining what is such 
 an actual chansre of (lossession from the 
 vendor to the vendee, as shall be deemed 
 to put an end to the vendor's lien. Some 
 cases seem to he clear, and to illustrate 
 the rule. If the goods are delivered to the 
 vendee's oW!> servant, agent, wagoner, 
 or shipmaster, that is in law a delivery 
 to tlie \endee himself. So if poods are 
 Htored in u commou warehouse, as the 
 
 dock warehouses at the London docks, and 
 entered in the liooks as the proi)erty of A. 
 B., and deliverable to him, and a dock 
 warrant issued, and afterwards, upon 
 the pi-oper order of A. B. on the warrant, 
 the whole or a i)art are transferred to (?. 
 P., and entered in like manner in his name, 
 this is an actual change of custody, con- 
 trol and possession, though the goods 
 are not moved from their position. So, 
 if the seller sustain different characters, 
 as if a person, who is a livery stable 
 keeper, having a horse to sell, makes u 
 sale to C. D., and then transfers the horse 
 to his livery stable, to be kept for C. D. 
 at a stipulated weekly hire, this may be 
 regarded as an actual change of custody 
 and possession. 
 
 But by far the most common case which 
 ticcurs, is where goods are ordered by let- 
 ter, on credit, to be sent from one country 
 to another, or from one part of the same 
 country to another, and are accordingly 
 forwarded by a common carrier. There, 
 as the carrier is not the servant of the 
 vendee, the goods, though they have left 
 the actual possession of the vendor, if 
 they have not reached the actual custody 
 of the veudee, or the ultimate i)lace of tles- 
 tiuation ordered by him, may be stopped 
 in transitu by the vendor; and if he can 
 thus stop them, he regains !iis lien. 
 
 Now to apply these rules to the present 
 case: it appears to us very clear, that 
 tliore was a good sale and delivery of the 
 wood to Grant and .Sowerby. The wood 
 was measured and marked off, so that 
 the very sticks composing the sixty-live 
 cords would be iilentified. And thereasou, 
 why marking, measuring, weighing, &c., 
 is necessai'y. is, that the particular goods 
 may be identified. If ten barrels of oil are 
 sold, lying in a tank of thirty barrels, the 
 buyer can identify no part of it as his, un- 
 til itis measured. So, if fifty bales of cot- 
 ton are sold out of one hundred, no par- 
 ticular bales are identified until separa- 
 tion. But, if they are capable of being 
 identihed, and Ity the contract of sale are 
 identified, that is surticient, and the prop- 
 erty passes ; as, if in the last case, there 
 are one hundred bales of cotton, num- 
 bered from one to one hundred, and the 
 contract is for the fifty odd nunibers, or 
 the hfty even nunibers, or any other speci- 
 fied fifty nnraliers, the bales sold are iden- 
 tified though notseparated. Inthepreseut 
 case, the wood was marked off and iden- 
 tified, aud the vendees had a license for 
 o!ie year to roiue on to the vendor's land 
 and to take it away This was a com- 
 plete sale and a constructive delivrry, so 
 as to vest the property inOrant and Sow- 
 erby ; and, <>n their dissolution and trans- 
 fer, it vested in Sowerby, and by the as- 
 signnicnt in his assignee. Then, the (jucs- 
 tion is, w 1, ether the defendant had, under 
 tlie circumstances, a lien for the price, and 
 we think he had. 
 
 The purchasers had a license to go on to 
 the defendant's land, and take the wood; 
 whether this license was revocable or not, 
 it is not necessary to consider, as it was 
 not in fact revoked. But the vendees did 
 not enter and take the wood ; it remained 
 ou the vendor's land, and in his possession, 
 in the same manner as before and at the
 
 AUXOLI) V. DELANO. 
 
 time of tlip sale. The vcikJov octeil in no 
 new capacity; lie was to receive notliinu 
 for kee|)inK ; lie was precisely in the condi- 
 tion of a vendor, who l)ad not parted will) 
 the possession and eiistoily of the i^oods 
 sold. And this was the state c)f things, 
 / when Sowerhy went into insolvency; 
 1 upon which event, \\e tliinlt, tlie vendor 
 ( was remitted to liis ri^ht to keep iiosses 
 Sinn of the wood as security for tlie price. 
 Such a vendor in jiossession is rega riled 
 a.s haviii;c n hiKlier equity to retain foi-ihe 
 |)rice, than the assignee of a debtor, who 
 lias not paiil for the property, has to 
 claim it for the Kt'lieral creditors. 
 
 Sometinres a (inestion may arise as to 
 what constitutes an Insolvency, and 
 whetlier a nierestoppa^e of payment, and 
 failure, in the popular sense, is sulli'.ient. 
 In this case, there is no donlit, hecansp 
 there was an insolvi'iicy declared l)y law, 
 and a seciuc'stration of all the vendee's 
 property, under which this wood is 
 claimed liy the plaintiff. 
 
 If it might be supposed, that tlie s'vinR 
 of a noie in this case was a payment, 
 which would vary the case from that of 
 a siiiiph! promise to pay for the wood, 
 we think the answer i.s, that a promissor.v 
 note, even if in form ncKotiahle, whilst it 
 remains in the hands of tlie vendor an<l 
 not negotiated, but reaily to be delivered 
 up on the discharge of the lien, is re- 
 garded as the evidence in writing of a 
 promise to pay for the goods purchased, 
 and does not vary the rights of the par- 
 
 ties. Thurston V. IJIanchard, 22 Pick. 18. 
 
 Tlie fact, that after the proceedings Id 
 insolvency commenced, and becaine kncjwn 
 to the defendant, he applied to Sowerby 
 and got up the bill of sale, cannot of it- 
 self, we think, avail the defendant. The 
 insolvent could not, in that state, vacate 
 the sale, or reconvey tho property ; and if 
 the wood was worth more tlian the lien 
 ot the defendant upon it, we think that 
 the assignee, fin paying the defendant the 
 price, was entitle<l to the wood for the 
 benefit ot the general creditors; and this 
 was a right which the insolvent could 
 not defeat. 
 
 A fact was stated, on the port of the 
 plaintiff, as of some weight, namely, that 
 after the expiraticni of one year from the 
 sale, the defemlant sold a part of the 
 wood. Whether, at that fine, he had 
 an absolute right to sell the wo<id or not, 
 it seems t(j us, that such sale can have no 
 effect on this claim. The plaintiff, if he 
 can recover at all, must recover on the 
 strength of his own title. He must prove 
 a conversion. 'I'he action of trover ad- 
 mi's that the defendant obtained the [los- 
 session rightfully; then, if he hml a lien 
 and a right to liold until the |)riee was 
 paid, his refusal to deliver the wood on 
 (leinand to tlie plain tiff, (such demand not 
 being accompanied with a tender of the 
 price,) was no evidence of conversion; 
 and. until -luch tender made, the plaintiff 
 has no ground of couiplaint. 
 
 .luUgment for the defendant.
 
 BABCOCK V. BONNELL. 
 
 11 
 
 BABfOCK V. BONNELL. 
 
 (80 N. Y. 244.) 
 
 Court of Appeals of New York. Jan. Term. 
 1880. 
 
 Action by the.'KlininiHtratrix of Bnbcock 
 agtiiiiHt Bounell for an accountinfj for the 
 proceuilHof a policy of inHurance taken out 
 on the life of liabcoek, and delivered to 
 defendant as collateral necurity for two 
 proiniHsory notcH of Babcock & Co. for 
 .f4,fl7S.4S. Bonnell afterwards received 
 from one VVlieelriRht .fUl'.j in full satiHfac- 
 tion of the notes which were delivered to 
 Babcock & Co. and destroyed. 
 
 Wrn. W. Niles, for appellant. Julien T. 
 Davis, for respondent. 
 
 (;IIL'RCH, C. J. The findinR of the trial 
 jud^e that the poIic.v was taken out and 
 delivered to the defendant as collateral 
 security for tlie paynient of the indebted- 
 ness of Babcock & Co. to him was war- 
 ranted by the evidence. No other conclu- 
 sion could be arrived at, and the evidence 
 is substantially uudi8|)uted. 
 
 Some years afterward Mr. Babcock ex- 
 pressed a desirenot to bere;;ar(le(l as hav- 
 ing an interest, and stated that the entire 
 interest was in thedefendant ; but I do not 
 think that this e\pres.«ion, under the cir- 
 cumstances, would have the effect of a re- 
 lease, orcreate an estoppel. 'I'here is no dis- 
 pute tliatat the time the policy was taken 
 out, there was an itKlebtedness in favor of 
 the defendant af^ainst Babcock & Co., evi- 
 denced by two notes, aniountinja: to 
 .f4,(i7S.4S. The policy was issued in Feb- 
 ruary, ISTO, and it is claimed and found 
 that in Ajiril, IMO, these notes were com- 
 promised and settled, and that the defend- 
 ant received fioni one Wheelrif^ht, on behalf 
 of Babcock & Co., .f92.') in money, in full 
 satisfaction and <lischar^;eof said indebted- 
 ness, and delivered and surrendered said 
 notes to him, and that they were after- 
 ward delivered up to I'.ahcock it Co., who 
 destroyed and canceled them. WheelriRht 
 testified that he inirchased the notes of 
 the defendant, and i)aid his own nione.v, 
 and delivered them to Babcock & Co. up- 
 on beiuf? repaid that amount and his ex- 
 penses. In eitlier view we think the debt 
 was dischariied. It was nn executed ac- 
 cord. Nothing remained executory, and 
 it operated as a full satisfaction. A mere 
 pronii.se to accept less than the full 
 amount of a debt althonjih 1 he sum prom- 
 ised has lieen paid has been held not sutli- 
 cient; hut when the security has been sur- 
 ren<lered, or some act done of a like na- 
 ture, there is nt) reason in law or morals, 
 why the party should not be bound. 
 Kronier v. Heiin, 7.5 N. Y. nH; 31 Am. Kep. 
 
 4yi. 
 
 It may be that the defendant Intended 
 to hold the policy of insurance to indem- 
 nify him for the deficiency, but there was 
 no aureement to that effect, and the de- 
 fendant's letters indicate that he had re- 
 Harded ihe det)t fully released and can- 
 celed. The defendant claims also to hold 
 the policy as security for the balance of 
 an additional indebtedness of :fl,'_'J(i.-14 
 and interest, after applying the proceeds 
 
 of a cargo of coal, the finding In respect 
 to which is here inserted. "F«>urth. On 
 the 15tli day of November, IKG!), thedefend- 
 ant sold a carRO of coal to said Charles 
 A. Babcock & Co., and took a note in 
 payment therefor of $l,:;i!l!.44, due March 
 1.'), 1S70; the said last-mentioned cargo of 
 coal wasshiiiped to said Charles A. Bab- 
 cock & Co. by the schooner llepzibah, on 
 or about the 21st day of February, 1S70, 
 thedefendant through his agent, Hdward 
 (lUllager, stopped the said last-mentioned 
 cargo of coal in transitu, took possession 
 thereof and disallirmed the contract of 
 sale therefor, and on the 4th day of May, 
 1S70, sold the said last-mentioned cargo of 
 coal to one E. S. Farrar. " If tl)is finding 
 can be sustained as a finding of fact, it 
 disposes of any claim for the debt. If the 
 disaffirmance of the contract of sale of the 
 coal dejjends as matter of law ninin the 
 stoppage of the coal in transitu, then a 
 moredilDcult and doubtful i)uestion is pre- 
 sented. lOvery Intendment isin favorof the 
 findings of facts, and findings may be im- 
 plied if warranted by the evidence to bus- 
 tain a judgment. The evidence as to the 
 stoppage of the coal, as to the possession 
 of the defendant, and the sale thereof by 
 him does not present the facts as clearly 
 as would be desirable upon tliis (juestlon. 
 If the defendant took possession of the 
 coal in the exercise of the right of stop- 
 page in transitu, and sold the same with- 
 out notice to Babcock & Co., and without 
 their consent, and especially before the 
 <lebt was due, an inference of an intention 
 to disafhrm the contract of sale might be 
 ilrawn, because upon the theory that this 
 right is to enforce a lien, as claimed by the 
 defendant, he must hold the pro|)erty un- 
 til the expiration of the credit, and be able 
 to deliver it upon paynient of the price, 
 and the venilee has the right to pay the 
 price and take the property. According 
 to that theory thecredit is not abrogated, 
 nor the sale, but the vendor is permitted 
 to re-take the possession of the property, 
 and hold it as security until the price is 
 I)aid. If not jiaid at the time stiimlated 
 the ven<lor, in aiuilogy to other cases of 
 lien, may sell the property upon giving 
 notice. 
 
 The general rule upon the theory of a 
 lien must be that the vendor having ex- 
 ercised the right of stoni)age in transitu, 
 is restored to his position l)efore he parted 
 with the i)088ession of the property. The 
 jiroperty is vested in the vendee, and the 
 vendorholds possession as security for the 
 payment of the purchase-price. If there- 
 fore the defendant sold the coal without 
 notice or consent, or if with consent of the 
 vendees with the understanding that the 
 sale was to be deemed rescinded Ihelind- 
 ing would l)e justilied, and the defendant 
 would have no claim upon this note. 
 
 The coal was sohl to one Farrar. and a 
 bill of sale thereof made by the defeudjint, 
 and he received the purchase-money. The 
 coal was sold and the bill of sale and pay- 
 ment were not made until .\pril, after the 
 note beiami" due. and there is some con- 
 llict in Ihe evidence whether it was made 
 with the knowledge or consent of Bab- 
 cock & Co.. or not. 
 
 As to the legal queslion, although the
 
 12 
 
 BABCOCK V. BONNELL. 
 
 right of Btoppnce in tratiKitii Ims bocn roc- 
 omiizpd in Hiislaiid for ni-arly two liiin- 
 tlreil years, tiiore is great confusion in tlie 
 lmol<H as to tiie origin of tlie rijilit, and 
 tlie prinoipioH upon wiiicli it is founded. 
 As late as 1S41 Lord .Abiiider said, that 
 "although tlie tiuestion of stoppage in 
 transitu liatl lieeii as fn><iiiently raised as 
 any other merrantiie (jiicstion witliin tlie 
 Inst bunflred years.it tnust he owned that 
 tlie principle on which it depends has never 
 lieen either settled or stated in a satisfac- 
 tory manner. 
 
 " incourt.sof equity it has been a received 
 opinion tliat it was founded on some 
 priiicipli'(,f common law. Incourtsof law 
 it is just as much the practice to call it a 
 principle of e(|uity which the common law 
 has adopted. " 
 
 Mr. Parsons, in his work on Admiralty, 
 Hnyt. there are Ihiee ways, in either of 
 which it miKht he supposed that the law 
 of stoppage entered into the law of Eng- 
 land. One that it is based upon the civil 
 law by which, in case of a sale, the prop- 
 erty does not pass to the buyer until he 
 has possession of the floods. It would 
 follow that the seller would continue the 
 owner until they reach the Imyer, and 
 that by the insolvency of the latter the 
 goods would remain the projierty of the 
 loriiier. E.v the common la w a sale does 
 of itself pass the property to the buyer, 
 without delivery. Another way is by im- 
 plying; a right of resciudiii};- the contract 
 «if sale in case of insolvency, and that the 
 act of stoppage was an exercise of that 
 right, and a third way is by implying con- 
 structive possession in the seller for the 
 purpose of a lien, to be enforc("d b.v the act 
 of stoppage, or, in other words, that this 
 right is an enlargement of the common- 
 law right of lien. I'ars. Adm. ■179. 
 
 The rule seems not to h,Tve been settled 
 in 1S42. Parke, H.. said : " What theeffect 
 of stoppage in triuisitu is, whether en- 
 tirely to rescind the contract, or <mly to 
 rei)lnco the vendor in the same position as 
 if lie had not parted with the possession, 
 and entitle him to hold the gr)ods until 
 the price be paid down, is a point not yet 
 fully deci<ied, and there are ditficulties at- 
 tending each construction." 
 
 Mr. Bell, in his ('oinmentaries on the 
 Law of .Scotland, favors the doctrine of 
 rescission. He says: "Although there 
 are many ditticulties either way. it ap- 
 pears, on the whole, most consistent with 
 the great lines of this doctrine of stoppage 
 in transitu, that the seller's security over 
 the goods sold, though peHiaps in a large 
 sense of the nature of a lien, is given by 
 equit.v originally on the condition that 
 the stiler shall take back the goods, as if 
 the contract were ab initio recalled." 
 
 There are some other authorities favor- 
 ing the same view, and there are others 
 that favor the theory of a lien. F'eise v. 
 Wray, ;i East. 'J3: Ex Parte Gwynne, 12 
 Ves. Jr. 379; Lick barrow v. Mason, 6 East, 
 21, note. 
 
 Mr. Parsons says that the earlier Eng- 
 
 lish cases sustain the doctrine of a lien, 
 and intimates that later authorities 
 changed the ground to that of rescission, 
 but that the latest returned to the orig- 
 inal doctrine. Pars. Ad.'B.4SL Whatever 
 uncertainty there may be as to the rule in 
 England, the decisions in this country are 
 quite preponderating in favor of tlie 
 theory of a lien. Rowley v. Bigelow, 12 
 Pick. 307; 23 Am. Dec. 007; Stanton v. 
 Eager, ]() Pick. 4()7-475; Arnold v. Delano, 
 4 Cush. 33, 3!>; 50 Am. Dec. 7.')4: Newhall 
 V.Vargas, 13 Me. 93; 29 Am. Dec. tf*!); S. C, 
 15 Me. 314; 33 Am. Dec. C17, and cases 
 cited; Rogers v. Thomas, 20 Conn. .")3; 
 .Jordan v. James, 5 Ohio, SS-98; Harris v. 
 Pratt, 17 N. Y. 203. The elementary 
 writers favor the same view. 2 Kent Com. 
 .541 ; Pars. Adm. 4S3; Pars. Cont. .598. The 
 (juestion has never been, that I am aware, 
 definitely decided in this state. As an 
 original question the doctrine of rescission 
 commends itself to my judgment as Ijeing 
 more simple, and in most cases, more just 
 to both parties than the notion that the 
 act of stoppage is the exercise of a -right 
 of lien, but in deference to the prevailing 
 current of authority, I should hesitate in 
 attempting to oppose it by an.v opinion 
 of my own, and for that reason I do not 
 deem it necessary to state the grounds 
 which influence my judgment. 
 
 It is found as a, Fact that the policy was 
 delivered to the defendant as collateral 
 securit.v for the payment of the first two 
 notes referred to only, "and that the de- 
 fendants never acquired or had any inter- 
 est in said policy or in the moneys to ac- 
 crue or become paj'aVile thereon, except as 
 a creditor of tlie said firm, and to the ex- 
 tent of liis claim upon the aforesaid two 
 notes against the said firm." The evi- 
 dence justified this finding. The letter of 
 the defendant of March 1, lS7fi. shows that 
 he did not then suppose that he had any 
 legal indebtedness against Babcock & Co. 
 At the time the policy was issued the 
 cargo of coal for vvhirrh the last note was 
 given was in possession of thedefendant as 
 he claimed, and had not tieen disjiosed of, 
 so that the balance, even if Babcock & Co. 
 were liablefor it, could not tlien beknown, 
 and in March after, in a letter to the de- 
 fendant, introducing Mr. Wheelright, Bab- 
 cock & Co. say: "We will avail ourselves 
 of theopportunity to have him arrange for 
 the settlement of .your claim against us, 
 leaving in abeyance thecargoof Hepzibah, 
 and the note given in settlement of the 
 same. " 
 
 The testimony of the insurance agent is 
 to the effect that tlie polic.v was lielivered 
 to secure a fixed indebtedness, which 
 could only refer to the tjrst two notes. 
 We are of opinion therefore that the de- 
 fendant has no lien upon this money to 
 secuie the balance of the note given for 
 that cargo of coal, even if Babcock & Co. 
 are liable for it. 
 
 It follows that the judgment must he 
 atllrmed. 
 
 All concur, except EARL, J., dissenting.
 
 BAILEY P. HUDSON lUVEll U. CO. 
 
 15 
 
 i5Aii.i;v V. iirnsox river r. cx). 
 
 (49 N. Y. 70.) 
 
 Court of Appciils-of New York. 1872. 
 
 Action by Uiiilej- & Co. nguiiiBt defend- 
 ant for tlie converHion of certain dry 
 (jo'xIh (lelivonil to defendant and con- 
 si;;iR'd to pJaiutiffH. 
 
 Tlinron K. Stronf?. for appellant. 
 .Samuel Hand, for rcHpondents. 
 
 CHURCH, C. J. It l8 iindiHpiitpd that 
 Allien, Fiink i*i WpKton delivered the 
 j^oodH in (jneHtion to the dofeiidiint, to be 
 trniis|i<)rted hy them to the plaintiffH; 
 tliat they were consi«iicii to tiie plaintiffs, 
 and the packanespropeily marked with the 
 name of the plaintiffH' lirni, and lliedefend- 
 aiit Rave a receipt for the same, aureeinf; 
 to deliver the goodH nafely to the plain tiffs 
 at the city of .New York. It is also iindis- 
 imteii tha t the plaintiffs had ma<le a spe- 
 eilie advanee upon a portion of the ^oods, 
 anil the renininder were shipped in pnrsu- 
 anee of an agreement Itetween the plain- 
 tiffs and Allien, Krink & VVeston, to pay 
 for uione.v borrowed l>y the Intter of the 
 toriner a few days previouH, and that in- 
 voices of all the goods, statinc Hie eon- 
 si^rnnient and shipment hy thedefeiidant's 
 railroad, had I'een forwarded to the plain- 
 tiffs hy mail. This xvas suiistanlially the 
 condition of things on the 17lh of t>(lolier, 
 wlu-n one of the niemlicrs of the lirm (A 
 Allien, Kriak & Weston, for his individual 
 benefit, but in the name of his firm, 
 chantreil the destination of the goods, and 
 the defendant delivered them in pursuance 
 of such changed destination to another 
 person. The ijuestiun is. whether the title 
 had vested in the plaintiffs, i think it 
 had. It is clear that the consignors de- 
 livered the goods to the carrier for the 
 plaintiffs in comjiliance with their con- 
 tract to do so. The parol contract %\ as 
 thereby executed, and the title vested in 
 the plaintiffs. The iilainliffs occupied the 
 legal position of vendees after having 
 paid the purchase-money and received 
 the delivery of the goods. Hut it is unnec- 
 essary, in order the uphold this judgment, 
 to maintain that the plaintiffs occupied 
 strictly the relation of vendees. The legal 
 rights of a vendee attach when goods 
 are shipped to a commission niercliant, 
 who has made advances upon them in 
 liursuanee of an agreement between the 
 parties. Such an agreement may be either 
 inferred from the circuii'stnnccs or shown 
 bv express contract. Holbniok v. Wight, 
 L'4 Wend. Kilt, a.") Am. Dec. (107 ; Haille v. 
 Smith. 1 Bos. & Pnl. TM:\. In the latter 
 rase. Kyre, .1., said : "From the moment 
 (ho goods were set apart for this partic- 
 ular purpose, why should we not hold the 
 liropcrty in them to have changi'd. it be- 
 ing in perfect conforinily to the agrrenient 
 ond such an execution thereof as the jus- 
 tice of tlie case reiiiijres." The same priii- 
 cii)le lias been repea tcdiv adopted. (Jros- 
 venor v. I'liillips, •_' Ilill,"l47. 
 
 It must appear that the delivery was 
 made with intent to transfer the prop- 
 erty. I'ntil this is done the parol agree- 
 ment is executory, the title remains in the 
 
 consignor, and ho has the power to trans- 
 fer the property to whomsoever ho 
 pleases, and render himself liable for the 
 non-performance of the contract. It is 
 urged by the counsel for the defendant 
 that no bill of lading was forwarded or 
 ilelivered to the plaintiffs, and that until 
 this was done the title remnined in the 
 consignors. This is undoubtedly true in 
 many ('ases: but it is mainly important in 
 characterizing the act of the sliipiier, and 
 showing with what purpose and intent 
 the goods were delivered to the carrier. 
 If A. has [iroperty. upon whirh he has re- 
 ceived an advance from H. upon an agree- 
 ment that he will ship it to li. to pa^ the 
 advance or to pay any indebtedness, he 
 may or may not comply with his con- 
 tract. He may ship it to t'. or he may 
 ship it to H. upon conditions. As owner 
 he can disposi- of it as he pleases. Hut If 
 he actually ships it to B. in pursuance of 
 his contract, the title vests in P.. uiion the 
 sliip'ment. The highest evidence that he 
 has ilone so is Hie consignnieiu and un- 
 conditional delivery to B. of the bill of 
 lading. If the consignor procures an ad- 
 vance upon the bill of lailing Iroin a thiril 
 person, or delivers or indorses the bill of 
 lading to a third person for a considera- 
 tion, it furnishes eijually satisfact(jry evi- 
 dence that the property was not delivereil 
 to the consignee, for the simple reason 
 that it was delivered to some one else. 
 I'ut I apprehend that if a consignor who 
 made such an agreement retained in his 
 own possession H du|)licate of the bill of 
 lading, and notified the consignee by let- 
 ter that he had shipped the property for 
 him in pursuance of the agreement, or in 
 any other manner the in tent ion thus to ship 
 it was evinced, the title would pass as 
 effectually, as between them, as if ho had 
 forwarded the bill of ladinir. The ques- 
 tion whether a subsenuent indorsee of the 
 liill of lading for a valuable consideration 
 couhi ac(]uire any rights against the con- 
 signee is not invfdved. .\s against the 
 consignor the delivery of the property to 
 the carrier, witli intent to comply with 
 his contract, vests the title in tlie con- 
 signee. It is largelv a question of inten- 
 tion. Jn .Mitchel v, Ede, 11 Adol. & El. 
 9IK?, cited by the defendants. Lord Deninan 
 said: "The intention of Mackenzie to 
 transfer the propert,v to the plaintiff is 
 umiuestionabie, and we think that under 
 the circumstauces he has carried that in- 
 tention into effect." .^nd in Bank of 
 Kochoster v. Jones, 4 N. V.."i(ll, .">."> .Am. Dec. 
 J'.Mi, this court said: "When The bill of 
 lading has not been delivired to the 
 consignee, un<l there is nootherevidence of 
 !Ui intention on the part of the consignor 
 to consign the specilic iiroiieity to him, 
 no lien will attach." In that case the bill 
 of lailiug was not only not sent to the con- 
 signee, but was transferred to the plain- 
 tiffs and money borrowed upon it, and 
 there was no evidence of an intention to 
 consign the tionr to the defendant except 
 upon thecondition of paying the mone.vso 
 borrowed. It slinuld be observed also 
 that in that case there was no agreement 
 to consign the property to the defeinlant 
 as security, or in payment of the indebt- 
 edness due hiiu from the consignor. Such
 
 16 
 
 BAILKY V. IlUnSOX RIVER R. CO. 
 
 an nKreeiiicnt, oitlior ox|)i-chh (ir iiii|ili?(], 
 in iinportiiiit. iilthoiiicli not i-oiiclusive, in 
 showitm tlio intent with which the m-t 
 WHS iliiiif. in III is cttsc tliiMi- ^vns no 
 ntlicr bill of lailiiifi tlmn the reci'i|)l i)r()- 
 (Inceil ill ovickMu-e, nnd no duplicate \vnn 
 taken; but the intention of Aldeii, KrinU 
 & Weston to transfer this specilie property 
 to the i)laiiitiff8, to Reapplied upon their 
 indelitediu'SH, eontlusively appears liy the 
 undisputed evidence. 1. I!y the agree- 
 ment the day prior to the shipment, l!. 
 Uy forwarding invoices of the shipment 
 t<") the plaintiffs. :!. l$y inaUint;; the sliip- 
 ent iiTiconditiotially. 4. I!y retaining the 
 receipt given by the defendant, and neither 
 making or Dtteinptini: to make any use 
 of it. 
 
 Thi'se nets were so nnequivopnl of an in- 
 teiilidii to transfer the property to the 
 [ilaiiililfs that there remains no room for 
 doubt. 'I'he moment these acts were 
 done, the title vested in the pl.-iintiffs, nnd 
 the eoiisifinors were powerless to inter- 
 fere with the property. 
 
 The recent ease of Cayuga County Na- 
 tional liiink v. Daniels, 47 N. Y. tV-'A. was 
 decided against the cousignees upon the 
 distinction above referred to. It was held 
 in that case that the coiisignors did not 
 deliver the property to the carrier with 
 tlie intention to vest the title in the tle- 
 fendants, except upon condition of pay- 
 ing a draft discounted by the plaintiffs, 
 and that the bill of lading was delivered 
 upon that conrlition, and that on the de- 
 fendants' refusal to comply with the con- 
 <lition, tliey HC(|uired no right or title to 
 the property, and that the case tiierefore 
 caiiK! within tin; principle of Hank of 
 Kochester v .lones, snpra. Here the in- 
 tention to vest the title is clear and plain, 
 it is tirged that the words "on our ac. 
 count" in the invoices evinced an inten- 
 tion not to vest the title in the plaintiffs. 
 They can have no such effect in this case, 
 even if, standing alone and nne.viiUiined, 
 they might have. A bill of lading for 
 which, as between the parties, the invoices 
 were a substitute, can always be ex- 
 plained by parol, it may be shown by 
 parol to have been intended as evidence 
 of an absolute sale, a trust, a mortgage, 
 a pledge, a lien, or a mere agency. 2 Hill, 
 15i; 4 N. Y. 501, and cases cited." The ac- 
 
 tual agreement and transaction will pre- 
 vail, and it was proveil ny two of the 
 members of the firm, an<l uncontradicted, 
 that the goods were 4n fact shipped in 
 pursuance of the agreement. liesides, 
 these words are not ne(;cssai'ily inconsist- 
 ent with the agreement. The goods were 
 not purchased alisolntely liy the plaintiffs 
 at a stiecified price, but were to l)e sold 
 and the avails applied. The relation of 
 the plaintiffs was more nearly that of trus- 
 tee, having the title, and bonnd to dispose 
 (»f the jtroiierty and apply the proceeds in 
 a particular manner, and the consignors 
 Vt'ere the cestuis que trust, having the 
 legal right to enforce the terms of the 
 agreement for their benefit. In this sense 
 the property was sliippeil on thoir account, 
 and the agreement is consistent with the 
 meaning of those words. The statute 
 of frauds has no npi)lication. 1. There 
 was no sale. 2. If there was the consid- 
 eration was paid. 3. The property was 
 specified when the agreement was made 
 as being that which had been anil was 
 then being shipped, and the idainiiffs 
 agreed to accept that particular i)rop- 
 erly, and the subsequent delivery to the 
 carrier agreed upon was in legal effect 
 a deliverv to the plaintiffs. Cross v. 
 O'Uonnell. 44 N. Y. 661, 4 Am. Rep. 721; 
 .Stafford v. Webb, Lalor Snpp. 217. 
 
 The defendant is liable for a conversion 
 of the property. It had receipted the 
 l)roi)erty and agreed to transport safely 
 and deliver it to the plaintiffs. Instead 
 of complying with its contract, it deliv- 
 ered the property to another person by the 
 direction of one who had no more legal 
 authority over the property than a 
 stranger, without the return even of its 
 receipt. The plaintiffs haci vested rights 
 which the defendant was bound to re- 
 spect, and with a knowledge of which it 
 was legally chargeable. Willetts v Sun 
 .Mut, Ins. (;o., 4.5 N. T. 49; Hawkins v. 
 Hoffman, 6 Hill, ,586; Holbrook v. Wight, 
 24 Wend. 169; Story Bailm. 414; Royce 
 v. Brockway, 31 N. V. 490. Ii was 
 its duty to deliver the property to 
 the real owner. McEntee v. New Jersey 
 Steamboat Co., 4.5 N. Y. 34. 
 
 Judgment affirmed, with costs. 
 
 All concur. 
 
 Judgment aflBrmed.
 
 BALDEY 0. PARKER. 
 
 19 
 
 BALDEY et al. v. PARKER. 
 
 (2 Bani. & C. .'{".) 
 
 King's Bi'iicli. Juiip 5, 182.'!. 
 
 AHSunipHit (or Roods huIiI ami delivered. 
 Pleu, (leneral iwHiie. At the triHl Iji'fore 
 Ahlxitt, «'. .).,at tlie LoikIoii sittiriKH uUer 
 Trinity term, IS22, tlie t'ollowinK uppeiired 
 to be tlie ffictH of tiie fiine: Tlic pliiintiffd 
 are linen-draperH, aiKi tlie dclendant camo 
 to tlieir hIi(i|> anil tiar^^ained for variouM 
 articleM. A separate price waH agreed np- 
 OM for eacli, and no one article was of tlie 
 vniiK? of £10. Some were mcaRured in his 
 prewence; Home lie tuarlied with a pencil; 
 others he assiHtcd in cutting from a larger 
 bulk. He then desired an account of the 
 whole to be sent to his house, and went 
 away. A bill of parcels was accorJinjily 
 made out and sent by a shopman. The 
 amount of the noods was £70. The de- 
 fendant looked at the account, and asked 
 what discount would bo allowed for ready 
 money, and was told £."1 per cent.; he re- 
 plied that it was too little, and reqiiosted 
 to see the person 01 whom lie boii.ilit llio 
 goods (Ualdcy), as he could bargain with 
 him respectinn the discount, and said that 
 he ouf^lit to be illowed £J0 percent. The 
 Koo<ls were afterwards sent to the defend- 
 ant's h<iuse, and he refused to accept 
 tiiein. The lord chief justice tho'isht that 
 this was a contract for jjoods of more 
 than the value of tlO within the meaning 
 of the ITtli section of tht'statutc of frauds, 
 and not within any of the exceptions there 
 mentioned, and directed a nonsuit; but 
 gave the plaintiffs leave to move to enter 
 « verdict in their favor for £70. A rule 
 haviny; accordingly been obtained for that 
 purpose, 
 
 Scarlett and E. Lawes now shewed 
 cause. Denman and Piatt, contra. 
 
 ABBOTT, C. J. We have given our 
 opinion upon more than one occasion 
 that the 2i) Car. 2, c. ^, is a highly beneficial 
 and remedial statute. We are therefore 
 bound so tocoiistrueit as to furthertheob- 
 ject and intention of the legislature, which 
 was the prevention of fraud. It appeared 
 from the facts of this case that the defend- 
 ant went into the plaintiff's shop and bar- 
 gained for various articles. Some were 
 severed from a larger bulk, and some he 
 marked in order to s.-itisfy liimself that 
 the same were afterwards sent home to 
 him. The first question is whether this 
 was one entire contract for the sale of all 
 the goods. By holding that it was not, 
 we should entirely defeat the oliject of the 
 statute. For then persons iuteiiding to 
 buy many articles at one time, amounting 
 in the whole to a largo price, might with- 
 draw the case from the oiieration of the 
 statute by making a separate bargain for 
 each articlo. Looking at the whole trans- 
 action, I am of opinion that the parties 
 must be considere<l to have made one en- 
 tire contract for the whole ol the articles. 
 The plaintiffs therefore cannot maintain 
 this action unless they can shew that the 
 case is within the exception of the 29 Car. 
 2, c. 3, § 17. Now the words of that e.\cep- 
 tloD are peculiar, "except the buyer sbull 
 
 accept part of the goods so sold, and acto- 
 ally receive the same. " It would be diffi- 
 cult to find words more di-.tiiictly denot- 
 ing an actual transfer of the article from 
 the seller, and an actual taking possession 
 of it liy the buyer. If we held that such a 
 transfer and acceptance were complete in 
 this case, it would seem to follow as a 
 necessary conseciiience that the vendee 
 might maintain trover without paying 
 tor the goods, and leave the vendor to 
 this action for the price. Such a doctrine 
 would be highly injurious to trade, and 
 it is satisfactory to find tlint the law war- 
 rants us in saying that this transaction 
 had no such effect. 
 
 BAYLEY, .1. The buyer cannot be con- 
 sidered to have actually received tlie 
 goods, when they have retrained from 
 first to last in the possession of the seller. 
 The plaintiffs are not assisted by the ex- 
 ception in the 17th section of the statute 
 of frauds. Then the (luestion is, whether 
 there was a separate contract for each 
 article. The 2!) Car. 2, c. :i. was passed to 
 guard against frau<Is and pcijuries; and 
 it must be collected from the 17th section 
 that the legislature thought that a con- 
 tract to the extent of £10 might be surti- 
 cient to induce the parlies to it to bring 
 tainted evidence into court. Now it is 
 conceded lieri' that on the same day, and 
 indeed at the same meeting, the defendant 
 contracted with the plaintiffs for the pur- 
 chase of goods to u much greater amount 
 than £10. Mad the entire value been set 
 upon the whole gooils t(>gethcr, there can- 
 not lie a doubt of its being a contract for 
 a greater amount than £10 within the 
 nth section ol tlie statute; and 1 think 
 that the circumstance of tt separate price 
 being fixed upon each article makes no 
 such difference as will take the case out of 
 the operation of that law. It has liecn 
 askeil what interval of time must elapse 
 betv(-en the purchase of different articles 
 in order to make the contract separate; 
 and the case has been put of a purchaser 
 leaving a shop aftermakiiig one purchase, 
 and returning after an interval of live or 
 ten minutes and making nnotlier. if the 
 return to the slio]) were soon enough to 
 warrant a supposition that the whole 
 was intended to be one transaction, I 
 should hold it one entire contract within 
 the meaning of the statute. I am there- 
 fore of opinion that this rule must be ilis- 
 charged. 
 
 HOLItOYD, J. I am of the same opin- 
 ion. The intention of the statute was 
 that certain reciuisites sliouhl be observed 
 in all contracts for the sale of goods for 
 the price of £10 and upwards. This was 
 all one transaction though composed of 
 different parts. At first it appears to 
 have been a contract for goods of less 
 value than £10, but in the course of the 
 
 dealing it grew to a contract torn much 
 larger amount. .At last therefore it was 
 one entire contract within the meaning 
 and iiiiscliief of the statute of frauds, it 
 being the Intention of that statute that 
 where the contrac-t, either at the com- 
 
 I menccment or at the conclusion, amount- 
 ed to orexceeded the valueul £10, it aliould
 
 20 
 
 BALDEY V. PARKEH. 
 
 not bind unless the requisitas there men- 
 tioned were complied with. The dnnRer 
 of false testimony is quite as great where 
 the bargain is ultimately of the value of 
 £10, as if it had lieen originally of that 
 amount. It must therefore be considered 
 as one contract within the meaning of the 
 act. With respect to the exception in the 
 17th section, it may perhaps have been the 
 Intention of tlie legislature to guard 
 against mistake where the parties mean 
 honestly as well as against wilful fraud ; 
 auJ the things required to be done wrill 
 have the effect of answering both those 
 ends. The words are, "except the buyer 
 shall accept part of tno goods so sold and 
 actually receive the same, or give some- 
 Thing in earnest to bind the bargain or in 
 |)art of payment, or that some note or 
 memorandum in writing of the said bar- 
 gain be made and signed by the parties to 
 bo charged by such contract, or their 
 agents thereunto lawfully authorized." 
 Each of those particulars either shews the 
 bargain to be complete, or still further 
 that it has been actually in part per- 
 formed. The change of possession does 
 not in ordinary cases take placa until the 
 completion of the bargain; part payment 
 also shews the completion of it; and in 
 like manner a note or memorandum in 
 writing signed by the parties plainly 
 proves that they understood the terms up- 
 on which they were dealing, and meant 
 finally to bind themselves by the contract 
 therein stated. In the present case there 
 is nothing to shew that some further ar- 
 rangement might not ren)uin unsettled 
 after the price for each article had been 
 agreed upon. There was neither note nor 
 
 memorandum in writing; no part of the 
 price was paid, nor was there any such 
 changeof possession asthnt contemplated 
 by the statute. Upon a sale of specific 
 goods for a specific price, by parting with 
 the possession the seller parts with his 
 lien. The statute contemplates such a 
 parting with the possession; and there- 
 fore as long as the seller preserves his con- 
 trol over the goods so as to retain his lien, 
 he prevents the vendee from accepting and 
 receiving them as his own within the 
 meaning of the statute. 
 
 BEST, J. It was formerly considered 
 that a delivery of the goods by the seller 
 %vas sufficient to take a case out of the 
 17 th section of the statute of frauds; but it 
 is now clearly settled that there must be 
 an acceptance by the buyer as well as a 
 delivery by the seller. Tlie statute enacts 
 that, where the bargain is for something 
 to the value of £10, itshall not bind, unless 
 something unequivocal has been done to 
 shew that the contract iscomplete. Noth- 
 ing of that kind having been done in this 
 case, if the dealing is to beconsideredasone 
 entire transaction it is clear that the plain- 
 tiffs cannot recover: whatever tliis might 
 have been at the beginning, it was clearly 
 at the close one bargain for the whole of 
 the articles. The account was all made 
 out together, and the conversation about 
 discount was with reference to the whole 
 account. It is therefore very distinguish- 
 able from Emmerson v. Ileelis, 1! Taunt. 
 SS, where a complete bargain was made 
 ns to each article as soon as theauctioneer 
 had signed his name to it. 
 
 Rule discharged.
 
 BALDWIN V. WILLIAMS. 
 
 23 
 
 BALDWIN v. WaLLIAMS. 
 
 (3 Mete. 3G5.) 
 
 Supreme Judicial Court of Massachusetts. Nov. 
 Term, 1841. 
 
 Thia case was tried before Wilde, J., 
 who made the following report of it: — 
 
 This was an action of asHunipsit, and 
 the (It'claration set fortli an agreement of 
 the plaintiff that he would barsain, sell, 
 asHJKn, transfer, and set over to the de- 
 fendant, and indorse without recourse to 
 him, the plaintiff, in any event, two notes 
 of hand by him held, sif^necl hy S. J. Gard- 
 ner; one dated April 24th, ls35, for the 
 I)ayment of $l,.'j(»0; the other dated May 
 .'jth, is;i(!, for the ()iiymeiit of $r>W); and 
 both payable to the pbiintiff or order on 
 the :id of April, lM:Ji), with interest from 
 llu'ir dates. The declaration set forth an 
 agreement by the defendant, in considera- 
 tion of the plaintiff's agreement aforesaid, 
 and in [layment for said liardner's said 
 notes, to pay the plaintiff $1,0()() in cash, 
 and to dive the plaintiff a post note, made 
 by the Lafayette liank.lor J?1,0U0, and also 
 a note signed by ,(. li. Kussell & Co. and 
 indorsed by D. \V. Williams for $1,0(10. 
 
 The i)lainliff at the trial proved an oral 
 aRreement with the defendant as set forth 
 in the declaration, and nn offer by tiie 
 l>laintiff to comply with his part of said 
 agreement, and a tender of said Gardner's 
 said notes, indorsed by tlie plaintiff with- 
 out recourse to him in any event, and a 
 demand uixin the defendant to fulfil his 
 part of said agreement, and the refusal of 
 the defendant to do HO. But the plaintiff 
 introduced no evidence tending to show 
 that any thing iiassed between the i)ar- 
 ties at the time of making the said agree- 
 ment, or was given in earnest to bind the 
 bargain. 
 
 The judge advised a nonsuit upon this 
 evidence, because the contract was not In 
 writing nor proved by any note or mem- 
 orandum in writing signed by the defend- 
 ant or his agent, and nothing was received 
 by the purchaser, nor uiven in earnest to 
 bind the bargain. .\ nonsuit was accord- 
 ingly entereil, which is to stand if in the 
 opinion of the wliole court the agreement 
 Bet forth in thedeclaration falls within the 
 statute of frauds (Rev. Sts.,c. 74, § 4); 
 otherwise, the nonsuit to betaken off, and 
 a new trial granted. 
 
 Clarke, for plaintiff. S. D. Parker, for 
 defendant. 
 
 WILDK, .1. Thia action is founded on 
 an oral contract, and the question is, 
 whether it is a contract of sale within the 
 statute of frauds. 
 
 The plaintiff's counsel contends in the 
 first place that the contract is not a con- 
 tract for the sale of the notes mentioned 
 in the declaration, but a mere agreement 
 for the exchange of them ; and in the sec- 
 ond place that if the agreement is to be 
 considered as a contract of sale, yet it is 
 not a contract within that statute. 
 
 As to the first point, the defendant's 
 counsel contends that an agreement toe.x- 
 cliauge notes is a mutual contract of sale. 
 
 But it is not neccBsary to decide this qaes- 
 tion, for the agreement of the defendant, 
 as alleged In the declaraticjn, was to pay 
 for the plaintiff's two notes tti.OOO in cash, 
 in addition to two other notes: and that 
 this was a contract of sale is, we think, 
 very clear. 
 
 The other question is more <Ioubtful. 
 But the better o[)inlon seems tr> us to be, 
 that this is a contract within the true 
 meaning of the statute of frauds. It is 
 certainly within the tnischief thereby in- 
 tended to be prevented ; and the words of 
 the statute, "goods" and "merchandise," 
 are sufficiently comprehensive to include 
 promissory notes of hantl. The word 
 "goods" is a word of large signification: 
 and so is the word "merchandise." ■* Merx 
 est quic(|uid vendi i)otcst." 
 
 In Tis<lale v. Harris, 20 Pick. 9, it was 
 decided that a contract for the- sale of 
 shares in a manufacturing corporation is 
 a contract for the sale of goods or mer- 
 chandise within the statute; and the rea- 
 sons on which that decision was founded 
 seen) fully to authorize a similar decision 
 as to promissory notes of hand. A differ- 
 ent decision has recently been made in 
 England in Humble v. Mitchell. 3 Perry & 
 Davison, 141 ; s. c. 11 Adolph. & Ellis, 207. 
 In that case it was decided that a con- 
 tract for the sule of sh.-ires in a joint-stock 
 banking company was not within the 
 statute of frauds. But it seems to ns that 
 the reasoning in the case of Tisdale v. 
 Harris is very cogent and satisfactory; 
 and it is supportetl by several other cases. 
 In Mills v. Gore, 20 Pick. I'.S.it was decided 
 that a bill in equity might be maintained 
 to compel the redelivery of a deed and a 
 promissory note of hand, on the provision 
 in the Itev. Sts. c. SI, § s, which gives the 
 court jurisdiction in all suits to compel 
 the redelivery of any goods or chattels 
 whatsoever, taken and detained from the 
 owner thereof, and secreted or withheld, 
 so that the same cannot be replevied. 
 And the same point was decided in Clapp 
 V. Shephard, 2.'! Pick. 22S. In a former 
 statute (St. 1S2:J, c. 140), there was a simi- 
 lar provision which extended expressly to 
 "any goods or chattels, deed, bond, note, 
 bill, specialty, writing, or other personal 
 properti'." And the learned commission- 
 ers, in a note on the Hev. Sts.c. si, § S.say 
 that the words "'goods or chattels' are 
 supposed to comprehend the several par- 
 ticulars immediately following them in St. 
 1823, c. 140, as well as many others that 
 are not mentioned. " 
 
 The word "chattels" is not contained 
 in the provision of the statute of frauds; 
 but personal chattels are moval)le guods, 
 and BO far as these words may relate to 
 the question under consideration they 
 seem to have the same meaning. But 
 however this may be, we think the pres- 
 ent case cannot be distinguished in |)rinci- 
 |)le from Tisdale V. Harris; and upon the 
 authority of that case, taking into consid- 
 eration again the reasons and ()rinciple8 
 on which it was decided, we are of opinion 
 that the contract in question Is within 
 the statute of frauds, and consequently 
 that the motion to set aside tlie nonsuit 
 must be overruled.
 
 BALLENTINE v. KOBINSON. 
 
 25 
 
 BALLKNTINE et al. v. ROBINSON et al. 
 
 (4C Pa. St. 177.) 
 
 Supreme Court of Pennsylvania. Nov. 2, 1863. 
 
 AasumpHit by William C. Roliintion and 
 others, doing l)u.sineH» as KohinHon, Douj;- 
 las & .Millurs, a^'iiiist Nutlianiel liulleiitinu 
 and (Jeor^^e Hutcliliison, partners tra<lln(; 
 us HutdiiiiMon & Ballentine. Jud^iiifut 
 for [iluintiffH, and defendants bring error. 
 Affirmed. 
 
 Robb & MacConnell, for plaintiffs in er- 
 ror. Humiltun & Acbeson, for defendants 
 in error. 
 
 STRONG, .1.— The parties entered Into 
 a contract by which it was stipulated 
 that the plaintiffs should furnish the ma- 
 terials and construct for the defendants 
 a steam-engine of a described pattern, for 
 which the defendants engaged to pay 
 the sum of $.j.'!5 on its comi'letioii. 
 The engine having been linished pursuant 
 to the contract, and notice of its com- 
 pletion having been given to the defend- 
 ants, they refused to pay the stipulated 
 price. Hence this suit, In wliicli the only 
 question raised is, what is the correct 
 measure of damages for such a breach of 
 contract. That the plaintiffs had done 
 all they were bound to do, that they had 
 the engine ready for actual delivery, on 
 payment of the sum agreed to be paid by 
 the defendants, and that the defendants 
 were under obligation to take It away 
 and make payment, are established facts. 
 It is now contended that the measure of 
 damages recoverable is the difference be- 
 tween the price contracted to lie paid for 
 the engine and the market price at the 
 time the contract was broken. 
 
 Where a sale of goods has been made 
 and they have been delivereil, it is plain 
 the measure of damages for nonpayment 
 is tlie stipulated price. About that there 
 is no dilBculty. Doubts, however, have 
 been entertained, where goods have been 
 sold and not delivered in consequence of 
 the refusal of the buyer to complete the 
 contract. It has somelimeM been said the 
 standard for measurement is the excess of 
 the contract price over the market value. 
 Yet where the subject of the sale is a spe- 
 cltio article, where the contract has been 
 so fur completed as to pass the property in 
 the article to the vendee, the possession 
 being retained only because the price is 
 not paid, there seems to be no good rea- 
 son why the vendor should not be permit- 
 ted to recover the agreed value, lie has 
 fully complied with all that he was under 
 obligation to do. He has parted with his 
 property, and given the full e(iuivalent for 
 the sti()ulated price. His right to the 
 property having passed to the vendee, 
 his right to the price would appear to be 
 consummate. It is true, if the sale be for 
 cash, the vendor may treat the goods as 
 
 his own and sell them, on failure '>f the 
 vendee to pay, in which case he can claim 
 only the difference between the price lor 
 which he has sold, and the price prom- 
 ised to be paid by the first vendee. That 
 difference completes his compensation. 
 But the resale Is only a mode of giving 
 effect to his lien. It is not a rescission of 
 the contract, so as to revest the property 
 ' in the article sold in him, for if it were, he 
 could not sue for the deficiency. The law 
 does not compel him to resume the owner- 
 ship of the property, and, of course, it 
 ought not to take away his right to the 
 price. 
 
 The present is not strictly the case of a 
 sale. The plaintiffs agreed to build the 
 engine according to directions of the de- 
 fendants, and to furnish the necessary 
 materials for it. When it was completed 
 the defendants had notice, and were 
 Ijound to take it awaj' and pay the con- 
 tract price ; but instcarl of taking It and 
 paying the price, they requested the plain- 
 tiffs to sell it. In such a case the right of 
 proi>erty was clearly in them on notice of 
 the completion of tlie article. The ma- 
 terials of whicli it was composed may 
 fairly be said t<j have been delivered when 
 they were put into the engine. The ile- 
 fendantsalone were in default. They ought 
 not to be permitted to rom|)Cl the plain- 
 tiffs to purchase from them. Retaining a 
 lien on the engine for the price, the plain- 
 tiffs were at liberty to sell It anew, or, at 
 their election, to obtain full compensa- 
 tion from the defendants for their breach 
 of contract. There can bo no just reason 
 why they should be compelled to accept 
 the engine as part payment, wliich tliey 
 virtually must do If they can recover only 
 the difference between its market value 
 and the sum the defendants agreed to 
 pay. And why should they, without any 
 default of their own, be suljjected to the 
 risk and trouble of a resale, tor the de- 
 fendants' benefit? Besides, it may well 
 be, that the article manufactured accord- 
 ing to order may have no market value, 
 and would be worthless on the manufac- 
 turers' hands. This engine was not made 
 tor sale in the market. It was built ac- 
 cording to instructions given by the de- 
 fendants, and, it may lie presumed, for 
 their peciliar use. The just rule, there- 
 fore, plainly Is, in such a case, where the 
 manufacturer ut an article ordered, has 
 completed it, and given notice of its com- 
 pletion, that he should be allowed to sue 
 for the value, and recover, as its measure, 
 the contract price. .\nd such is the doc- 
 trine laid down in the better decisions. 
 Thus it was decided In Bement v. Smith, 
 ],") Wendell, 49:1, where the cases are re- 
 viewed, and the rule is thus stated in 2 
 Parsons on Contracts 483, und in Sedg- 
 wick on Damages HSl. 
 
 The instruction given In the court be- 
 low was therefore richt. 
 
 The judgment Is affirmed.
 
 BARKER V. DINSMORE. 
 
 27 
 
 BARKER et al. v. DINS.MOUE. 
 
 (72 Pa. St. 427.) 
 
 Supreme Court of Pennsylvania. May 17, 1S7-. 
 
 Replevin by John Diiisnnire auainst Wil- 
 liam Barker, Jr., and JeHne b. Kil^ore, 
 trading as VVilliam Ranker & Co. for cer- 
 tain HuckH of wool. Judument lor plain- 
 tiff.and defendantH brinR error. Allliuied. 
 
 A man, represent ins hiniHelf to be con- 
 nected with defendant (irni, bouKht from 
 plaintiff, at the liitter's farm, the wool in 
 queHtion.and K'tve liira ameniorandum to 
 that effect on a hiiMineHH card of defend- 
 ants, tellinf; him to come to defendants' 
 office in the city to procure bin pay. 'i'he 
 wool was shipper) by |)Inintiff to defend- 
 ants, but on its arrival in the city posses- 
 sion of it was procured by the person who 
 had arrani;i'd ttie sale, and who in fact 
 had no connection with defendants, and 
 by him sold to defenilants, they paying 
 liini what they considered the wool was 
 worth. 
 
 Before THO.MI^SON, C. J., READ. AG- 
 NEVV, SHARSVVOOU. and WILLIAMS, 
 .IJ. 
 
 A. M. Brown and T. .M. Marshall, for 
 I'laiiitiffs in error. M. W. Acheson ( with 
 •A ho 111 was W. B. Rodgers), for defendant 
 III error. 
 
 WILLIAMS, J.— The verdict of the jury 
 ' stabliKhes the fact that tlie t'Inintiff be- 
 i>w did not sell the wool to the defend- 
 Mits' vendor, as an individual, en his own 
 II sponsibillty, but as a member or agent 
 of the defendants' tirni, and upon their 
 I redit. Nor was the wool deMvereil to 
 liim by the plaintiff. It was delivei'ed to 
 the railroad eoiiipan.v, to be carried to 
 Pittsburg, and there delivered to defend- 
 ants, to whom it waB consigned by the 
 plaintiff. Under the contract of shipment 
 the company had no right to deliver the 
 wool to any person except the consignees; 
 and their delivery of it to tlie defendants' 
 
 vendor vested in him no property or riirht 
 of poHsessionas against the plaintiff. The 
 principle which underlies this case, nnil by 
 which the rights ol the parties arc to be 
 determined, is this: The sale of goods by 
 one who has tnrtiously obtained their 
 possession without the owner's consent, 
 vests in the purchaser no title to them as 
 against the owner. As a general rule no 
 man can be divested of his (iroperty with- 
 out his own consent and voluntary act. 
 It is true that there are e.\ceptionH to the 
 rule, as clearly defined and as well settled 
 as the rule itself, but this case (bies not 
 come within any of them. Here the de- 
 fendants' vendor, as we have seen, ac- 
 quired no right or title to the wool under 
 his contract with the plaintiff, and he did 
 not obtain from him its actual posses- 
 sion. The railroad company had no au- 
 thority, as the plaintiff's agent, to deliver 
 the wool to him, and their delivery gave 
 him no right or title to it whatever. Nor 
 had he any apparent or implied authority 
 from the plaintiff to sell or dispose of it. 
 It is clear, then, that he could convey no 
 title by its sale; an<l if so, the defendants 
 could acquire no title by its purchase, 
 though they purchaser! it fur a fair and 
 valuable consideration, in the usual course 
 of trade, without notice of the pi:iintiff'e 
 ownershii), or of any suspicious circum- 
 stances calculated to tiwaken inquiry or 
 put them on their guanl. The c.ise is a 
 hard one in any aspect of it. One of two 
 innocent i)arties must suffer by the fraud 
 and knavery of n swindler, who had no 
 authority to act for eithei-. But the law 
 is well settled that the owner cannot be 
 dive-ited of his property without his own 
 consent, unless he has placed it in the pos- 
 session or custody of another anil given 
 him an apparent or implied right to dis- 
 pose of it. The case was tried on tliis 
 principle, and as there Is no error appar- 
 ent in the record, the judgment must be 
 affirmed. 
 
 Judgment allirined.
 
 BAItXAltD V. CAMPBELL. 
 
 2» 
 
 BAIINAUD V. CAMI'BICLL,. 
 
 (55 N. Y. 45C.) 
 
 Court of Appeals of New York. Jan. 20, 1874. 
 
 Appeal from order reverpinK a jixlKinoiit 
 in fuvur of plaiiitiffij and K>'uutiiig u new 
 trial. 
 
 Heplevin of 1,370 bags of linseed. I)e- 
 femlaiitM, in New York, piirclinHcd of the 
 broker of one Jeffries, of BoHton, l.MM) 
 baus of linseed on AiiKiiHt 21, lS(i:j.and sent 
 him their notes in i)M,vment. Jeffries, by 
 fraud, obtained 1,370 l)aKs on an order 
 from plaintiffs on Aumist 2-ltli. Tlie lin- 
 seed was delivered to liim, and Hliipi)ed to 
 defendants. The bill of ladintcwas mailed 
 to them on the 2.')tli. Defendants paid for 
 the linseed by their notes on the 2l8t. 
 Jeffries failed on the 27th. 
 
 Janies C. Carter, for appellants. Ed- 
 wards I'icrrepont, for respondents. 
 
 ALIjEN, J. The only question involved 
 in tile action la, w hether the plaintiffs and 
 orlKiiial owners, or tlie defendants, the 
 purchasers from .leffries, the fraudulent 
 vendee of the plaintiffs, have the better 
 title to tlie merchandise in controversy. 
 That ns ai^ainst Jeffries, the rijrht of the 
 plaintiffs to rescind the sale and reclaim 
 the f-ooils, by reason of the fraud of the 
 latter, is perfect, is conceded, and was so 
 held upon the trial. Such right continues 
 as against any one acquiring title under 
 Jeffries, unless under well-recognized prin- 
 ciples of law, and under the circumstances 
 of this case .leffries could transfer a bett 'r 
 title than lie had, or the plaintiffs b> their 
 acts are estopped from asserting title as 
 against a purciiaser from him. 
 
 liut two questions oi fact were sulmiit- 
 ted to the jury: 1. Whether the sale to 
 .leffries was for cash or upon creilit ; anil, 
 2. If tor cash, whether payment was 
 waived and the goods delivered so as, but 
 for the fratld, to vest the property in 
 Jeffries. 
 
 The jury found, either that the sale was 
 upon credit, or that the payment of the 
 purchase-price, as n coudition precedent 
 to the delivery of tlie property to and the 
 vesting of the title in .leffries was waived, 
 and that the delivery to him was absolute 
 and unconditional; and the defendants 
 had a verdict, under tlie instructions of 
 the judge, that the eipiitalde rule applied, 
 that when one of two innocent parties 
 must suffer loss by reason of the fraud or 
 deceit of another, the loss shall fall uiion 
 him by whose act or omission the wrong- 
 doer has been enabled to commit the 
 fraud; and that the plaintiffs were in the 
 position of a party who lets another have 
 property unconditionally, and tliereby en- 
 ables him to sell the same and receive the 
 purchase-price from n third person; and 
 that In such case the purchaser takes the 
 title. In other words, the plaintiffs were 
 held to be estopi)ed from claiming the 
 goods from the defendants incase the jury 
 found that there had been an uncondi- 
 tional delivery by the plaintiffs to .leffries, 
 notwithstanding !is the judge at the cir- 
 cuit expressly declared, and ns the evi- 
 dence showed, the defendants purchased 
 
 the goods fr(jm a broker of Jeffries la New 
 York on the 21st of August, and paid for 
 them the same day by transmitting their 
 notes to Jeffries at l.oston, who at once 
 ueg(jtiated them; and Jeffries olitained 
 neither the property nor any order for its 
 delivery, or documentary eviileni.-e of title 
 or of his purchase, until the 24th of the 
 same month, three days after the trans- 
 action was coiiHummated as between 
 Jeffries and the defendants. That is, it 
 was held ut the circuit that the subse- 
 quently-acquired possession of Jeffries op- 
 erated by relation to create an estoppel 
 •IS of tilt! 21st of August, in favor of the 
 defendants and against the plaintiffs; and 
 the jury were in terms instructed that the 
 defendants were (lurchasers in good faith 
 for value, and acquired a title paramount 
 to that of the plaintiffs, and were entitled 
 to a verdict; and they liad n verdict and 
 juilgment upon this view of their rights. 
 
 That the defendants were purchasers in 
 gcjod faith, that is, without notice or 
 knowledge <if the fraud of Jeffries, or of 
 the defects in his title, for a full consldera- 
 ti(jn actually paid to Jeffries, is not dis- 
 puted. Both plaintiffs and defendants 
 .are alike inixjceiit of any dishonest or 
 [fraudulent intent, ond one or the other 
 must suffer loss by the frauds of one with 
 I whom they dealt in good faitli, for legiti- 
 mate purposes, and with honest intention. 
 Both were alike the victims of the sniue 
 fraudulent actor, unrl if one rather than 
 the other of the parties has ilone any act 
 en.-ibllng the fraud to be commit ted, and 
 without which it could not have been per- 
 petrated u|)on the other in the exercise of 
 ordinary care and discretion, the loss 
 should, within the rule before referred to, 
 fall on that one of the parties aiding and 
 abetting the fraud, or enabling it to be 
 comn itted. But good faith, and a [lart- 
 ing of value liy the one, will not ulone de- 
 termine will) should have the loss, or fix 
 the ownership of the property fraudulent- 
 ly purchased from the one .-ind sold to the 
 other. The general ruleis that a purchaser 
 of property takes only such title as his 
 seller has, and is authorized to transicr; 
 that he accpiires precisely the interest 
 whicli the seller owns, and no other or 
 greater. "Nemo plus juris ad alium trnns- 
 ferre potest quam ipse habet." Broom. 
 Leg. Max. 452. Tlie general rule of law Is 
 undoubted that no one can transfer a bet- 
 ter title than ho himself possesses. "Nemo 
 dat (|uod non haliet." I'er Willes, J., 
 Whistler v. Forster, 14 C. B. (.V.S.) 24.S. 
 To this rule there are however some ex- 
 ceptions, and unless the defendants are 
 witliin the exceptions they must abide by 
 the title of Jeffries. 
 
 One of the recognized exceiitlons applies 
 to negotialile instruments only, and de- 
 pends for its existence upon the law-mer- 
 chant and the reasons of public policy 
 U|)on which that branch of the law rests. 
 To uinUe this exception available, the 
 negotiable jiuper must be actually trans- 
 ferred \iy Indoi-sement lu the usual form 
 aud forvalue. Whistler v. Forster. supra ; 
 Muller v. Fondir, (In this court, Decenmer 
 23. 1S73,) 5.-) N. Y. 32."); (a) Storv Prom. 
 Notes, § 120. note 1, Calder v. Pilllngton, 
 15 Me. 3US; Southard v. Porter. 43 N. H.
 
 30 
 
 BAUNAHD c. CAMTBELL. 
 
 379. Another exception is in tlie case of a 
 tranHfei- l).v indorsement and delivery of a 
 bill of ladiuK, wliicli is tlie synilxil of tlie 
 property itself, to a l)ona fiile purchaser 
 for value, Ijy a consignee to wliom the 
 consignor and original owner i>f the 
 goods has indorsed and delivered it. This 
 exception is founded on the nature of the 
 instrnuient, and the necessities of coni- 
 ineree. The bill of lading, for the conven- 
 ience of trade, has been allowed to nave 
 effect at variance with the general rule of 
 law. Hut this operation of a bill of lad- 
 ing is confined to a case whei-e the person 
 who transfers the right is liiniself in i>os- 
 session of the hill of lading so as to be in 
 a situation to transfer the iustruniont it- 
 self, the symbol of the propei-ty tran.s- 
 ferred. .leiikyns v. llsborne, 7 M.& U.G7.S: 
 Akeruian v. llnniphery, 1 C. & F. 5:!. 
 
 Bills of lading-differ essentially from bills 
 of exchange and other commercial nego 
 liable instruments; and even possession of 
 a bill of lading, without the authority of 
 the owner an<l vendor of the goods, or 
 when obtained by fraud, will not authorize 
 a transfer so as to defeat the title of the 
 original owner, or aflA't his right to re- 
 scind the sale and stop the goods in transit. 
 While possession of a l)illof lading, or other 
 document of a like nature may be evidence 
 of title, and in soniecirciiirstances and for 
 some purposes e(piivalent to actual pos- 
 session of the goods, it does not constitute 
 title, nor of itself affect the operatii>n of 
 the general rule that property in chattels 
 cannot be transferred except by one hav- 
 ing the title or an authority from the true 
 owner, (iurney v. Behrend, 3 Ellis & 
 Black. 622; Dows v. Perrin, Ki N. Y. 32.5; 
 see also Saltus v. Everett, 2i) Wend. 207 ; 32 
 Am. Dec. .'541 ; Brewer v. Peabody, i:^ N. Y. 
 121. .Jeffries had no bill of lading from the 
 jilaintiffs, thevendors of the goods. or any 
 document of like character transferable in 
 the usual course of business, ami the trans- 
 fer and delivery of which to a purchaser 
 for value would have operated as a sym- 
 bolical delivery of the goods, and been the 
 equivalent of an actual delivery, so as to 
 terminate the right of the plaintiffs to re- 
 scind the sale and reclaim the goods. 
 
 Another exception to the general rule 
 exists in thecaseof a sale inmarket overt; 
 but as we have no markets overt, and 
 there are no sales, public or private, 
 known to our law, which reliex'ethe buyer 
 of merchandise from the rule of caveat 
 emptor, as applied to the title, this excep- 
 tion need not be further considered. 
 
 The defendiints can only resist the claim 
 of the plaintiffs to the merchandise by es- 
 tal)lishing an equitable estopjiel, founded 
 ujjon the acts of the plaintiffs, and in the 
 application of the rule applied l>y the judge 
 at the circuit, by which, as between two 
 persons equally innocent, a loss resulting 
 from the fraudulent acts of another shall 
 rest upon liini by whose act or omission 
 the fraud has been made possible. This 
 rule, general in its terms, only operates 
 to protect those who, in dealing with 
 others, exercise ordinary caution and pru- 
 dence, and who deal in the ordinary way 
 and in the usual course of business and 
 uiion the ordinary evidences of right and 
 authority in those with whom they deal, 
 
 and as against those who have volun- 
 tarily confei'red upon others the usual evi- 
 dences or indicia of owDershii)of property, 
 or an apparent autliority to deal with 
 and dispose of it. In such case, for ol)vi- 
 ous reasons, the law raises an equitable 
 estoppel, and as against the real owner, 
 declares that the apparent title and au- 
 tluuity which exists b.v his act or omis- 
 sion siiall (luoad persons acting and part- 
 ing with value upon the faith of it, stand 
 for and be regarded as the real title and 
 authority. It is not every parting with 
 the possession of chattels or the documen- 
 tar.v evidence of title that will enable the 
 possessor to make a good title to one 
 who may purchase from him. So far as 
 such a parting with tlie possession is nec- 
 essary in the business of life, or authorized 
 by the custom of trade, the owner of the 
 goods will not be affected by a sale by 
 the one having the custody and manual 
 possession. Dyer v. Pearson, 3 B. & C. 3.S; 
 Newsom v. Thornton, G East, 17; Taylor 
 V. Kymer, 3 Barn. & Adol. 32U; Ballard v. 
 Burgett, -10 N.Y.314. But theowner must 
 go farther, and do some act of a nature to 
 mislead third persons as to the true posi- 
 tion of the title. Pickering v. Busk, 15 
 East, 38. 
 
 Two things must concur to create an 
 estoppel by which an owner may be de- 
 prived <jf his proi)erty, liy tlie act of a 
 third person, without his assent, under 
 the rule now considered. 1. The owner 
 must clothe the person assuming to dis- 
 pose of the projterty with the ajjparent 
 title to, or authority to dispose of it; and, 
 2. The i>erson alleging the estoppel niu.st 
 have acted and parted with value upon 
 the faith of sucli apparent ownersliip or 
 autliority, so that he will be the loser if 
 the ap]iearances to whicli lie trusted are 
 not real. In this respect it does n(jt differ 
 from other estoppels in pais. Weaver v. 
 Barden,49 N. Y. 2S(); McGoldrick v. Wil- 
 lits, 52 id. 612; City Bank v. It., W. & O. 
 H. Co., 44 id. ]3(>; Saltus v. Even tt, 20 
 Wend. 267; 32 Am. Dec. 541; Wooster v. 
 Sherwood, 25 N. Y. 27s; Brower v. Pea- 
 body, 13 id. 121. 
 
 In the case before us every element of an 
 estoppel is wanting, and no case was 
 made for the application of the rule by 
 which, under some circumstances, one, 
 rather than the other two innocent per- 
 sons, is made to bear the loss occasioned 
 by the fraud of a third person. 
 
 The defendants consummated their pur- 
 chase from Jeffries, acting through his 
 broker in New York, and paid for the mer- 
 chandise by remitting, at his request, di- 
 rectly to Jeffries on tlie 2Ist of August, at 
 which time Jeffries had neither the posses- 
 sion nor right of possession of the prop- 
 erty, nor any documentary evidence of ti- 
 tle or any indicia of ownership, or of do- 
 minion over the property of any kind. 
 The plaintiffs had done nothing to induce 
 the defendants to put faitli in or give 
 credit to the claim of Jeffries of the right 
 to sell the property. The defendants then 
 parted with the consideration for the pur- 
 chase of the seed, not upon the apiiarent 
 ownership of Jeffries, but upon his asser- 
 tion of right of which the plaintiffs had no 
 knowledge, and for which they are not
 
 BARNARD v. CAMPBELL. 
 
 31 
 
 responsible. Neither did tliedi-fendants at 
 any time do or forbear to do any act in 
 reliance upon llie uppai'ent ownerHliip of 
 the projjerty by Jeffries, or iiiiliin-d by 
 anv act or declaration of tlii' idaintiffH. 
 In "Knights v. Wiffen, L. R., 5 Q. B.tJflD.the 
 plaintiff was intiuced to rest satisfied un- 
 der the l)eliel that he had acquired title to 
 the property [)urcl)aHed, and so to alter 
 his position, by al)stainlnK from proceed- 
 iii^s to i-ecnver bacli the money which he 
 had paid to his vendor, by the declaration 
 of the defendant that it was all ri;rht, and 
 his |)romiHe tliat wlien the furwardiiiu: 
 note «liould lie received he would put the 
 barle.v on the line. The defendants hei'e 
 at no time had any declaration or state- 
 ment of the i)lain tiffs upon wlilcli to rely, 
 and were not led to act or forbear to art 
 by any documentary evidence of title in 
 Jeffries emanatinu from them. There is a 
 manifest equity in holdiuR the owner of 
 property estopped from nssertin;? title aw 
 afiainst one wlio, for value actually paid, 
 has purchased it from one having, by the 
 voluntary act or negliRence of the owner, 
 the apparent title with right of disposal, 
 but with this limitation there is no hard- 
 
 ship in bidding to the rule that the right 
 of property in chattels cannot be trans- 
 ferred unless on the ground of authority 
 or title. Public policy requires that pur- 
 chasers of property should be vigilant and 
 c.iutious, at least to the extent of seeing 
 that their vendors have some and'tho 
 usual evidence of title, and if tliey are coru 
 tent to rest upon their declarations they 
 may not impose the loss, vk-hich is the re- 
 sult of their own incautiousness or credu- 
 lity, on another. The payment for or 
 parting witli value for the goods by ths 
 purchaser ir<jm the fraudulent vendee lays 
 at the foundation of the estoppel, for if ho 
 has parted with notliing, he cnn lose 
 nothing by the retaliing of the goods by 
 the original owner, and that payment 
 must be occasioned by the acts or oraia 
 sitms of such owner. It is the payment 
 that creates the estoppel, and if that is 
 not made in reliance on the acts of the 
 owner, tlie latter is not and cannot, in 
 the nature of things, be estopped. 
 
 The order granting a new tral must he 
 affirmed, and judgment absolute for the 
 plaintiffs. 
 
 All concur.
 
 BAUNAKD c. CAMI-liKJX. 
 
 33 
 
 BAKXAKD T. CAMPBELL. 
 
 (58 N. Y. 73.) 
 
 Court of Appcal-s of New York. June Term, 
 1S74. 
 
 Motion for re-nrKuiucnt. 
 
 J a nif 8 C. Carter, for motion. Edwards 
 Pierrepont, opposed. 
 
 ALLEN, J. The question considered by 
 tliis court, and discu-ssed in tlio opinion 
 delivere<l on Kivlnt; jiidKnient u|)on this 
 appciil was tluir distinctly presented l)y 
 tiie exceptions to the riilinf? and decisions 
 of tlic jiid^e upon tlie trial, and as tliat 
 was decisive and led to an alfirinance of 
 the order (jrriintliiK a new trial and u final 
 jiidf?nient for the plaintiffs, it was not 
 deemed necessary, in assiKninK the reasons 
 for the jndKiiient, to canvass particularly 
 the argument, or review in detail the au- 
 thorities cited li.v counsel upon a some- 
 what different view of thecase. Theentire 
 brief, and all the autliorities cited, were 
 nevertheless, carefully examined and con- 
 sidered ; and had the court adopted the 
 views of the learned counsel for tlie ap- 
 liellants, it is possil)le a way miuln liave 
 licen found to sustain the defendants' 
 ilaim to tlie property, notwithstHndinj; 
 the pointed exceptions to jjropositions in 
 the instruction.s to the jury, which were 
 deemed erroneous. Tlie case lias l>een 
 Mirain carefully examined, and upon the 
 theory of the counsel for the appellants, 
 and with the aid of his very able brief, sub- 
 mitted upon the present motion, and the 
 court sees no reason to interfere with 
 the judgment already Riven. It is proper 
 to sa.v that the unusual delay in passini; 
 upon the present application has not been 
 bei-ause of any intrinsic difliculties in tlie 
 (juestioii [iresented, "ir an.v serious doubt 
 as to the correctnesHof theformerdecision. 
 
 lB(dated expressions nui.v be found in 
 elementar.v treatises, as well as in judicial 
 opinions, which itive color to theclnim of 
 the defendants, to hold the propert.v In 
 disiiute as against the plaintiffs, but these 
 were not intended to and do not give the 
 rule by which this and like case.s are con- 
 trolled. They are all proper in the connec- 
 tion in which they ;ire fouiiil and for the 
 purposes for which they were used, and 
 ought not to receive any other interpre- 
 tation than such as was designed by the 
 authors. It must be conceded that upon 
 the delivery of the goods to .leffries by the 
 plaintiffs, under tlie circunislances, the 
 property passed to .leffries, and the fact 
 that thedelivery was iuiluced by fraud di<l 
 not render the contract void. It was 
 merel.v voidable at the instance of the 
 plaintiffs, who might elect to disallirm 
 the contract anil reclnim the property. 
 That is, the contract of sale was defeasible 
 at tlie election of the plaintiffs, the ven- 
 dors. If the election was seasonably made, 
 and the goods reclaimed in proper time 
 after the discovery of the fraud. The 
 plaintiffs could lose the right by delay as 
 against tin- wrongdoer, if in conseiiuence 
 of such ilcla.v Ills iiosition should be 
 rlianged, and they w<:uld havi- lust it ab- 
 solutely if during the interval between tlie 
 delivery of tlie goods, the vesting of this 
 LAW .s.M.iis — :i 
 
 defeasible title in the purchn.ser, Jeffries, 
 and the dlsaffinnnnce of the sale by the 
 plaintiffs, the goods had been sold to an 
 inniicent thinl parly for a valuable con- 
 Hi<leration. The superior ei)uity of a pur- 
 chaser of property from one who has nc- 
 (piired a title defeasible at the electii>n of 
 the former owner and vendor, by reason 
 of fraud, to that of such owner seeking to 
 reclaim his projierty, is based upon the 
 fact that acting upon the evidence of title 
 which the owner has permitted the 
 wrong-doer to assume and [lOHHess.he has 
 been induced to part with value, and will 
 be the loser because of thi- credit given to 
 the apparent ownership if he is compelled 
 to surrender the property. The mere pos- 
 Hcssion by the party claiming to liol.l will 
 not sustain his claim, but the circum- 
 stances under and consideration upon 
 which he liaH acquired tlie possession are 
 also material. Were it otherwise, an as- 
 signee for the benefit of creditors, or one 
 who should take as collateral security for 
 the payment of a [irecedent debt, would 
 hold as against the original owner, which 
 Is not claimed and is contrary to the 
 whole current of authority. Several 
 things must concur to bar the claim of 
 the defrauded vendor. 1. He must have 
 parted with possession of his projierty 
 with intent to pass the title to the wrong- 
 doer, thus giving liini the apparent right 
 of disposal. If property is taken feloni- 
 ously or without the consent of the owner 
 the taker can make no title to it, even to 
 an innocent purch.-iser with value, 2. A 
 third |i!irt.v must have acnuired title from 
 the wrong-doer without notice of the ile- 
 fects in liis title or knowledge of circum- 
 stances to put him to an inquiry as to the 
 source of his title. And,:!. .Such third 
 [larly iiiiist liave parted with value upon 
 the faith of the apparent title of the 
 wrong-doer, anil his right to dispose of 
 the property. If any of these elements ore 
 wanting the venilor sensonably pursu- 
 ing his legal right nia.v have his property. 
 That this formula very closely resembles 
 that liy which an estoppel in pais is de- 
 fined and limited is true, and this must 
 necessarily be so, so long as the rights 
 liased upon each have the same equitable 
 foundation. The <lefendants parted with 
 no value, incurred no liability, and in no 
 res|iect changed their situation in the in- 
 terval between the delivery of the mer- 
 chandise by tlie plaintiffs to Jeffries, and 
 their disnllirmancc of the contract, and 
 reclaiming the goods. In other words, 
 tlie.v di<l notliing in consequence of such 
 delivery to Jeffries or based upon Ills title 
 and possession, and arc in precisely the 
 same situation as if the goods had never 
 left the possession of the plaintiffs. They 
 (larted with their notes and incurred obli- 
 gations upon the faitli of the promise and 
 agreement of Jeffries an<l upon his credit 
 alone. 
 
 It ispossilile that theclaimof tlie<lefend- 
 ants to hold as liona tide purchasers for 
 value is sustained liy Fenliy v. rritcliard, 
 1.' Snndf. l.')l. but this case is so at war 
 witli principles recognized as well settled 
 by this court in analogous cases, that it 
 cannot lie regarded as well decided. The 
 cases cited fioiu .Maine and Illinois (Lee v.
 
 BAKNAKI) V. CAMPBELL. 
 
 Kimbull, ■!.-. Me. 173; Butters v. Haiisrli- 
 woiit, 4U' III. l.S; X!) Am. Dee. 4f)I). treat 
 the case as aiinloKoiis to a transfer of 
 nesotiahle paper, and hold that a i)reccd- 
 eiit debt is a valuable consideration for 
 the transfer, and «ives the transferes a 
 good title as against the former owner. 
 This is in direct conflict with the uniform 
 decisions in this State, from Bay v. Cod- 
 dinjrton, 5 .Johns, ("h. .">4 ; 9 Ani. Dec. L'liS; 
 aliirnied, L'O Johns. (".37, to Weaver v 
 Barden, 49 N. Y. 286; afHrnied, Turner 
 V. Treudway, 53 id. (!.')(). One other 
 case from Maine cited by the counsel 
 for the appellants (Titcomb v. Wood, 
 ;is Mc. .">G1) recognizes the necessity of a 
 valuable consideration, as that term 
 is understood and used by the courts of 
 this state as necessary to give tlie pur- 
 chaser of property from a fraudulent ven- 
 dor a superior equity and title to that of 
 the former t)v\'ner, and Hnd such a consid- 
 eration in the transfer of property before 
 then stolen from the defendant. Thecourts 
 Siiy: "Here the defendant being the 
 owner of stolen property, with his right 
 and title unimpaired by the felony, trans- 
 ferred it to McClurefortheproperty in ques- 
 tion, in part payment at least. This con- 
 stituted a valuable consideration for his 
 purchase, given at the time. Thus it ap- 
 pears that he was a purchaser ot the gold 
 watch, bona tide, for a valuable consider- 
 ation, and without notice of the fraud 
 by wliich his vendor acquired it. This 
 gives him a superior equity and a better 
 right, and enables him to hold the prop- 
 erty against the defrauded vendor." Hut- 
 ton V. Oruttwell, 1 El. & Bl. 1.5; and Mer- 
 cer V. Peterson, L. K., 2 Exch. 304, relied 
 upon in support of this application, pre- 
 sented questions under the English Bank- 
 rupt Acts, and merely decided that a trans- 
 fer of effects, by the bankrupt, in perform- 
 ance of a prior executory agreement, for 
 which a full consideration had been paid 
 at the time of the agreement, was not 
 within the condemnation of the act or af- 
 fected by the proceedings in bankruptcy. 
 They do not bear upon the question be- 
 fore us. In Olongh v. London, etc., R. Co., 
 L. R., 7 Exch. 2G; I Eng. Kep. 14S, the 
 question was whether the claim to dis- 
 aihrm the sale of the goods was season- 
 ably made by the defrauded vendor. The 
 vendor had first sought to stop the goods 
 in transitu, which was an act in affirmance 
 of the sale; tiut the transit was ended be- 
 fore notice reached the carrier. There was 
 no act avoiding the contract on the 
 ground ol fraud done by the vendor, until 
 the plea in the action by Clough, who 
 was found by the jury to be cognizant of, 
 and a |)arty to the fraud in the purchase. 
 No question of consideration or the valid- 
 ity of any sale of the goods by the fraud- 
 
 ulent purchaser was in the ease, or con- 
 sidered by tlie court. Durbrow v. McDou- 
 ald, .5 Bosw. 130; s. c, sub noni. Winne v. 
 McDonald, 3!) N. Y. 233, wis clearly within 
 th(' rule upon the interpretation given to 
 the transaction by the courts. It was 
 said by the superior court that Perry & 
 (;o., the purchasers of the wheat, had the 
 full possession of it in the precise manner 
 that the contract between thetn and the 
 plaintiffs contemplated, and that the pur- 
 chase and possession of Perry were such 
 as to enable him to confer upon a bona 
 fide purchaser, a pledgee for value, a title 
 valid as against the plaintiffs; and that 
 the advance was made by the defend- 
 ants after the delivery to Perry & Co. of 
 the documentary evidence of title, and 
 the wheat pledged as secuiity at the time 
 of the advance. The evidence upon the 
 record in this court, it would seem, left 
 the precise time when some of the occur- 
 rences took place in doubt, but tliat the 
 specific wheat was pledged, at the time of 
 the advance, was established, although 
 possibly the muniments of title were not 
 then delivered. The title ami possession 
 had vested in Perry & Co. at the time of 
 the pledge; and that fact clearly distin- 
 guished that from the present case. 
 
 Judge Bosworth, in Caldwell v. Bart- 
 lett, 3 Duer, 341, and Keyser v. Harbeck, 
 id. 373, recognizes the doctrine that the 
 advance must be made or consideration 
 parted with upon the faith of the title ot 
 one in actual possession of the property, 
 or the written evidence of title, to give an 
 indefeasible title as against the true 
 owner. All the authorities are direct and 
 to the effect that no one but a bona tide 
 purchaser, or pledgee for value— that is, 
 one who gives value for or makes ad- 
 vances upon goods obtaitied from the 
 owner by fraud or fraudulent representa- 
 tion — and tliat he who has paid value, or 
 made advances, or incurred responsibili- 
 ties upon the credit of them, can alone 
 claim to hold them as against such owner. 
 Root V. French, 13 Wend. .'')73; 2S Am. 
 Dec. 482; Mowrey v. Walsh, 8 Cow. 23S; 
 Hoffman v. Noble, C. Mete. 68; 39 Am. Dec. 
 711. There is no good reason or equity in 
 placing the burden of a fraudulent sale 
 upon a bona fide vendor rather than upon 
 a bona fide purcha.ser from the fraudulent 
 vendee, unless the purchaser has parted 
 with his money, or some value, upon tlie 
 credit ot possession or some evidence of 
 title in the vendee, received from the orig- 
 inal owner, and by means of which he has 
 induced the purchaser to treat with him 
 as owner. 
 
 The motion for a re-argument must be 
 denied. 
 
 All concur, except JOHNSON, J., not 
 sitting.
 
 BEACH'S APPEAL. 
 
 37 
 
 Appeal of BEACH. 
 
 (20 All. Hep. 475, 58 Conn. 464.) 
 
 Pi)prrmi> Court of Errors of Connecticut. Feb. 7, 
 
 ISUO. 
 
 .\pppal from Hiiperior court, Hartford 
 county. , , ^ , 
 
 The contract and note roforrcd to in 
 the opinion are as follows: "This nicrno- 
 randuni of iin agrceincnt made this :!d(la.v 
 of March, lNS(i, between Georjje Cronip- 
 ton, of the lirst part, and the Home Wool- 
 en Co., CharlcH M. IJeach, treaKiirer, of the 
 Hccond part. Wlierean, the waid Crompton 
 of the lirst i)art asrees to deliver to the 
 said parly of the second part certain ar- 
 ticles of machinery, to-wit, thirty broad 
 Crompton '1SS3' fancy looms (twenty- 
 ei«ht of which are sinKlc-beani looms, and 
 two are donhlc-beam looms,) and lixtures 
 thereto beloiiKiiiK. amountiuj? to $12.- 
 450 CI), and the party of the second part 
 agrees to jrive the party of the first part 
 its promissory note dated tlie avcray;e 
 Bhi[)pinK date of the looms, and payable 
 eight months from its date, for ^12,450.09. 
 It is hereby asreed by the said parties 
 that the party of the second part shall be 
 permitted to talie the saiil property into 
 their possession, and the same to talie to 
 and set up in the mill occupied by them in 
 Beacon FaUs, asreeinK to keep the same 
 in Kood order, and also to keep the same 
 insured for the full cost of the same for 
 thebenehtof the party of the first part, 
 and to hold the said machinery as the 
 property of the party of the first part un- 
 til the above note or renewals thereof 
 have V)een fully paid, according to the i 
 tenor thereof, when the machinery above 
 named shall be sold to and become the 
 property of the party of the second part. 
 And the party of the first part is hereby 
 bound to sell'and relin<iuisli his claim to 
 said propertv \ipon ijayment of the said 
 note or renewals thereof, and does agree 
 to consider the same as sokl and delivered 
 when said note or renewals thereof are 
 paid. And it is further agreed that upon 
 default of the payment of the said note or 
 renewals thereof when the same shall be- 
 come due, as also in default of said ma- 
 chinery being kept in good order and in- 
 sured as above provided, the party of the 
 first part shall have the right at any time 
 to resume i)ossession of the machinery, 
 and to enter the premises and remove the 
 same as his own property. And, if any 
 portion of said note or renewals thereof 
 shall remain unpaid when possession shall 
 be so taken by the party of the Hrst i)art 
 or his authorized agent, then the amount 
 which ninv have been paid shall be for the 
 use of said machinery while in possession 
 of the party of the second part, and said 
 notes shairthen be canceled and given up. 
 Witness the hands and seals of the parties 
 aforesaid. Gi;or(ji; Cuo.mi'To.n. [l. s.] 
 Chas. M. Bi^acu, Treasurer, [l. s.] " 
 
 H. C. Uohiiison and L. 1\ Robinson, 
 for ai>pellant. F. Cbamhi-rlin and E. 6'. 
 Whjtt', for appellee. 
 
 I.ooMis .7. The sole question forour de- 
 termination is whether the promissory 
 note described in the linding, dated Janu- 
 ary 15, 18.^7, giveu by the Home W ooleu 
 
 Mills Company, payable six nionthB after 
 date, to Mary Crompton, administratrix 
 of George Crompton, deceased, is a good 
 and collectible note. The commissioners 
 on the assigned estate of the maker, now 
 an insolvent, allowed the claim in full, 
 and their doings were aflirmed by the su- 
 perior court upon an appeal by a creditor. 
 Although numerous errors are assigned as 
 reasons for the ai)peal to this court, yet 
 the controlling question as it seems to us 
 relates wholly to the consideration of the 
 note, and the remedy of the plaintiff for 
 default of payment. The note in suit is a 
 renewal of the one mentioned in thcrcon- 
 tract dated March 3. isw, given to George 
 Crompton by the Home Woolen Company, 
 pursuant tothe provisions of thecontract, 
 and a determination of the questions rela- 
 tive to the consideration and collectibility 
 of the note will involve also the construc- 
 tion of the contract. 
 
 No question is made as to the valid- 
 ity of the transaction. It belongs to the 
 class of executory conditional sales so 
 often sustained by the courts of this and 
 other jurisdictions, even against attacli- 
 ing creditors. But the cpiestion here is 
 between the parties, and those who imme- 
 diately represent them. If then, as Hoi.T, 
 C. J., so forcibly said in Thorpe v. Thorpe, 
 1 Salk. 171, "every man's bargain ought 
 to bo performed as he intended it," 
 we cannot refrain from asking at the out- 
 set why should not the absolute promise 
 contained in this note be performed? Was 
 it in its ino'ption a mere nwliini pactum. 
 lacking the re(iuisites of a legal obligation 
 to perform, or has there since been a fall- 
 ' ure of the consideration? Unless it is all 
 a mere waste of words, i)aper, and ink, a 
 good consideration is found in the mutual 
 obligations which the contract imposed 
 upon the parties. Under it the Home 
 Woolen Company had the possession, the 
 right of possession, the riglit to use the 
 propertv, until default, and the right to 
 acquire 'the legal title by the payment of 
 the note. This was a vested interest of 
 which the vendee could not be deprived 
 except after default. Moreover, it was an 
 attachable interest under section t):.'0 of 
 the General Statutes. The vendee or any 
 of itsattaching creditors could compel the 
 vendor to give a good title. In other ju- 
 risdictions the doctrine is well established 
 that such contracts vest an interest in 
 the vendee which is cajiable of sale or 
 mortgage bv him to a third person, so 
 that the moment the vendee's title is per- 
 fected it passes to such third person. 
 Fosdick V. Schall, 99 U. S. 1.'35: Carpenter 
 V Scott, 13 K. ]. 477; Day v. Bassett, l!!2 
 Mass. 445: Crompton v. I'ract, lOo Mass. 
 ".").■)• Currier v. Knapp. 117 Mass. 3l'4; 
 Chase V. Ingalls, V.'J Mass. 3s3; note to 
 Miller v. Steen, 89 Amer. Dec. IL'S. The 
 case at bar Is most remarkable in the fact 
 that, while the appellant claims a want 
 or failure of consideration for the note, he 
 at the same time concedes that there has 
 been no default in any of the vendor's ob- 
 li"-ations mentioned in the contract, nor 
 has possession of the looms bi^n taken 
 bv the vendor or his representative, nor 
 has there been any interruption or dis- 
 turbance of the vendee's possession. But 
 strangely enough the failure of cousidcra-
 
 as 
 
 BEACH'S APPEAL. 
 
 tion is prodicnted solely upon the default 
 of the veiiilee to perform his own promise 
 — the same party who sets up the defense! 
 That such maybe the consequence of a 
 party's own defaiilt, we concede as a pos- 
 sibility, but only where it is so written in 
 the contract, and such intent is manifest. 
 And here counsel for the appellant say, 
 in effect, that the decisions of this court 
 in Hine v. Roberts, 48 Conn. L'07, and 
 Loomis V. Bragg, 50 Conn. 228, where Cf)n- 
 tracts said to be essentially the same as in 
 thecaseat barvvere construed soaeto give 
 the precise effect to the vendee's own de- 
 fault, coupled with his act of returning the 
 property, which we now characterize as so 
 anomalous. But the appellant's argument 
 as based on the cases cited overloul>s sev- 
 eral most important and controlling dis- 
 tinctions. In the first place, the court 
 there was not called upon to give effect to 
 the sole default, and the sole act of the 
 vendees in returning the property after de- 
 fault, for in both cases these acts of the ven- 
 dees were coupled with the corresponding 
 acts of the vendors in accepting and tak- 
 ing back the property which they had 
 conditionally sold. This of itself consti- 
 tuted a failure of the consideration, and 
 had the looms in this case when tendered 
 been accepted and appropriated by the ven- 
 dor, the vendee would be no longer liable 
 for the purchase price. The gist of the de- 
 cision in nine v. Roberts appears in the 
 closing paragraph of tlie opinion: "Tiie 
 purcha.se failed ; the title did not pass. 
 The ])laintiff received the melodeon and 
 the return of the organ in good condition, 
 which is all he contracted for in that con- 
 tingency, and the defendant forfeits all 
 previous payments (in this case the melo- 
 deon) which is all he agreed to forfeit. 
 There was therefore an entirefailureof the 
 consideration for the note. " But it is said 
 that the reasoning of the court in this, 
 and in the other case referred to, supports 
 the right of the vendees to return the prop- 
 erty upon their own default, irrespective 
 of any assent on the part of the vendors 
 arising from their acceptance of the prop- 
 erty when returned. This is true, and nat- 
 urally occasions some hesitatifjn as to the 
 proper decision of this case. But the rea- 
 soning referred to was based upon a con- 
 struction of those contracts whereby it 
 was expressly provided that the vendees' 
 default of payment slKjuld work a forfeit- 
 ure of their entire Interest in the property. 
 In Hine v. Roberts the very words which 
 the vendee used in his contract were: 
 "If I fail to pay any of said rent when 
 due, » » « all my rights herein shall 
 thereupon expire and terminate;" which 
 seems to justify the reasoning and conclu- 
 sion of the court. In Loomis v. Bragg the 
 same construction was given to the con- 
 tract, although the language was less ex- 
 plicit. In the opinion of thecourt, on page 
 231, it is said that the agreement provided 
 forthe contingency of a default of payment 
 by the vendee "by a forfeiture of all the de- 
 fendant's rights under Che contract." In 
 the case at bar, as it seems to us, no such 
 construction can reasonably be given, for 
 there is no express provision as in Hine v. 
 Roberts, and none can be implied from the 
 language used, as in Loomis v. Bragg, 
 that the vendee can determine his interest 
 
 in the property and revest it in the vendor 
 bv his own default merely. The option to 
 give such an effect to a default rests 
 wholly in the vendor, and the vendee's 
 rights continue until the option is exer- 
 cised. The mere absence of any provision 
 in the contract as to a return of the prop- 
 erty by the vendee, while expressly confer- 
 ring on the vendor the right to reclaim it, 
 of itself affords ground for an implication 
 against the existence of any such right, 
 but in this case it is expressly stated to 
 be the duty of the vendee"to hold the said 
 machinery as the property of the party 
 of the first part, until the above note or 
 renewals thereof have been fully paid ac- 
 cording to the tenor thereof." 
 
 This case belongs to the class of which 
 Appleton V. Library Corp. ,53 Conn. 8, is the 
 type rather than to that of Hine v. Rob- 
 erts and Loomis v. Bragg, and the lan- 
 guage of the court in that case, in refer- 
 ence to the claim of a right in the defend- 
 ant to return books similarly bought, is 
 equally applicable to this case. The court 
 there say: "It is said that the plaintiffs 
 had the right, at their option, to retake the 
 property at any time if the defendants 
 should fail to pay any installment for a 
 period of thirty days after it became due; 
 but this is a right which the plaintiffs had 
 in case the defendants should break the 
 contract by non-pa.ynient. It gives the 
 defendants uo right to return the books." 
 But it is suggested that the present case 
 is like Hine v. Roberts and Loomis v. 
 Bragg in that no remedy except the right 
 to resume possession is given to the ven- 
 dor, and that it is unlike Appleton v. Li- 
 brary Corp., in that there is no absolute 
 promise to pay for the looms, as there 
 was to pay for the books in that case. 
 While we concede that there is some plau- 
 sible ground for these distinctions, upon 
 further reflection we find them unsatisfac- 
 tory. In the first two cases the payments 
 stipulated to be made at frc(iuent inter- 
 vals were called " rent, " and the agree- 
 ments were called "leases," and although 
 this court, taking into view the features 
 of the entire transactions, called them 
 "conditional sales" and not "leases," yet 
 the use of these words by the parties cer- 
 tainly has a legitimate bearing upon the 
 construction of the agreements as to the 
 point now under consideration, namely, 
 whether the parties intended to give the 
 vendors a remedy to recover the entire 
 sum stipulated to be paid as a condition 
 for vesting the title in the vendees. In 
 both cases also we find most ample pro- 
 visions for the protection of the vendors. 
 In Hine v. Roberts a large advance pay- 
 ment was made by delivery to the vendor 
 of a nielodeon, worth nearly one-third the 
 price of the organ. In Loomis v. Bragg 
 the payment of a monthly rent was re- 
 quired, many times larger than the inter- 
 est upon the full price of the piano which 
 was the subject of the sale. But in the 
 case at bar the contract requires no ad- 
 vance payment and no rent or install- 
 ments are to be i)aid either at long or 
 short intervals. The word "rent" does 
 not (jccurin the writing, audits equivalent 
 in idea only appears where it speaks of 
 the consequences of a retaking of posses- 
 sion by the vendor, and provides for the
 
 BEACH'S APPEAL. 
 
 30 
 
 cancellation of the notoH, in wlileh case 
 any payments that may have bcon made 
 11 is Raid " shall be for the use of the ma- 
 chinery while the vendee was in posses- 
 sion." Even interest is not mentioned in 
 the agreement, yet the finding shows that 
 it was in fact paid in advance upon givins: 
 the iiresent renewal note; and. upon the 
 supposition that the entire note could be 
 collected when due. the vendor had it in 
 his power always to secure the prepay- 
 ment of interest or any other security as 
 a condition for granting a renewal of the 
 note. But the first note that was given 
 pursuant to the contract had the interest 
 Included with the i)rincipnl, which was 
 due at the end of eight months, so that, 
 had the question tinder discussion then 
 arisen, the appellant could have claimed, 
 consistently with his present position, 
 that not even the interest was recovera- 
 ble, for its payment was only obligatory 
 as part and ijarcel of the principal, which 
 could not, he says. have been recoverecJ hy 
 suit; but, if the interest could have bi'en 
 or could l)e recovered apart from the prin- 
 cipal, it would be a very inadequate pro- 
 tection to the vendor for the risk and de- 
 terioration fncident to the use of such ma- 
 chinery by another. .\s matter of com- 
 mon knowledge, we may safely assume 
 that the propertj' in question, if subjected 
 to only ordinary wear, would, if taken 
 back by the vendor, ne<-essarily be greatly 
 depreciated in its market value, for it 
 would have to be sold again, if at all, as 
 second-hand machinery, and the vendor 
 must inevitably lose the whole difference 
 between the value of new and of second- 
 hand machinery, which in an investment 
 of over ?12, 000, as in this case, would be 
 too serious a matter to be lost sight of in 
 the contemplation of the i)artie8. The ap- 
 pellant's construction of the agreement 
 woulil put upon the vendor all the risks 
 and losses, (of which there are many be- 
 sides those mentioned,) incident to the 
 agreement and its subject-matter, and at 
 the same time give to the vendee all pos- 
 sible benefits, while exempting him from 
 all obligations exci'pt such as he might be 
 well i)leased to fulfill. It is incredible that 
 a contract so one-sided, and a remedy so 
 Inadequate for the vendor, should have 
 been intended by the parties. Any con- 
 struction leading to such results ought 
 not to be accepted unless plainly required 
 or necessarily to be inferred from the lan- 
 guage of the contract. We think the con- 
 tract in this case admits of a different and 
 more reasonable construction. We have 
 already seen that no option to return the 
 property is given to tlie vendee merely upon 
 his own default, which has an important 
 bearing upon the qii("stions whether the 
 parties have restricted the remedy of the 
 vendor solely to a ret.-iking of the proper- 
 ty, and whether there was any iiroinise 
 by the vendee to pay the purchase price. 
 AVe have also adverted to the provision 
 that the vendee shall holil the property as 
 that of the vendor until the note and its 
 renewals have been fully paid, which indi- 
 cates that actual payment was contem- 
 plated; and we have in addition the note 
 itself, which contains a direct promise, 
 without condition or contingency, to pay 
 the purchase price of the looms; and this 
 
 note being provided for in the contract, 
 and made part and p;ircel of it, ought to 
 be read as if inserted in the body of the 
 contract. All these considerations make 
 it reasonable to construe the agreement 
 as containing an absolute promise to pay 
 for the property at the e.xpiration of the 
 eiirht-months credit agreed upon. And 
 this brings the case within the principle of 
 Appleton v. Library Corp., where thiscourt 
 said: "This contract is an alisolute one. 
 The plaintiffs agreed to sell the books to 
 the defendants for the sum of ninety dol- 
 lars, to be paid in installments at certain 
 specified times. The defer.dants agreed to 
 pay that sum according to the terms of 
 the contract. There is no conditional 
 agreement here. It is true that the title 
 to the goods did not pass, and could not 
 pass, until the full sum of ninety dollars 
 had been paid, but the promise to pay 
 that sum was absolute. Whence, then, 
 comes the defendants' right to return the 
 books in full satisfaction and discharge of 
 the contract, and thus leave a great part 
 of the installments unpai<r?" Ami, speak- 
 ing of the plaintiffs' right to receiver pos- 
 session of the books, the court further 
 says: "liut this is not their only remedy. 
 The contract e.\i)ressly further provides 
 that in case of such breach all the remain- 
 ing unpaid installments shall immediately 
 become due and payable. If they become 
 due and payable in consequence of non- 
 payment, of course a suit could be main- 
 tained for their recovery." 
 
 Anotherquestion involved in the reasons 
 for the appeal, and very briefly referred to 
 in the argument for the appellant, is 
 whether the appellee, by bringing a suit 
 on the note, and attaching the property 
 of the vendee thereon, ami by refusing to 
 accept the property when tendered back, 
 and by presenting thenote to the commis- 
 sioners as a claim against the estate of 
 the vendee, thereby affirmed the sale, and 
 waived her right to recover back the prop- 
 erty. The counsel for the appellee insist- 
 ed that this question was not properly be- 
 fore this court, and declined to argue it. 
 It is true this suit is not for the recovery 
 of the machinery, but only for the recov- 
 ery of the amount of the note. The ven- 
 dee has not been disturbed in his possession 
 of the property, and it is not certain that 
 he will be. But the facts referred to as 
 to the conduct of the appellee all appear 
 on the record, and so faras they affect the 
 right to recover the note now in question 
 the matter is legitimately before the court. 
 .■\nd, although our present dtx-ision must 
 be confined to the claim on the note, yet 
 the note and the ])roperty may have such 
 relations as that the principle established 
 as to the former may virtually determine 
 the question as to the property, should it 
 hereafter arise. The controlling question 
 in the present case, as we have seen, re- 
 lates Pimply to the consideration of the 
 note. If. then, the action of the plaintiff, 
 astound in thiscase. had the effect to affirm 
 the sale, and pass the title of the property 
 to the vendiH'. at the same time it must 
 have prevented a failure of the considi-ra- 
 tion of the note; and if thetitle did pass It 
 follows also that the plaintiff cannot re- 
 cover the property in any suit founded 
 upon the contract. For these reasons we
 
 40 
 
 REACH'S APPEAL. 
 
 regret that the question was not fully ar- 
 Cned. The case of IJailey v. Hervcy, 135 
 Mass. 172, was citefl, and, as it was based 
 on a contract similar in effect to the one 
 under consideration, it seems to be direct- 
 ly in point. The action was brought by 
 the conditional vendee ajAainst the ven- 
 dors for takinj:; the property away, and 
 the defendants attempted to justify under 
 their contract after default of payment 
 was made by the vendee. Ai.i.icx, J., in 
 delivering the opinio7i of the court, said: 
 " When the plaintiff discontinued his [lay- 
 ments on account, what w;is the lep;nl posi- 
 ticn of the defendants? If it be assumed 
 that they mifjht at their option either re- 
 claim the soods as their own property, 
 without any obligation to account for the 
 proceeds or value to the (ilaintiff, or that 
 they mislit collect the price in full, it is 
 plain that they were not entitled to do 
 both. Theycouldnottre.it the transac- 
 tion as a valid sale and an invalid one at 
 the same time. If they reclaim their prop- 
 erty, it must be on the ground that they 
 elected to treat the transaction as no sale. 
 If they brought an action for the price, 
 they would thereby aflirm it as a sale. 
 Two inconsistent cour-ses being open to 
 them, they must elect which they would 
 pursue; and electing one they are debarred 
 from the other. Reclaiming the goods 
 
 would show anelection to fr.rego the right 
 to recover the price; but, instead of re- 
 claiming the goods in the first instance, 
 they brought an action against Bailey for 
 the price, made an attachment of his prop- 
 erty by trustee process, entered their ac- 
 tion in court, and he was defaulted." To 
 accept this as good law would be to es- 
 tablish a principle which would, upon the 
 facts found, preclude the appellee from 
 hereafterreclaiming the machinery In ques- 
 tion. And while we feel impressed with 
 the clear and cogent reasoning contained 
 in the opinion cited, and are aware that 
 it may receive further support from other 
 decisions to the same effect, yet inasmuch 
 as the point was not argued at all by the 
 appellee, and only briefly lor the a[)pel- 
 lant, and as its adojjtion would only fur- 
 nish one independent additional reason 
 for a conclusion already reached by a ma- 
 jority of the court, it is deemed best on the 
 whole to leave the question open for fur- 
 ther consideration and decision after full 
 argument. There was no error in the 
 judgment comi)lained of. 
 
 Andrews, C. J., and Pardee and Fe.\n, 
 JJ., concurred. 
 
 Carpenter, J., delivered a dissenting 
 opinion.
 
 HECKEK V. irAI.LGAUTEN. 
 
 4.', 
 
 BKCKEIi V. IIALL(JAUTE.\. 
 
 (8C N. Y. 1C7.) 
 
 Court of Appeals of New York. 1881. 
 
 AiHion for convcrHion. Willielm & Boc- 
 in'T. iiifrt'linntH In Berlin, (Jermnny, Hold 
 to BouH & Stern, of the same place, cer- 
 tain RoodH on credit, k'v'wk tlieui invoiced 
 of the Hiune. The koo(Ih were Hhipped b.v 
 direction of the purchfiHero to one Becker, 
 the |)lnintiff, in Hrenien. Boas & Slern 
 borrowed 3,0(10 niarkH of one GoldHteIn, 
 a hanker In Berlin, on the security of the 
 )j:oo(Ih and the hills of lading, directing 
 J Becker to hold them snhject. to Goldstein's 
 order, who directed Be<-ker to ship them 
 to defendfintH, Hallgarfen & Co., of New 
 York. (joldstein wrote defendants in- 
 forming them of the shipment, and direct- 
 ed them to deliver the goods to one L, 
 Stern, of New York, on pa.vment by hira 
 of the Goldstein loan andexpenscs. Beck- 
 er shipped the goods on Angiist 4th to 
 defi-ndanis, with bills of lading made out 
 in his name as ship[)er. directing deliver.v 
 of the goods to defendants. One bill of 
 lading he mailed to defendants, directing 
 delivery of the goods to E. Stern, as in- 
 structed by <ii)ldstein. The dui)licnte bill 
 of lading was forwarded to Boas & Stern, 
 whosent it to (i<il(lstein, wlio forwai'ded it 
 to defendants,-directing the same disposi- 
 tion of the goods by them. Becker cabled 
 defendants on August I'.ith, on behalf of 
 the vendors, stoppingthegoods in transit, 
 and they agreed to hold them for plain- 
 tiff's account. Tlw vendors afterwards 
 assigned to plaintiff their clniniH against 
 the purchasers for an accepted draft and 
 balance of account. Under the hiwr< of 
 Germ.'iny, goods covered by bills of lading 
 can be transferred only by written indorse- 
 ment on the bills b^- the consignee. Those 
 sent to defendant were not indorsed. 
 Plaintiff tendiTed defendants theircharges, 
 and demanded the goods. 
 
 Samuel Hand, for appellants. Lewis 
 •Sanders, for respondent. 
 
 DANFOBTII, .1. Becker was at no time 
 In the course of these transactions the 
 agent or representative of the v<-ndors. 
 Tntil and including the shipment of the 
 goods he was the agent of Boas & .Stern, 
 the vendees, or of (Jtildstein. He obeyed, 
 as was i)roper, at the different stages of 
 the affair, first one and then the other of 
 these parties. If his special cliaracter 
 censed with the shijiment, he neither en- 
 tered the em|)loy of the vendors, nor did 
 he act under any instruction received from 
 them. The linding therefore thnt in be- 
 half of the vendors he sto|iiied the goods 
 is without evidence to support it. As- 
 suming, in the next place (for the pur|tose 
 only of thisdiscussion,) that by the assign- 
 ment above sot out he tiecame vested with 
 a vendor's right to stoit goods while on 
 their way to an insolvent purcluiser, it is 
 one which we think cannot be exercised 
 in this case, for the reasons: First, that 
 the transit was over l)efore the goods left 
 (j'jrmany. They were sent by the vemlors 
 to Becker, as the vendees' agent at Brem- , 
 
 en. The shipment was preceded by and 
 was in ronsei)uence of a reiiuest l)y B. & 
 S. t(» the vcniiors "to send the boxes" to 
 Becker "at our disposition." Therefore, 
 on the LNtli of .July. Informing B-cker of 
 the shipment to him, "at the reijuest of 
 and for account of .Messrs. I'.. & .S. of Ber- 
 lin," they write, wo have sent you part of 
 the goods in question and "reiiuest you to 
 carry out the further instruction of said 
 ' parties concerning the same; " and In the 
 ' next letter, communicating the shipment 
 of the balance, they say, "and requestyou 
 hereby to let .Messrs. B. & S. have the "fur- 
 ther disposal thereof." It is obvious then 
 that the impulse impressed upon thegoods 
 by the vendors carried them c»nly to Brem- 
 en. Some other action was necessary on 
 the part of the vendees before they moved 
 again. They at that p<jint transferred 
 the goods to Giddsteln, and made them, 
 in the hands of Becker, subject to Ills or- 
 der. 'J"he trial court finds not only a "tak- 
 ing of the goo<ls by him as security," but 
 that Boas& Stern "directed Beckertohold 
 and ship the goods according to Gold- 
 stein's directions. " This was done. The 
 bills of lading were issued in favor of 
 strangers to the vendees, and who repre- 
 sent a part.v having actual custody and 
 the rif^ht of disposition. The shipment 
 and the consignment by the vendors end- 
 e<l at Bremen. ,\t that place new interests 
 attached, in promtition of which thegoods 
 Were sent forward. The only consign- 
 ment by W. & B. waH to Becker at Brem- 
 en. 
 
 It has been held that the delivery to the 
 vendee, which puts an end to the state of 
 I)nssage, may be at a place where he 
 means the goods to reninin until afresh 
 destination is eomniiinicated to them by 
 orders from himself. Valpv v. (iibsou, 4 
 C. B. S.'!7; Biggs v. Barry, 2 (urt. l'5!l; B«d- 
 ton V. E. & Y. K. \V. Co.. L. B.. 1 t'. B. 4:5!). 
 .'\lso Dixon V. Baldwen, 5 East, IV.'i; and 
 this case is ai)proved In Covell v. Hitch- 
 cock, 2:! Wend. Oil. In the case before us 
 it i3 plain that they had reached the place 
 for which thev were intended, umler the 
 direction given by the vendors, and had 
 come under the actual control of the ven- 
 dees. I)ix(m V. Baldwen, supra, is com- 
 mented upon in Harris v. Pratt, 17 N. Y. 
 21'.), anil distinguished from the rule 
 thought applicalile to the facts of that 
 case. There the suspense in trnnsiiorta- 
 tlon was temporary, and to be resumed 
 at a future time in the direction already 
 given by the vendors. But in the case 
 before us not only is the actu.il fact like 
 that in Dixon v. Bald wen. but lithe de- 
 tention at Bremen was originally Inteniled 
 only to give the vendues an opportunity 
 to determine by which of several routes 
 or at wl.at time, as in Harris v. Pratt, 
 the goods should goon, we have the ad- 
 ditional vital circumstances beforeadvert- 
 ed to of a complete possession and con- 
 trol by the vendi-es and its transfer to a 
 third party, who also took the actual 
 possession anil control of the :rooils. and 
 lias since retained them. Neither Harris 
 V. Pratt nor any of the other cases cited 
 by the apiiellani no to the extent of up- 
 holding the vendor's lien In such a case. 
 • Second. The trau.sactiou between (Sold-
 
 44 
 
 BECKER 0. HALLGAETEN. 
 
 Htoin niid tlie vendees was effectual to pass 
 Ihu property to him and so deprive the 
 vendors of the right of Btoppano if it otli- 
 erwise existed. That right may always 
 lie defeated by indorsing and delivering a 
 bill of lading of the goods to a bona fide 
 inilorseo for a valnable consideration, 
 without notice of the facts on which the 
 right of stoppage would otlierwi.se exist. 
 This was hold in Lick barrow v. Mason, 2 
 T. U. (!o, and has since been deemed estab- 
 lished. 11 iloes not impair theforce of this 
 poisition that the money was in fact ad- 
 vanced liefore the delivery of the bill of lad- 
 ing. The goods were in the possession of 
 (ioUlstein when he paid over the money. 
 Tlie bill of lading nas promised and was 
 part of tlie consideration on which the 
 money was paid, but more than all he 
 had the riglit, under theauthority given to 
 him by B. & S., to take the bill of lading 
 in anv form, and it was made out for his 
 benefit. City Bk. v. H. Co., 44 N. Y. l;J6. 
 Nor is it material, unless made so by the 
 (ierman law (infra), thiit the bill of lad- 
 ing was not indorsed. It was not neces- 
 sarj' that it should be. Hallgarten & ('o. 
 were Goldstein's agents, subject to his 
 control, and in making the bill of lading 
 in their names as consignees all waseffect- 
 ed which the indorsement of a bill taken 
 in the name of 1!. vt S. would have accora- 
 |)lished. The cases cited bv the respond- 
 ent (Meyerstein v. Barber, L. R., 2 C. P. 45; 
 Short V. Simpson, 1 id. 255), show that 
 a bill HO indorsed has the same effect, even 
 if the ship containing the goods was at 
 sea, as delivery of the goods themselves. 
 Here there was a delivery of the goods to 
 Goldstein, and the bill of lading followed 
 the possession. 
 
 Third. The German law, as set out in 
 evidence, has no application to the ease 
 in baud. It applies when the bill of lad- 
 
 ing is taken in the name of the vendee or 
 of some person through whom the party 
 claiming its benefit must make title. Tlu' 
 observations already made show that in 
 our opinion this is not the plaintiff's po- 
 sition. Nor are the defendants estopped 
 from disputing the plaintiff's title. There 
 is no finding of any fact upon which such 
 doctrine can i-est; no change of position 
 by the plaintiff: a promise at most by the 
 defendants without consideration, in vio- 
 lation of duty to their principals and in 
 fraud of their rights. If it forms the 
 foundation of any action, it cannot be one 
 the effect of wliich is to deprive a third 
 party of his property, or suliject the defend 
 ant to a second action by the real owner 
 of the goods. The right of stoppage, 
 when it exists, depends upon eriuity, and 
 that of the defendants, by virtue of their 
 representative character, is superior in 
 any view to the plaintiff's. If liable at all, 
 it would be upon their assumpsit to keep 
 the goods on hisaccount. But what dam- 
 ages could the plaintiff show from the 
 breach of an agreement to keep for him, 
 or subject to his order, goods to which 
 another person was entitled, and whose 
 claim was as to liim exclusive? 
 
 Some other grounds are urged by the 
 respondent on which he claims the judg- 
 ment may be sustained. They have been 
 examined, and are deemed untenable. The 
 reasons for this conclusion need not be 
 stated, since however decided, they would 
 be insufficient to overcome the appellants' 
 objections which have been already de- 
 clared well taksn. 
 
 The judgment appealed from should l)e 
 reversed and a new trial granted, with 
 costs to abide the event. 
 
 All concur except FOLGER, C. J., absent 
 from argument. 
 
 Judgment reversed.
 
 BEMENT V. SMITH. 
 
 47 
 
 BEMENT V. SMITH. 
 
 (15 Wend. 493.) 
 
 Supremo Court of New York. .Tuly Term, 1S36. 
 
 Tills was an action of aHsumpsit, tried 
 at tlie Seneca circuit in November, 183-1, 
 before tlie Hon. Daniel MoHeiej', one of the 
 circuit judges. 
 
 In March, 1K34, the defendant employed 
 the piuintiff, a carriuKo maker, to build a 
 Kulky for hitn, to be worth ten dollarn 
 more than a sulky made for a Mr. Put- 
 nam ; for which he promiHod to pay ?S0, 
 part in a note aKaiuHt one .loseph Bemeiit, 
 a brother of the plaintiff, for the Hum of 
 ten or eleven dollarH, and the residue in 
 his own note, at hI.k or twelve montim, or 
 in the notes of other persons as good as 
 hi.s own. In .lune, 1834, the plaintiff tojk 
 the sulky to the residence of tlie defend- 
 ant, and told him that he delivered it to 
 him, and demanded payment, in pursu- 
 ance of tlie terms of the contract. The 
 defendant denied having agreed to receive 
 the carriage. Wliereupon the plnintiff 
 told him he would leave it with a Mr. De 
 Wolf, residing in the neighborhood : which 
 he accordingly did, and in July, 1834, com- 
 menced this suit. It was proved tliat the 
 value of tlie sulky was $80, and that it 
 was worth $10 more than Putnam's. The 
 declaration contained threesperialcouiitH, 
 Hubstantiaily alike, setting forth the con- 
 tract, alleging performance on the part of 
 the plaintiff, tiy a delivery of the sulky, 
 and stating a refusal to perform, on the 
 part of the defendant. The declaration 
 also contained a general count, for work 
 and lalior, and goods sold. The judge, 
 after denying a motion for a nonsuit, 
 made on the aHsunied grounds <jf variance 
 between the declaration and proof, 
 charged the jury that the tender of the 
 carriage was substantially a fullilnient of 
 the contract on the part of the plaintiff, 
 and that ho was entitled to sustain his 
 action for the price agreed upon between 
 the parties. The defendant's counsel re- 
 quested the judge to charge the jury that 
 the measure of dnraages was not the 
 value of the sulky, but only the expense 
 of taking it to the residence of the defend- 
 ant, delay, loss of sale, &c. The judge 
 declined so to charge, and reiterated the 
 instruction that the value of the article 
 was the measure of damages. The jury 
 found for the plaintiff, with !?.83.2G dam- 
 ages. The defendant moved for a new 
 trial. The cause was submitted on writ- 
 ten arguments. 
 
 O. H. Piatt and .1. F. Stevens, for plain- 
 tiff. W. K. Smith, for defendant. 
 
 By the court, SAVAGI^, Ch. ,1. The de- 
 fendant presents no defcmce upon the mer- 
 its. His defence is entirely ticlinical, and 
 raises two questions: 1. Whetlier the 
 tender of the sulky was equivalent to a 
 ilelivery, and sustained the averment in 
 the declaration that tlio sulky was deliver- 
 ed ; and 2. Whether the rule of damages 
 should be the value of the sulky, <ir the 
 particular damages to be proveil, result- 
 ing from the breach of the contract. 
 There is no question raised here upon the 
 
 [statute of frauds. The contract is there- 
 fore admitted to be a valid one; and relat- 
 ing to something not In 8(dido at the time 
 j of the contract, tliere Is no question of its 
 validity. 
 
 The [ilaintiff agreed to make and deliver 
 tile article in question at n partk-ulartime 
 and place, and the defendant agreed to 
 pay for It. on ilelivery, in a particular 
 manner. The plaintiff made, and. as far 
 as was ill liis power, delivered the sulky. 
 He offered it to tlie defendant at the place 
 and within the time agreed nixm. It was 
 not the plaintiff's fault that the delivery 
 was not complete, that was the fault of 
 the defendant. There are many cases In 
 whicli an offer to perform an executory 
 contract is tantamount to a performance. 
 This, I apprehend, is one of them. The 
 case of Towers v. Osborne, 1 Strange, 506. 
 was like this. The question here present- 
 ed was not raised, but the defendant there 
 sought to screen himself under the statute 
 of frauds. The defendant bespoke a 
 chariot, and when it was made, refused 
 to take it; so far the cases are parallel. 
 In an action for the value, it was objected 
 that the contract was not binding, there 
 being no note in writing, nor earnest, nor 
 delivery. The objection was overruled. 
 In that case the action was brought for 
 the value, not for damages for the breach 
 of contract. This case is like It In that 
 particular; this action is brought tor the 
 value, that is, for the price agreed on: 
 and It Is shown tliat the sulky was of that 
 value. The case of C'rookshank v. Bur- 
 rell. 18 .lohns. R. 58, was an action in 
 which the plaintiff declared against the 
 defendant on a contract whereliy the 
 plaintiff was to make the woodw!>rk of 
 a wagon, for whicli the defendant was to 
 pay in laiiitis. Tliedefemlant was to come 
 for the wagon. The question was u|)oii 
 the statute of frauds. Spencer, I'h. J., 
 states what had been held in some of the 
 English cases, Clayton v. Andrews. 4 Burr. 
 -'1(11. and Cooper v. Elston, 7 T. H. 14, 
 that a distinction existed bet ween a con- 
 tract to sell goods then in e.iistence. and 
 an agreement for a tiling not vet made. 
 The latter is not a contract for the sale 
 and purchase of goods, but a contract 
 for work and labor merely. The case of 
 C'rookshank v. Burrell is much like this, 
 with this exception: there the purchaser 
 was to send for the wagon : here the 
 manufacturer was to take it to him. 
 There it was held that the manufacturer 
 was entitled to recover, on proving iliat 
 he had made the wagon according to the 
 contract: here it is proved that the sulky 
 was made, and taken to the place of de- 
 livery according to contract. Tliemeiits 
 of the two cases are the same. It seems 
 to be conceded that an aveniient of a ten- 
 der of the sulky by tlio plaintiff, and a re- 
 fusal of the defendant to receive It, would 
 have been sulllcient; and if so.it seems 
 rather twhnlcal to turn the plaintiff out 
 of court, when he has proved all that 
 would have been required of hini to sus- 
 tain Ills action. The plaintiff, in his spe- 
 cial counts, does not declare for the sale 
 and delivery, but upon the special con- 
 tract; and herein this case is distinguish- 
 able from several cases cited on the part of
 
 48 
 
 BEMENT V. SMITH. 
 
 the ilefeiulnnt, and shows that It was not 
 nuceasary to have declared for goods bar- 
 gained and sold. It seems to nie, there- 
 fore, that the judge was right in refusing 
 the nonsuit, and in holding that tlie evi- 
 dence showed sulistantially a fulfilment of 
 the contract. The variance as to the 
 amount of Joseph Bement's note, I think, 
 is immaterial; but if otherwise, it may be 
 amended. The alleged variance as to the 
 price of the sulky is not sustained by the 
 facts of the case. 
 
 The only remaining question, therefore, 
 is as to damages which the plaintiff was 
 entitled to recover. It is true that the 
 plaintiff does not recover directly as for 
 goods sold; hut in the case of Towers v. 
 Osborne the plaintiff recovered the value 
 of the chariot, and in Crookshank v. Bur- 
 rell the recovery was for the value of the 
 wagon. The amount of damages which 
 ought to be recovered was not the ques- 
 tion before the court in either of those 
 cases; but if the value of the article was 
 not the true measure, we may infer that 
 the point would have been raised. Upon 
 principle, I may ask, what should be the 
 ruleV A mechanic makes an article to 
 order, and the customer refuses to receive 
 it: is it not right and just that the me- 
 chanic should be paid the price agreed up- 
 on, and the customer left to dispose of the 
 article as he may ? A contrary rule might 
 be found a great embarrassment to trade. 
 The mechanic or merchant, upon a valid 
 contract of sale, may, after refusal to re- 
 ceive, sell the article to another, and sue 
 for the difference between the contract 
 price and the actual sale. Sands and 
 Crump V. Tavlor and Lovett, 5 Johns. K. 
 3i).5, 410, 411; Langfort v. Tiler, 1 Salkeld, 
 113,6 Modern, 1()2. In the first of these 
 cases, the plaintiffs sold the defendants a 
 cargo of wheat. The defendants received 
 part, but refused to receive the remain- 
 der. The plaintiffs tendered the remainder, 
 and gave n<jtice that unless it was re- 
 
 ceived and paid for, it would be eold at 
 auction, and the defendants held respon- 
 sinle for any deficiency In the amount of 
 sales. It was held, upon this part of the 
 case, that the subsequent sale of the resi- 
 due was not a waiver of the contract, the 
 vendor being at liberty to dispose of it 
 bona fide, in consequence of the refusal 
 of the purchaser to accept the wheat. 
 Thiscase shows that where there has been 
 a valid contract of sale, the vendor is en- 
 titled to tlie full price, whether the vendee 
 receive the goods or not. I cannot see 
 why the same principle Is not applicable 
 in this case. Here was a valid contract 
 to make and deliver the sulky. The plain- 
 tiff performed the contract on his part. 
 Thedefendant refused to receive the sulky. 
 The plaintiff might, upon notice, have 
 sold the sulky at auction, and if it sold 
 for less than f SO, the defendant must have 
 paid the balance. The reason given bv 
 Kent, t'h. 3.,h Johns. R. 411, is that it 
 would be unreasonable to oblige him to 
 let the article perish on his hands, and 
 run the risk of the insolvency of the buy- 
 er. But If after tender or notice, which- 
 ever may be necessary, the vendor chooses 
 to run that risk and permit the article to 
 perish, or, as in this case, if he deposit it 
 with a third person for the use of the 
 vendee, he certainly must have a right to 
 do so, and prosecute for the whole price. 
 Suppose a tailor makes a garment, or a 
 shoemaker a pair of shoes, to order, and 
 perform.^ his part of the contract, ie he 
 not entitled to the price of the article fur- 
 nished? I think he is, and that the plain- 
 tiff in this case was entitled to his verdict. 
 
 The question upon the action being pre- 
 maturely brought before the expiration 
 of the credit which was to have been giv- 
 en, cannot properly arise in this case, as 
 the plaintiff recovers upon the special con- 
 tract, and not upon a count for goods 
 sold and delivered. 
 
 New trial denied.
 
 BENEDICT V. S('II A KTILE. 
 
 51 
 
 BENEDICT V. SOHAKTTLE. 
 
 (12 Ohio St. 515.) 
 
 Snpreme Court of Ohio. Dec. Term, 1801. 
 
 Error to the suporior court of Cincin- 
 nati 
 
 Stallo & M'Cook, for |)laiiitiff In error. 
 Keblei' & Force, for defendant in error. 
 
 GHOLSON, J. According to the deci- 
 sion in House v. Elliott, (i Ohio St. Hep. 
 497, which applicB in ihiH cnse, we can not 
 Inquire aw to the weight of evidence on 
 wliiuli any linding of fact was made in the 
 court below. The tlndinR must heauainst 
 law. Assuming every fact which the evi- 
 dence may tend to prove, In support of the 
 finding and judgim'ut of the court below, 
 <lo those facts fail to eHtaljIish the right of 
 the plaintiff in the action to recover? We 
 need not. therefore, say whether there 
 wai Hutticient evidence toshowthat .Johti- 
 8on, to whom the goods were sold, was 
 insolvent. There was, we think, evidence 
 tending to show the insolvency of the ven- 
 dee at the time of the sale of the goods, 
 and that such insolvency was not known 
 to the vendor. The question then arises, 
 whether the vendor, on afterwani hear- 
 ing of the insolvency, may exercise the 
 right of stoppage In transitu, or, whether, 
 as claimed by counsel for the plaintiff in 
 error, the insolvency, to authorize a stop- 
 page in transitM, must be evidenced by 
 some positive overt act, the existence of 
 which is not inferable from any testimony 
 In the 1)111 of exceptions, and that such 
 overt act must occur after the sale, and 
 before the delivery of the goods? 
 
 It is the rule of the mercantile law, that 
 when) goods have been consigned, and are 
 on transit to the vendee, the consignor can 
 not vary the consignment, except In the 
 case of Insolvency. It has been said, that 
 "the mischief and inconvenience that 
 would ensue on a contrary supposition, 
 are extreme. The goods might be put on 
 board, and might lie at the risk of tliecon- 
 Bignee for two or three months; and if the 
 conMignor could come and resume them at 
 pleasure, it would place the consignee in a 
 situation of great disad rantnge. that he 
 sliould be exposed to the risk during such 
 a length o( time, for an object whlcli 
 miglit be eventually defeated, at any mo- 
 ment, by tlie capricious or interesteil 
 change of intention In the breast of the 
 consignor. It would be to expose the con- 
 signeo altogether to the mercy of the 
 seller." The Constantia, 6 C. Koh. :i".'l- 
 ;i27. In that case, the vendor had stopped 
 and diverte<l the ilelivery of goods, and It 
 was said, if the vendee " ha(l been an In- 
 solvent person, it would have amounted 
 to a complete and effective revendication 
 of the goods. l?ut if the person to whom 
 they are consigned is not Insolvent; if 
 from misinformation or excess of caution, 
 the vendor has exercised this privilege pre- 
 maturely, he has assumed n riglit that did 
 not belong to him, and the consignee will 
 be entitled to the delivery of the goods, 
 with an indemnilication for the exjienses 
 that have been incurred. * * * It Is 
 not an unlimited power that is vested 
 In the consignor, to vary the consignment 
 
 at his pleasure in all coses whatever. It 
 is n privilege allowed to the seller, for the 
 particular purpose of protecting him from 
 the Insolvency of the consignee. Certainly 
 It is not necessary that the person should 
 be actually Insolvent at the time. If thn 
 insolvency happen before the arrival, It 
 would be sullicient to justify what has 
 been done, and to entitle the flhl|)per to 
 tli(! benefit of his own provisional caution. 
 I5ut If the person is not insolvent, the 
 ground is not laid on which alone such a 
 privilege is founded." C. Hob. :)lMi. In 
 the case of Wllmshurst v. Kowker, '2 M. & 
 (i. 7!IJ, S12, It was said by Tinclnl, (". J : 
 "The oi-dinary right of counterniamling 
 the actu'il delivery of gooils shipped to a 
 consignee, is llmiteil to the cases in which 
 the bankruptcy or insolvency of the con- 
 signee has taken place. 'I'he law as to this 
 point is very clearly laid down by Lord 
 Stowcll, in the case of The Constantia." 
 This statement of the doctrine of stop- 
 page in transitu, which Is supported by 
 sucli high authorities, does not sustain 
 the proposition, that a vendee. Insolvent 
 at tlie time of the sale of goods, and still 
 remaining insolvent, can object to their 
 stoppage In transitu. He could only com- 
 plain when his insolvency was known to 
 thevendorat the timeof sale, and the con- 
 tract was made in view of such, his condi- 
 tion. The object In allowing the privilege 
 to the vendor being his protf-ction against 
 the insolvency of the vendee, such priv- 
 ilege, unless waived by the vendor, ought 
 properly to exten<l to cases of insolvency, 
 whether existing at the time of sale, or 
 occurring at any time belore theactual de- 
 livery of the goods. A vendee who dis- 
 putes the right of stoppage In transitu, 
 must be prepareil to aver, as in the case 
 of Wilnishnrst v. Howker, '.' M. & (J. 7'.t2, 
 which was an action by a veixlee against 
 a vendor for Improperly stopping the de- 
 livery of goods, that he was neither bank- 
 rupt nor insolvent. Independently of any 
 circumstances to the contrary, the vendee 
 might have the benelit of a presumption 
 of ability to comply with his contract, and 
 the burden of showing insolvency might 
 be east on the vendor. It may be that 
 this wouhl be sutJiclently shown by the 
 proof of an overt act of insolvency, such 
 us a stoppage of payment, tnough,iu fact, 
 an actual insolvency, in the sense of not 
 having means ade(iuate to the payment of 
 debts, might not exist If the \enrlee, be- 
 fore the stoppag-» in transitu, had, by his 
 conduct In business, nffordecl the ordinary 
 apparent evidences of insolvency, he ought 
 
 not to complain of the preciutlonary 
 measure taken by the vendor, though It 
 should ttirn out that he was ultimately 
 able to |>ay. Itnt. though no such evi- 
 dences of insolvency should pre le the 
 
 Htoppago in transitu, still, if the fact of 
 insolvency existed the vendee ought not 
 tocom()laln. This, at least, is clearly to 
 be Inferred from the language of the au- 
 
 : thority which has been cited, anil appears 
 entiiely reason.'ible anil proper. Fair 
 dealing will be better insured liy leaving to 
 the vendor his privilege of stoppage In 
 transitu, in all cases of Insolvency, wheth- 
 er evidenced by the ordinary accompnny- 
 
 i ing acts, or shown actually to e.vlst. The
 
 .'i2 
 
 BENEDICT 0. SCHAETTLE. 
 
 riglits of a fair vendee will be Riifflciently 
 protected by g'w'ing liim an indemnity 
 when the lijil't of stoppage in transitu is 
 exercised ui)on ruiuor or suspicion with- 
 out any fDUndation in fact, and by depriv- 
 inj? the vendor, in nil cases, of any chance 
 of speculating upon the goods, by requir- 
 ing them to 1)6 delivered or accounted for 
 to tlie vendee, or his assignee, on the pay- 
 ment or tender of the agreed price. 
 
 Tliese views are sustained by the origin 
 and nature of tlie doctrine of stoppage in 
 transitu. It appears to have been derived 
 from, or to be analogous to, the revendi- 
 cation of the civil law. This has been 
 thus defined : " Hevendication is the right 
 of an unpaid vendor, upon the insolvency 
 of the vendee, to reclaim, in specie, such 
 part of the goods as remains in the hands 
 of the vendee entire, and without having 
 changed its quality." (In re Westzyn- 
 thius, 2 Nev. & Man. 6,")0, note.) In Hell's 
 Commentaries on the Laws of Scotland, 
 cited in the same case, it is said: "The 
 privilt-ge to stop goods in transitu, is a 
 qualified extension in equity of that rule 
 of mutual contract, by which, either party 
 may withhold performance, on the other 
 becoming unable to perform his part." It 
 is stated, as a rule introduced into the 
 common law, in modern times, founded on 
 prlnci|)lesofe(iuitv, and borrowed from the 
 foreign or continental law, that in case 
 of the vendee's bankruptcy or insolvency, 
 the vendor might stop and take bacli the 
 goods in transitu, or before tlieycome into 
 the hands of the vendee. Bell's Comm. 
 bk. 2, pt. 2, c. 1, art. 3, cited, 2 Nev. & 
 Man. 651, (io2, note; Mackreth v. Symmons, 
 15 Ves. 34.^. It is "nothing more than an 
 extensinn of tlie right of lien, which, by 
 the common law, the vendor has upon the 
 goods for the price, originally allowed in 
 equity, and subsequentl.v adopted as a rule 
 of law." Rowlev v. liigelow, 12 I'ick. 307, 
 313; Atkins v. Colby, 20 N. H. 1,J4; Croat 
 V. Hill, 4 Cray, 301. "A kind of equitable 
 lien adopted b.v the law for the pur|)oses 
 of substantial justice." Hodgson v. Loy, 
 7 T. R. 445. In the ease of McEwan v. 
 Smith. 2 Ho. L. Cas. 30i), 32S, it was said, 
 by Lord Campbell, that " the doctrine of 
 stoppage in transitu is a most just and 
 equitable one, and I would by no meaus 
 strive to limit its operation." 
 
 If the true principle of the right of stop- 
 page in transitu be found in that certainly 
 just rule of mutual contract, by which 
 either party may withhold performance, 
 on the other becoming unable to perform, 
 on his part; if the foundation of the rule 
 be a just lien on the goods for the price, 
 until delivered, an equitat)le lien adopted 
 for the purposes of substantial justice, 
 then, it is the ability to perform the con- 
 tract — to pay the price — wliich is the ma- 
 terial consideration. If there be a want 
 of ability, it can make no difference in 
 justice or good sense, whether it was pro- 
 duced by causes, or shown by acts, at a 
 period before or after the contract of sale. 
 Substantially, to tlie vendor who is about 
 to complete delivery, and abandon or lose 
 his proprietary lien, tlie question is, can 
 the vendee perform the contract on his 
 part; has he, from insolvency, become un- 
 able to pay the price? If such be his con- 
 
 dition, and the vendor has not precluded 
 himself by some act of waiver, the general 
 principles on the subject and justice require 
 that he should be allowed to exeicise the 
 right of stoppage in transitu. 
 
 To sustain the contrary view and limit 
 the riglit of stoppage in transitu, the case 
 of Rogers v. Thomas, 20 Conn. 53, is relied 
 on, in which it was decided, that to au- 
 thorise the exercise of the right of stop- 
 page in transitu, there must besomeovert 
 act of insolvency, and tliat it must inter- 
 vene bet ween the sale and tlie exercise of 
 the right. The decision in the caseof Rog- 
 ers v. Thomas, was not made on the au- 
 thority of previous cases, but, in the ab- 
 sence of such cases, upon the ground that 
 the general definitions or statements of 
 the doctrine of stoppage in transitu re- 
 quired such a limit to tlie exercise of the 
 right; and particular reference is made to 
 the general statement of the doctrine in 
 Smith's Mercantile Law,.547(Am. Ed. 077). 
 The very first authority cited by .Mr. 
 S'uith to sustain his statement of the doc- 
 trine, is the case of VVilmshurst v. Bowker, 
 and he quotes the remarks of Tindal, <'. 
 J., as to the clearness with which the law 
 on the point had been laid down by Lord 
 Stowell in thecase of The Constantia. In- 
 terpreting tlie statement of the doctrine, 
 by Mr. Smith, in the light of the authori- 
 ties he cites, and it is manifest that he 
 never intended any such limit to the exer- 
 cise of tlie right of stoppage in transitu. 
 Nor do we think the terms in which the 
 doctrine of stoppage in transitu is stated 
 in many of the authorities, would justify 
 the limit supposed to exist. 
 
 It was said by Lord Kenvon, in Ellis v. 
 Hunt, 3 T. R. 407, that "the doctrine of 
 stopping goods in transitu is bottomed 
 on the case of Snee v. Prescot, 1 Atk. 245, 
 where Lord Hardwlcke established a very- 
 wise rule, that the vendor might resume 
 the possession of goods, consigned to the 
 vendee, before delivery, in caseof thebank- 
 riiptcy of the vendee." 
 
 The doctrine is thus stated by Lord 
 Hardwlcke. After referring to the rule, 
 that an action against a carrier for loss of 
 goods should be brought in the name of 
 the consignee, he proceeds: "But suppose 
 such goods are actually delivered to a 
 carrier, to he delivered to A., and whiie 
 the carrier is upon the road, and before 
 actual delivery to A., by the carrier, the 
 consignor hears A., his consignee, is likel.v 
 to become bankrupt, or is actually one, 
 and countermands the delivery, and gets 
 them back in his own possession again, I 
 am of opinion that no action of trover 
 would lie for the assignees of A., because 
 the goods, while they were in transitu, 
 miglit be so countermanded." Snee v. 
 Prescot, 1 Atk. 24S. 
 
 In a case before cited it is said by Lord 
 Campbell : " What isstoppagein transitu? 
 It is this, that where a vendor of goods 
 has to send them to a vendee, and has, for 
 that purpose, parted from them to a car- 
 rier, he may, upon hearing of the insol- 
 vency of the vendee, while they remain in 
 the hands of the carrier, and, before deliv- 
 ery to the purchaser, stop their delivery." 
 McEwan v. Smith, 2 Ho. L. Case, 32H. 
 
 In the caseof Donath v. Broorahead, 7
 
 BENEDICT V. .SCIIAETTLE. 
 
 .3 
 
 Itarr, :501, 30."!, it in nail] : "Tlie riulit of a 
 vendor, on the diHcovory of the liank- 
 rtii)tfy or iiiHolvenoy of the party tu 
 whom lie liaH wold hockIh on iTcdir. to I'c- 
 tnl<e tiieni hefore actual or coniiilete de- 
 livery, in tlie well-Hettled doctrine of both 
 courtH of law and equity." 
 
 lutliecaHeof Hays v. .Mouille, 14 Pa. 
 St. 48, the judt^e, in hiw charue to the jury 
 (and liiH viewH were exprcsHly adopted hy 
 the court of error,) after stating that tlie 
 innolvency of the vendee was the Kronnd- 
 work of the plaintiff's claim, thu.s put the 
 (juepitlon — Was the vendee "inMolvent 
 when these noods were re|)levied li.v the 
 plaintiffs? It is not necessary, to prove 
 inscdvency, that he should have been de- 
 clared a bankrupt or insolvent l>y a judi- 
 cial tribunal, nor that he shoui<l have 
 made an assignment of his property. If 
 the fact exist, no matter how proved, if 
 BUfficiently and satisfactcjrily proved, the 
 la w re(iuires no more. " In that case the 
 evidence tended to show tliat the vendee 
 was insolvent when the goods were 
 bought, and the ju:lge further said : "You 
 have the testimony of I'.aker that Khodes 
 was indebted some $tl(l,(l()0. and that his 
 assets were but $!'(;, Odd, aM<l that his cred- 
 itors were watching for these goods on 
 the lino of transportation, and actually 
 attached them before they reached Ohio, 
 for det)ts which he was not able to pay." 
 
 In the case of Stevens v. Wheeler, 27 
 Barb. li.")S, GUa, there is this statement of 
 the rules on the subject of stoppage in 
 transitu: "tiiat the vendor has a right 
 to stop goods sold by him, when he dis- 
 covers the vendee to be Insolvent, at any 
 time while the goods are in transitu. 
 That tlie transitus continues until the 
 goods reach the place of destination, un- 
 less sooner terminatccl l)y the act of the 
 vendee. That a delivery to the vendee oJ 
 the goods, or a part of them, or a deliver.v 
 to his agent or to n liona tide purchaser 
 from liim, terminates the right of the ven- 
 dor of the goiids to stop them." 
 
 Not only do the general statements of 
 the doctrine fall short of sustaining the 
 decision in Itogers v. Thomas, l)ut, in sev- 
 eral cases, where the question was in- 
 volved, it was differently decided. Such, 
 we think, was the case of Hays v. .Mouille, 
 14 Pa. St. 4S, before noticed. There it is 
 evident, the insolvency existed at tlie time 
 of thesaleof the goods, and it was proved, 
 not by any overt act, but by a compari- 
 son of the amount of liabilities with Hie 
 amount of assets. 
 
 The decision in the case of Buckley v. 
 Funiiss. l."i Wend. 1M7, appears to lie di- 
 rectly opposed to that in Rogers v. Thom- 
 as. In Huckley v. Kurnis-i. the point w;is 
 made that the vendor, at the time of the 
 sale, knew the circumstances of the ven- 
 dee, who was then insolvent. It was 
 sui<l liy nronson,,!.: "The sale was no 
 doubt absolute, whether the pl.iintiff 
 knew that Titus was insolvent or not; 
 and so are most sales, where the vendor 
 afterward exercises the right of stoppage 
 In transitu. The right of the vendor to 
 resume possession of goods sold on credit, 
 In case of the insolvenc.v of the consignee, 
 before they come to his hands, does not 
 depend upon any condition, or otiicr pe- 
 
 culiarity in the contract of sale, but pro- 
 reeils on the ground of an equitable lien. 
 Still, it may be. and prcdialily is true, that 
 ii tim iilaintirr Hold the iron, with a full 
 knowledgi- of tlie situation of the vendee, 
 he could not afterward exercise the right 
 of stoppage in transitu; but the argu- 
 ment is not borne out by the facts." Tlie 
 judge then proceeds to show liy a reference 
 to III" facts, that although the vendee was 
 insolvent at the time of the sale, it was 
 not known to the vendor, who, therefore, 
 had the right to retake the goods. This 
 case was cited by eounsel, in Kogers v. 
 Thomas, but was not noticed In the opin- 
 ion of the court. 
 
 There are other cases In wliich the de- 
 cision did not turn on the question of In- 
 solvency, the contest in thin class of cases 
 having generally been as to the termina- 
 tion of the transit; but where it appeara 
 either directly or l\v strong inference, that 
 the insolvency existed at the time of sale. 
 Such n case is Higgs v. Hurry, 2 CurtlH, 
 2.59, in which it clearly appears that the 
 insolvency existed at the time of sale; but 
 the case was given to the jury on the ques- 
 tion, simply, whether the transit hud end- 
 ed, without any reference to the time of in- 
 solvency. 
 
 In the cases of Stubbs v. Lund, 7 Mass. 
 4.j3, and Ilsley v. Stubbs, !) Mass. G.'). what 
 was regarded by the court as the sale of 
 the goods, their shipment on order, was 
 after the insolvency of the vendee, and 
 yet the exercise of the right of stoppage in 
 transitu was sustained. 
 
 The point might have been made, and if 
 sustiiined would have clianged the deci- 
 sion in the case of Litt v. Cowle.v, I Holt. 
 .'j:!S, :i Eng. Com. L., 13s, as is shown by 
 Waite, J., ill his dissenting opinion in the 
 case of Hogers V.Thomas. It may not 
 be conclusive against the correctness of a 
 legal iiroposition, that it was not pre- 
 sented, wlien from the facts involved it 
 might have been. But when this has oc- 
 curred in a number of cases, where it is to 
 be supposed that both counsel and court 
 are well informed as to tlie rules of law. it 
 is a reasonalile Inference that the point 
 was not made because it was deemed un- 
 teinible. 
 
 We have not been able to And, and our 
 attention has not been called liy counsel 
 to an.v decision which sustains the restric- 
 ti</n on the right of stoppage in transitu 
 laid down in Kogers v. Thomas; but It 
 has been adopted as a rule of law in sev- 
 eral elementnr.v works. It appears to lie 
 njiproved in 1 Parsons on Contracts, 47ti, 
 47S, but that approbation is omitted in 
 the work of the same author on Mercan- 
 tile Law, and withdrawn, and a grave 
 doubt substituted, in liis more recent 
 work on .Maritime Law. 1 Vol. .11!'.). 
 
 We are satislied tliat the restriction can 
 not lie maintained either on principle or 
 autliority. 
 
 In accordance with tlio views which 
 have iieen expressi-d, the judgment of the 
 superior court of ('inciniiati will be af- 
 lirmed. 
 
 Judgmeat ntllrmed. 
 
 SUTLIFF. C. .I.,and PECK, niHNKER- 
 HOFF, and SCOTT. JJ., concurred.
 
 BENNETT v. COOK. 
 
 BENNETT v. COOK 
 (6 S. E. Rep. 28, 28 S. 0. 353.) 
 
 Supreme Court of South CaroUaa. April 3, 
 
 18S8. 
 
 Appeal from coinraon pleas circuit court 
 of Hampton county; HiulHon, Ju<1«p. 
 
 Action liy William Hennutf. adiniiiintrn- 
 tor, aKaiuHt Joe Cook, to obtain poHscH- 
 elon or certain property claimed by de- 
 fendant BH a uift from the inteHtate in his 
 lifetime. JuilKment waw rendered in fa- 
 vor of defendant, and plaintiff appeals. 
 
 W. S. TillinKliaHt and ,lameH W. Moore, 
 for appellant. Searson & Warren, for re- 
 Rpondent. 
 
 MctiOWAN, J. Jamen HuKhey, hecom- 
 InK olfJ and infirm, and tindinj? himself 
 alone, and without nny one of IiIh Inin)e- 
 diate family to take care of liitii, Hold his 
 little tract of land, and went t() live with 
 the defendant, who had married IiIh 
 adopted daughter, to whom he was at- 
 tached. Upon the occasion of his removal 
 he seems to liavo carried with him a 
 horse, about (iO t)usliels of corn, a cun, a 
 few ijleces of ol<l furniture, and some 
 notes, amounting in value, as nlleued, to 
 about $800. He was received and treated 
 kindly by the defendant and his wife. 
 They nursed him In his last illness, em- 
 ployed an<l i)ai(l for what medical atten- 
 tion he wanted; and in about six miinths 
 thereafter he died intestate, leavinK his 
 property in their possession. Soon after 
 the death of tlie intestate, the i)laintiff, 
 who had married a daughter of the de- 
 ceased, applied for letters of administra- 
 tion upon the estate, and, before the time 
 had ela[)sed for obtaining full letters, he 
 received some authority in the nature of 
 letters ad colligendum bona to >;ather u]) 
 the goods of the deceased, and sued the 
 defendant for the aforesaid [)roperty. 
 The defendant answered, claiming title to 
 the property which remained l)y parol 
 gift from the intestate In his lifetime, the 
 Inducing cause or consiileration being the 
 love and affection to his wife, the adoi)ted 
 daughter of the deceased, and the services 
 rendered the intestate in his old age and 
 helpless condition liy thedefendantand his 
 wife. It was referred to a referee to take 
 the testimony, much of which consisted 
 of the "declarations" of the intestate that 
 he "had given," or "inten<led to give,'" 
 the i)roperty to Uook and wife, and was 
 taken subject to exception. It is all 
 printed In the brief. The cause came on 
 to be heard by Judge lluilson, who ruled 
 that all the testimony of both the jilain- 
 tlff and defenilant touching transactions 
 andcommunications of the witnesses with 
 the doceased must be stricken out, under 
 section 400 of the Code; anil that all the 
 testimony of other witnesses in behalf of 
 the plaintiff as to declarations of the de- 
 ceased in support of his title, and against 
 the gift, must also be stricken out. The 
 judge in his decree says, "after eliminat- 
 ing from the case all this iiiccimpetent and 
 irrelevant testimony, and aftci' consider- 
 ing the other testimony. 1 lin<l that the 
 great weight of the evidence is in favor 
 
 of the title of the defendant and wife, 
 and Is agaitist the claim of the plaintiff. 
 • * • 1 find as matter of fact that the 
 Intestate at the time of his death did not 
 own the property in dispute, having giv- 
 en the same to the defendant and his wife, 
 and liencc the plaintiff cannot recover," — 
 and dismissed the complaint. From this 
 decree the plaintiff appeals upon excep- 
 tiiins: "(1) ISecause It is respectfully sult- 
 mitted that his honor erred in ruling that 
 all the testimony of witnesses In liehaK of 
 the plaintiff as to declarations of deceased 
 in support of his title, and against the 
 gift, must be stricken out, testiniony of 
 like nature In support of the gift having 
 been previously introduced liy defendant. 
 (L'l Because his honor erred in llnding 
 that the great weight of the evidence is 
 in favor of the title of the defendant and 
 wife, and is against the claim of the 
 I)laintiff. (3) IJecause his honor erred In 
 finding that this case is similar, in the 
 character of the pjroof of the gilt, u> the 
 case of Blake v. .Jones. Bailwy, i;(|. 142, it 
 being respectfully submitted that there is 
 no ijarallel between the two cases. (4) 
 Because his honor erred in finding that 
 the delivery was made as far as is usual 
 under like circumstances, and that the de- 
 fendant an<l wife had possession of the 
 property sufTicient to amount to a deliv- 
 ery. (5) Because his honor erred In find- 
 ing that the iilnlntiff gave the borsd to 
 defendant and wife for immediate use as 
 their horse. (G) Because his honor erred 
 in finding that the plalutiff had uo right 
 to any of the property traced to defend- 
 ant's possession, and named In the com- 
 plaint. (7) Because his honor erred in 
 finding that defendant had only onedollar 
 and fifty cents in his possession of the 
 money of the Intestate, and that he had of 
 fered to turn over the same to plaintiff. (S) 
 Because his honor erred in deciding that 
 the intestate did not at the lime of his 
 death own the property In dispute: that 
 he had given the same to defenilant and 
 wife, and adjudging that the complaint 
 should bedismissed. " There are no rights 
 of creditors in the case. The intestate 
 seems to have been punctual in paying his 
 debts, and the only c<mtest is l)etweeu the 
 heirs at law and the delcndant. 
 
 The general rule of evidence certainly 
 is that declarationsareadmisslhle against 
 the interest of the party, but not in his 
 favor. "There Is, perhaps, no principle 
 better settled than that when one has 
 entered into a contract, made a gift, or 
 done any other act l)y which he is bound, 
 he cannot by any subseciuent act or dec- 
 laration of his own avoid or discharge 
 himself from it. if, then, the gift by tliu 
 testatrix to the defendniifs wife was 
 proved, her suliser|uent declarations wen>, 
 upon general principles. inadmissUile, for 
 the obvious reason that they were Irrele- 
 vant. They were therefore properly le- 
 jected. Cases do sometimes arise in wlHch 
 proof of the gift is made up of repeatej 
 declarations of the donor. running 
 through several years ; where such decla- 
 rations are brought In, by the party 
 claiming under it, in support of doutttful 
 evidence of the gift. In these and such 
 like cases, sue!; declarations are admis-
 
 56 
 
 BENNETT p. COOK. 
 
 Hil)lf in I'oply to such evidence. The case 
 of Sims V. Saunders, Harp. 374, is au illus- 
 tration of this." M'Kane v. Bonner, 1 
 Bailey, IIG. It seems that in respect to 
 alleKod parol sifts proof of declarations 
 of the donor is only allowable in doubtful 
 cases upon the question of i^ift or no gift, 
 and the evidence on both sides consists of 
 declarations of the allefred donor. The 
 doctrine is clearly exceptional in charac- 
 ter, and, as it trenches closely on forbid- 
 den ground, it should not beaIlo«'ed to go 
 l)eyond the necessity of the case, and then 
 be received with great caution. "Where 
 there has been plenary proof of the gift, 
 subsequent declaration of the donor that 
 a gift was not intended is inadmissible." 
 M'Kane v. Bonner, supra. It seems that 
 the circuit judge was entirely satisfied, 
 "from the great weight of the evidence," 
 tliat "plenary proof of the gift" had been 
 made. And according to the well-estab- 
 lished rule of this court that finding of 
 fact will not be disturbed unless it is against 
 the weight of the evidence which we have 
 read and considered, we cannot say there 
 was erroi of law in excluding the subse- 
 quent declarations of the intestate tend- 
 ing to controvert the gift previously 
 made. 
 
 But it is strongly urged upon us that 
 there was no sufficient proof of gift per- 
 fected by a delivery; that the whole evi- 
 dence taken together showed, at the 
 most, an intention to give at the death of 
 the donor, which was testamentary in 
 character and void, as being in conflict 
 with the law as to wills. The question 
 whether there was a delivery was also 
 a question of fact which the circuit judge 
 has decided. It is said, however, that his 
 view of what, under such circumstances, 
 would constitute a legal delivery was er- 
 ror of law. There is no doubt that a 
 parol gift of chattels cannot be made to 
 take effect in futuro. To constitute a 
 legal gift there must be an actual or con- 
 structive delivery of possession so as to 
 confer the right of enjoyment in prsesenti. 
 The rule seems very plain, but there are 
 so many kinds of personal property, and 
 circumstances are so various, there is 
 often no little difficulty in applying it 
 properly. It has been settled that it is 
 not necessary that there should be in all 
 cases an actual manual delivery. The 
 principle is stated thus: "Property in a 
 chattel cannot be transferred by a parol 
 gift without delivery ; but by delivery is 
 not meant an actual manual delivery in all 
 cases, but any circumstances amounting 
 to a clear demonstration of the intention 
 of the one to transfer, and of the other to 
 accept, and which puts it info his power, I 
 
 or gives him authority to take possession, 
 isall tluit is necessary, and is afact that is 
 left to the jury." Keid v.Colcock.l Nott& 
 McC. .592; Banks v. Hattou, Id. 221; Blake 
 V. .Tones, Bailey, Kq. 141. The latter case, 
 as remarked by the circuit judge, "is very 
 similar in the character of the proof" to 
 this. In that case it was held that, " when 
 a donor has repeatedly declared his inten- 
 tion to give, his subsequent admissions 
 that 'he had given,' are sufficient evidence 
 of an actual delivery to complete the title 
 of the donee vrhen it does not appear that 
 the declarations were loose and playful, 
 and particularly when the donor was un- 
 der a moral obligation to make the gift. " 
 Indeed, upon the i>oint of delivery, this 
 case is stronger than that of Blake v. 
 Jones, for there the slaves recovered by 
 a daughter from the administrator of her 
 father were never in the actual possession 
 of the donee. The f.ither had said, "When 
 you get a plantation, I will send them 
 to you, and in the mean time I might as 
 well pay you hire as any one else. " While 
 liere the property, at the time of the death 
 of the alleged donor, was already in the 
 possession of the person claiming as 
 donee. It may be said that this arose 
 from the accidental circumstance that the 
 intestate at the time of his death was liv- 
 ing with the defendant; but it seems to 
 us it is a circumstance entitled to some 
 consideration, at least, in this* that at the 
 time of the alleged gift there was no occa 
 sion to make a visible transfer of the pos- 
 session, (the usual evidence of such a gift,) 
 for the defendant was already in posses- 
 sion in a general sense. 
 
 We see no reason to except the "cream 
 horse" from the other property. It ap- 
 peared from the testimony of Weekly, 
 Searson, Shaffer, and others, that the intes- 
 tate, three or four weeks before his death, 
 said: "I have moved to Joe Cook's for 
 sometime. I don't intend to live by ray- 
 self any more. All I've got I have carried 
 to Joe Cook's, and there is where I expect 
 to stay until 1 die. And this horse I have 
 given to Joe Cook on condition that, 
 when I want to ride, he is my horse, and 
 when I have no use for the horse, it's Joe 
 Cook's, and all that I have." "Where the 
 gift of a slave was absolute in its terms, 
 and accompanied with delivery of pos- 
 session, held that the reservation of a 
 right ' to borrow ' under certain circum- 
 stances, or to receive 'something like hire' 
 if the donor should stand in need, was a 
 condition subsequent, and did not inval- 
 idate the gift although made by parol," 
 etc. M'Kane v. Bonner, supra. 
 
 The judgment of this court is that the 
 judgment of the circuit court be affirmed.
 
 BENTALL v. BUUX. 
 
 BENTAIJ, pt al. v. BlIKN. 
 
 (3 Barn. & C. 423.) 
 
 King's Bench, Michaelmas Term. Nov. 9, 
 1824. 
 
 AsHunipsit foFKooils barKalnud and sold 
 and c;()<)dH sold and delivered by D.ver and 
 the l(aiikru()tH before their bankruptcy. 
 TIiIh waa an action brought to recover 
 £ri 148., the price of a hogshead of Sicilian 
 wine sold to the defendant by the bank- 
 rupts, they being copartners with the 
 other plaintiff, Dyer, who resided in Sicily. 
 At the trial before Abbott, C. J., at the 
 London sittings after last Trinit.v term. 
 It appeared that the bankrupts had, on 
 the 15th of February, 1(S22, sold, in the 
 name of and on account of the linn, to 
 the defendant a hogshead of Sicilian wine, 
 then lying In the London docks, at the 
 price ol £1.'! 14s., and at the same time a 
 delivery order and invoice were made out 
 and sent to the defendant, signed by the 
 Hrni. But there was no contract in writ- 
 ing. On the nth of .June the defendant, on 
 being applieil to for payment, said that 
 the former order had been lost, and that 
 the wine had not been transferred to him 
 in proper time, and he had consequently 
 lost the sale of it; that he had not been 
 allowed to taste it. It was proved that a 
 delivery order Is given where the wine is 
 intended to be speedily removed, and that 
 
 I the party receiving It may get tlie goods 
 mentioned in the or<|pr upon producing It 
 at the London docks anil paying the 
 charges, which are always deducted from 
 the price. Upon this evidence the lord 
 chief justice was of opinion that the ac- 
 ceptance of the delivery order by the ven- 
 dee was not ei|uivalent to an actual ac- 
 ceptance of the goods within the meaning 
 of the statute of frauds; and he directed a 
 nonsuit to be entered, with liberty to the 
 plaintiffs to move to enter a verdict lor 
 them for the price of the wine. 
 Barnawall now moved accordingly. 
 
 PER CURIAM. There could not have 
 been any actual acceptance of the wine by 
 the vendee until the dock company accept- 
 ed the order for delivery, and thercl)y as- 
 sented to hold the wine as the agents of 
 the vendee. They held it originally as the 
 agents of the vendors, and as long as they 
 continued so to hold it the property was 
 unchanged. It has been said that the 
 London Dock Company were bound by 
 law, when required, to hold the goods on 
 account of the vendee. That may be true, 
 and they might render themselves liable 
 to an action for refusing so to do; but If 
 they did wrongfully refuse to transfer the 
 goods to the vendee, it Is clear that there 
 could not then be any actual acceptance 
 of them by him until he actually took pos- 
 session of them. Rule refused.
 
 BIANCHI V. NASH. 
 
 61 
 
 BIANCHI T. NASU. 
 
 (1 Meos. & W. 545.) 
 
 Exchequer of Pleas, Trinity Terra, 18.3C. 
 
 Debt for Roods Bold and delivered. 
 Pleu, nunquani indebitatus. At the trial, 
 before tiie under-sheriff ot Middlesex, it 
 appeared that the plaintiff wuh h dealer 
 in musical snuff-boxes; that tliedefendant 
 applied to him to let (or lend) him a mu- 
 sical snuff-box, and the plaintiff agreed to 
 do HO, on the understanding that the de- 
 fendant was to have It and pay for It if It 
 were daraajied; and the sum ot SAi lOs. 
 was to be taken as its value. The defend- 
 ant received the snuff-box on this under- 
 HtandinK; it was damaRcd while In his 
 possession; and the plaintiff, in conse- 
 quence, refused to receive it back, and 
 hroucht this action for the price. The 
 under-sheriff left it to the jury to say 
 whether the agreement was. that, in the 
 evenl of the box being damaged, it was 
 to bj a sale: an<l they found that that 
 was the agreement, and gave a verdict for 
 the plaintiff, damages £3 10s. 
 
 F. V. Lee obtained a rule nisi for a new 
 trial, on the groaud that this was a mere 
 
 bailment, which ought to have been de- 
 clared on specially, and that there wan no 
 evidence to support the count for goods 
 Hold and delivered. Chandless ahowel 
 cauBe. F. V. Lee. contra. 
 
 Lord ABINOKR, C. H. 1 think there la 
 no (luestion at all on the general principle 
 applicable to this case; when goods are 
 sold on condition, and the condition in 
 IxTformed, the sale bei-oines alisolute. 
 And there Is as little duubt on the evi- 
 dence, that this was a conditional sale, 
 and that the condition was performed. 
 The defendant agrees to pay the price 
 of the box for it, in case be damages it. 
 
 PARKE, B. There was clearly evidence 
 for the jury that this was a contract for 
 a conditional sale; and it was a very rea- 
 sonable contract. Then there is no doubt 
 that the value was recoverable under the 
 count for goods sold and delivered. As 
 soon as the condition is performed, It l8 
 an absolute sale. The other barona con- 
 curred. Kule discharged. 1 
 
 ' See Studdy v. Sanders, 5 B. & C. 628.
 
 BILL V. BAMENT. 
 
 C3 
 
 BILL V. BAMENT. 
 
 (9 Mees. & W. 36.) 
 
 Eicheqner of Pleas, Mirhaelmas Term. Nov. 
 11. 184L 
 
 AsBiimpslt for goods sold and delivered, 
 and on an account stated. Plea, non ns- 
 HumpHlt. At the trial before Lord AbinKer, 
 C. 1!., at the London BlttlnRS after Trinity 
 term, the followine faetH appeared: — The 
 defendant ordered of one Harvey, who was 
 an agent of the plaintiff under a del credere 
 conimlKHion, n quantity of goodw, inelnd- 
 ing twenty dozen hair-hruHhea and twelve 
 dozen clothes-brushes, to he paid for on 
 delivery at a stipulated price, but nn niein- 
 oranduin In writing of the bargain was 
 made at the time. On receiving notice from 
 Harvey that the brushes had arrived at 
 his warehouse, the defendant on the 'J2d 
 of March last went there, and directed a 
 boy whom he saw there to alter the mark 
 " No. 1 " upon one of the packages to " No. 
 12, " and to send the whole of the goods to 
 the St. Catharine's Docks. The next day 
 an Invoice was delivered to the defendant, 
 charging the brushes respectively at the 
 rate of Ss. and 12s. each. The defendant 
 objected to this price, alleging that by the 
 contract, as he had understood it, the 
 above were to he the prices of the brushes 
 per dozen, and refused to pay for them. 
 On the 24th of March the plaintiff com- 
 menced the present action for the price. 
 On the 27th the defendant at Harvey's re- 
 quest wrote in Harvey's ledger, at the 
 bottom of the page which contained the 
 statement of the articles ordered by the 
 defendant, nnd which page was headed 
 "Bill & Co.," the following words: "Re- 
 ceived the above, John Bnment." The 
 rest of the goods were sent to and received 
 by the defendant. It was objected for the 
 defendant that there was no evidence of 
 any contract in writing, or of any accept- 
 ance of the brushes, sufficient to satisfy 
 the 17th section of the statute of frauds. 
 The lord chief haron reserved the point, 
 and the plaintiff had a verdict for the 
 amount claimed, leave being reserved to 
 the defendant to move to enter a nonsuit. 
 
 Erie having obtained a rule nisi accord- 
 ingly, Thesiger and Martin now shewed 
 cause. Erie (with whom was Whateley), 
 contra. 
 
 Lord ARINCER, C. B. If the question 
 at the trial had turned altogether upon 
 the acceptance, I should then have formed 
 the same opinion as I do now. I[i order 
 to make it such an acceptance as to satis- 
 fy the statute, it sliouid appear that there 
 was a delivery. Here Harvey was the 
 plaintiff's agent, nnd sold for ready 
 money; nnd he was not bound to deliver 
 the goods until payment of the i)rice. 
 Now all that takes place Is a direction by 
 the defendant to alter the mark on the 
 goods, and to send them to the docks; 
 
 but the question Is, whether this was 
 done under such circumstances, and 
 Harvey stood in such a situation, as that 
 he was bound to send them to the docks. 
 The acceptance, to he effectual under the 
 statute, should be such as to devest the 
 property In the goods out of the seller. 
 Here the defendant probably niennt to 
 accept iheni, and to make Harvey his 
 agent for shipping them. But can it be 
 said that he was his agent to deliver at 
 all events? I think clearly not. He was 
 at liberty to say that he would not deliver 
 to or ship for the defendant until the 
 goods were paid for There Is nothing to 
 shew that he contracted to hold them as 
 the defendant's agent, or by implicallon 
 to make him Ills agent. Therefore, for 
 want of a delivery, there was no sutlicient 
 acceptance of these goods. The rule will 
 be ahcolute, but not for a nonsuit, as It 
 appears that some goods were received by 
 the defendant, but for a new trial on pay- 
 ment of costs by the plaintiff. 
 
 PARKE, B. I concur In thinking that 
 there was no evidence to goto the jury 
 to satisfy the statute of frauds. With 
 regard to the point which has t>een made 
 by .\Ir. Martin, that a memorandum in 
 writing after action brought is sutlicient. 
 It is certainly quite a new point ; but 1 am 
 clearly of opinion that it is untenable. 
 There must, in order to sustain the action, 
 be a goodcotitract in existence at the time 
 of action brought; and to make it a good 
 contract under the statute there must be 
 one of the three requisites therein men- 
 tioned. I think therefore that a written 
 memorandum, or part payment after ac- 
 tion brought, is not sufficient to satisfy 
 the statute. Then, to take the case out 
 of the 17th section, there must he both de- 
 livery and acceptance; and the (juestlon 
 Is, whether they have been proved In the 
 present case. I think they have not. I 
 agree that there was evidence for the jury 
 of acceptance, or rather of Intended ac- 
 ceptance. Thedirection toranrk thegoods 
 was evidence to go to the jury quo animo 
 the defendant took possession of them: so 
 also the receipt was some evidence of an 
 acceptance. But there must also be a de- 
 livery ; and to constitute that the posses- 
 sion* must have been parted with by the 
 owner so as to deprive him of the right of 
 lien. Harvey miglit have agreed to hold 
 the goods as the warehouseman of the ile- 
 feudant, so as to deprive himself of the 
 right to refuse to deliver them without 
 payment of the price; but of that there 
 was no proof. There was no evidence of 
 actual marking of the goods, or that the 
 order to mark was assented toby Harvey. 
 I am of opialon therefore that there was no 
 sutlicient proof of acceptance tosntlsfy the 
 statute, and that the case falls within the 
 17th section. 
 
 UURNEi', B.,nud ROLFK, B.. concurred. 
 
 Rule absolute accordingly.
 
 BIRD 0. MUNROE. 
 
 65 
 
 BIRD et al. v. MUNROE. 
 
 (CG Mo. 237.) 
 
 Supreme Judicial Court of Maine. May 20, 
 1877. 
 
 A. S. Rice and O. G. Hall, for plaintiflH. 
 A. P. Gould and J. E. Moore, for dt'Iend- 
 unt. 
 
 PETERS, J. On Mnrcfi 2, lS74.at Roek- 
 Ijiiid, in tliis stati", the (lefciidiint con- 
 inicted verlially vvilli the pluintiffH for 
 the |iiirfliu8e of a quantity of ice, to lie 
 delivered, (by immediate Hhipujents,) to 
 thedefendant in New Vorli. On March 10, 
 ls74. or thereabouts, tbe defendant, l)y 
 his want of readincHS to receive a portion 
 of the ice as he had agreed to, temp'J- 
 rarlly [)rovented the plaintiffs from per- 
 forming the contract on theirpart accord- 
 ing to the prei)nrations made bi' tlieni for 
 the purpose. On March 24, 1S74, the i>ar- 
 ties, tlien in New York, put their i)reviouB 
 verbal contract into writing, ante dating 
 It as an original contract made at Rock- 
 lanil on .March 2, 1874. On the same day, 
 (Marcli 24, 1 by consent of tiie defendant, 
 the plaintiffs sold the same ice to another 
 party, roserviag their claim against the 
 defendant for the damages siistaine<l by 
 them by the breach of the contract by the 
 defendant on .March loth or about that 
 time. This action was commenced on 
 April 11, lN74, counting on the contract as 
 made on March 2, and declaring for d;ini- 
 nges sustained by tlie breach of contract 
 on March 10, or thereabouts and prior to 
 Alarch 24, 1S7-1. Several objections are set 
 "up against the plaintiffs' right to recover. 
 
 The Hist objection is, that in some i-e- 
 Hpeets the allegations in the writ and the 
 written proof do not concur. I'.iit we pass 
 this poiat, as an imperfection in the writ 
 may, either with or without terms, be 
 corrected by amendment hereafter. 
 
 Then it isdainied for thedefendant that, 
 as matter of fact, the parties Intended to 
 make a new ami original contract as of 
 March 24, l)y their writing made on that 
 day and ante-dated March 2, and that it 
 was not their iturpose thereby to give ex- 
 presKion and elticacy to any unwritten 
 contract made by them before that time. 
 Rut we think .'i jury would be well war- 
 ranted in coming to a different coiiclusinn. 
 Undoubtedly there are circumstances 
 tending to throw some doubt upon the 
 hlea thai both parties understood that a 
 contract w;is fully entered into on March 
 2, ls74, but that doulit is much more than 
 overcome wlien all the written and oral 
 evidence is consiclere<l together. We think 
 tlie writing inade on the 24th March, 
 with the explanations as to Its origin. 
 Is to be considered precisely as it the par- 
 ties on that day had signed a paper dated 
 of that date, certifying nnd adinitiing 
 that they had on the 2d day of .March 
 made a verbal contract and staling ia 
 fXHct written terms just what such verbal 
 contract w.-is. Pa roleviilence is proper to 
 show the situation of the parties and the 
 circumstances under which the contract 
 was made. It explains but doi's not alter 
 the terms of the contract. Tne delend- 
 
 LAW SALES — 5 
 
 ont himself invokoH It to show that, ac- 
 cording to his view, the paper Itearrf an 
 eri'oneous date. .Such evi-leiice merely 
 dis.diises in this case hucIi facti-as are part 
 of the res ge^lie. lienjamin <in .Sales, g 
 213. Stoops V. .Smith, 100 .Mass. tj:j, CO ; 
 and cases there cited. 
 
 Then, the defendant nextcontends that, 
 even if the writing signed by the particH 
 was intendt-d by them to operate retro- 
 actively as of the first named dale, as a 
 matter of law, it cannot be permitted to 
 have that effect and meet thi- reipiire- 
 meats of the statute of frauds. The posi- 
 tion of tlie defendant is, that all which 
 took place between the i)artles before the 
 24tli of .March was of the nature (d nego- 
 tiation and proposition only; and that 
 tliere was no valid contract, hucIi as Is 
 called for by the statute of Irauils, before 
 th;it day; and that the action is not 
 maintainable, because the breach of con- 
 tract is alleged to have occurred before 
 that time. The plaintiffs, on the other 
 hand, contend that the real contract was 
 made verbally on the 2d of March, and 
 that the written instrument Is sutlicient 
 proof to make the verbal contract a vallil 
 one as of that date. (March 2.) although 
 the written proof was not made out until 
 twenty-two ilays after that time. Was 
 the valid contract, therefore, made on 
 March 2(1 or .March tlie 24th? The pcdnt 
 raised is, whether. In view of the statute 
 of frauds, the writing in this case shall lie 
 considered as constituting the contract 
 itself or at an.v rate un.v Substantial por- 
 tion of it, or whether it may be legarded 
 as merely the ne(!-;'ssnry legal evidence by 
 means of which the prior unwritten con- 
 tract may tic proved. In other words. 
 Is the writing the contract, or only evi- 
 dence of it; wp incline to the latter view. 
 
 The peculiar wording of the statute pre- 
 sents a strong argument for such a deter- 
 ndnation. The section reads: "No con- 
 tract for the sale of any goods, ware?, op 
 merchandise, for thirty dollars or more, 
 shall be valid, unless the purchaser ac 
 cepts and receives iiart of tlie goods, or 
 givi'ssomethiiig inearnest to Idnd the bar- 
 gain, or in part payment thereof, or some 
 note or memorandum thereof is made and 
 signel by the party to l)e charged there- 
 by, or his jigent. " In the first place, the 
 statute does not go to all contracta of 
 sain, but oidy to those where the price la 
 over a certain sum. Then, the reiiuire- 
 ment of the statute Is in the alternative. 
 The contract neeil not be evidenced by 
 writing at all, provided "the pnrclinser 
 accepts anil receives a jinrt of the goods, 
 or gives souKdhing in earnest to l)lnd the 
 bargainor In part pay uieiit thereof. " II 
 any one of ttiese ciivumslances will as 
 effectually perfect the sale as a writing 
 would, it is not easily seen how the writ- 
 ing can actually coustiiiite the contract, 
 merely because a writing hnpnens to ex- 
 ist, it could not with any corivctnesa 
 be said, thct anything given In earnest to 
 bind a bargain was a substantial part 
 of the bargain itself, or an.\ thing more 
 than a particular mode of proof. Then, 
 it is not the contract that is required to 
 be la writlui;, but only "eume note or
 
 66 
 
 BIRD c. MUITROE. 
 
 memoranfluin thereof." This lanjiiinse 
 Hupposcs that tliu verbal bnrKaiii iiuiy be 
 first niiule, and u moniDraudum of itKiven 
 afterwards. It also implies that no set 
 and formal a;?reemeiit is called for. Chan- 
 cellor Kent says "the instrument is lib- 
 erally construed without regard to 
 forms." The bricfcut possible forms of a 
 bargain have been (Seemed sutficient in 
 many cases. Certain important elements 
 <>t a" completed contract may l)e omitted 
 altoKcthcr. For instance, in this state, 
 the consideration for the promise is not 
 re(|uired to be expressed in writing. Gil- 
 lifjlian V. Boardraan, 2'.) .Maine, 79. Again, 
 it is provided that the note or mcmoran- 
 duni is sufficient, if signed only by the per- 
 son sought to be charged. One party 
 may be held thereby and the other not 
 be. There may be a mutuiility of contract 
 but not of evidence or of remedy. Still, 
 if the writing is to be regarded in all cases 
 as constituting the contract, in many 
 cases there would be but one contracting 
 party. 
 
 Another idea gives weight to the ar- 
 gument for the position advocated by 
 tlie plaintiffs; and that is, that such a 
 construction of the statute upholds con 
 tracts according to the intention of par- 
 ties thereto, while it, at the same time, 
 fully subserves all the purposes for which 
 the statute was created. It must be 
 borne in mind that verbal bargains for 
 the sale of personal property are good at 
 common law. Nor are they made illegal 
 by the statute. Parties can execute them 
 if they mutually i)lease to do so. The ob- 
 ject of ( he statute is. to prevent perjury 
 and fraud. Of course, perjury and fraud 
 cannot be wholly prevented ; but, as said 
 by Bigelow, J., (Marsh v. Hyde, 3 Gray, 
 331.) "a memorandum in writing will be as 
 effectual against perjury, although signed 
 subsequently to the making of a verbal 
 contract, as if it had lieen executed at the 
 moment when the parties consummated 
 their agreement by word of mouth." We 
 think it would be more so. A person 
 would be likely to commit himself in writ- 
 ing with more care and caution after 
 time to take a second thought. The 
 locus penitenticB remains to him. 
 
 By uo means are we to be understood 
 as saying that all written instruments 
 will satisfy the statute, by having the 
 effect to make the contracts described in 
 tliein valid from their first verbal incep- 
 tion. That must depend upon circum- 
 stances. In many, and perhaps, most in- 
 stances such a version of the transaction 
 would not agree with the actual under- 
 standing of the parties. In many cases, 
 undoubtedly, the written instrument is 
 per se the contract of the parties. In 
 many cases, us for Instance, like the ante- 
 dating of the deed in Egery v. Woodard, 
 56 Maine, 4.5, cited by the defendant, the 
 contract, (by deed,) could not take effect 
 before delivery; the law forbids it. So a 
 will made by parol is absolutely void. 
 But all these cl;isses of cases differ from 
 the case before us. 
 
 A distinction is attemi)ted to he set np 
 between the meaning to be given to H. S. 
 c. Ill, § 4, where it is provided that no 
 
 unwritten contract for the sale of goods 
 "shall be valid," and that to bo given to 
 the several preceding sections where it 
 provided that upon certain other kinds, 
 of unwritten contracts "no action shall 
 he maintained ;" the position taken l)eiiig 
 that in the former case the contract is 
 void, and in the other cases only voidal)le 
 perhaps, or not enforceable by suit at 
 law. But the distinction is without any 
 essential difference, and is now so re- 
 garded by authors generally and in most 
 of the decided cases. All the sections re- 
 ferred to rest upon precisely the same 
 policy. Exactly the same object is aimed 
 at in" all. The difierence of phraseology 
 in the different sections of the original 
 English statute, of which ours is a sul)- 
 stantial copy, may perhaps he accounted 
 for by the fact, as is generally conceded, 
 that the authorship of the statute was 
 the work of different hands. Although 
 our statute (R. S. 1S71, § 4,) uses the 
 words "no contract shall be valid, "our 
 previous statutes used the phrase "shall 
 be allowed to be good; " and the change 
 was made when the statutes were revised 
 in 1857, without any legislative intent to 
 make an alteration in the sense of the sec- 
 tion. (R. S. 1841, c. 136, § 4.) The two 
 sets of imrases were undoubtedly deemed 
 to be e(iuivalent expressions. The words 
 of the original English section are, "shall 
 not be allowed to he good," meaning, it 
 is said, not goo<l for the purpose of sustain- 
 ing an action thereon v/ithout written 
 proof. Browne, St. Frauds, §§ 115,13(1. and 
 notes to the sections; Benjamin's Sales, § 
 114; Townsend v. Hargraves, 118 Mass. 
 325; and cases there cited. 
 
 There are few decisions that bear direct- 
 ly upon the precise point which this case 
 presents to us. Erom the nature of things, 
 a state of facts involving the question 
 would seldom exist. But we regard the 
 case of Townsend v. Hargraves, above 
 cited, as representing the principle very 
 pointedly. It was there held that the 
 statute of frauds affects the remedy only 
 and not the validity of the contract; and 
 that where there has been a completed 
 oral contract of sale of goods, the accept- 
 ance and receipt of part of the g<iods by 
 the purchaser takes the case out of the 
 statute, although such acceptance and re- 
 ceipt are after the rest of the goods are 
 destroyed by fire while in the hands of 
 the seller or his agent. The date of the 
 agreement rather than the date of the 
 part acceptance was treated as the time 
 when the contract was made; and the 
 risk of the loss of the goods was cast 
 upon the buyer. Vincent v. Germond, 
 11 Johns. 2S3, is to the same effect. We 
 are not aware of any case where the ques- 
 tion has been directly adjudicated ad- 
 versely to these cases. Webster v. Zielly, 
 52 Barb. (N. Y.) 482, in the argument of 
 the court, directly admits the same prin- 
 ciple. The case of Leather (,'loth Co. v. 
 Hieronimus, L. R., 10 Q. B. 141). seems also 
 to he an authority directly in point. 
 Thompson v. Alger, 12 Met. 42S, 435 and 
 Marsh v. Hyde, 3 Gray, 331, relied on by 
 defendant, do not, in their results, o[)xjose 
 1 the idea of the above cases, although there 
 
 ^!
 
 BIRD t». MUNROE. 
 
 fi7 
 
 niiiy be sonic expreHsion In theni incon- 
 Histpnt tlierpwith. AltoKt-'tlicr iinotluT 
 ()iu'Btion wuH lit'tore tlie court in tlielutter 
 
 CUHIH. 
 
 but there are a trreat many cases where, 
 in coiiHtruInt? tlie statu fe of frauds, the 
 force and eftect of the decisions po to sus- 
 tain the vi(5\v A'e lake of tills <|uestloM, hy 
 the very strongest iinplicatlon : Such as; 
 that the statute does not apply where 
 the contract has liecn executed on hotli 
 Hides; Bucitnam v. Nash, 12 M nine. 474; — 
 that no person can take udvanta;ceof the 
 statute liut the i)arties to the contract, 
 anil tlieir privies; Cowan v. Adams, 10 
 Maine, :j74; — that the meniorandum may 
 be made by a broker: Hinckley v. Arey, 
 27 Maine, .'i()2; or by an auctioneer; 
 Cleaves V. rosH,4 Maine, 1;— that a sale of 
 personal property is valid when there has 
 been a delivery and acceptance of part, 
 nItliouKh the part be accepted several 
 hours after the sale; Davis v. Afoorc, 13 
 Maine, 424 ; or several days after; Bush 
 v. Holmes, Tj^ Maine, 417; or e»er so lonji 
 after; Browne St. Frauds, § I{;J7, and cases 
 there noted; — that a creditor, receiving 
 payments from his debtor without any 
 direction as to their application, may ap- 
 ply them to a debt on which tlie statute 
 of frauds does not allow an action to be 
 maintained; Uaynes v. Nice, loii .Mass. 
 327; — tliat a contract made in France, 
 and valid tliere without a writlii;;, could 
 not be enforced in Knfrland without one. 
 upon the ■tround that the statute related 
 to the mode of procedure and not to tlio 
 validitvtif thecontract; Leroi.x v. Brown, 
 12C. B. SOI ; but this ea.se has been ques- 
 tioned somewhat ; — that a witness may be 
 Kuilty of perjury who falsely swears to a 
 fact which may not be competent evi- 
 dence by the statute of frauils. liut which 
 becomes material because not objected 
 to by the party against whom it was 
 offered and received; Howard v. Sexton, 
 4Coinst()cl<. I."i7; — that an afient wlioslji:is 
 a memorandum need not have his author- 
 It.v at the time the contract Is entered 
 into. If his act is orally ratified after- 
 wards; .Maclean v. Dunn, 4 Bin;;. 722; — 
 that the identical aKreement need not be 
 Higned, and that it issutticieiit if it is ac- 
 knowledged by any other instniuieut duly 
 signeil ; (jale v. Nixon, G Cow. t4."i: — that 
 the recognition of the contract may be 
 contained in a letter; or in several let- 
 ters, if so connected by " written links" as 
 to form su(iici.-ntevidence of the contract ; 
 — that the letters may lie addresseil to a 
 third pers(ui ; Browne St. Frauds. § :U('t; 
 Fyson v. Kitton. .■!0 E. L. & Kq. :!74 ; tiili- 
 Hon v. Holland, L. H. 1 C. I". 1 ;— that an 
 ajient may write his own name instead of 
 that of his principal If intending to bind 
 his (irincipal by it; Williams v. Bacon. 2 
 Gray,. "1X7, 3!)^, and citations there; — that a 
 proposal in writing, if accepted by the 
 other party by parol, is a sullicient meiuo- 
 randiini; Keu'ss v. I'icksley, L. U., 1 Fxc. 
 342; — that where one parly is bound li.v a 
 note or memoranduni the other part.v 
 niiiy lie hound if he admits the writing by 
 another wrltinu; by liiin subseiiuently 
 sinned; Dobell v. Hutchinson. 3 A. & K. 
 3rir>;— that the written contract may be 
 
 rescinded by parol, although many deci- 
 sions are opposed to this proposition; 
 R'diardson v. (Jooper, 2.") .Maine, 4.'>0; — 
 that equity will inter-fere to (irevent a 
 party making the statute an Instrument 
 of fraud; Ryan v. Dox, 34 N. Y. 307; Hae- 
 snni v. Barrett, IID .Mass. 2o(>, 2.'.>S;— that 
 a contract verlially made may bo mnin- 
 taineil for certain purposes, notwit hstand- 
 Ing the statute;— that a person who pays 
 his money under it cannot recover it back 
 if the other side is willinK to perform; 
 and he can recover If perfornuince is re- 
 fused ; Chapman v. Rich, (!:! .Maine, .jSM, 
 and cases cited; — that n respondent In 
 equity waives the statute as a defense 
 unless set up in pica or answer; Adams 
 V. Patrick, 30 Vt. ."di;;— that it must be 
 specially pleaded in an action at law; 
 .\Iiddlesex Co. v. Osgood, 4 (iray, 447; 
 [..uwrence v. Chase, .'i4 Maine, r.H;;— that 
 the ilefendant may waive the protection 
 of the statute and admit veriial evidence 
 and become bound by it; Browne St. 
 Frauds, § 13.1. 
 
 It ma.v be remarked, however, that In 
 most courts a defendant may avail himself 
 of a defense of the statute under the gen- 
 eral issue. 'J'he different rule in .Massa- 
 chusetts anil Maine, grew out of the prac- 
 tice act In the one state and in the stat- 
 ute requiring the tiling of specilications In 
 the other. 
 
 It is dear from the foregoing cases, as 
 well as from many more that might be 
 cited, that the statute does not forbid 
 parol contracts, hut only precludes the 
 bringing of actions to enforce them. As 
 said ill Tliorntun v. Kempster, .'i Taunt. 
 7S(i, 7SS, "the statute of frauds throws a 
 dilhculty in tlie way of the evidence." In 
 a case already cited, ,Jervls, C. J., said, 
 "the effect of the sectimi is not to avoid 
 the contract, but to bar the remedy upon 
 it, unless there be writing." See analo- 
 gous case of Mc(.'Iellan v. McClellan, Gj 
 Maine, 500. 
 
 But the defendant contends that this 
 course of reasoning would make a mem- 
 orandum siifllcient If made after action 
 brought, and that the authorities do not 
 agree to tliat proposition. Tliere has 
 been some judicial inclination to favor the 
 doctrine to that extent even, and there 
 may be some logic in it. Still the current 
 of decision requires that tlie writing must 
 exist before action brought. .\nil the 
 reason for the requirement does not niili- 
 tato against the idea that a nieiiioraiidum 
 Is only evidence of the contract. There 
 is no actiouablecontract before niemoran- 
 diim obtained. The contract cannot he 
 sued until it has lieen legally verilied by 
 writing; until then there Is nocnu-ie of ac- 
 tion, although there is a contract. The 
 writing is a condition precedent to the 
 right to sue. Willes, ,1.. perhaps correctly 
 descrllies It in (jibson v. Holland, supra, 
 when he says, "the meinorandiini Is In 
 some wav to stand In the place of a con- 
 tract." He adds: "Thecourts havecoii- 
 siilered the in tentloii of the legislature to 
 ")e of a mixed character; to prevent per- 
 sons from liaviiigactions hroiight against 
 them so long as no written evidence was 
 existing when the action was Instituted."
 
 68 
 
 BIED V. MUNROE. 
 
 Browne, St. Frauds, § 338. Benjamin's 1 cept for the purpose of sastalninR an ac 
 
 Suley,§l.i9. Fricker v. Thomlinson.l Mao 
 & Gr. 772. Bradford v. Spyker, 32 Ala. 
 134. Bill V. Bament. 9 M. & W. 30. Pliil- 
 brook V. Belknap, 6 Vt. 3S3. In the last 
 case it is said, "strictly epeakins, the stat- 
 ute does not make the contract void, ex- 
 
 tion upon it, to enforce it. 
 Action to stand for trial. 
 
 APPLETON, C. J.. WALTON. DAN- 
 FORTH, VIRGIN and LIBBEY, JJ., con- 
 curred.
 
 JJI^llOl' r. >\1\IAA\(). 
 
 BISHOP V. siiii.i.rn). 
 
 (2 Barn. & Aid. :!-'!), n. (a).) 
 
 Kind's Bench. Hilary Terra. 1819. 
 
 Trover for iriiii. The iron whh to Vie 
 ■delivered under >i conlraut tliut certain 
 hillH oMtstiiiKliri;^ !it;innHt the )daintirf 
 Hliiiidd lie liiken out <it circidation. Alter 
 H piirt of the ii-on hiid lieen ilelivered, and 
 no IjillH had licen taken out of circulation, 
 the jilaintilf Htopped the lurllier delivery, 
 and lirou>;ht trover for what had been 
 deliveroil. Scarlett, for defendant, con- 
 ten(h>d that trover would not lie, and triat 
 the only reniotly for tne plaintiff was to 
 
 hrin;: an action fur tlie brencli of the con- 
 tract by the clefendant. Hut the ColItT 
 held that thlH woh only it conditional de- 
 livery, aiKl tlie condilion liein« broken, 
 the plaintiff initilit brin;; trover. AIJ- 
 ISOTT, C. J.. Hald he had left it to the jury 
 to Hiiy, whether the delivery of the iron 
 and tlie redelivery of the blllH, were to be 
 contenipoiary, and that the jtirv found 
 that fact in theaflinnativc; and BAYIJCY, 
 .1., added, that if a tradeKinaii Hold };(iodH 
 to be paid for on delivery, iitirl IiIh Hervant 
 by nilHtake ilelivers tliein without meiv- 
 Injr the inoiipy, he may, after riemund i.nd 
 refunal to deliver or pay, brluK trover for 
 hiH kouUb against the purchasur.
 
 BLOXAM t>. SANDERS. 
 
 73 
 
 BI-OXAM .( al. V. SANDERS et al. 
 
 (4 B.irii. & C. 041.) 
 
 Kins's Bpncli. Alifliaolmas Term. 1825. 
 
 Triiver to receiver tlie value of a qiiunti- 
 ty of liopH from the (Icfoiulnnts. Ac the 
 trial bflore Abbott C. Jut the London 
 HJlti'iKx, Jiftrr liiHt 'J'rinitv term, the jurv 
 found a vcr.lii't for tlic plaintiffH, dainaKcH 
 .tiOOU, MUbje<-t to the opinion of this court 
 upon the following <'iihc: Tlie plaintiffs 
 were assiKnees of .J. It. Sa.\b.v, a iianUrupt 
 nixlcr a I'oinrnission of liankrnpt duly is- 
 hu(mI aKainsl him on tlic .'>th .laiiunry isL'4. 
 The aet of bankruptcy was committed on 
 the ist November ISL'.'i, tlio bauivrupt hav- 
 in>:: on I hat day surrendered hituself to 
 prison, where lie lay more than tivo 
 months. The defendants wore lioii fac- 
 tors Hiid merchants in the boroufih of 
 Southw.irk. I'reviims to his bankruptcv 
 the bankrupt had been a dealer in hops, 
 and on the 7th, Kith, and 2:!d .August pur- 
 chased from the dpfendants the hops 
 (anions; others) for which this acti<in was 
 lii-ounht. BouKlit notes were ilelivereil in 
 the tollowinK form: "Mr. .John liobert 
 Sa.xby, of Sanders, I'arkes, and fo. T. M. 
 Simmons, eijrht pockets at l.'i.'.s. stii Au- 
 K'.ist lSL':t." I'art of thehops were weiirhed, 
 anil an account of the wcijihts was deliv- 
 ered to .Saxby by the ilefendants. The 
 samples were jiiven to the liankrupt. anil 
 bills of parcels were also deli rered to him 
 in which he was made debtor for si.x differ- 
 ent iiarcels of hojis, the amount of which 
 was tr.'l'.t. The usual time of iiaymenl in 
 the trade was the second Saturday siibse- 
 (pient to a pun linse. I'iirt of the hojis 
 belonged to the defendants, and part 
 tiny sold as factors, but they sold all in 
 their own names. It lieins the custom in 
 ihe hop trade to do so. It was proved 
 that liie b.inkrnpt had said more than 
 once that the hops were to remain in the 
 defendants' liaiiils till paid for, and that 
 he said so when he was about buyiiiK one 
 of the parcels of hops for whicli the action 
 was broiifjlit. The banUrnpt did not pay 
 for the hops, and on the (itii September 
 ISL':! the defendants wrote to the bankrupt, 
 and desired him to " lake notice, that un- 
 less he iiaid for the liops they had sohl 
 him, on or before Tuesday then next, the 
 Ilefendants would proceed to res.'ll them, 
 holdinfi liiai acconutalile for any loss 
 which mitrht arise inconseipiencetliereof." 
 liefore the bankruptcy the ilefendants did 
 not sell any parcel of hops without the 
 bankrupt's exiiross assent. After the no- 
 tire already stated the defendants sold 
 Home parcels of the hops, but in one in- 
 Htance the liankrupt refused to allow the 
 defendants to sell a parcel of ho(is to a 
 Jiersou named by them at the price offered, 
 and that p.ircel was nceorilinirly sold by 
 the defendants, before Saxtiy's bank- 
 ruptcy, to another person by Saxby's au- 
 thority. On another occasion in the 
 month of September the bankrupt had 
 employed a broker to sell another parcel 
 ot the ho|is. tint the defend.iuts refu.sed to 
 deliver them without bciim paid for them. 
 After the act of bankruptcy I he defend- 
 ants sold hoiis of the bankrupt's to the 
 amount of fC'.isO Ills. jd. The defendants 
 
 delivered arconnt Hales of tli:; hopo ho sold 
 by tliem atler the baiiKruptcy. 'I'he hopH 
 were stated to be sold for Saxby, and he 
 was chjir>red warehouse rent from the auth 
 of AiiKiist, and also comniisslon on the 
 sales. ISe.sides the hops purcliUHed from 
 the ilefendantM, the bankrupt placed in 
 their warehoiisf nineteen pockets of hopti 
 for sale by them (as fartorn). of which 
 lifteen pockets were sold on and after the 
 l;ith of .lunuary 1n2I of the value of £77 I'Js. 
 .'id., and of which four remained in their 
 warehouse ot the time of the trial, which 
 four were of the value? of £14, unil there 
 were also unsold of the liops purchased 
 from defendants seven ba^s, lifty-six 
 pockets, of the value of Xi'd l:{s. (Id. 'I'here 
 was a demand by |: la in lifts of these hops, 
 and a tender of warehouse rent and 
 charKoh, and a refusal on the part of the 
 defendants lo deliver them, liefore action 
 brounht. The jury found that the defend- 
 ants did not rescind the sales made by 
 them to the bankrupt. This case wu8 
 ar«ued ot the Bittings before lasfterin, by 
 
 Evans, for the pIuintiffK. Abraham, 
 contra. 
 
 BAl'LEY, J.now delivered the judgment 
 of the court. This wns on action of 
 trover for certain quantities of hops Kold 
 by the defendants to Saxby before liiH 
 bankruptcy, and for certain other hops 
 which Saxby liad pli-.ced In defendants' 
 warehouses that defendants in their clinr- 
 acterot factors miKht sell them for bis use, 
 and the nuestion us to tliis latter parcel 
 stands upon jierfeclly distinct urounds 
 from the iinestion as to the others. Tills 
 parcel consisted of nineteen pockets; de- 
 fendants sold none of them until after 
 Saxby's bankruptcy, and then they sold 
 lifteen pockets, not for the use of the ns- 
 siKiiees, but lo apply the proceeds, not for 
 any debt due to them in their character 
 of factors, but to discliarnc a claim tliey 
 considered themselves as having upon 
 Saxb.*' in reiiard to the other hops; and 
 the other four poc'^ets they refused to de- 
 liver to the assi;;neeH. It was candidly ad- 
 mitted upon the arnunient, and was clear 
 beyond all doubt, that the defendants 
 were not warranted in applyins: the pro- 
 ceeds of the lifteen pockets to the purpose 
 to which Ihey attempted to apply them, 
 and that they had no leiral ground for 
 wilhholdli n tiie four pockets; and, there- 
 fore, to the extent of these nineteen pock- 
 ets, the value of which is C'.H Ills. ,'nl., we 
 think it clear that tlie plaintiffs are enti- 
 tled to recover. The other quantities 
 were hops Saxb.v had barcained to buy 
 of the defendants on different days in A'»- 
 Kust l^^;.":!, nnd for which defendants had 
 delivered hou):ht notes to Saxliv. The 
 bought notes were in this form: ".Mr. .1. 
 H. Saxby, of S.inders, I'arkes, and Co., T. 
 .\I. Simnionds, ei;iht pockets at l.Vis., Sth 
 .\umist 1^1.':!." i'art of the hops were 
 weighed, and an account delivered to 
 Saxby of the weiirhts, and samples were 
 jrixeu" lo Saxby and Invoices delivered. 
 The luiucht notes were silent as to the 
 time for delivering the hops, and also as 
 to the time for payin;; for them, but the 
 usual tiinefor payini; for hop.s was proved
 
 74 
 
 BLOXAM V. SANDEUS. 
 
 to bp tlu> second Snturday iiftor tlic piir- 
 clinse. It was also provoil that Saxlj.v 
 liiicl said that the hops were to rernnin 
 with the (lefendai)tH till they were palil 
 for; hut us the adinissibllity of such evi- 
 dciK-e was (luestioiiecl, and in our view of 
 the case it is unnecessary to decide that 
 point, 1 only mention it to dismiss it. 
 ('['he learned judjie then stated the other 
 facts set out in the special case, and then 
 proceeded as follows.) Under these eir- 
 cuni.stances the (luestion is, whether in 
 respect of these hops the plaintiffs are en- 
 titled to recover. It was ui-Kcd, on the 
 part of the plaintiffs, that the saleof these 
 hops vested the property in them in Sax- 
 l)y ; that the hops were to be considered 
 as sold iipoi: credit, and that ilefendanis 
 hyd no lien therefore upon any of them 
 tortile price; that if they ever had any 
 lien, it was destroyed as to those they 
 sold by the act of sale, and that the iilain- 
 tiffs were entitled to recover the full value 
 of what were sold, without maUins any 
 deduction for the price which was unpaid. 
 It is, therefore, material to consider 
 whetlier the propert.v vested in Saxby to 
 any and to what e.\tent; and what were 
 the respective rights of Saxby and of the 
 defendants. Where goods are sold and 
 nothinjj is said as to the time of the de- 
 livery, or the time of payment, and every 
 thin;;' the seller has to do with them is 
 complete, the property vests in the buyer, 
 so as to subject him to the risk of any acci- 
 dent which may happen to the u:oods,aMd 
 the seller is liable to deliver them when- 
 ever tliey are demanded uiioii payment of 
 the price; but the buyer has no ri-^ht to 
 have possession of the jioods till he pays 
 the price. The buyer's riglit in respect of 
 the price is not a mere lien which he will 
 forfeit if he parts with the possession, but 
 grows out of his ori{;inal ownership and 
 (louiiniou, and iiayment nr a tender of the 
 price is a condition precedent on the buy 
 er's part, atid until he makes such pay- 
 ment or tender he has no ri^ht to the 
 possession. If goods are sold upon credit, 
 and nothing is agreed upon as to the time 
 of delivering the goods, the vendee is im- 
 mediately en titled to the jiossession, and 
 the right of possession and the right of 
 property vest at once in him ; but his right 
 of possession is not absolute, it is liable to 
 be defeated if he becomes insolvent before 
 he obtains possession, Tooke v. Holling- 
 worth, 5 T. K. 215. — Whether default in 
 payment when the credit expires will de- 
 stroy his right of possession, if he has not 
 before that time obtained actual jiosses- 
 sion, and put him in the same situation as 
 if there had been no bargain for credit, it 
 is not now necessary to inquire, because 
 this is a case of insolvency, and in case of 
 insolvency the point seems to be perfectly 
 
 [clear, Hanson v. Meyer. (! East, G14. If 
 the seller has dispatched the goods to the 
 buyer, and insolvency oeurs, he has a 
 right in virtue of his original ownership to 
 stop them In transitu, .Mason v. Lickbar- 
 row, 1 II. 131. 357.— Ellis v. Hunt, 3 T. R. 
 464.— Hodgson v. Loy, 7 T R. 440.— Inglis 
 V. Usherwood, 1 East, 515. — Bohtlingk 
 v. Inglis, 3 East, 3S1. Why? Because 
 the property is vested in the buyer, so as 
 to subject liiin to the risk of any accident; 
 liut he has not an indefeasible right to 
 the possession, and his insolvency, with- 
 out payment of the price, defeats that 
 right. And if this be tlie case after he has 
 dispatched the goods, and whilst they are 
 in transitu, a fui-tiori, is it when he has 
 never parted with the goods, and when 
 no transitus has tiegun. The bu.ver, or 
 those who stand in his place, may still ob- 
 tain the right of possession if they will 
 pay or tender the price, or they may still 
 act upon their right of property If any 
 thing unwarrantable is done to that right. 
 If, for instance, the original vendor sell 
 when he ought not, they may bring a spe- 
 cial action against him for the injury they 
 sustain by such wrongful sale, and recover 
 damages to the extent of tha t injury ; tint 
 they can maiutaiii no action in which 
 right of property and right of possession 
 are both recjuisite, unless tliev have both 
 those rights. Gordon v. Harper, 7 T. R. 9. 
 Trover is an action of that description, it 
 reijiiires right of property and right of 
 possession to support it. And this is an 
 answer to theargiiment upon thecharge of 
 warehouse rent, and the non-rescinding of 
 the sale. If the defendants were forced to 
 keep the hops in their warehouse longer 
 than Saxby had aright to require them, 
 they were entitled to charge him with 
 that expense, but that charge gave him 
 no better right of possession than he 
 would have had if that charge had not 
 been made. Indeed that charge was not 
 made until after the bankruptci', and un- 
 til the defendants insisted that the right 
 of possession was transferred to their sec- 
 ond vendee. Then as to the non-rescind- 
 ing of the sale, what can be its effect? It 
 is nothing more than insisting that tlio 
 defendants will not release Saxby from 
 the obligiition of his purchase, but it will 
 give him no right beyond the right his 
 purchase gave, and that is a right to have 
 the possession on payment of the price. 
 As that price has not been paid or ten- 
 dered, we are of opinion that this acti<in, 
 which is not an action for special damage 
 by a wrongful sale, but an action of 
 trover, cannot, as to those hops, be main- 
 tained. The verdict must, therefore, be 
 for the plaintiffs for the sum of £91. IDs. fid. 
 only. 
 Judgment for the plaintiffs.
 
 BOOTIIBY V. PL.VISTED. 
 
 77 
 
 BOOTUBY et al. v. PLAISTED. 
 
 (51 N. H. 43C.) 
 
 Supreme Judicial Court of New Hampshire. 
 KooUiugham. Dec, 1871. 
 
 AsHunipHit by JnnicH L. BoKthliy and 
 another UKuinHt Siilricy <J. I'lainte(l tur 
 KouiIk Hold and di-livercd. Tlie court or- 
 dered a verdict for [ilaiiitiffH, wliicli de- 
 fendant moved to KCt aHide. Judj^ment 
 on verdict. 
 
 A traveling agent for ))!nlntiffs, who 
 were li(Hior dealerH in New Yorlc, called at 
 defenilaiit'H place of bnsincHS in New 
 HnniiiHliire, and showed him Hnniples of 
 variouH liquorH. Defendant gave tlie 
 eale.snian an order for some of these liq- 
 uors, it Ijeing agreed tliat the purchaser 
 need not accept them If they were not lil<p 
 the snni[)leH shown liini. The licpiors were 
 forwarded to defendant from New Yorii, 
 and received and used by him; plaintiffs 
 charging defendant for cartage in New 
 York, and he paying the freight from New 
 Yorl< to his place of business iu New 
 Hampshire. 
 
 Krinii and Butler, for plaintiffs. Hatch 
 and i'age, for defendant. 
 
 SAltUliNT, J. In all respects save one, 
 this sale of liquor stands upon the same 
 foundation as tlie numeroiis cases report- 
 ed in ourstate. Tha t e.xception is tlie fact 
 that the drfoadant, "after tlie liquors ar- 
 rive<l at his store, might examine tiiem, 
 ami if not according tosaniple iienced not 
 aocepc the same. " But waiving that part 
 of tlie contr.ict for the present, tliis case, 
 aside from tliat, presents the same fea- 
 tures of numerous other cases where there 
 was a contract for tlie sale of liqiiurs 
 niadein New Hampshire, but tliecompieted 
 sale (completed by separating the liinKjrs 
 from alargermass antl setting them apart 
 for the defendant, ni'irliing and directing 
 them, ancl tlien by delivery at the place 
 agreed on) was in anotlier state. Tlie 
 cliarue lor cartage is waived liy the plain- 
 tiff; and the case finds that the defendant 
 paid tlie freiclit from New York. Itanchor 
 V. Warren, 33 N. II. 1S3: Smith & Lougce, 
 \. .Smitli, 27 N. H. -44; Woolsey v. Bailev, 
 27 N. II. l!li); Gassett v. Godfrey. 2(1 N. H. 
 41.5; Garland v. Lane. 40 N. 11.248; But- 
 ler V. Norliiumberland. .".0 .\. II. 3:1. 
 
 But we cannot see tliat the additional 
 provision as to acceptance is anything 
 more tlian the law implies in every con- 
 tract wiiere a sale is made liy sample or 
 with warranty, except that in this case it 
 was asireed that the defendant should de- 
 cide for himself whether or not the goods 
 were according to tlie sample; and he cer- 
 tainly cannot lie heard to object that he 
 himself was made the umpire, and lias by 
 his own acts decided the case in favor of 
 the plaintiffs. 
 
 His accepting and using the goods la 
 
 Rufflcient proof that they were considered 
 to be according to sample; and if they 
 were according to the sample, then he had 
 no right or power under the contract to 
 refuse to receive them. 
 
 Wliat questions might have arisen had 
 the d<'fendaiit in fact refused to receive 
 ttiem, it is not important here to deter- 
 mine. Here was a contract for n sale and 
 delivery in New York of a certain descrip- 
 tion of goods as iicr sample. If the pluiii- 
 tiffs pi'rformed tlieir jmrt of tlie contract 
 fully l)y <leliverlng at the time and place 
 at'reed the article which they agreed to 
 furnish, then it became at once the prop- 
 erty of the defendant, and he would ordi- 
 narily have no riglit to refuse to accept 
 it. Onlinarliy it would be a question for 
 tlie jury to settle, whetlier lln- gooils ile- 
 livereil were acrcirdiim to coatract or like 
 the sample. But in tliis case the parties 
 agreed that tliat fact should be referred to 
 the defendant, ami he has ilecided the case 
 In favor of the plaintiff. 
 
 Tlie defendant might refuse to nccejit If 
 the article was not such as tlie plaintiffs 
 had sold him. He was at liberty to re- 
 fuse to receive an article which lie had not 
 tiouglit or agreed to take. But tlieartlcle 
 in tills case which was sold was delivered 
 and was accepted, and we thitik the con- 
 tract binds the defendant ironi the timo 
 the goods were delivered. 
 
 A case in point is Giiison v. Stevens, 8 
 How. (U. S.I 401, where there was a guar- 
 antee that certain goods sold should bear 
 inspiction. In that case the price had 
 been paid and a bill of sale of llie ^oods 
 taken, but no delivery of the iroods hail 
 been made, they were left in the hands of 
 the vendor. Taney. C. . I., in tlie opinion, 
 says, — 'Tlie guarantee that the articles 
 siiould pass inspection does not affect the 
 character of tlie transartion, or convert it 
 into an exicntory tontract. It Is iiotliing 
 more that tlie usual warranty of the 
 soundness and quality of the tiling sold, 
 which is taken in every sale of personal 
 property where tlie purchaser tloes not 
 choose to take the risk upon liiniself. " 2 
 Kent's Com. 4S0; 1 Parsons on Con. 't'X\; 1 
 Smith's Lend. Cases 308; \'incent v. Oer- 
 niorid, 11 .loiins. 2S3. 
 
 As to the ipiestlons and answers In the 
 plaintiff's deposition, they are clearly roni- 
 petent as they staml. The witness states 
 the matter as s<inietliiiii; witliln his own 
 knowledge, and If so, the facts stated are 
 all competent and propi>r. But it is urged 
 that it must beiiiferrcd from the facts stat- 
 ed in tlie case that the witness did not 
 know tlie facts contained In tlie answers 
 except by hearsay. But we think no such 
 inference necessarily follows from the facts 
 stated in tlie case. I'pon this point, how- 
 ever, the case of Dickinson v. Loveil. 3."i N. 
 H. '.», 17, and 18, is in point, and is entirely 
 conclusive. 
 
 Judgment on the verdict.
 
 BRABROOK v. BOSTON FIVE CENTS SAV. BANK. 
 
 79 
 
 BRABROOK v. BOSTON FIVE CENTS 
 SAV. BANK. 
 
 (104 Mass. 228.) 
 
 Siipii'ino Judicial Court of Massachusetts. Suf- 
 folli. March, 1S7U. 
 
 Contract for money hml and rpoelved. 
 Siihmittc'd on the followin;; nsrif'''! facts: 
 
 On .July 10, ISC.O, I)avi(l KridwMcH, the fa- 
 ther of tile plaintiff, then Kliza H. Kiiuwles, 
 hut since inarriccl to (J.-oi-.;!' r.rahrciuk. 
 Kave to John T. Din^lcy «:i(Hlil. to .lc|.iiHit 
 with tlieilifindants. "If it wnuld he com- 
 petent ti) piDve by parol eviilence, it is 
 H^creed that DinKJey informed David 
 Kiiowles tlial the l»y-law«of the ilefend- 
 nnts did not allow so lar>re a deposit in 
 tlie name of one peison, hnt tlint he conid 
 deposit it in the names of liis children for 
 himself. Therenpcjn DiriKley, liy tiie direc- 
 tion of lia vid Knowlcs. deposited the same, 
 in equal proportions, in t lie name of David 
 Knowles, and his tl;ri-e childien, one of 
 vv'honi was the iilainliff, took t herelrirfonr 
 booivs from the defemlants. informed Da- 
 vid KnowleH of wjiiit he had done, and 
 showed him the hofiks. ami lie approved 
 the same. The entry in the hook of the 
 defendants, an<l in tlie pass-liooks. was 
 ns fidlows: 'David Knowles, trustee for 
 Eliza Knowles,' with tlie date and 
 amount of deposit. The deposit remnined 
 witli the di'fendants nnchanucd. e.\ce|)t 
 that snms from time to time were ilrawn 
 on account of interest, hy Dintcley, liy the 
 direction of David Knowles, and p;iiil to 
 him, so as to keep the wlude sum below 
 SlIKin, until the death of David Knowles. 
 DiiiKley was appointed exi'cntorof the will 
 of David Knowles, and assnchclaiu'ed the 
 funds in defendants' hands as lielonninH; 
 to his estate. All four of the bank books 
 renuiined in the|iossession of Dinu'ley until 
 the dentil of his testa tor, and have since 
 been in liis possession ns executor. The 
 defendants' by-laws may be referred to if 
 deemed material. If, upon tliesi- facts, tlie 
 court should lie of opinion tliiit the plain- 
 tiff is entitled to said liimls, judtruicnt is 
 to lie filtered for the plaintiff for the 
 amount in the defeniiants' hands; other- 
 wise the iilaintiff is to Income nonsuit." 
 
 H. C. Ilutchins, for plaintiff. J. P. Ilea- 
 ly, for defendant. 
 
 WELLS, J. The plaintiff shows no 
 fluht to liold the money deposited with 
 the defendant by David Knowles. It wis 
 not money tlia t bel()ii;;ed to her oiiiriiuilly, 
 an was the case in Farrelly v. Ladd, lil .\l- 
 len. lL'7, and Hunnewell v. Lane. 11 Met. 
 IChl. relied upon by the plain tiff's rotinsel. 
 The money belontteil to David Knowles in 
 Ills own rii;ht. He was not in fact trn~tce 
 for Eliza Knowles, otherwise than liy the 
 form of the deposit. He was nniler no 
 previous obligation to pay the money lo 
 her. or to hold it for her benelit. The 
 voucher for the deposit, without the pro- 
 ductlim of which, accordiim to the con- 
 ditions under which It was made, it could 
 not be withdrawn, was never delivered to 
 her, but r^'lained exclusively In his own 
 huiids. Wall V. Provident lustitutioii tor 
 
 SavinKH, 3 Allen, 90. The whole trnnsnc- 
 tion was his own voluntary act, to which 
 she was in no way a parly or privy. 
 There was no declaration made to her, or 
 to be eommiinicateil to her, of any inten- 
 tion that the money should lie hers. Even 
 If the form of the deposit Is lo be lal<en bh 
 conclusive proof of the existence of such un 
 intention in his mind, the execution of 
 that intent was not so far complete an to 
 oiierate to pass the title. Knrtwledne of 
 the nifl. on the part of the donee, at the 
 time it is mnde, is not essential, it Is triit-, 
 in order that It may take effect. If the 
 net of transfer be complete on the part (jf 
 the donor, subse(|uent ncreptance by the 
 donee before revoc-ation will be sulHcient. 
 Itiit tlicre must lie Himie act of delivery out 
 of the possession <if the donor, for the 
 purpose and with the intent that the title 
 shall thereby pass. This principle Is cIIh- 
 tinctlv recognized in the caxe of .Mincliin 
 V. Merrill, J Kdw. Cli. :i:!.'t, cited by the 
 plain tiff's counsel. In that case, as well 
 ns in several others of those ctled, there 
 was a complete delivery of the suliject of 
 the Klft to a third part.v. In whose hands 
 It was chardcd with the trust, the donor 
 hnvin;i parted with the possession and 
 control. In none of them Is there a denial 
 of the principle above stated. In Howard 
 V. Windham Connt.v .Saviims Bank, 41) 
 Verm, rvi", the deposit was made directly 
 to the credit of the inteiided donee, mak- 
 ing it a completed jjift. 'I'he deposit hy 
 Knowles was entered In his own name 
 and to his own cre<lit. The lejral title, 
 and rin'it to draw money ho deposited, re- 
 mains with the depositor. There was no 
 direction or niifhorit.v for the bank to|iay 
 it to the plaintiff. The form of the depos- 
 it does not imply such an intent; nor any 
 obligation or riuht, on the part of the 
 bank, HU to pay it over. The declara lion 
 of trust is evidence that Knowles. the 
 depositor, held the fiiiiil in some inaiiner 
 for the benelit of the person named as 
 cestui que trust. Rut it clld not, of itself, 
 transfer to her the possession, nor the 
 ri^ilit of iiossession ; nor constitute a lejrnl 
 title i:i her. A deed, executed anil put on 
 record by the Kraiitor. does not pass the 
 title without some further act of deliver.v 
 and acceptance. Maynard v. Mnynard, 
 in -Mass. 4."ii'i. Samson v. Thornton. H 
 Mel. l7.">. Rut if the urantor intend Ihat 
 the grantee shall receive it from the reels- 
 ter, or if tliere be a previous n(;reenient 
 that the deed when niaileshall be so deliv- 
 ered at tile reuistr.v, it will be effectunl aa 
 a delivery. Shaw v. llayward, 7 Cush. 
 17(1. So if there be an actual trust, and 
 an oblinalion to make the transfer for the 
 security of that trust, the continued pos- 
 session of the instrument by thepei-soii 
 who executed it, lieinc also its proper cus- 
 todian for the cestui <)ne trust, is consist- 
 ent with an nssijrnment completed by de- 
 livery ; and a le^al delivery to pass the 
 titleWllI be inferred from very sli;;ht evi- 
 dinee. Moore v. Haielton. 'J Allen. lltL'. 
 r.ut there miist he delivery or some eqiilv. 
 alent act with intent to pass the title. 
 Chase V llrecd. .'i Cray. -14(1. When tlielii- 
 slriiiiient is la fnlliliiienl of a le^al obliira- 
 tioii. the Intent may lie inferred from that 
 tart. Perhaps the same wo'ild bo true of
 
 80 
 
 BRABROOK v. BOSTON FIVE CENTS SAV. BANK. 
 
 a moral obligation, such as jjrovislon for 
 wife or cliilil. Astreeii v. FlniiHftnn.a Edw. 
 Oil. 27'). We prestimc the decision in Wit- 
 Siel V. Cliapin. 3 Bradf. 3SG, cited by the 
 plaintiff, was made upon some considera. 
 tioiis of tliis nature. That decision recog- 
 nizes tliat it is a question of intent. See 
 also Gransiac v. Arden, 10 .lohns. 2!)3; 
 (Joortrich v. Walker, 1 Johns. Cas. 251. 
 Assuniin;^ in tliis case that tlie deposit and 
 declaration of trust was a suflicient ajt of 
 delivery to pass the title, if such were the 
 intent, we think the facts agreed show 
 clearly tliat such was not the intent of the 
 depositor. On the contrary, it would ap- 
 pear that it was the intention of Knowles 
 to deijosit tlie whole money as his own; 
 and that the form of deposit was adopted 
 for the sole purpose of evadinj; a l)y-law 
 of the bank and a provision of tlie stat- 
 utes, limiting the amount that could be 
 received from any one depositor to one 
 thousand dollars. 
 
 1. The plaintiff contends that the writ- 
 ten declaration of trust is conclusive, and 
 ol>jects to the competency of evidence to 
 prove the facts relied on in defence; first, 
 becsiuse it violates the rule excluding pa- 
 nd evidence to contradict or vary the 
 terms of a written instrument. Itut that 
 is a rule which applies to suite upon the 
 instrument and between the parties to it. 
 1 (jreenl. Ev. § 279. The plain tiff is no par- 
 ty to the contract between David Knowles 
 and the defendant. !She could maintain 
 no action upon it. If she can recover at 
 all. it is because the nitmey l)elongsto lier, 
 and the trust, being a mere naked trust 
 for her benefit, is terminable at her pleas- 
 ure. The contract of deposit is collateral 
 to her title, which depends upon her rela- 
 tions with David Knowles. As to her and 
 her claim, whether upon the bank or up- 
 on David Knowles, the contract is merely 
 evidence by way of admission, subject to 
 be controlled by any competent evidence 
 8S to the actual facts. In Mct'luskey v. 
 Provident Institution for .Savings, 103 
 Mass. 300, a deposit in the plaintiff's own 
 name was controlled by proof that the 
 mrmey deposited belonged in fact to the 
 estate of her deceased husband. 
 
 2. For similar reasons the plaintiff can- 
 not sot up, as an estoppel against the de- 
 fendant or against David Knowles. the 
 by-law of the bank provi(Jing that "any 
 depositor may designate, at the time of 
 
 making the depo.sit, the period for which 
 he is desirous that the same shall remain 
 in the bank, and the person for whose 
 benefit the same is made; anil snch depos- 
 itor, and his legal representative, shall bo 
 bound by such conditions, by him volun- 
 tarily anne.ved to his deposit." She is a 
 stranger to that contract. She does not 
 claim under it as nis legal representative, 
 but by a superior right, of vvhidi the con- 
 tract is the evidence. There can be no es- 
 toi)iJel where there is no mutuality or 
 privity. 1 Greenl. Ev. §§ IfsU, 204, 211. 
 Merrifield v. Parritt, 11 Cush. .TOO, 59S. 
 .Sprague v. Oakes, 19 Pick. 4.5.5, 458. 
 U orcester v. Green, 2 Pick. 425. Braintree 
 V. Hiiigham, 17 Mass. 432. If. ui)on due 
 presentation of the book, the money had 
 been paid to her, this provision in the con- 
 tract of deposit might have availed the 
 bank as a defence against the depositor 
 or his legal reiiresentatives. But it can 
 have no force as an estoppel, except when 
 so set up by the bank. 
 
 3. Neither can the plaintiff avail herself 
 of the fact that the alleged purpose of Da- 
 vid Knowles, in making the deposits in 
 the form he did, was an evasion or viola- 
 tion of law. Whatever effect any illegali- 
 ty on the part of Knowles might have up- 
 on his right to recover against the bank, 
 it cannot operate to confer any title or le- 
 gal ]-iglit upon the plaintiff. The effect of 
 illegality is to create a disability to sue, 
 or to derive any legal rightfroni the trans- 
 action affected by it. The plaintiff's right 
 to recover depends upon proof of an intent 
 to make an absolute gift of this money 
 to her. The defendant is not precluded 
 from disproving that intent because the 
 evidence b.y which it is to be disproved 
 tends also to show an unlawful act or 
 pur])ose in a transaction between tl)e de- 
 fendant and David Knowles. 
 
 We have not considered the technical 
 question whether any action could be 
 maintained between these parties, for 
 money so deposited, because that ques- 
 tion seemed to be waived bj' the submis- 
 sion upon agreed facts, providing for a 
 judgnientfor the plaintiff if the court shall 
 1)6 of opinion that she "is entitled to said 
 funds. " 
 
 Upon the facts stated, we are of opinion 
 that she is not so entitled; and. accord- 
 ing to the agreement, the plaintiff is to be- 
 come nonsuit.
 
 BRADFORD v. MANLY. 
 
 83 
 
 BRADFORD v. MANLY. 
 
 m Mass. 130.) 
 
 Siipremp .Tiidifial Court of M'assarhiisotts. 
 Suffolk. March Term. 181G. 
 
 AaHUiapHiton dlvprH HpwinI counts, to 
 recover the (Mfference in value bet weon two 
 cuHkH of cloveH, aliened to be Hold by 
 Huiiiple to tlie plaintiff, and the cloveH act- 
 ually delivered in virlueof theHale. At the 
 trial, which vvbh had on the general insue, 
 before the chief ju.stlce, at the laHt Novem- 
 ber term in thiw county, the plaintiff pro- 
 ducefl a bill of parceln of (!02 poundH of 
 cloven at one dollar fifty centB per pound, 
 on which payment wan acknowleiljied by 
 thR defendant to liave been received in the | 
 plaintiff's note payable' in sixty days. 
 He then |)ro(liiced a witness, who tCHtiticd 
 that on the -Ith of .January, l!Sl4, the <lc- 
 fendant I'linie to the plaintlff'H store, with 
 u sample of cloveH in a paper, and asked 
 the plaintiff if he wished to purchase .'■onie 
 cloves. The witness examined the sam- 
 ple, and found the doves to bo of the best 
 quality of Cayennecloves; and the defend- 
 ant said, at a subsequent time, that the 
 sample he Hliowed was of fair cloves. On 
 the same day that the|)urchase was made 
 and the bill of parcels niven, the casks 
 were removed to the plaintiff's store, the 
 prICB being that of cloveH of the best (jual- 
 ity. 
 
 It was in evidence, that the sample was 
 not taken from the casks sold, but from 
 an open barrel, out of which those ciisks 
 had been tilled, they not l)einj; before <iuile 
 full: but the defendant did not know from 
 whence the sample came. The market 
 price of this article having fallen imme- 
 diately after the sale, the plaintiff made 
 no atlen)|)t to sell the cloves; and the 
 casks were not opcnuil, until May, isl.'), 
 when there bein;^ some ai)plication for the 
 purchase of them, they were opened, and 
 were found to contain a mi.xture of 
 (Cayenne cloves and an inferior and dis- 
 tinct H|)P(ies of the sjime article, the 
 )j;rowth of the Kast Inilies, in the propoi-- 
 tion of one-third of the latter, which was 
 worth from a fitlh to a quarter less than 
 the former. Whether the casks had been 
 opened, or exposed, or mixed, while in 
 possession of the plaintiff, were qucslinns 
 duly HUb.nitted to the jury. liefore Insti- 
 tuting this suit, and after the delect whk 
 discovered, the plaintiff offered to return 
 the cloves, but tlie offer was not accepted. 
 The defendant objected to the ndmission 
 of any evidence, other than the bill of 
 parci'1.4, ( which was of cloves generally 
 without <Iesii;natiny: the kind,) to prove 
 tliat any distinct species or (luality of the 
 article was sold. I'.ut the (dijectinn was 
 overruled, and the jury were instructed 
 that, althouu;!) no fraud was proved or 
 .Hueiiested.anil no express warranty, other 
 than what Tniy;ht be inferred from the ex- 
 hibition of the sample, was proved: yet if 
 they believed from the evidence, that the 
 purchase was made upon the confidence 
 that the whole quantity was represented 
 by the sample: ami that it was the inten- 
 tion of the di-fendant so to represent by 
 exhibiting; the sample; anil that the ar- 
 ticle, when sold and delivered, was nin-1 
 
 terially different In quality an<l value from 
 that which was shown in tin.- sample; 
 they (jUKht to find a verdict for the plain- 
 tiff, and ansesH in damaKes the difference 
 In value at the time of the sale. The jury 
 returned a verdict for the plaintiff, hnv- 
 loK found tlie facts Hi)eclally as abovp 
 stateil, unil having also found that there 
 WMH no fraud in the sale on the part of 
 tlie defendant. The defendant exci'pted 
 acainst the direction of the judRe, and 
 moved for a new trial on that «round, 
 and also on account of the admission of 
 parol evidence to prove the contract. 
 
 Uavis, .Sol. (Jen., and Thatcher, for 
 plaintiff. Shaw, for defendant. 
 
 PARKKIf, ('. .1., delivered the opinion 
 of the court.— The first point taken by the 
 defenilant's counsel is. that parol evidence 
 was admitted, to ciintrol or explain the 
 contract in writiu,;, which subsisted be- 
 tween the parties. 
 
 The objection goes upon the HUppoHltlon 
 that a common liill of parcels, sjiven upon 
 or after the purchase of uoodw, Ih evidence, 
 and the only proper evidence of such a 
 contract. I'.ut It is not so. The barcaln 
 is usually made verbally, and without any 
 intention that it shall be put in writing: 
 and the bill of parcels is intended only to 
 show that the uoods have been purchased 
 and paid for. It is hcldom particular, or 
 descriptive of the whole contract between 
 the parties. Hut if it were not so, the 
 jiaper Introiluced in thin case Is aniblt;u- 
 ous with rcspi'ct to the sulijcct of the har- 
 i;ain ; an<l the amldi^nity Ih talent, ho that 
 parol evidence may be admitted to ex- 
 plain it. li states only that ""J casks o( 
 cloves" were purchased: leavini; it uncer- 
 tain what kind of cloves, of which it ap- 
 pears in the case that there are at least 
 two kinds, diifeiiii;; mati'rially in (|uallly 
 and value. We think this objection was 
 properly overruled. 
 
 We may then come to the principal ques- 
 tion, viz. Whether theevldence in thecnuse 
 proved a contract to sell cloveH of a 
 iliflerent kind from those which were de- 
 livei^d. Tlie defendant exhibiteil a Hom- 
 pie, liy which the plaintiff |)urchaHed. 
 .\niony: faircleal?rs there could lie no (|ueH- 
 tion but the vendor intendeil to represent 
 that the article sold was like the sample 
 exhibited: and it would be to be lamented, 
 if the law should refuse its aid t« tlip 
 party, who hud been deceived In a pur- 
 chase so made. 
 
 The objection Is. that no action upon n 
 warranty can be malntaineil. unlcHs the 
 warranty Ih express; and that no t)ther 
 action can be maintained, tinless there be 
 a false allirmatlon resprctinir the quality 
 of the article. If such were the law. It 
 woulil very much embarrass the iqiera- 
 tions of trade, which are frequently car- 
 ried iiii to a lar^e amount by sampIcH of 
 the articles bou;ilit and scdd. 
 
 The authorities cited by the di'fendnnt's 
 counsel have been carefully looked lnt<i; 
 anil we think they do not militate with 
 this decision: unless It be the case of the 
 liezoar stone,' which we think would not 
 
 ' Chandelor vs. lyopus, Cro. Jnc. -1, Dyer, 75.
 
 84 
 
 BRADFORD o. MANI.T. 
 
 now he received as law in England: cer- 
 tainly not in our country. The vendor 
 sold tlie stone as and for a bezoar stone, 
 to one uiiae(iuainted witli siieli articles, 
 and it turned out to be of inferior value 
 The court held tlmt no action would lie; 
 and some of the judges slated that even 
 if the vendor had known that it was not 
 a hezoar, and it had been so alleged, an 
 action conld not l)p maintained with- 
 out an express warranty.— The other case 
 is that of Parkinson vs. Lee." There the 
 hops sold were of the same kind and qual- 
 ity as the sample: but there was an un- 
 known deterioration by fermentation, 
 caused by the arower of the hops, and 
 not by the vendor. Hops being usually 
 sold in pockets, and the quality ascer- 
 tained by sample, it was held that the 
 innocent vendor was not responsil)le to 
 the vendee, for an unknown inherent de- 
 fect, without an express warranty. That 
 case does not militate with our opinion 
 in the case at bar. 
 
 The fair import of the exhibition of a 
 sample is, that the article proposed to be 
 sold is like that which is shown as a par- 
 cel of the article- it is intended to save the 
 purchaser the trouble of examining the 
 whole quantity. It certainlj' means as 
 much as this, "The thins 1 offer to sell is 
 of the same kind, and essentially of the 
 same quality, as the specimen I give you." 
 1 do not know that it would be going too 
 far to say that it amounts to a declara- 
 tion, that it is equally sound and good. 
 But it is not necessary to go so far in the 
 present case; and we are not disposed to 
 question the correctness of the decision in 
 Parkinson vs. Lee. 
 
 It is expressly found by the jury in the 
 case at bar, that tlie cloves delivered were 
 different in kind from those wliich com- 
 posed thesample, and inferior in value, not 
 troni decay or exposure; but that there is 
 a specific difference in the respective plants 
 from which they are produced. Surely if 
 a man were to exhibit to nie a parcel of 
 hyson tea as a saniiile, to induce me to 
 buy a chest, and I should pay him the 
 price of hyson, and he should deliver me 
 a chest of bohea or souchong; I might re- 
 cover the difference in value. If he should 
 refuse to do me justice, although he did 
 not expressly warrant that the tea in the 
 chest was the same as that in the sample. 
 Indeed the exhibition of a sample must, 
 in all fair rlealing, stand in lieu of a war- 
 ranty or affirmation. It is a silent, sym- 
 bolical warranty, perfectly understood by 
 the parties, and adopted and used for the 
 convenience of trade. 
 
 The cases must be very strong, to estab- 
 
 '2 East, 314. 
 
 lish a principle so unjust, and so produc- 
 tive of distrust and jealousy among 
 traders, as that contended for by tlje de- 
 fendant's counsel. For what purpose is 
 the sample exhibited, unless it is intended 
 as a representative of the thing to be 
 sold? What would an honouralile mer- 
 chant say if, when he took from a mass 
 of sugar or coffee a small parcel, and of- 
 fered to sell by it, the man who was deal- 
 ing with him, should ask him it it was a 
 fair sample, and call upon hira to warrant 
 it so"' Mercantile honour would instantly 
 take the alarm ; and if such questions 
 should become necessary, there would be 
 no need of that honour, which happily is 
 now general and almost universally relied 
 upon. That there is not an unknown atid 
 invisible defect, owing to natural causes, 
 or to previous management by some for- 
 mer dealer, he may not be presumed to 
 affirm when he shows the sample; and as 
 to these particulars an express warranty 
 may be required, consistently with confi- 
 dence in the fair dealing of the vendor. 
 But that the thing is the sanie.genericallj' 
 and specifically, as that which he shows 
 for it, he certainly undertakes, and If a 
 different thing is deliv3red, he does not 
 perform his contract, and must pay the 
 difference, or receive the thing back and 
 rescind the bargain, if it is offered him. 
 
 A case similar to this in principle came 
 before me two or three years ago at nisi 
 prius. An advertisement appeared in the 
 papers, which was published by a very re- 
 spectable mercantile hou-ie, offering for 
 sale good Caraccas cocoa. The plaintiff 
 made a jiurchase of a considerable quan- 
 tit^i, and shipped it to Spain; having ex- 
 amined it at the store before lie purchased ; 
 liut he did not know the difference be- 
 tween Caraccas and other cocoa. In the 
 market to which he shipped it, there was 
 a considerable difference in value, in favor 
 of the Caraccas. It was proved that the 
 cocoa was of the growth of some other 
 place, and that it was not worth so much 
 in that market. I held that the advertise- 
 ment was equal to an express warranty; 
 and the jury gave damages accordingly. 
 The defendants had eminent counsel, and 
 they thought of saving the question; but 
 afterwards abandoned it, and suffered 
 judgment to go. Surely if a sample of 
 Caraccas cocoa had been shown to the 
 purchaser, and any other cocoa had been 
 delivered to hiju, the case would not have 
 been less strong. 
 
 We are all decidedly of the opinion, that 
 a sale by sample is tantamount to an ex- 
 press warranty that the sample is a true 
 representative of the kind. There must 
 therefore be entered judgment according 
 to the verdict.
 
 BRIDGFORD v. CROCKER. 
 
 87 
 
 EltrOGFORD V. CROCKER. 
 
 (CO N. Y. 627.) 
 
 Crmrt of Appeals of New York. Feb. 23, 
 1875. 
 
 Action by Jnines Briflgford asninHt 
 Leuiuel L. Crocker, ob survivor of tlie firm 
 of L. Crocker & Co., to recover ilaniaKCH 
 for the refuHal of one Pat (invin to receive 
 certain cattle wbicli nl"i>>t>N claimed ho 
 had purchased aa asent for said firm, and 
 to recover also the amount of a check 
 drawn hy said firm in favor of Gavin, and 
 by him indorsed to i)laintiff, in payment 
 lor certain other cattle delivered by plain- 
 tiff to said Uavin, and received by him. 
 Plaintiff held the cattle which Gavin had 
 refnsed to receive until the folloning 
 apriDK, when he sold tlieni at an advanced 
 price, and defendant claims the benefit of 
 such sale. There was a jiidjiment in favor 
 of plaintiff, and defendant appeals. 
 
 E. C. Sprague. for appellant. George 
 Wadsworth, for respondent. 
 
 GROVER, J. The questions raised upon 
 this appeal by the c(>unsel for the appel- 
 lant arise upon the defense sought to be 
 made against his liability to the plaintiff 
 as drawer of the check upon which the 
 action was brought. This assiimes tliat a 
 prima facie liability had been shown by 
 the plaintiff. The case shows that the 
 check in suit was one of a large number 
 made by the tlrawers in the spring and 
 summer of l.S(i7, amounting in all to J.'iO,- 
 00(1, payable to the order of Gavin, which 
 during the spring and summer were de- 
 livered by the drawers to Gavin, upon an 
 agreement, as they claimed, that heshould 
 use them in the west in the purchase of 
 stock by him for the drawers, take such 
 stock to and sell it in Chicago, and remit 
 the proceeds to the drawers for the pay- 
 ment of the checks, and that he sh<nilil re- 
 ceive for his services in transacting the 
 business a portion of the profits. Evi- 
 dence was given showing that the check 
 In suit was indorsed by Gavin to the 
 plaintiff. In payment for cattle i)urchased 
 of him, but the jiroof tended to, and, as 
 the trial judge held, diil show, that the 
 cattle were not i)urchased for the defend- 
 ants pursuant to their agreement with 
 Gavin, but for Gavin & Kelly. The judge 
 held that this was a diversion of tlicclie^'k 
 by Gavin from the purpose for wliii-h it 
 was delivereii to him by the appellant, 
 and that the latter was not liable unless 
 he had assented to such use of the check 
 by Gavin. The counsel for the respondent 
 insists that, if the proof was insullicient 
 to show such assent, still the recovery 
 thereon should be sustained upon various 
 other grounds suggested by him. I think 
 It unnecessary to determine whether the 
 plaintiff would hav been entitled to re- 
 cover upon an.v of tliem, as the case was 
 tried solely upon the theory, and the judge 
 held, that the plaintiff could only recover 
 by showing that the defemlant assented 
 to the use made of the check by Gavin. It 
 is impossible to see what further proof 
 affecting the other questions now sought 
 to be made by the respondent might have 
 
 been given by the defendant had the rul- 
 ing of the judge been otherwise. The only 
 question as to the plaintiff's right to re- 
 cover upon the check is, I think, whether 
 the evidence was such as made the ques- 
 tion whether the defendant assented to 
 the use made by Gavin of the check one 
 which should be determined by the jury, 
 or whether the court should have dlrectefl 
 a verdict thereon for the defendant upon 
 this question. The proof of the plaintiff 
 was circumstantial; that of the defend- 
 ant direct; the latter consisting of the 
 testimony of the defendant and (iavin 
 that the forinef had never assented to or 
 knew of any use made of any of the checks 
 by Gavin, other than as provideil by the 
 agreement. On the part of the |>laintiff it 
 appeared that the defendant reposeil un- 
 limited conHdence in Gavin ; that he deliv- 
 ered to him this large amount of checks, 
 and intrusted him to go int<j the western 
 states, and operate with them in the pur- 
 chase of cattle, sell the same, and with 
 the proceeds pro vide for the payment of the 
 checks; that (Javin, months before Indors- 
 ing the check in uuestion to the plaintiO, 
 used the checks of the defendant to pay 
 for cattle purchased by him for himself and 
 Kelly to a large amount : that the defend- 
 ant knew that these checks were issued by 
 Gavin from their presenttnent tothedraw- 
 er for payment, some of which were paid, 
 and others protested for noiipaynu-nt. al- 
 though ultimately provided for by Uavin. 
 This presented a question for the jury as 
 to whether, after the lapse of months, the 
 defendant had made inquiry and ascer- 
 tained the purposes for which this large 
 amount of checks had been used by Gavin. 
 This testimony tends to show that he had 
 not, but it is opposed to, strong proba- 
 bility created by the circumstances. That 
 a man should furnish to another $.'>0,000 
 of his checks to operate under such an 
 agreement as is plain, should know that 
 the checks, to a large amount, were being 
 used, and that his credit was suffering by 
 I)ermitting some of them to go to protest, 
 and should not fur months make any in- 
 quiry into the operations of his agent, or 
 endeavor to ascertain whether the busi- 
 ness was successful, is so improbable that 
 I think a jury fully justified in not credit- 
 ing It. It is obvious that the defendant, 
 if he inquired, could have readily ascer- 
 tained the purposes for which the checks 
 had been used. I think the question of the 
 assent of the defendant to the use of the 
 checks by Gavin to pay for stock pur- 
 chased by him for himself, or for himself 
 and Kelly, was not only one for the deter- 
 mination of the jury, but that the verdict 
 that he did assent to such use was cor- 
 rect. A man ought not to complain of a 
 verdict tinding that he paid some atten- 
 tion to his important interests, hoving 
 every opportunity and indurement so to 
 do. "although he may Insist that he did 
 not. Cnder the remarkable conduct uf the 
 defendant, as he claims It to have Itoon, 
 the jury might have thought that there 
 was some understanding between him 
 and (iavin that the stork was to be pur- 
 chased for the ilefendant in case money 
 was made thereon, and in that event the 
 checks given in payment therefor paid.
 
 88 
 
 BRIDGFOUD v. CROCKER. 
 
 but thatincase otlosstlie purchasesliould 
 bo regarded as made for some one else, so 
 as to erade payment of such checks. 
 
 The rule of damages as to the cattle not 
 taken by Gavin of the plaintiff, pnrsuant 
 to the contract, was correct. That was 
 that the plaintiff was entitled to recover 
 upon the failure of Gavin to take and pay 
 for the cattle, as required by his contract, 
 the difference between the contract price 
 and the then market value. The plaintiff 
 had a right to tender the cattle, and sue 
 Gavin for the price agreed to be paid, or 
 he could, at his election, keep the cattle as 
 his, and recoverhis damages forthebreach 
 the difference between the contract price 
 and then market value. Sedgw. Dam. (.5tli 
 Ed.) 313, and cases cited in note 3. The 
 plaintiff in the present case chose to adopt 
 the latter course, and, in case the market 
 fell subsequently. It was his loss; if It im- 
 proved, it was his sain. The time at 
 
 which the damages were to be fixed, when 
 the vendor, as in the present case, chooses 
 to retain the property, is that fixed for 
 the performance of the contract. Dustan 
 V. Andrew, 10 Sosw. 130. So far as it 
 countenances any different rule in this re- 
 spect, it was not well considered, and can- 
 not be regarded as law. It matters not to 
 the defendant what tlie plaintiff got U>r 
 the cattle six months or any other time 
 after the breach of the contract by Gavin 
 to take and pay for them. It appears 
 that cattle rose in the market after this. 
 This was the good fortune of the plaintiff, 
 of which the defendant cannot avail him- 
 self. 
 
 The Judgment appealed must be af- 
 firmed. 
 
 NOTE. The foregoing is JiidKe GROVEK'S 
 opinion in full. The report in 60 N. Y. 627, 
 gives only a memorandum of the decision.
 
 BROOKS V. POWERS. 
 
 91 
 
 BROOKS V. rOWKRS. 
 
 (15 Mass. 244.) 
 
 Supreme Judicial Court of Jfassachusetts. 
 Worcester. Sept. Term, 1818. 
 
 Replevin of a pnlr of oxen and other 
 cattle, attached by the defcnilant, a con- 
 Htalile, oil an oiJKiiial writ af;ainHt one 
 Stephen Witt. The defenilatit pleaded 
 property In Witt, Ira verned tlie property 
 of lirooks, and avowed for a return. The 
 plaintiff rei)lii'i] property in himself, u|)on 
 whicli iHMUe waH joined. Upon the trial of 
 thlH iHHue before Putnam, .J., it ajipeared 
 In evidence that Wilt, durinj; the years 
 ISIB and 1M17. lived on a farm owned by 
 the plaintiff, who liad leased the Baino to 
 Witt for tho.se years, n)akin^ a distinct 
 leaHe for each year, coninieminti on the 
 let i>f April. A few days before the at- 
 tuchinent by the defendant, viz. on the 
 14th of April, 1S17, Witt f;avc to the plain- 
 tiff a bill of sale of the cattle, and made n 
 delivery of tliem on tlie farm, in payment 
 of a part of the rent for the preceding 
 year, and of tlie whole for the year then 
 ensuing; except the sum of three dollars, 
 for which Witt gave his nolo to the plain- 
 tiff. Witt and the plaintiff then a^jreed, 
 that Witt should have tlie oxen, t(» carry 
 on the work of the farm that year, for 
 which he was to support them free of ex- 
 pensi' to the plaintiff : and it was further 
 agreed that tlie ()laintiff miKht work the 
 oxen, when Witt had no occasion to work 
 them on the farm himself. It was further 
 afcreedthat Witt sliould pasture the other 
 cattle for the plaintiff, for which he was 
 to pay the customary price. The cattle 
 were in the possession lU' Witt, after the 
 sale, in pursuance of saiil aKreement, un- 
 til they were attached as afuresaid. It 
 was likewise proved that Witt, at the 
 time of the sale to the plaintiff, was the 
 owner and in actual possession of the 
 cattle, of a part of which he had been the 
 
 owner, and In the continued poRsesfilon, 
 for a louK time before tlie sale, and that 
 the plaintiff had never had the property 
 or possession therfof before the sale. The 
 judue charged the jury, that If tiiey were 
 satistie I that the cattle were sold anil <lc- 
 livered in the manner and for the coiisid- 
 eration Ktated, the circumstance of Witt'8 
 retainiiiK the posHCssion ot them, for the 
 purpose <^f pasturing them, and of the 
 plaintiff's [jermittint; him to use the oxen, 
 would not be conclusive evidence of fraud, 
 so as to avoid the sale an to creditors; 
 but was one of the circumstances, which 
 was proper to be submitteil to the jury, 
 as tending to prove the sale fraudulent as 
 to them; and that if. upon considering 
 the whole evidence, they nliould believe 
 the sale to have t-een bona tide and for a 
 good consideration, and not marie with 
 a view to defraud creditors, their verdict 
 should be for the plaintiff. And a verdict 
 being so returned, the defendant filed hia 
 exceptions to the said opinion of the 
 judge. 
 
 Lincoln, for plaintiff. L. Bigelow. for 
 defendant. 
 
 BV THE COURT. It has been contend- 
 ed in Miiscase, that the possession of the 
 vendor of personal chattels, after the sale, 
 is conclusive evidence in favour of credit- 
 ors, that the sale was fraudulent; or 
 ratlier that it is itself a fraud, liut we 
 'ire nil of opinion tliat, ultlioiigh it is gen- 
 erally evidence of the strongest kind, it Is 
 not conclusive. The vendee may, not- 
 withstanding, upon proof that the sale 
 was bona tide and for a valuable consid- 
 eration; and that tlie possession of the 
 vendor, after such sale, was in pursuance 
 of some agreement not inconsistent with 
 honesty in the transaction; hold under 
 his purchase against creditors. .\nd so it 
 has been ofleu decided in this court, as 
 well as in Kngland. Judgment on the 
 verdict.
 
 liltOWX r XOKTIICUTT. 
 
 O:! 
 
 BROWN et a1. v. NORTIICTTT. 
 
 GOODMAN et al. v. NOKTIICI Tr. 
 
 (13 I'lic. Hep. 485, 14 Or. 5-J'J.) 
 
 Supreme Court of Oregon. Marcb, 1887. 
 
 N. n. KniKht nn<l J. A. Stratton. for 
 Bppellant. Win. M. Kninsej, for rc-M|>oii(J- 
 ent.s. 
 
 TIIAYKU, J. The ni.iin faetH of tlilH 
 cnHi- iirc UH followrt: In .luiiuary. IsMt, 
 certaii) piirticH, iiicliKlint; the rcsponilentH 
 nnd iippcllant, litid wheat in ilil'ierent 
 HinoiintH (in Htorauc in the warehouHo 
 kept li.v onr S. Ilarkleroail. at (JervuiH, in 
 Marlon county. The wheat had been re- 
 ceived liy llarklerond an wari'houHenian, 
 and WHH In nin.sH. On the twenty-Hccond 
 <if January, isso, the appellant liaviiiK 
 made arranyfcnicnts with .Mien & I,<'wiH, 
 of Portland, to Kell to tlieni the wheat he 
 had on depoHJt inHaul warehouse, ^ave an 
 order to ilarkleroad t(> Hhjp it to hv.'k) 
 nllen & I.,ewis. and at the Hanie time eon- 
 traeted with Ilarkleroad to procure for 
 him the neceHwary sacks in which to lilnce 
 it for Hhipnienl. Ilarkleroad enj;aKe<l 
 transportation of the railroad company 
 for the wheat. 'I'here was a side track to 
 his warehouse, and the company left some 
 curs upon it to receive the wlie;it. Ilar- 
 kleroad enK'JKed in sackiiiff and putting 
 the wheat ulioard the.se cars. After he 
 hud sacked up some l,:5:i.'i liushels, the 
 greater jiart of which he hail put ahoard 
 the said cars, he stopped sackin;;. an<l 
 sent for apiiellant. who lived a few miles 
 out in the country from (iervais. .\ppel- 
 lanteamo to (jervais on the eveiiin^j of 
 the thirtieth of saiil month of .lanu.'iry, 
 and was then informed that there was 
 not suliicient kvlieat on stora;;'e in said 
 warehouse to pay all the depositors the 
 amounts they had respectively stored 
 with Ilarkleroad. A conference was had 
 between Ilarkleroad ami the respomlents 
 and appellant, which resulted in llarkle- 
 road's maUiuf; a bill of sale to theuj of cer- 
 tain effects, inchidind tlie wheat, and on 
 tlie following day they (respondents and 
 appellant) entered into a written agree- 
 ment between themselves, of which the 
 following is a copy: "Articles of agree- 
 ment made and entered into by and be- 
 tween N. Goodman, S. T. iNorthcult, and 
 S. I'.rown, of .Marion county, state of Ore- 
 gon, on this thirtv-tirst day of .laniiarv, 
 1H80, as follows, towit: Whereas, S. 
 Harkleroad did, on the thirtieth day of 
 January, l^SO, make i\ bill of sale and de- 
 liver to the above-named parties to this 
 agreement all his personal property, con- 
 sisting it) part of wheat in the warehouse 
 at (Jervais, and all other articles nieii- 
 tloneil in said bill of sale, for the puriiose 
 of said |)arties converting the same into 
 money, and paying themselves pro rjita 
 for the claitns the saiil parties liold 
 ngaiiiHt said Ilarkleroad on account of 
 having wheat stored in his ( llarkle- 
 road's) warehouse in Gervais. Each one 
 of said partles'claliu is as follows, to-wlt: 
 J.Stevens, per S. Urown, 7i)J :!l-t;i) hush- 
 els; S. T.Northcutt, 1,7L':! 2:!-(ilt bushels; N. 
 Goodman, 7SS bushels: W. McKee, per S. 
 Brown, 10 4'J-(iO bushels; and furlheragree 
 
 that, as soon as flu- wheat above referred 
 to is converted into money or divided, 
 then the fuml arising from said wheat, as 
 well as that of any other properly ho M(dd 
 to us, shall be divided pro rata.as each 
 claim liears to the whide amount claimed; 
 and we further auree to convert all said 
 property, real anil personal, into money, 
 then a full and e(|ual diviHion pro rata to 
 bu made, and all lnisinehH to be settled up 
 as soon as the nature of the business will 
 admit of, with as little loss to us as jiop- 
 sible; ami it is further understood that 
 the shriveled or spring wheat In said 
 warehouse, turned over to us by said 
 ilarkleroad, iloes not belong to the par- 
 ties to this agreement.— only such as is 
 left, if any, after the (larties who own the 
 same have taken out their claims on said 
 wheat. Witness, etc. N. Gooilman. S. 
 T. .Northcutt. S. lirown." The respond- 
 ents and appellant were the piincipnl 
 owners of the wheat storeil. There were, 
 however, three [inrties besides those 
 named in said written agreenient who 
 also had wheat stored with Ilarkleroad, 
 viz.: John Wolford & Co., 117. liO bushels; 
 .lames Broyles, "JS bushels; and Charles 
 Harkhnrst, l(i(J..10 buslielH.— subject to the 
 general deficiency. The following Is a 
 copy of the bill of sale referred to in said 
 agreement above set out, viz.: "Know 
 all men by these presents, that I, Samuel 
 Ilarkleroad, of Gervais. .Marion county, 
 state of (Oregon, have this day solrl to N. 
 Goodman, .S. T. Northcutt, and Samuel 
 Urown, and delivered to tliem. all my 
 right, tide, and interest in and to the fol- 
 lowing describeil property, to-wit, for the 
 consideration hereitiafter named: All 
 the wheat in the warehouse which the 
 said Ilarkleroad has been controllltig dur- 
 ing the year 1S71I, and up to this date, 
 known as the II Hewitts Co. warehouse, 
 in (jervais, and also all sacks in said ware- 
 house, or due him from different parties; 
 also all book accounts, ami notes dnesnld 
 Ilarkleroail for storage, etc.; 1 pair 
 platform scales; 1 beam scale; 1 pair 
 trucks; I scoop-shovel, and some belting; 
 1 tiay horse named John; 1 sorrel mare 
 named Nell; 1 Ktna mower; some buck- 
 wheat screenings, in said wareliouse; 1 
 set double harness; 1 sulky-plow; I Stand- 
 ard organ, -for the consideration of the 
 sum of $:!,.'illO. the receipt of which Is hen>- 
 by acknowledged, hone in (iervn's, Ore- 
 giin. this thirtieth dav of .lannarv, Is.si). 
 S. Ilarkleroad. [L. S.]" After said bill 
 of sale was executed, and the understand- 
 ing had in reference to the closing out of 
 the affair, the appellant became sollcllons 
 about his arrangement with Allen & 
 Lewis to sell them his wheat, which re- 
 sulted in an agreement bet ween him and 
 the respondents that he shoubl have n 
 snlllcient part of it, at one dollar a bushel, 
 to nil his contract with .\llen & Lewis. 
 The tiusluess and assets of said Ilarkle- 
 road were, on the said thirty-tlrst day of 
 •lanuary, delivered over to r(>spomlent8 
 and appellant. The latter says in his tes- 
 timony that " the next day — that Is. Sat- 
 urday, the :tlst— the key of the warehouse 
 was given to me. 1 went over to the 
 warehouse for a few minutes, and came 
 1 buck to .Mr. Goodman's. " Then he went
 
 94 
 
 BROWN V. NOKTHCUTT. 
 
 and received the property; went by the 
 warehouse; toUl the men tliat hud been 
 working there for Ilarkleroad that he 
 did not think lie could do any work in tlie 
 wareliouse tliat day; went up to Ilarkle- 
 roart' , and was busy until noon reeeivinfr 
 tlie property ; thinks that was all that 
 was done that day between Brosvn, Good- 
 man, and liimself; thinks the agreement 
 was drawn up and si;ined tliat day, and 
 the next morning, Sunday, got eoiiio hands 
 and went to work; the first work was to 
 sew some sacks that were filled when he 
 went in, and load a oar; did not (ill any 
 wheat to load the car out of the bins; 
 there was a car-load already filled ; that 
 appellant received of said wheat, includ- 
 ing that which was at the time aboard 
 the cars, and that had been sacked and 
 left in the warelioUKe, l,(iS7 bushels, which 
 he delivered to Allen & Lewis upon his 
 contract with them, and received the 
 price thereof. There was a deficiency of 
 wheat held by Harkleroad, at thetinie ap- 
 pellant gave the order to ship his wheat 
 to Allen & Lewis, and at the time Harkle- 
 road began loading the cars, amounting 
 to about one-third the quRutity that had 
 been stored with him bj- ihe several par- 
 ties before mentioned. The suit was 
 brought to adjust the matter, and to 
 compel the appellant to account for the 
 1,087 bushels at one dollar a bushel, the 
 price he had agreed to pay therefor if the 
 respondents would permit him to ship it 
 upon his said contract; and I am not 
 able to discover any sufficient reason 
 wlij- he should not be required to.do so. 
 It is true that the bill of sale and the 
 W'ritten contract between the parties only 
 specify the wheat in the warehouse; but 
 it is evident, I think, that the parties in- 
 tended them to include all the wheat 
 Harkleroad had on hand, or that was in 
 the cars, or that had been sacked. The 
 written agreement shows that, and the 
 testimony establishes it beyond any ques- 
 tion. It is claimed u[)on the part of the 
 apiiellant that all the wheat that had 
 been placed in the cars prior to the time 
 of the agreement between the parties, and 
 all that had been sacked and left in the 
 warehouse, belonged of right to appel- 
 lant; that as soon as it was segregated 
 from the mass of wheat it became his in 
 severalty; and that he ilid not know at 
 the time he signed the contract that the 
 1,333 bushels had been sacked, and the 
 three cars loaded, and that he should, 
 therefore, be entitled to claim that wheat 
 notwithstanding he hail agreed to receive 
 it, and pay to respondents a dollar a 
 bushel therefor. K it were material, 1 do 
 not think appellant could establish from 
 the testimony ignorance or want of 
 knowledge of that fact. Ht) had given the 
 order to have his wheat sliiiiped : was at 
 the warehouse on the morning of the day 
 the contract was entered into; testified 
 that three cars were then loaded ; went 
 the next day, and began the completion 
 of the shipment of the wheat; and on the 
 second day of February thereafter, ac 
 cording to the testimony of Mr. \V. T. 
 Welch, book-keeper of the assignees, re- 
 spondents and appellant, the amount of 
 the wheat received by appellant, and 
 
 shipped to Allen & Lewis, was charged 
 up against appellant upon the books of 
 the said assignees, under the direction of 
 the last-named parties, and apparently 
 with the full approval of all of them. He 
 certainly had the fullest opportunity to 
 ascertain before signing the said contract 
 what Had been done by Harkleroad in 
 coiiipliauce with his order. 
 
 Hut what does it signify whether he 
 knew it or not? There was n shortage of 
 wheat in the warehouse liefore any was 
 taken out to put aboard of said cars. 
 There was only about two-thirds enough 
 to pay the depositors, including the appel- 
 lant, the amounts tlie.v had respectively 
 stored there; and, the wheat not having 
 been kept separate, the deficiency or loss, 
 from whatever circumstance it may have 
 occurred, if not occasioned by the fault of 
 any of them, must fall in>on all in the 
 proportion which the amount of wheat 
 each had deposited bore to the whole 
 amount deposited. This rule is based 
 upon a maxim that all courts are bound 
 to observe,— the maxim that equality is 
 equity; aud it certainly could have no 
 better foundation. The authorities pro- 
 duced at the hearing by the respondents' 
 counsel show that it has been recognized 
 and approved by courts of the highest au- 
 thority. See Ci'shing v. Hreed, 14 Allen, 
 3S0; Sexton v. Graham, .53 Iowa, 192, 193,4 
 N.W. Rep. 1090; Dows v. Erkstrone,3 Fed. 
 Rep. 19. 20; Dole v. Olmstead, 3<) III. l.'iO. 
 
 In Cushing V. Breed, supra, theeourt held 
 that where sevei'al parties had stored vari- 
 ous parcels of grain in an elevator, and it 
 was put into <me mass according to usage 
 to which they must have been deemed to 
 have assented, they were tenants in com- 
 mon of the grain, and that each was enti- 
 tled to such a proportion as the quantity 
 placed there liy him bore to the whole 
 mass; and in Dole v. Olmstead, supra, 
 the court held the same doctrine; and 
 held, further, that, the grain being thus 
 owned in common, the several owners 
 were compelled to sustain any loss pro 
 rata wliidi might occur by diminution, 
 decay, or otherwise; and that, where the 
 holder of a receipt had received the full 
 quantity, or a larger proportion than his 
 r.itable sliare, in view of the deficiency, he 
 would be bound to account for such ex- 
 cess received liy him according to his i)ru- 
 portion of the loss. This is undoubtedly 
 the correct rule, as it is founded upon com- 
 mon justice. 
 
 The result of the rule is simply this: A. 
 puts wheat in a warehouse for storage. 
 B., t'., and others severalli' have wheat 
 there for the same purpose. It is all min- 
 gled together with the presumed consent 
 of all parties. They each necessarily own 
 the several amounts of wheat they have 
 there, but neither can identify his own. 
 But it is in common, and if a loss occurs 
 by casualty, or the warehouseman wrong- 
 fully abstracts a part of the general lot, it 
 must necessarily be borne b.v tliedepositors 
 pro rata. But, to render A. liable to eon- 
 tribute to the loss, it must occur after he 
 stored his wheat. He would not be af- 
 fected by any deficiency which occurred 
 prior to his deiiosit of his vvlieat. Former 
 deficiencies would have to be borne by
 
 BROWN V. NORTHCUTT. 
 
 95 
 
 15., C, and otherH who had wheat there 
 when It (icciirred. A.'h iiiiiount of wheat 
 would be tlio proportion it Ijoro to the 
 whole amount actually in Btore when l)o 
 placed his there, not to the uuKJutit it 
 woulil lie with what 1$., C, anil othcrH 
 had really put there. Now, when the up- 
 pellatit Have the order to Uarkleroad 
 to Hhip his wheat to Allen «X: Lewiw. he 
 did not liaveonHtoraKc with him 1,7-i ii-fiO 
 buHlielM. AsHUMiin« that the delieijiicy 
 amounted to one-tliird of the whole niasH, 
 he only had 1,14S and a fraction bUMheU 
 there, and had no rl^ht whatever to take 
 more than that from the warehouse. 
 Any attempt upon IiIh part to take be- 
 yond that <|uantUy was an attempt to 
 take wheat which did not belonji to liiin, 
 or to Uarkleroad, but which did belonj? 
 to the rcHpondentM and the other deposi- 
 torw. The diminution of the general l<it of 
 wheat In the warehouse, one-third, has 
 diminlHlied his (|uantity one-third also, 
 and left liiiu only the owner of the nu:n- 
 ber of liushels before mentiimed. His at- 
 tempted Hhl|iment of his wheat, therefore, 
 nave him no better Ktandin};; or iurther 
 rijjhtM in the premises than the other de- 
 positors enjoyed, althou}^!) it were sacked 
 anil put ab.)ard of the cars, except this: 
 He might, when he came to (iervais on 
 the said thirtieth dav of .lanuary, have 
 elected to take the l",14S bushels , but it 
 was an advantage to him to acccept the 
 assignment, as he thereby also aciiuiroil 
 an interest in tlic scales, horses, and 
 other proijerty included iti the bill of sale 
 from Harkleroad. 
 
 Some suggestion was made upon the 
 argument that the law favored the vigi- 
 lant in obtaining their rights. To a cer- 
 tain extent tliat is correct. The law- 
 looks with disfavor ujion a |)arty who 
 sleeps upon his rights, but it certainly 
 does not commend the vigilance of a party 
 in his endeavors to deprive others of their 
 rights. The vigilance that is exercised to 
 get others' property from them may be 
 tortious, and even criminal. 1 cannot see 
 but that the respondents and appellant 
 acted fairly and manly in their attempted 
 adjustment of the matter. The respondents 
 may have been odicious in having Harkle- 
 road quit the shipment of the wheat for 
 ai)i)ellant; but they had a right to be 
 Their wheat was there also. A deficiency 
 had occurred in the amount of wheat on 
 hand. There was not enough left to pay 
 all the depositors in full, and, if the apjiel- 
 laiit were permitted to lake out the full 
 amount he had placed in the warehouse, 
 their loss would be greater. \\ was right, 
 under the circumstances, that Harkleroad 
 should desist from shipping the wheat 
 until the affair could be arranged, and it 
 could not have been arranged in any bet- 
 ter or more honorable way than it was. 
 The res[)ondents and appellant being the 
 principal depositors of wheat, all that 
 remained on liand, and all the other prop- 
 erty Harkleroad had, was assigned to 
 them, and they enteied into tlie written 
 agreement to administer upt)n it. Kven 
 if the uppelliint had obtained a legal ad- 
 vantage In consequence of a part of the 
 wheat having been sacked and delivered 
 aboard the cars. It would have been the 
 
 merest technical ailvantnge Imnglnnlde. 
 and would huvx operated iuequilably and 
 unjustly. I think a c<nirt should, in any 
 case, require the clearest proof of fraud 
 or Imposition before relieving a party 
 from his contract In order that he rnluht 
 profit by an unjust advantage the law 
 may afford. I!ut, as before stated, the 
 appellant held no advantage on account 
 of the segregation of the wheat sackei 
 from the mass. He had no right to ac- 
 cejit or remove a kernel of It beyond his pro 
 rata portion, and that was awarded to 
 him In the adjustment by the tr-rms of the 
 written agreement. The suit was brought 
 to enforce that agreement, and for a final 
 accounting between the iiarties to it. 
 The able anrl experienced circuit judge has 
 hi'ard the case, and 1 think has decided It 
 correctly in the main. There Is a discrep- 
 ancy in the account against the appel- 
 lant arising out of charging him the full 
 amount of storage on the wheat in con- 
 troversy. This sum should have been de- 
 ducted from the amount of appellant's 
 wheat on storage on which his dividend Is 
 declared. The decree will therefore be 
 modified accordingly, and in other re- 
 spects afflrnird ; costs of appeal tol)epaid 
 out of the funds in the hands of assignees. 
 
 LORD, C. .r., (concurring.) This is a 
 case of bailment. Upon that hypothesis, 
 where wheat of different owners has been 
 deposited in a warehouse, and so inter- 
 mingled that idetititicatlon of sei'.arate 
 ownership is lost, the depositors of such 
 wheat in mass are tenants in common. 
 But the title of the depositors or the own- 
 ership of such wheat has not been de- 
 stroyed by the intermixture; the deposi- 
 tors havesimply transferred the possession 
 to the warehouseman, and he liolds it as 
 their agent, and subject to their orders, 
 tor a delivery of the possession. In such 
 case, the wheat is a common fund out ol 
 which each de|)ositop Is to be restored to 
 his possession, or, so to Hi)eak. for the re- 
 payment of each owner's wheat. Any 
 owner or depositor, upon the payment <jf 
 charges for storage, has a light to de- 
 mand the redelivery of lils wheat, and to 
 be restoreil to its possession. The segre- 
 gation of the wheat from the bulk, and 
 thedelivery of it to theowner forthei)uan- 
 tity of wheat to which he is entitled, only 
 puts him in possession of his own prop- 
 erty. The effect of the segregaliim is to 
 identify the wlieat for the purpose of de- 
 livering possession of it to the owner. 
 But the segregation of the wheat, l)y 
 which its identity is restored to make it 
 available for a delivery of pos.session to 
 the owner, always proceeds upon the 
 principle that the warehouseman Is in 
 possession of the wheat, in mass, of such 
 depositors, and from >vhlch. by segrega- 
 tion, he identllies the wheat of an Individ- 
 ual owner, and restores it to his posst-s- 
 sion. His act Is but a partitioidng of the 
 individual quantity from the mass with 
 which It has been intermingled, and must, 
 of necessity, operate upon the mass of 
 which such Individual <)uantity consti- 
 tutes a part. Hut, being a (lartofsucb 
 mass, whatever affects or diminishes that 
 mass win affect or diminish proportion-
 
 96 
 
 BROWN 0. NORTHCUTT. 
 
 ally all the parts of siich mass, and conse- 
 quently such individual part or deposi- 
 tor'squantity of such mass. When, there- 
 fore, by reason of accident or otlicr caiine, 
 there lias been a loss or diminution of the 
 mass, it affects ratal)ly the quantities to 
 which s'lch depositor is entitled of such 
 mass, reduces the gross quantity of the 
 wheat in the possession of tlie ware- 
 houseman, and proportionally limits his 
 power of restoring possession to them. 
 His possession of the wheat in mass, be- 
 ing for the depositors, is affected In the 
 same degree as their ownership is by the 
 loss or diminution. His possession is 
 still of a mass, but of a diminished mass, 
 and they are tenants in common of such 
 diminished mass. His power to restore 
 possession is measured by the quantity 
 to which eacli depositor is entitled of such 
 diminished mass; and tliis is the ground 
 of division, whether the warehouseman is 
 in possession, or tlie depositors have 
 taken possession of such mass. 'J"he 
 warehouseman cannot rightfully give, 
 nor can any depositor rightful^- take, 
 possession of any greater quantity than 
 he is entitled to, based upon the masa 
 affected by the loss or diminution. If the 
 warehouseman should deliver to any de- 
 
 positor a greater quantity than he would 
 be entitled to, from such residue, although 
 the proper quantity to which lie would 
 have been entitled, if there had been no 
 loss or diminution, it would be a wrong- 
 ful taking, as well as a wrongful posses- 
 sion, as against the other depositors, for 
 the surplus over the quantity to which 
 he would have a right of such residue. 
 Analogous to the principle upon which 
 equity acts, where several parties are en- 
 titled to participate in a common fund, 
 and awards a distribution upon the 
 maxim that "equality is equity,'' it will 
 treat such residue as a common fund, to 
 be distributed in ratable proportions 
 among the depositors entitled to partici- 
 pate in it. Upon this principle, as dis- 
 closed by the record, the decree can be 
 sustained. So far as appears, all who 
 have a right to participate in the distri- 
 bution have been made i)arties. In such 
 ease, the remedy in equity is uiore com- 
 plete, and certainly would avoid a mul- 
 tiplicity of suits. It acts upon the col- 
 lective rights and liabilities of the parties, 
 which is said to be a distinguishing fea- 
 ture of the equity system, and awards its 
 distribution upon the equitable princi- 
 ples of the maxim cited.
 
 BROWNE V. UAUE. 
 
 99 
 
 DIIOWMC .-I al. V. HAKE et al. 
 
 (3 Hurl. & N. 484.) 
 
 Exchc(|iier of ricas, Trinity Term. June i-, 
 1808. 
 
 (4 Hurl. & N. 822.) 
 
 Kxchequer Cbanibor, Trinity Vacation. June 
 23, 18J!». 
 
 Decliiriition. Tliut defendantH agreed 
 with the pliiiiitiffM lo buy of then) a cer- 
 tniii (|iiaiitit.v, to wit, ten toriH, of the IjOHt 
 ri'liDeil inpu oil, to be hIi)|)|)1'(I free on 
 hoard nt liotterdjiin in September, Is.j", 
 ut £4!S l.')H. per ton; to be paiil f(jr, on de- 
 livery to the defei.daiitH (jf the bills of lad- 
 ing, by bill of exi-lianire to lie accepted by 
 the defen<Iaiits payable three iiionth.s after 
 date, and to be d<iled on the ilay of Hhip- 
 nient of the Hald oil. .\nd althoiiiih with- 
 in the month of Septeml)er, 1n,")7, the|ilain- 
 tlffs -ihippcMl at Kotterdain a certain por- 
 tion. In wit. live toMH, of the best rehned 
 rape oil free on board u certain Hhip called 
 the S(jiihie, and tli.? rcHidue thereof free on 
 board a certain other ship, and deli vered 
 to the defendants the res|)ectire bills of 
 ladint.' o( the said oil dnly indorsed to the 
 defendants; and altlion^h the plaintiffs 
 performed all conditions precedent, and 
 all things had been done an<l happened, 
 and all time had elapsed, to entitle the 
 plaintiffs to have the said oil paid for by 
 bill of exchange as aforesaid, and to main- 
 tain this action; yet the defendants n)ade 
 default in iiayiiiK for the said portion of 
 the said oil so shipi)ed on Ixjard the sni(; 
 ship called the .Sophie, and in ncceptinK a 
 hill of e.\chnnj;e for the same. There was 
 also a count for goods barpained and 
 sold, and >;oods sold and delivered. 
 
 ricas to liist count. First, that defend- 
 ants did not agree with plaintilfs as al- 
 leged. Secondly, that the plaintiffs did 
 not ship the sale! portion of the oil on 
 hoard the sliip calleil the Sophie. Thirdly, 
 that the plaintiffs did not deliver to the 
 defendants the bill of lading of the said 
 portion of oil shipped on board tlieSophie. 
 duly indorsed to the defendants. Fourth- 
 ly, that the plaintiffs were not ready and 
 willing to deliver the said portion of oil 
 Bhipped on board the .Sophie, or the bill of 
 Indlngot the same oil. to thedefcndnnts, in 
 accordance witli the terms of the said agree- 
 ment. IMflhly. that the said agreement 
 was for the sale of ten tons of oil gener- 
 ally, and not of any specific or nsrertnined 
 oil. That the said ship called the Sophie 
 was a general ship, and was not a ship 
 chartered by the defendants or in any 
 way appointed or denoted by them. That 
 the plaintiffs, when they shipped the said 
 DortioTi of oil on boardthe Sophie, took 
 from the master of that vessel a bill of 
 lading of the said oil, making it deliver- 
 able to the order of the pl.iintiffs or their 
 assigns, and not otherwise. That liefore 
 any delivery of the said oil to the defend- 
 ants, and before any indorsement or de- 
 livery of the s.-iid liill of l/iding, or of any 
 bill of Ijiding (if the said oil. to the defend- 
 ants, the said shiii called the Sophie, with 
 the said oil on board, was totally lost, 
 and the said oil then bei'ame and was 
 Without any neglect or default of the de- 
 
 fendants wholly lost and ilestroved. 
 That the plaintiffs never, in tact, <lellvircrl 
 or oft.-red to driiver, nor have tliev bei-n 
 ready and willing lo deliver, the HuTd oil li> 
 the defendants; nor have the pluintiffH 
 ever delivered or offered fd deliver, or lieen 
 ready and willing to delivi-r. the said liill 
 of lading or any bill of lading of the naid 
 oil to the defendants until after the said 
 oil had been ho wholly lost ami destroyed 
 as aforesaid. That when the plaintiffs 
 delivered to the defendants the said bill 
 of lading of the said oil as In the tirst 
 count mentioned, the plaintiffs kin-w, and 
 
 . the defendants did not know, that the 
 said ship and the said oil had been so lost 
 
 [and destroyed as nforesaiil. That the 
 
 ; defendants have not derived any benelit 
 or advantage whatever or any possildl- 
 ity of benelit or nilvnntage under the 
 said agreement, or received any consiiler- 
 
 I ation or value whatever for ttie liability 
 sought to be imposed on them in this ai-- 
 tion by the plaintiffs. To second count, 
 never indelited. Issues thereon. 
 
 At the trial tiefore .Martin, B., at tliH 
 Lonilon sittings after Hilary term, the 
 following facts appeared. The plaintiffs 
 were merchants at Hot teiilam, and the 
 defendants merchants at Ilristol. On the 
 
 j'Jth of.\pril, |s.">7. the defendants wrote 
 the following letter to one (ioolden, a 
 
 ' broker at I'ristol, who had before nego- 
 
 I tinted i)urchases between the plaintiffH 
 and the defendants:— " Messrs. Itrowni' & 
 Co. may .send us 20 tons of best relined 
 rape oil in September or October next, at 
 or under 47s. free on board." (ioolden ac- 
 cordingly communicated with the plain- 
 tiffs, and tlie defendants afterwards wrote 
 to them that they might go as high an 
 4Ss. (»n the Htli the defendants wrote to 
 tlie plaintiffs .'ibout the pnichase of some 
 black lead, and stated that they had 
 rather that the plaintiffs wouhl coniiiiuni- 
 cate with them, but that all their trans- 
 actions in oil might go ou through Uool- 
 den. .\fter some further correspondence 
 between tho parties, a contract was 
 made, through Ooolden, for the sale by 
 the pl'iintiffs to the defendants of twenty 
 tons of the best relined rape oil, ten tons 
 "tobeshipped free on Itoard at Itotter- 
 dnni, September, ls.'>7, at t4S l,")s. per ton, 
 to be paid for, on delivi-ry to the deleiiil- 
 ants of the bills of lading, by bill of ex- 
 chniige to be accepted, liy the defendants, 
 payable three months after date, and to 
 be dated on the day of shipment of the 
 oil : " the ten other tons were to be Khlppeil 
 in OctoliiT on the same terms. Onthe:!(l 
 September the defcnilants requested tlie 
 plaintiffs to sen<l part of the oil by the 
 tirst vessel from Itottenlam, which was the 
 Sophie. t)ntlie7th September the plain- 
 tiffs wrote to tiocddeii. who informeil the 
 defendants on the '.1th, that live timsoftho 
 oil woulil beshi(ipedon the fidlowing day. 
 On till- sth September, the plaintiffs 
 shlppeil on board the .Sophie, which was u 
 general vessel trailing from Kotterdain to 
 Bristol, live tons of the oil, and the mas- 
 ter signed the following bill of Iniling: 
 "Shipped In good ordi r and well condi- 
 tioned by 'J'lios. Itrowne and .Son in and 
 upon the good steamship called 'The 
 Sophie," wherctif Is master, &c., and now
 
 100 
 
 BROWNE V. IIAUE. 
 
 Jyinp: in this port nnd bound [or liristol, 
 tliirtoon casUs of oil, niarUed and num- 
 bered as iu the margin, and tube delivered 
 in the like Rood order and well condi- 
 tioned at the nforewaid port of liristol 
 (the act of God, the Queen's enemies, lire, 
 machinery, Ijoilerw, Kteani, and all an(J 
 every other danfiei's and accidents of the 
 seas, i-ivers, and Ktcam navigation of 
 what nature or kind soever excepted,) 
 unto shippers' order or their assignw, he 
 or they payinj; freight for the said goods 
 25fl. Ht. per' ton, Ur. VV., with lOs. prim;i<:e 
 and averafie accustomed and dislmrse- 
 nients as in the margin. In witness," &c. 
 On the same day the plaintiffs endorsed 
 the hill of lading as follows:— " Deliver the 
 contents to the order of Messrs. .Ino. Hare 
 & Co. Thos. Browne & Son." The plain- 
 tiffs also made out an invoice as follows: 
 — "Invoice of oil shipped on board 'The 
 Sophie,' J. Van Isnapon.for Bristol, by or- 
 der of Mr. S. (Joolden for account of 
 Messis. .Tno. Hare & Co. there, 13 casks 
 refd. Kape Oil, weighing nett 12'235 in Eng- 
 land, ((( XAS ir>8. per ton. (fo. B.) £'2ti() os. 
 Cd. Rotterdam, Sth Septr., lS.i7. Thos. 
 i?rowno & Son." (Then followed a note 
 of weights.) On the same day the plain- 
 tiffs enclo.sed in a letter to (Joolden the bill 
 of lading, invoice, and a bill of exchange 
 drawn on the defendants in accordance 
 with the contract. On the night of the 
 fltli the Sophie was run down in the Bris- 
 tol Channel, and the oil totally lost. The 
 plaintiffs' letter of the Sth arrived at Bris- 
 tol on the afternoon of the 10th, in due 
 course of post, but after business hours. 
 On the morning of the 11 tli, (Joolden left 
 with the defendants the bill of lading, in- 
 voice, and bill of exchange for tbeiraccept- 
 nnce. At that time he knew of theloss of the 
 Sophie. In about twfi hours the defend- 
 ants returiKMl to (ionlden the documents 
 which he left with theiu, on the ground 
 that under thecircumtances, they werenot 
 lialile tr) iiay for the oil. The other five 
 tons arrived on the 2Sth of September, and 
 were accepted and paid for by the defend- 
 ants. 
 
 The learned judge was of oi)iuion that 
 under these circumstances the plaintiffs 
 were entitled to recover; and the jury 
 found a verdict for them, stating Ihat in 
 their opinion, accordir.g to meirantile 
 usage, the risk of the loss cf the oil was 
 on the defendants. Leave was then re- 
 served to the defendants to move to enter 
 the verdict for them. 
 
 Hugh Hill, in last Easter term, obtained 
 a rule nisi accordingly, against which 
 Butt and Prideaux showed cause in the 
 same term, (May 6, 8.) Hugli Hill and 
 Raymond, iu support of the rule. 
 
 The learned judges having differed in 
 opinion, tlie following judgments were de- 
 livered. 
 
 BRAMWKLL, B. I am of opinion that 
 this rule should be made absolute. 1 will 
 first consider the actual case independent 
 of the pleadings. The plaintiffs agreed to 
 sell to the defendants, and the defendants 
 agreed to buy of the plaintiffs, a quantity 
 of oil, the particular parcel not being as- 
 certained. Iu addition to selling, tlie 
 
 plaintiffs were to ship tbe oil free on 
 board a vessel to take it from the plain- 
 tiffs to the delendants. 'I'he defendants 
 were to pay on delivery of the bills of lad- 
 ing, by bills to be dated on tha day of 
 shipment of the oil. Oil was shipped 
 liy the plaintiffs to the extent ol aljout 
 twentj' tons. Various bills of lailing in 
 sets were signed: they were taken deliv- 
 erable to the plaintiffs' order. One of a 
 set, for about five tons, whs indorsed by 
 then) specially to thedefendants (i. e. such 
 an indorsement was written on it) and 
 (endei-eil to the defendants, but before 
 the ten<ler the ship and oil were lost and 
 destroyed. The |)luintirfs, however, on 
 the 7th September, wrote to (joolden to 
 inform the defendants, which he did before 
 the loss of the Sophie, that she would 
 l)ring tive tons of relined lape oil for the 
 defendants; but they did not identify or 
 appropriate any [larticular oil, nor even 
 intimate that it had been shipped, — i)rob- 
 ably it had not been, as the bill of ex- 
 change is dated the Sth. This contract is 
 essentially a contract for the sujiply of 
 unascertained chattels, and I think it is 
 clear law that, under such a contract, the 
 seller can have no right of action till the 
 seller has done an act which, by the agree- 
 ment between him and the buyer, is to 
 vest the property in the buyer: as, by de- 
 livery to him, (jr to a carrier for him, of 
 goods corresponding with the writing, 
 or till the seller has appropriated or of- 
 fered to appropriate and supply to the 
 buyer certain chattels which correspond 
 with the contract. See Blackburn on 
 Contract of Sale, pt. 2, c. 1. Have either 
 of these things taken place here? I think 
 not. An appro[)riation in the seller's own 
 mind, a mere intent to ai)pr<jpriate,— a 
 mutter which the seller can suppress or 
 undo at pleasure, — will not sufiice. If he 
 offers to appropriate particular articles, 
 and the buyer without cause refuses them, 
 a right of action for not accepting vests; 
 but unless there is an appropriation of- 
 fered, and accepted or reaised, there is no 
 cause of action. I do not understand 
 there is any doubt on the law: then it re- 
 mains to examine the facts. I think it 
 immaterial, but the Sophie was selected 
 by the plaintiffs, not by the defendants. 
 If she had been the defendants' ship, and 
 the oil had l)een put on board it, as it 
 mijiht have been delivererl to a wagon, 
 that would have been a delivery to the de- 
 fendants, assuming the oil corresponded 
 with the contract. So the Sophie being 
 as it were a carrier's ship, the oil might 
 have been put on lioard, as a parcel to 
 be carried by land may be given to a com- 
 mon carrier, so as to vest the property in 
 the consignee and be a delivery or not, 
 according to the right of lien. So if, 
 after the shipment, bills of lading had been 
 taken in the defendant's name, or if taken 
 in the plaintiffs' name they had been in- 
 dorsed and delivered to the defendants 
 while the goods were in existence, 1 think 
 that would have been a compliance with 
 the contract; because, even assuming the 
 property is to be in the buyer from the 
 time of shipment, and that the seller is the 
 buyer's agent to ship, still I think he may 
 BAercise that agency iu his own name. 
 
 «
 
 BROWNE V. II.VUE. 101 
 
 and thnt it is no more necesHary lie Hhoiilil I plea in an answer. On tlio latter vl^ w, 
 t.ikf tlie hill of liulluK in tlii- buyer's naiuo tlie ilellvery of tlie liill of lailiii^ must lie 
 tlian it is tliat lie siioultl say at tlie ino- tak'^n to lie a delivery while tlir- oil wuh 
 riiPiit of shipment, "These Hie the buy-r's capatile of appropriation, and then the 
 UOdds, I ship on his acc-oiint. " liisiirha four! Ii (>lea meetH the ease, .\iiyhow the 
 ease his tender of the hill of l,idiii)r, [irop- tiftli plea is proved, lor the allegation that 
 cily itiilorsed to the buyer, may well he the plaintiffs knew the oil was lost, and 
 taken to show he wa.s aetiiii; as the buy- the deleiidaiits ilid not, is iniiniiteriai,— of 
 er's iiy;ent in the shipment, anil conse- roiirne If tha t plea is bad. it is not pruveO, 
 (jiiently tliat he, in effect, shiiiped tlie ' as those alleviations Mre not. 
 jjToo'is for him. liut if the seller had the This opinion is warranted liy the ou- 
 ri^ht, as loni; as the troods were in exist-: thorltles. if no profierty vested In thodc- 
 enee, to say that he had done nothing to fendants while the iroods were In esse. It 
 vest the proiierty in the buyer, that he remained in the plaintiffs, and they iiiuHt 
 never offered to apprcjprinte them, surely bear the loss. The following aiilhoritieH 
 it was too late for him to do so after the show that no property die! vest: Turner 
 L'oods were lost. Then liad he done any- v. 'J'lie Liverpool l>oi-ks;> Kliersliaw v. 
 thin;; to vest tlie iiroperty. had lie ileliv- .Mnuniae.-' where there is the e.\presNion in 
 ered, had ho offered to aiiprupriale this the judgment, " Though the nooils iiilnht 
 oil while it was in existence? Ii so, when? ha ve been purchused with the intention 
 At the moment of shipment ? flea riy not. | they should be delivered to ICIIersha w. 
 Mow could it be? The ship was not the that intention was never exeruteil;" 
 di fendants" ; the oil was put on board .Mitdiel v. ICde;-'' Van Casteel v. Hooker.* 
 with no notice that it was for the di-feiid- No doubt in some of those cases the word 
 ants; otlier oil was put with it; and it " intention " is nseil, but It iiieans " inten- 
 WHS in tlie jiower of the plaintiffs to ap- tion indicated. " In the jnd;iiiieiit in Tur- 
 (iropriate to the defendants such part, or ii'-r v. 'i'he Liverpool Docks it is saiil: 
 no part, of the whole, as tliey pleased. "The question really is whether any anil 
 The cases referred to helow clearly show what effect is to lie K'^'en to the terms of 
 there was no delivery. Was it, then, the liill of lading;; for it by those terms 
 when the [daintiffs took the liill of lad- they reserved to themselves the dominion 
 iiii;? Clearly not. When they indorsed over the cot ton, it would not pasH to the 
 it? I say, as dearly not, for there was assi;ine''s. And in this case It «as well 
 iiotliiiiK to prevent their erasing that in- ar;iiied by Mr." Hay miind, that had the 
 dorsement, or ilesfroyine; or siippressiiin | osition of the parlies been reversed the 
 that bill of lading, and inilorsin;; another, defendants could not successfully have 
 Then was the property so vested or ap- said, " You took the bill of ladin;; in your 
 Iiropriated by the bill of lading so in- <iwn name, but you inte.ided it for lis." 
 dorsed beiiitf sent to (lOiilden? That de- l!ut Wait v. Maker •''• seems to me in point, 
 pends on whether liooldeii was in any and the reasoniii;; of Itaron I'arke decl- 
 way tlie au'ent of the defendants, and sive. Nay, it is stronyrer t Irin the present 
 otherwise tlie ease is as thoiiKli the sellers case, for there it is manifest LethbrldKB 
 had tliemselves brouciit the bill of ladinR liad intended the barley for the defendant, 
 to liristol: they retained their power and had tidd him so; liut liavint; done an 
 over it as lonir as their airent held it. act which retained the [iroperty in hlni- 
 Tlien I am of opinion (iooldeii was in no self, ami there lieiiiE no un(|ualilled ti-nrler, 
 way defendants' aRcnf. It is said the it was held not to pass to the vendeeH. 
 Sellers intended this oil lor the defendants. In conclusion, I say there was no delivery 
 ! doubt it not; tint intention is iiiiiiia- of tlie jioods, because the only thinz that 
 terial till it iiianifests itself in an act. If a could be called a delivery was the ship- 
 man intends to buy, and says so to the meat, and that was none; for the same 
 Intended seller, and he intends to sell, and reason there was no barjiain and sale. 
 Ha.vs so to the iuteniled buyer, there is a which supposes the >;o.)ds areascertained; 
 contract of sale; anil so there would be and there was. for the same reason, no 
 if neither liad the intention. If there is a offer To supply tiy delivery on board, and 
 contract of sale, and the seller intends to no offer subsequent. 
 np|iroprii\te a particular chattel in fullill- 
 
 tnent of it. and the luiycr inteiiils to ac- POLLOCK, C. B. I have to deliver the 
 cept, anil accepts, the property vests in jud^iinent of my Brother MAKTIN. my 
 Iliiii ; and so it would had there been no Urotlier CII.V.NMCLL, ami myself, 
 such intention. If the buyer refuses, and Tie declaration contained several 
 the chattel corresponds with the contract, counts. The first stated that the defeiid- 
 the vendor has a risht of action, not be- ants agreed with the plaintiffs to bay of 
 causeof his intention, but of his offer. An them ten tons of best relined rape oil to 
 Intention not comiiiiinica ted to the buyer lie shipix'd free on board at Kotterilam in 
 Is inima terial. Tellinp: it to an indifferent September. Is."!", at i.As l.'.s. per ton; to be 
 person is no more than thou;;h he had paid for on delivery to defemlnnts of the 
 noted it in his inemoraiiilum liook, which |ii|| nf ladinji. l>y bill to be accepted by de- 
 ls no more than though it existed solely in fendants at tiiree montlis after date, to 
 his own mind. be dated ou the day tif sliipnient of the oil. 
 
 If the case is tried b.v the |)leadinirs. \ 
 
 come to tlic same conclusion. Kither the , , „ . . ^,~ 
 Dhipment was to bo for the defendants at ; i,'k "ih "O n 
 
 the time of shipment, or it was to be ap-' » i'- '«« 
 
 proprinted to them afterwariN. In the '" -^^ * L- "^S. 
 
 former case the declaration iiiiis; Uv taken "- Kxeli. ts>l. 
 to allege such a shipment, and the sccuoU ; "- Kxcb. 1.
 
 102 
 
 BROWNE B. HAEE. 
 
 The count cfjntained the nocossary aver- 
 ments of iieiformtinco, and stated as a 
 breach the iionacceptaiice of the hill. 
 
 There were counts for goods bargained 
 an<l sold nnd goods sold and delivered. 
 The pleas denied liability, and there was 
 a special plea which raised the same de- 
 fence. 
 
 At the trial at Guildhall before my 
 Brother Martin, the facts proved were 
 these: — The plaintiffs were merchants at 
 Kotterdam and the defendants merchants 
 «t Bristol, and tlirougli Mr. Goolden, a 
 broker at IJristol, tliey had raafle the con- 
 tract of sale in the terms stated in thetirst 
 eount. On the Sth September, the plain- 
 tiffs (having Ml the previous day advised 
 that the sliif)niont would Ve made) 
 shipped on board a steamer (a general 
 ship I, trading between Rotterdam and 
 Uiistol, live tons, parcel of the ten tons 
 agreed to he sold by the contract, and re- 
 ceived a bill of lading made out deliverable 
 "To tiie shipper's order." On the same 
 day they indorsed it sp-ecially to tlie de- 
 fendants, and enclosed it and an invoice 
 and a billof exchangedra wn in accordance 
 with the contract to Mr. Gooltlen, to be 
 delivered to the <iefeiidants and their ac- 
 ceptance to the bill obtained. The letter 
 arrived at Bristol on the afternoon of the 
 10th, in due course of post, liut after busi- 
 ness hours. On the morning of the lltli 
 Mr. Goolden took all the documents, viz., 
 the bill of lading, the invoice, and the bill 
 of e.xchauge, and delivered thera to one of 
 the defendants. He then knew, and the 
 fact was, that on the night of the Dtli the 
 steunier iu which the oil was, was run 
 down in tlie Bristol Channel and the oil 
 totally lost. In about two hours the de- 
 fendants returned the documents, and in- 
 sisted that under the circumstances they 
 were not bound to accept the bill or pay 
 for the oil. 'J'he action was bought upon 
 the 12tli December, and the jury found a 
 verdict for the plaintiffs, and stated that 
 in their opinion, aecordinjj to mercantile 
 usage, the risk of the loss of the oil wa.s 
 upon the defendants. My Brother Mar- 
 tin gave leave to move to enter a verdict 
 for them. A rule was obtained for this 
 purpose, and it has been argued. The 
 object!. in made on their behalf was that 
 the oil was not delivered "free on board" 
 within the true meaning of the contract, 
 because the bill of lading was made out 
 deliverable to " the shipper's order," and 
 that therefore the plaintiffs had theciin- 
 trol over the oil, and the contract for the 
 carriage with themasterand owner of the 
 steamer was made with them. Several 
 cases were cited on behalf of the defend- 
 ants. Wait V. Baker, Turner v. Liverpool 
 Docks, Van ('asteel v. Booker, and some 
 ■others. We think they are all clearly dis- 
 tinguishable. 
 
 ]f. atthe time the oil was snipped at 
 Rotterdam, the plaintiffs had intended to 
 continue their ownership, and had taken 
 the bill of lading in the terms in which it 
 was made for the purpose of continuing 
 the ownership and exercising dominion 
 •over the oil. they would in our opinion 
 have broken their contract to ship the oil 
 "free on board," and the jiroperty would 
 not have passed to the defend-iuts; but if 
 
 when they shipped the oil they intended 
 to perform their contract and deliver it 
 "free on board "for the defendants, wo 
 think they did jierform it, and the prop- 
 erty in the oil passed from tlieiii to the 
 defendants. If, when the bill of lading was 
 niade out, they of purpose and design had 
 the oil made deliverable to "shipper's or- 
 der" for an advantage and benefit to 
 themselves, it would be a different cMse; 
 but if they had no (diject in the in;ittcr,— 
 and they clearly had none, for upon the 
 same day they indorsed it specially to tl.e 
 defendants, and transmitted it to Bristol, 
 — we think it is exactly the same thing as 
 if the bill of lading had originally beeu 
 made out deliverable to the defendairts. 
 
 It was said that so long an the bill of 
 lading was in the hands of the plaintiffs 
 or of their agent Mr. (jooldcn, they had 
 the control over the oil, and no d<nibt they 
 had to a certain extent, but they would 
 have had precisely the same control 
 whether the bill of lading was made out 
 deliverable to the defendants or to the 
 plaintiffs' order, and indorsed by them to 
 the defendants. It is clear that it was iri- 
 toncled by the contract that the plaintiffs 
 shonld have this control, for the delivery 
 of the bill of lading to and the acceptance 
 by the defendants of the bill of exchange 
 were to be contemporaneous acts, and 
 the plaintiffs or their agent were not 
 bound to deliver the bill of lading until 
 they received the acceptance. 
 
 In all the cases cited on behalf of the de- 
 fendants the bills of lading were designed- 
 ly and of purpose made out to shipper's 
 order to prevent the iiroperty passing, and 
 enable the vendor to retain the possession 
 and control of the goods. This distin- 
 guishes them from the present case. As 
 to the contract in the bill of lading being 
 originally made with the plaintiffs, we do 
 not think it at all affects the terms as to 
 the shipment "free on board," and espe- 
 cially since the statute IS & 1".) Vict. c. 11], 
 which transfers the contract of the bill of 
 lading to the indorsees. 
 
 In our opinion, therefore, the law coin- 
 cides with the view taken liy the jury, and 
 the plaintiffs are entitled to recover upon 
 the special count. We also think they 
 are entitled to recover ujion the count for 
 goods sold and delivered, for u|)on the de- 
 livery on board the general ship, we con- 
 sider the property vested in the defend- 
 ants, and that therefore this count is 
 maintainable. 
 
 It was said that the defendants could 
 not insure tlie oil. This is not so in fact, 
 for by a letter of the 7th, which was com- 
 inunicaled to them on the 9th, they were 
 informed that the shipment would take 
 place on the following day ; but whether 
 they had the opportunity to insure or not 
 is immaterial to the present question, 
 which depends upon the law as to con- 
 tracts and the transfer of property to a 
 vendee upon a sale. 
 
 (4 Hurl. & N. 822.) 
 
 This was an appeal against the decision 
 of the court of exchequer in discharging a 
 rule to set aside the verdict found for the 
 plaintiffs and enter it for the defendants,
 
 BROWNE 0. nAUE. 
 
 KW 
 
 piiPHunnt to leave reserved at tlie trial. 
 The plcjiiliiins and material fai-tn of the 
 CHHC are fiilly Htatcrl In the report of tlie 
 CHHe in tlic e'oiirt lielow. [li H. & X 4^4.) 
 
 iJeforc i:itlJ:, UIM^IAMS, CltOWDKK, 
 CI{(J.\IM'().\. WILLKS, and MILL. J.J. 
 
 Hu.vinond arsncd fr)r the api.ellfuits | the 
 (lefendaiitK) in lant Kaster vaeatinii. I'ri- 
 dean.x, (lUitt with him,) for the |>laintiffH, 
 (May \s.) I{uj'uuind, in re|ily. 
 
 'riie jiiiJKuient of the court was now de- 
 livered liy 
 
 EHIJC, J. In thin ease we are of opin- 
 ion lliat the judgment of the court below 
 ehould l)e allirmed. 
 
 The contract was for tlio purchase of 
 nnascert.iiued goods, and tlio quection 
 has t)een, wlien tlie i)roperty i)asHeil. For 
 the answer tlie contract must bo resorted 
 to; and under tliat we think the property 
 passed when tlie (roods were placed "free 
 on board," in performance of the con- 
 tract. 
 
 In this class of cases the (inssint; of the 
 property may depend, according to the 
 contract, eitlier on mutual consent of 
 both parties, or on tlie act of the vendor 
 coiniiiunicated to the purchaser, or on the 
 act of the vendor alone. 
 
 Here it passed by the act of the vendor 
 
 alone. If the bill of lading had inaile the 
 K'Jods " to be delivered to tlie order of the 
 consignee," the pahsing of the projierty 
 would be clear. The bill of ladinu made 
 them "to be delivered to the order of the 
 consignor, " and he imiorsed it to the or- 
 der of the consignee, and heiil it to IiIm 
 
 agent for tlie couslgi Thus the real 
 
 (inestlm lias been on the intiiitiun witli 
 which the bill of Inding was taken in thJH 
 form: whether the consignor shlppeil the 
 goods in performance of Ills cont rar* to 
 place them "free on iio.-ird." or for the 
 pui'iiose of retaining a control over them 
 and coiitiMiiing to be owner, contrar.v to 
 the contract, as in the case of \'.'ull v. 
 Maker," and, as is explained In Turner v. 
 The Trustees of tlie Liverpool Docks" and 
 Van Casteel v. Itooker.** The i|ueHtio'i 
 Vvas one of fact, and must be taken to 
 li.'ivebeen disposed of at the trial; the 
 only (luestion before the court below or 
 before us being, whether the mode of tak- 
 ing the bill ot lading necessarily prevented 
 the property from passing. In our opin- 
 ion it (lid not. under the circumstances, 
 and therefore the judgment must be af- 
 lirnied. Judgment allirmed. 
 
 ' 2 Exch. 1. 
 '(5 Excli. 543. 
 '2 Exch. Uai.
 
 BROWNFIRLD v. jnilNSOX. 
 
 10- 
 
 mtOWN'riKLD ft al. r. JOHNSON' et ul. 
 
 (IS Atl. Itcp. 54."5, 12S Pa. St. 254.) 
 Siipri'inp Court of rcniisylvania. Oct. 7, 18S0. 
 
 Error to court of common pleas, I'hiladel- 
 pliia county. 
 
 Ilflore (;i!t-:EN, Clakk, William.s, ilc- 
 ('oi.LiM and Mjt( HELL, J.J 
 
 M. Hampton Todd, for pluinlilTs in error. 
 John W. Jolinaon, for defenJants in error. 
 
 Ci.AitK, J. A complete understanding of 
 tliR rul(,'.s of law governing this case involves 
 a brief statement of tlie material facts: On 
 the 2d day of Deceiid)er, 1«86, lirowulield & 
 Co., the delendanls, gave an order to Law- 
 rence Johnson & Co., to punliase for them in 
 Brazil oU'J ba^s best quality of new Brazil 
 nuts, of the first receipts, payment to be made 
 in cisli on arrival, or by iji i-day note, etc., at the 
 defendants' option, tlie pl.iinl iffs to cablei)rice 
 at the time of shi|>ment. On the same day 
 the plaintilTs replidl, stating that Bi-azil nuts 
 were not bought by the b;ig, but by hectoli- 
 tres, a measure which in past years averafjed 
 from 100 to 120 pounds; tliat the nuts came 
 in bulk in the steamer, and the defendants 
 would have to furnish the bags on arrival in 
 Xew York; and as "the outturn of the meas- 
 ure is uncertain" they jiroposed to order 4.50 
 hectolitres, etc. To this the defendants re- 
 ])lied by telephone: "C)ider 400 hectolitres, 
 and buy only the very best nuts oltainable," 
 The plaintiffs placed the order in the hands 
 of their correspondents. La lioipie, Da Costa 
 & Co., I'ara, Brazil, who undertook the pur- 
 chase, and on the ytli of February following 
 advised the plainlitTs of shipment per steamer 
 I'ortueiice, upon lioard of which were nearly 
 G.UUO heetolilres of Brazil nuts for other par- 
 ties. Of tills shipment, and of the piice. no- 
 tice Was on the same day given to the defend- 
 ants. I'jwn the arrival of the i'ortueiice in 
 New York, Lawrence Johnson & Co. handed 
 to the defendants a delivery order for 4U0 
 hectolitres of Brazil nuts in bulk, in separate 
 hold, on board the I'ortuence, with copy of 
 original invoice, and the idaintiffs' bill, 
 amounting to .'?3,441.18. The invoice was 
 for :j12 hectolitres al 15,150 rtis each, and 8S 
 hectolitres at 14,000 rc/.v each ; showing th.it 
 tlio nuts had been orij^inally purihased in 
 two spp.irate lots, and at different prices. 
 The defendants, witli the delivery order in 
 their posse.^sion, proceeded to New Vork, and 
 went on board the I'oitueiice, where they 
 found one consignment of nuts in tlie name 
 of Hrowiilield & Co., but the plaintiff's store- 
 keeper informed tliem that the 400 hectolitres 
 in ipiestion were emluaced in a consignment 
 of 582 hectolitres of Brazil nuts, in separate 
 hold, in the name of the plaintiffs. The de- 
 fendants thereupon refused to receive any 
 poriion of these nuts as an execution of their 
 order. The phiintilTs tendereil to the defend- 
 ants the whole 582 liecto'.itres or 400 hectoli- 
 tres thereof, at their option, at the invoiced 
 prices; which tender, in either alternative, 
 
 til" defendants declined to accept. The plain- 
 tilTs afteiwartis tendered 4i)0 hectolitres at 
 the aveiage pi ice, which the defendants also 
 declined. Subsefjiieiitly the plilntifTs sepa- 
 rated the 400 hectolitres from the lot, and 
 notified the defendants of tli'ir weiglit, but 
 the defendants absolutely declined to a'-cept 
 the nuts on any of the sever.il propositions 
 made by the plainlfTs. The .582 liedolitres 
 were made np of tsvo lots, — one of ;)1"2 liec- 
 tolitres, invoiced at 1.5.1.50 reis; the other of 
 270 heetolilres, invoiced at 14,0<iO /•et>; 88 
 heetolitres of the latter were invoiceil to tlio 
 defendants, and the residue, being 182 liec- 
 tolitres, to Lawrence Johnson & Co., for ac- 
 count of La Itoijue, Da Costa & Co., who, it 
 is said, according to the method of dealing in 
 Brazil, in order to get 88 hectolitres to (ill 
 the order, were obliged to buy a larger lot. 
 That all parties acted in good faith is a fact 
 found liy the jury, and the case turns upon 
 the question wli<-ther the defendants' order 
 was properly and legally executed. 
 
 If the purchase had been of 400 hectolitres 
 only, shipped in sejianite hoM, there could be 
 no question as to the defendants' liability for 
 the price. Wli:it, then, was the effect of 
 placing the 182 liectoHtre^ in the same hold 
 w ith the 400 invoiced to the defendanl.s? It 
 may be con<e.led as a geneial riiie th.it, as 
 between vendor and vendee, when it is sought 
 to compel a party to pay for goods wli.cli he 
 lias refused to accejit, there can be no recov- 
 ery unless the order has been strictly and lit- 
 erally fullilled. The buyer is entitled to re- 
 fuse the whole of the goods tendered if they 
 exceed the quantity agreed, and tlie vendor 
 ' liaa no right to insist upon the buyer's ac- 
 ■ ceptance of all, or upon the buyer's selecting 
 out of a larger qii mtity delivenil. Benj. 
 Sales. § lo:i'i. To tlie «:inie effect are the 
 cases cited by the plaintiffs in error. With 
 relereiice to quaiil.iy, iiowever, the rule is 
 less rigid wheie goods are ordered fromacor- 
 ' res|)ondent who is agent for buying them. 
 (Ireland v. Livingston. L. U. 2 o'. B. '.fj; 36 
 , Law J. W. B.50; L. I{.5 II.L.:i'J5:) forthorelu- 
 I tion of vendor and vendee which finally results 
 ] is preceileil by the relation of piincipal and 
 ' agent, anil the agent in such a transiiction is 
 ' necessarily invested with some degree of dis- 
 cietion in making the purchase. See, also, 
 Johnston v. Kershaw, L. K. 2 Exch. 82, 'M 
 Liw J. Exch. 44. and Jefferson v. Qnerner, 
 :{0 Law l'. (.\. S.) ^^■l7. It must be conctnietl, 
 however, that the piircliase and temler of 582 
 hectolitres, upon an order for 41H.), would in- 
 ! volve a wider discretion than would be allow- 
 able under the special fact.s of this ciLse, even 
 as between principal and agent. In thiscase, 
 I however, the plaintiff's cornspondent pur- 
 1 chased for and invoiced to the defendants 400 
 I hectolitres only. an. I that quantity was ten- 
 dered. The remaining 182 hectolitres were 
 not invoiced to the delendants. although the 
 plaintiffs propose<l that the defcnilants might 
 have them if they chose to take tlieiu. The 
 40<) heclolitres of nuts unquestionably liecame 
 the pro|ierty of the defendants when pur-
 
 lOG 
 
 BKOWNFIELD v. JOHNSON. 
 
 chased in IJia/il. f'lr lliey were purchased up- 
 on tlieir order. By force of that order the 
 jihdntiffs became tlie dflVtidants' agent, with 
 autliority to constitute an agent in I'ara for 
 its execution; and the nuts were bouglit in 
 virtue of tlie autliority tlius conferred. 
 
 Tlio only question," therefore, would seem 
 to be upon" the edVct of the shippiiisj of the 
 whole lot of 582 hectolitres in one hold. 
 It was shown that this was the usual meth- 
 od of shipping, especially when the orders 
 were small. There was no effort to es- 
 tablish a custom of this kind, but simply 
 to show that tills was Uie usual and ordinary 
 metliod pursued in tlie shijiping traile. The 
 defendants had a right to suppose tliese goods 
 would be shipped in the usual manner, unless 
 they directed otherwise, and that, altliough in- 
 termingled with others in theforKard hold of 
 the vessel for transportation, they would be 
 separated at the phice of delivery. The nuts 
 in question were of the same quality; they 
 were bought at different prices, but the evi- 
 dence is clear that they were of uniform qual- 
 ity. The weight of American authority sup- 
 ports the proposition that, when property is 
 sold to be taken out of a specilic mass of uni- 
 form quality, title will pass at once upon the 
 making of the contract, if such appears to be 
 the intent. Oil in a tank and grain in an el- 
 evator may serve as illustrations of this rule. 
 Where, however, the properly sold is part of 
 a mass made up of units of unequal quality 
 or value, such as cattle in a herd, selection is 
 essential to the execution of the contract, and 
 of course the rule cannot apply. Benj. Sales, 
 477-531, and cases there cited. The storage 
 of oil in tanks and of grain in elevators, al- 
 though not univeisal, is the usual and ordi- 
 nary means employed by large dealers in 
 those commodities; and, while no custom of 
 that kind, technically speaking, could be es- 
 tablished, the usage of the trade anfl general 
 course of business in this country is well 
 known. In view of the necessities which 
 grow out of such usage the American courts 
 have departed from the rule adhered to in 
 England, and have recognized a rule for the 
 delivery of this class of property more in con- 
 
 formity with the commercial usages of the 
 country. A distinction is made between 
 those cases where the act of separation is 
 burdensome and expensive, or involves se- 
 lection, and tho-^ie where thearticle is uniform 
 in bulk, and the act of sejiaration throws no 
 additional burden on the buyer. In the lat- 
 ter class of cases a tender of too much, from 
 which the buyer is to take the proper quan- 
 tity, is a good delivery. Id. 1030, note. See, 
 also, Kimberly v. Patchin, 19 N. Y. 330; 
 Hutchison v. Com., 82 Fa. St. 472; Wilkin- 
 son V. Stewart, 85 Pa. St. 255; Bretz v. Diehl, 
 117 Pa. St. 589, 11 Atl.Rep. 893. 
 
 The case at bar bears no analogy whatever 
 to Stevenson v. Burgin, 49 Pa. St. 44, for all 
 that is decided by that case is that, in a con- 
 tract for a tixed quantity of merchandise to be 
 delivered on board a vessel, the purchaser is 
 not bound to accept and pay for a larger quan- 
 tity. The principle has no application to 
 the evidence in this case. The case at bar 
 bears a closer analogy to Lockhart v. Bonsall, 
 77 Pa. St. 53. In that case a tender of 5,0tl0 
 barrels of oil was made by Lockhart to Bon- 
 sall out of a bulk of 5,981 barrels, containe 1 
 in 118 bulk cars. As it was the duty of 
 Bonsall to pump the oil from the cars into the 
 tanks of the Anchor works, which had been 
 designated as the place of delivery, it was held 
 that Lockhart was not bound to set apart the 
 precise quantity named in the contract before 
 offering to deliver. So, here, the measuring 
 of the nuts, and their removal from the ves- 
 sel, was the work of the defendants, and as 
 the article was uniform in bulk, selection was 
 of no consequence, nor was the act in any 
 sense burdensome or expensive; for, assum- 
 ing that the whole bulk was to be measured, 
 yet the expense attached to the whole, and each 
 part-owner was liable to share it. 
 
 We are of opinion that, when the nuts 
 were delivered on board the Portuence at 
 Para, the title to 400-582 of the bulk belonged 
 to the defendants, and that upon the arrival 
 of the vessel at New York the tender of the 
 582 hectolitres from which the defendants 
 were invited to take their share was a good 
 delivery. The judgment is affirmed.
 
 BUFFINGTOX v. GEHUI.SU. 
 
 109 
 
 TUIFIXOTOX ct nl. t. GERRISH et al. 
 
 (15 Mass. 150.) 
 
 Siipn^me Judicial Court of Massachusetts. 
 Cunilicrlaud and 0.\ford. May Term, 1818. 
 
 Keplevlii for two pipcH of brandy and 
 HiHidr.v otlit'i- iirtic'IcH of nicrcliaudi/.c'. The 
 dcl'eiidantH i)li';idiMl propert.v in oneEzekit-l 
 WiilUcr, travcrHintr the property of the 
 plainliffH, and iHmie wan joined on tlic 
 traveise. A t tlii> trial of thin issue hctore 
 Wilde J. at tlie last October term In this 
 comity, it waH admitted liy the plaintiffs, 
 that the articles in (luestion weie solil hy 
 them to Walker, and that his notes for 
 the stipulated price were received by them, 
 Iiayalilein two and four months from the 
 date: hnt thev contended that the sale 
 \v(is void, on the ground of fraud and do- 
 eeplhtn piactised upon t hem liy Walker. | 
 It was in eviilence lliat Walker was an in- 
 hahitant of rorlland, and In April INK! 
 applied to tlie plaintiffs, merchants in Uos- 
 ton, ti> whom he was a stranser, for the 
 piinliase of Roods; and that he represent- 
 ed himself ns a merchant enKa^cd lar^el.v 
 in Imsiriess, huvinj:: one store in Portland 
 and anotlier In the conntry. and of iin- 
 doulited aliility to pay.— The plaintiffs 
 tlicn wislied for the recoinmendntion of 
 some i>ne known to them, and Walker re- 
 ferred them to a .\Ir. McLellan.n merchant 
 in lio.ston, for information: of whom, 
 however, for some reason which did not 
 appear, the plaintiffs made no in(iiiiry: 
 Imt conlidinf; in the representations made 
 b.v Walker, completi'd the sale, and deliv- 
 ered the good.s. Whereupon Wal!;er im- 
 mediately transported them to Portland, 
 where tliey were attached liy the defend- 
 ants, lieiiiK deputy-sheriffs of this county, 
 at the suit <jf diver.s creditors of Walker, 
 to whom he had been indel)ted for several 
 years. The plaintiffs then proved that 
 the representatiniis made liy Walker were 
 falseand frnndiilcn t : that he had no store 
 In Portland, althoiish he had one there a 
 ntiiJilierof years aso but soon failed, and 
 had since b("en wholly witliout visilile 
 Iiroperty or credit, and deepl.v involved in 
 debt. The plaintiffs lindinK that they had 
 been imposed upon by Walker, pursued 
 him to Portland, where they found the 
 
 KoodH in queHtlon, wlilch lind been nt- 
 tacheil by thedefendants, ns above stated ; 
 
 wherenpon they c menceil this suit. 
 
 The indue instructed the jury that. If they 
 HJiould be of oiiiidon, that the sale of the 
 Roods was effected by the fraudulent inlH- 
 representations and (h'eeption of Walker. 
 It would be Hullicient to rentier the sole 
 void; and that it niiulit be avoided by the 
 plaintiffs, notwilliKtandiiiR the ntfaeh- 
 ments of the bona lidecieditors of Walker, 
 without notice of the fraud : ami the jury 
 returned t;ieir verdict for the plaintiffs ac- 
 cordingly. If the said ilirectioiM to the 
 jury were, in the opinion of the whole 
 court, Hubstantlaily correct, ju<lcment 
 Was to be rendered upon the verdict; 
 otherwise the plaintiffn were to heeoine 
 nonsuit. 
 
 Mellen and Todd, for defendants. Lour- 
 fellow, for plaintiffs. 
 
 PER CURIAM. ItlsnotneresHaryinthlH 
 case to conHlder. whether the property 
 could be reclaimed by the plaintiffs, out 
 of the hands of a bona tide purchaser, Ik- 
 nor.'int of the fraud, by which Walker ob- 
 tained possession. As the possession of 
 the Roods by Walker, with the appear- 
 ance of ownership, was witli the con«ent 
 of the plaintiffs, it is probable such sale 
 would be held good. 
 
 The case here is very different. The 
 plaintiffs endeavour to recover their mor- 
 chandlze, as soon ns the fraud practised 
 upon them is discovered. It never had 
 become the property of Walker, and the 
 riKht of the plaintiffs to reclaim it nRainst 
 him is indisputable. He had done no act, 
 by which any of his creditors had been 
 deceived with respect to tliis property; for 
 their debts all existed before he acquired 
 the possession. They claim title to it aa 
 his, not ns their property : yet they can- 
 not, under the circumstances proved, and 
 the fact of fraud found by the jury, estalj- 
 lish it as Ills. They are in the san)e condi- 
 tion, as to tlieir debts, they were In before 
 the commission of the fraud; and they 
 ouRht not to reap t|ie fruits of it, no 
 credit haviiiR been Riven on account ol 
 this property. 
 
 Judgment on the verdict.
 
 BLLWIXKLE v. CRAMER. 
 
 Ill 
 
 lUI.WIXKLF, Pt al. v. CRAMER et al. 
 
 (3 S. K. Koi.. 770, 27 S. C. 370.) 
 SiiiMi'inc ('i)iiii iif Siiiitli Caruliim. Oct. 14, 
 
 18,S7. 
 
 A|p|M'iil fi'Din roinii'cxi plonH circuit court, 
 Cluirii'Mtiiii CKiiiit.v; KerHJiinv, .JudK'". 
 
 llii.vrii'A; I'ii'kcii, fin- appclluiit. Siiiious 
 & (Jiijiiicliiiaiiii, u|i|ioHi>(l. 
 
 Mc(i(>WAN, J. Thin woh nil action 
 iiU'ii'int the (l( feiidnutH Cramer tk lUohnic 
 for :(pl,l:is.7(l, (hiiuimcH Kustaincil upon a 
 lot of Klicllcd com in HactcH piircliiisfd from 
 tlicni l>.\ tiic plaintiffs on .May IT, l^^-J. 
 'I'lii' lollow inK writing "aH otlciod as tliu 
 written contract of the partie.s: 
 ••.May ITIIi. Solil II. lluUvinkle & Co.— 
 5,ii!i(l I'.u. mixed HHci<ed corn (a TIJ^c. 
 1.(100 •• ■• •■ •• •• so;^. 
 
 ".Sclioont-rMliipmcnt, payable on arrival. 
 No wliarfaije. 
 [Sij^iiedJ "Cramer & lUolime." 
 
 At tlie time Hie purcliawe waH made, the 
 corn was not in tliecily; hot Kooii after, 
 nhout tlie laKt uf May or lii'Mt of .lune, 
 the well ooner May Williams reaidied Charles- 
 ton with tlie corn. I'poii its arrival in 
 tlie liarhor, the plaintiffs were notilied of 
 the fact. Ml'. Il.iesloop, one of the plain- 
 tiffs, went down to the vessel. and.MndiiiH 
 ahont l.'iO sackH out, examined the corn in 
 two or three of them, and found that "it 
 Hcemed ^^ood." (In .lune 4th, before all 
 the corn wan out of the vessel, the de- 
 fcnilants presented their acc(»nnt for the 
 corn, ilfJ. 400. J.'i. The odd cents were paiil, 
 and the plaintiffs (jave their note as fol- 
 lows: ••!iP4,400. ( li;irl.'stoii. S. ('., .lune 4, 
 1SK4. Forty days after dati'. we [promise 
 to jiay to tlie order of Cramer & lilohme 
 fortyf.Mir hundred dollars at any city 
 liaiik. Valiiereceived. Due ,Iuly I'.t-'J:,'. II. 
 liulwinkle i Co." Indorsed as follows: 
 " I'ay A. lieipiest, without recourse. 
 Cramer & lilohme. A. I!i quest. " Writ- 
 ten across the f.ice: " I'aiil July L'ii. IssJ." 
 .\ few (lays alter the note was yiven. in 
 removing the corn it was discovered that 
 some of the sacks were dam.iued. Imiue- 
 (liate notice was niven to the difendants. 
 hut as they refused to correct the matter, 
 or to have anythiiif;- to do with it, the 
 corn was ••surveyfMl ' by two KenHenien 
 at the re(iiieHt of the "Merchants' E.\- 
 cliaiiue," and 1.470 s;icks were found to 
 contain corn in "a damp, Idue-eyed, and 
 musty condition." This damaged corn 
 was sold at auction, .-iiid bronyrht less 
 than tlie price of >;oo(l corn of the sanie 
 kind by $l.l:',S.70. In the mean time iind 
 before the note fell due, the defendants 
 trnnsferred it, niid, as the defense of un- 
 soundness of Hie corn could not lie made 
 to it in the hands of an innocent holder 
 before due. the plaintiffs paid it, and 
 lirou^lit this action for the (lama;;eH sus- 
 tained. 
 
 The caiisecanie on for trial befote .Tudce 
 Kersliiiw and a jury. A witness, one of 
 the defendants, was asked whelher they 
 (the (Ipfendants) contracted in their indi- 
 vidual capacity, or in what capacity. 
 The plaintiffs objected to the (|uestion: 
 clainiiiiy; that parol testiiiKiny could not 
 be uffered to alter the written contract. 
 
 The judK<! admitted the parol evidence. 
 Haying: "I do not regard this paper, 
 which is a mere memorandum of contract 
 taken down at the time, as iirecludiii); 
 testimony as to the conversation between 
 the [larties, w liieh nii;;lit in any way throw 
 liuht on the contract they were making. 
 If there (larties knew from any source, at 
 the time that the paper was made, tliat 
 they were actually dealin;^ with the de- 
 fendants as agents. I think it can lie 
 shown as part of tlie res };-estie," etc. The 
 testimony beiiiK admitted, the jury, un- 
 der the charge of the jud^e, found for the 
 defendants. 
 
 The plaintiffs appeal upon the ftdlowiiiK 
 e.\ce|)tions : "(1) 'I'hat his honor commit- 
 ted error in ruling tiiat the paper or con- 
 tract sued on >vas a mere memorandum 
 of contract, and did not preclude testi- 
 mony as to con versa I ions between the 
 parties which mi(;:lit in any way throw 
 liflht on the contract, or the nature of the 
 contract, they were iimKiim, and that if 
 the plaintiffs knew from any source, at 
 the time that pafier was made, that they 
 were dealing with the defendants as 
 ORerits, it coiilil be shown as part (jf the 
 res Kcsta'. (L'l Recause his honor ruled 
 that If, in this cp.se. there was a clear un- 
 derstandiiif; between the parties that de- 
 fendants were acting as a;;en ts. such un- 
 derstanding was not e.\clu(le(l by that 
 paper. (;ti liecause his honor admitted 
 parol evidence on behalf of defendants, 
 after olijiction thereto, as to eonversa- 
 tions between the parties tending to 
 throw liKlit on tlie contract, or nature of 
 the contract, they were makini;. (4) Be- 
 cause hishouorailmitled pand testimony, 
 on behalf of defendants, leiidint; to show 
 that defendants were dealing; as amenta, 
 and not as principals, in siKniiiK the writ- 
 ten contract sued on by plaintiffs, (.t) 
 Ijecause his honor admitted parol testi- 
 mony, on behalf of defendants, tendiii}; to 
 show in what character defeiidnnts were 
 conlraetint;, whelher as au'enls or prin- 
 cipals, when they si-rned the contrac-t <»r 
 writinj; sued on. and put in evidence by 
 plaintiffs, .(i) liecause hi.-) honor erred iu 
 instrnctinir tlie jury as follows: "if the 
 jury Iind that the defendants, or either of 
 t hem, sitjMed the written contract offered 
 in evidence by the plaintiffs, they are per- 
 sonally bound by said contract . unless it 
 was (listinctly understood byliotli par. 
 ties that the defend/ints were not to be 
 personally liable lor defects in the article 
 purchased.'" 
 
 We ay;ree with the circuit judRe that in 
 this stale, as to personal property, the 
 rule of law is that •'sound price rei|uireM 
 sound property," and the contract for the 
 corn must be read as if these words were 
 added, •■(•orii warranted to be sound." A 
 part of Hie corn turned out to lie " un- 
 sound," and it would seem that the plain- 
 tiffs are entitled to redress on the war- 
 r;inty. unless they, in some way, waived 
 tlieir riylits. Soiiietliinj; was said in the 
 case about the pbiiii tills liavini; accepted 
 tiiecorn tor tlieiii-iclves after an examiia- 
 tioii : but. as there is no reference to tl at 
 subject in tiie exeepi ions, the matter, of 
 course, is not no^- before us. 
 
 .\s we understand it. tlic sole nuestion
 
 11-2 
 
 BUI.WIXKLK V. CRAMER. 
 
 in the (.'ose is as to who is lial)k', — whi't'ier 
 the (IcfL'iidaiits, who solil tin; corn, signed 
 the a;;i-e(Miieiit. anil took the iiotiM.f plain- 
 tiff.s, and realized upon it in tlieir own 
 name, had the i-i«ht, at tlie trial, to intro- 
 du<'e parol tesliniony tending to show 
 that they were not aetiiiK n.s principals, 
 but «H afients of Itoljert Turner & Son, of 
 Baltiinore, and, the cojitract of plaintiffs 
 liuvins l)een made with Turner & Son 
 tlii'oui^li tlieni, they are not liable Individ- 
 nally. The «iucsti<>n as to the aduiissibil- 
 ily of the evidenee, seems to have l)een 
 etinsidered in two nsiiects: First, wheth- 
 er the paper offered as the aRreenient was 
 such a eoiitraet in writinfi ay to l)e within 
 the rule whicli excludes parol testimony; 
 and. if so, second, whethi.'r the judse erred 
 in cliar}iin« the jury " that the defendants 
 were not lialile if it was distinctly under- 
 stood liy lioth parties that the defendants 
 were not to ho personally lial)le for defects 
 in the article sold. " 
 
 All the authorities a^ree that, as a jjen- 
 eral and most indexible rule of evidence, 
 "whenever written instruments are ap- 
 pointed, either by the I'equirements oi the 
 la w, or by the co'upact of parties, to be 
 the <lepi)8itories and nu inorial.-> of truth, 
 any other evidence is e.xcUuled from being 
 used. either as a substitute forsuch instru- 
 ments, or to contradict or alter them. 
 This is a matter both of principle and jiol- 
 icy." Starkie, Ev. ()4S. This seems very 
 plain, but the application of the rule is not 
 always free from ditiiculty. In the in- 
 finite combination of circumstances, eases 
 arise which seem exceptions, but, when 
 clearly examined, are found not to fall 
 within the princii)le. As, tor exani|;le. It 
 may happei. that the written instrument 
 does not puiport to cover the whole field 
 of contract, and is not intended to be the 
 "de()ository " of the whole agreement, but 
 only one liranch of it. In such case, the 
 whole contract may be proved by [)arol, 
 without tinichins the principle ; the object 
 being, not to add to or alter the written 
 instrum(>nt, but to show the whole agree- 
 ment, of which the writing is only a part. 
 Kaphan v. Ryan, IG S. f. ;!G(). is an exam- 
 ple of this class, where the court were 
 "not called on to give ccmstrnction to the 
 note and int)rtgage, but to determine, 
 from tlie evidence, for what purpose they 
 (as executed) were to l)e used, "etc. Here, 
 the writing covers the whole field ; stating 
 who are the parties, and what the consid- 
 eration and the iirice, in condensed form, 
 but with exhaustive particularity. Some- 
 times the "written instrument" does not 
 state specifically the consideration; as 
 where a note says, generally, "for value 
 received." There is a class of such cases 
 where the consideration maybe inquired 
 into; and in that way matter may get 
 in by parid " which does not necessarily 
 lend to change the terms of the note, al- 
 though, by showing the true considera- 
 tion upon which it was given, it may con- 
 trol the recovery upon the note." See Mc- 
 Grath v. liarnes, i;! S. C. :f:!2, where the 
 court reviewed our cases upon the sul)ject, 
 and the former chief justice. Willaid. en- 
 deavored (o reconcile them on the distinc- 
 tion here indicated. In that case it was 
 
 held that "when an executor gave his 
 ])roiiiissory note for the jiaynient (i 
 money, which was expressed to lie tin' 
 amount due by his testator's estate for 
 medical Kervice.s rendered, most of which 
 during last illness, parol evideueeof a con- 
 temporaneous agreement that the note 
 was to be paid only upon a certain cfindi- 
 tion (that the probate judge would piiss 
 the account) is incompetent." In the case 
 before us, there cannot be the slightest 
 doubt that the consideration was as stilt- 
 ed in the instrument. There is no doubt 
 that a mere receipt, although in writing, 
 may be explained by parol; lint that goes 
 on the ground that a receipt does not 
 necessarily import a c<)ntract. As was 
 stated in the case of Heath v. Steele, !) S. 
 Ci 92 : " In itself a receipt does not express 
 the terms of any contract or writing of 
 the minds of the Darties between whom it 
 Iiasses. but merely evidences, by wa^' of 
 admission, the fact stated in it." See 
 Moffatt V.Hardin, 22S. C.9; 1 Greenl. S 
 
 ao5. 
 
 But, assuming that this case does not 
 come within any of the seeming excep- 
 tions above indicated, it is urged that the 
 Iiaper was too informal and ex parte to 
 amount to a contract, but inust be con- 
 sidered as a "mere memorandum of a con- 
 tract." and therefore not such "a written 
 instrument" as to come within the rule as 
 to the exclusion of parol evidenee. Most 
 assuredly', a simple bill of iiarcels is not 
 a contract, for the very good reason that 
 it lacks theessential element of agreement, 
 lieing only the statement of a fact, — a 
 menioranduiii ; "a note to help the mem- 
 ory;" as, for instance, the In 11 for the price 
 of the corn rendered in this case was a 
 mere memorandum. But a contract is a 
 promise from one to another, either made 
 in fact, or created by the law, to do, or to 
 refrain from doing, some lawful thing. 
 Bish. Cont. § 1. There is no particular 
 form retinired; the only requirement being 
 that it must contain the contract of the 
 parties, and be definite and free fi'om am- 
 biguity. We can well understand how. in 
 the hurry of business, parties would sub- 
 stitute condensed forms for regularly 
 drawn out covenantsor agreements. The 
 defendants were offering corn for sale, to 
 come by a vessel ; the plaintiffs agreed to 
 purchase a lot, and the defendants com- 
 mitted the agreement to writing thus: 
 "May 17. Sold to H. Bulwinkk> & Co., 
 « • ► corn," etc. "Schooner shipiuent. 
 payable on arrival. [Signed] Cramer & 
 lUohnie." Why was that not a complete 
 contract? It is said the plaintiffs did not 
 sign it. The whole case shows that it 
 was not ex parte, but expressed the con- 
 tract of both parties. We think it is not 
 unusual, in a certain class of agreeiuents, 
 to be signed only by one party; as in the 
 case of an ordinary note, tlie terras of 
 which are binding upon both parties. 
 Suppose the defendants had offered the 
 corn for sale at iiublic auction, and, upon 
 a lot being nurcliased by the plaintiffs at 
 a certain price, the defendants had made 
 upnn their sale-book the seme entry pre- 
 ciselyas theyrnade In this case. " Sold, etc., 
 to Bulwiukle & Co.," would they not be
 
 BULWINKLE v. CRAMER 
 
 113 
 
 liahle upon It ns their contract? The rc- 
 hriircli of the pliiintiffn' attorney enabled 
 liim to fiirni.sh the court with references to 
 hcvcral cuMBH, vvhicli Beein to conclude thiH. 
 
 In Meyer v. Everth, 4 Camp. 22, the ac- 
 licinwuB on a contract In these words' 
 ■•'id ho^Bheads of Ilambro's Bu^ar loaves 
 • It l.'joH., free on Ixiard of a I'ritJHh ship. 
 Aiceptuiine a t 70 days." Lord Ellenbor- 
 iii];,'h held that it was a contract, and re- 
 iijsud to adtnit i)ai'ol testimony tending to 
 show tnat, when the Bujinr was pur- 
 chased, a sample was exhibited, sayinK : 
 "When the sale note is silent as to the 
 sample, I cannot permit it to be incorpr)- 
 rated into the cimtract. This would 
 aujount to an admission of parol evidence 
 to contradict a written document," etc. 
 In Powell V. Eilmunds, 12 East, 10, the ac- 
 tion was on a sale note in these words: 
 "April, ]S(l(i. I a^ree to become the pur- 
 chaser of lot the first (timber trees) at 
 £700, and acree to fulfill the conditions of 
 Hale. [Signed] A. Edmunds." At the 
 trial an effort was made to show, b^- 
 parol testimony, a warrant as toijuantity 
 by the auctioneer, but the evidence was 
 rejected; the court snyinn: "There is no 
 doubt that the parol evidence was prop- 
 erly rejected. The purchaser ought to 
 have had it reduced into writing at the 
 time, if the representation then made as to 
 the quantity swayed him to bid for the 
 lot. If the parol testimfjny were admissi- 
 ble in tills case, I know of no instance 
 where a party may not, by parol testi- 
 mony, sujieradd any term to a written 
 agreement, which would be setting aside 
 all written contracts, and rendering them 
 of no effect," etc. In Smith v. Jeffries, l.i 
 Mees. & W. .OliO, the terms were: "I here- 
 by agree to sell Mr. Smith, of Tanner Hill, 
 Deptford, si.xty toii.s of Ware potatoes, at 
 £5 per ton, and for whicli lie has giveri me 
 a hill for £2."iO for three months, and is to 
 give £.'iO cash on Friilny next. [Signed] 
 Samuel Jeffries. " It appeared that in the 
 neighbcrliood tliree qualities of potatoes 
 were linown as "Wares," and the effort 
 was to show, by parol, that tlie contract 
 was for a particularkind of Wares. Held, 
 "that the evidenceought not to have been 
 received; it went to vary and limit the 
 contract between the parties." In Greases 
 V. Asiilln, :'. Camp. 42(1, the words were: 
 "Sold to John (ireases 50 quarters of oats, 
 at 458. fid. per quarter, out of 175 quarters. 
 [Signed] I. Stevenson, for I. Ashlin." The 
 flefendant attempted to prove that his 
 agent Stevenson had verbally made it a 
 condition of sale that the plaintiff should 
 take away the oats imme<liately, and had 
 abated Gd. per (luarter of the i)rice orig- 
 inally offered, in expectation of his agreeing 
 to do so. Tlie court held that "it was 
 not competent co the dcfemlant to give 
 such evidence, ns it materially varied the 
 contract, whidi had been reduced into 
 writing." In each of the two last cases 
 cited, tlie paper was signed only by one of 
 the contracting parties, and the action 
 was lirought by the partv who liad not 
 signed it. Sec, also, iMcClanagghnn v. 
 Hlnes, 2 Strob. 122,and Gibson v. Watts, 1 
 McCord, Eq. 490. 
 
 We think the paper proved in this case, 
 
 LAW SALES— 8 
 
 was a contract in writing of both parties, 
 witiiin the rule as to the exclusion of 
 parol evidence. 
 
 liut it is insisted that, while this may be 
 so as to what may be called the terms of 
 the paper,— the quality of the article, con- 
 sideration, time of payment, ete., — yet 
 |)arol testimony was aiimissihle tending 
 to sliow that the defendants Cramer & 
 Blohine, in selling the corn, committing 
 the agreement to writing, taking the note, 
 and realizing upon it in their own name, 
 were acting, not as the papers represent- 
 ed, but as agents of a house in Baltimore, 
 and that the plaintiffs contracted with 
 said house, through Cramer & Blohme aa 
 tlieir agents. Is not the signature to a 
 contract in writing, showing who made 
 it, and in what ciiaracter, a part, and a 
 very important part, of that contract? 
 We are unable to see any good reason 
 why this part should not be protected 
 from alteration or addition, as well as 
 an3- other part of the contract In writing. 
 It seems to us tliat, when the delendimts 
 signed the contract in their own names, 
 that became a part of it. and could not be 
 altered by parol, so as to add to tlie signa- 
 ture, "as agents of Koijert Turner & Son, 
 of Baltimore." "A person contracting as 
 agent will be personally liable, whether 
 he is known to be an agent or not, in all 
 cases where he makes the contract in his 
 own name. • * • If an agent selling 
 goods as bought of him, (tlie agent,) he 
 would be personally liable for a failure to 
 deliver the goods." Storv, Ag. 2G9. See, 
 also. Id. § 219; Benj. Sales, §219; Higginsv. 
 .Senior, S Mees. & W. 834; Nush v. Towne, 
 5 Wall. 703; and Jones v. Littleilaie, 6 
 Adol. & E. 48(j, in which last case cited 
 Lord Chief Justice Dennian said: "There 
 is no dr>ubt that evidence is admissible, 
 on behalf of oneof thecontrncting parties, 
 to show tliat the other was agent only, 
 tliough contracting in liis own name, and 
 so fix the real principal; but it is clear 
 that, if the agent contracts in such a form 
 as to make himself personally responsible, 
 he cannot afterwards, whether his prin- 
 cipal were or were not known at the time 
 of the contract, relieve himself from that 
 responsibility. In this case there is no 
 contract signed by the sellers, so as to 
 satisfy the statute of frauds, until the in- 
 voice, l)y which the defendants represent 
 themselves to be the sellers; and we think 
 they are conclusively bound t)y that rep- 
 resentation. Their oliject in so represent- 
 ing was, as appeared by the evidence of 
 custom, to secure the passing of the money 
 through tlieir hands, and to prevent its 
 being paid to their [irincipals; but in so 
 doing they have made themselves re- 
 sponsible," etc. 
 
 In the case from Wallace, Mr. Justice 
 Clifford said: "Parol evidence can never 
 be admitted for the purpose of exonerat- 
 ing an agent who has entered Into a writ- 
 ten contract in wliicli he appears as prin- 
 cipal, even though he shouhl propose to 
 sliow, if allowed, that he disclosed his 
 agency, and mentioned the name of his 
 principal, at the time tlie contract was ex- 
 ecuted. Where a simple contract otlier 
 than a bill or note is made by an agent.
 
 114 
 
 BULWINKLE v. CRAMER. 
 
 the principal whom he represents may in 
 general maintain an action upon it in his 
 own name, and parol evidence is admissi- 
 ble, although the contract is in writing, 
 to sliow tliat the pei'son named in tlie con- 
 tract was an agent, and that lie was act- 
 ing for Ills principal. 'Such evidence,' says 
 Baron Parke, 'does not deny that the 
 crintract binds those whom on its face it 
 purports to bind, but shows that it also 
 
 binds another;' and that principle has 
 been fully adopted by this court, "—citing 
 numerous authorities. 
 
 The judgment of this court is that the 
 judgment of the circuit court be reversed, 
 and the cause remanded to the circuit 
 court for a new trial. 
 
 SIMPSON, U. J., and McIVER. J., con- 
 cur.
 
 I
 
 BUNN V. MARKIIAM. 
 
 117 
 
 BUNN et al. y. MARKIIAM et al. 
 
 1 7 Taunt. 224.) 
 
 Court of Common Pleas, Michaelmas Term, 
 181G. 
 
 This was an action of trover, lirouulit 
 to recover from tlie (lefen<lantK. who were 
 the executorH of Sir Jervane Clifton, Hart. 
 UecenHed, certain Inrlia IjondH, hanl< nt)tps, 
 guineas, an iron chest, and the Ijoxbh and 
 envelopes in which tlicse securities and 
 money liad been contained. The canne 
 was tried at (Juildliallat the HittinKS after 
 Trinity term, ISKi, l)efore Gibhs C. .1. The 
 evidence was, that Sir Jervase Clifton, 
 beinK of an advanced age, and conlined to 
 his bed, and having l)y liis will, dated in 
 ]S14, beqneatlied all his cash, notes, and 
 India bonds to his e.\ecutors, to be sold 
 and invested in trust for his daughter, 
 the wife of the defendant Markbaiu, and 
 lier children, on iMth March, thinking; 
 himself near his end. sent for his solicitor, 
 the defendant Jamson, to make a codicil 
 to his will, whose partner Let-son attended 
 him, and prepared a codicil, by which the 
 testator gave the plaintiff, Mary Bnnn, 
 otherwise Clifton, (who had for more 
 than thirty years eohabite<l with him, 
 and was the mother of the other plain- 
 tiff,) ClMioo, and to his and her dauKhter, 
 the plaintiff Rebecca Clifton, the like sum 
 of £2000. While the solicitor was in the 
 house, the testator thking some keys from 
 a basket which he always kept by his bed- 
 side, delivered them to .lohn Runn Clifton, 
 (his son by the one, and the brotlierof the 
 other plaintiff,) Leesou, and a tenant 
 named Sandby, in whom he reposed jrreat 
 confidence, and directed them to ffo to an 
 iron chest in which he kept his valuables, 
 (ixed in the wall of another room in his 
 house, and to brin^ from it whatever 
 property they found there. They brou«lit 
 three parcels, and laid them on his bed, 
 one of which contained three India bonds, 
 value £1500, and bank notes tojiether of 
 the value of £2225, another contained 
 £1100 in bank notes, and the other con- 
 tained 47'.t (guineas, tlie value of the whole 
 being £;!S2!). The testator, on beinff in- 
 formed that the amount was about CITO 
 short of £4000, said it should be made up 
 to £fOOO even money, and directed for the 
 plaintiffs, £2000 for each ; but the comple- 
 ment was never in fact added. On the 
 box which contained the £2225 .Mr. Runn 
 Clifton had before, on the 7th of March, by 
 the testator'sdirection, written "For Mrs. 
 and Miss Clifton £.")04." The other two 
 parcels, Mr. Runn Clifton, by his father's 
 direction, on the present occasion sealed up 
 and wrote on them the words, " For .Mrs. 
 and Miss (;iifton. ' The testator charged 
 Mr. Clifton, that after his decease he 
 should deliver these to his mother and 
 sister, the plaintiffs. Mr. Clifton, by his 
 father's direction, replaced this property 
 in the iron chest, locked it, and brought 
 back the keys, which Leeson, by the tes- 
 tator's direction, sealed up in a paper 
 parcel, and wrote thereon, "To be deliv- 
 ered to Mr. Jamson after Sir Jervase 
 Clifton's decease." The keys were then 
 again put into the basket" by the testa- 
 
 tor's bed-si<le. The plaintiffs were not 
 then in the house, but upon .Mrs. Clifton's 
 arrival some days after, the testator in- 
 trusted to her the keys of the iron chest, 
 and told her that the contents were to be 
 her's and her daughter's, and charged her 
 to keep the keys; and many times after- 
 wards, particularly on 27th .\prll, on th«j 
 occasion of his making a further codicil, 
 he declared, that the money in the iron 
 chest was f<ir the plaintiffs. After this 
 time, the testator frequently e.xpressed 
 anxiety respecting the keys 'of the iron 
 chest, and required them to be shown him, 
 and on learning that they had been ob- 
 tained from .Mr.s. Clifton by his eldest son, 
 he expressed great displeasure, and 
 caused the keys to be replaced in the bas- 
 ket of keys which was always kept in his 
 bed-room. The parcels, and the i)roperty 
 therein, continued in the same state until 
 after the testator's decease, which hap- 
 pened a year afterwards. Gibl)s C. J. left 
 to the consideration of the jury the prob- 
 ability that the intended £4000 of which 
 the testator had spoken, was the same 
 sum designated by the codicil of 21tli 
 March; and also the question, whether the 
 testator meant to make this an absolute 
 gift to the i)laintiffs, or only provisional, 
 upon the probability that he might not 
 survive long enough to com|)lete the cod- 
 icil. The jury found that this was not the 
 £4000 designated by the codicil, and that 
 tlie testator intended it as an absolute 
 and not a provisional gift. His lordship 
 reserved tlie point, whether there had 
 been in this instance such a sudicient de- 
 livery of the property, as was necessary 
 to constitute a donatio mortis causa. 
 
 Best and Rlosset Herjts. showed cause. 
 Shefiherd, Solicitor-General, and Coi)ley 
 Serjt., who were to have sufjported the 
 rule, were relieved by the court. 
 
 GIBRS C. J The two grounds on which 
 the present application is made, have a 
 different object in view. Tlie one is, that 
 the jury did not draw a correct conclu- 
 sion from the facts submitted to them: 
 the other is. to enter a nonsuit, on the 
 ground that the facts, taking them to be 
 proved, do not make out the title of the 
 plaintiffs. The lirst question stands prin- 
 cipally on the evidence of Mr. Runn Clif- 
 ton. If his memory has not failed him. 
 the venlict is certainly right, and his 
 credit and character stand unimpeached. 
 1 say this, in justice to a young man 
 whose character is his best possession. 
 As to the other points, it is agreed on 
 all hands, that a <lonMtio mortis causa 
 cannot exist, without a delivery. The 
 facts of this case are. tliat the property 
 was taken out of a chest of the testator, 
 looked over liy him. and sealed up in three 
 different parcels: being so sealed, he de- 
 clares that it is Intended for the witness's 
 mother and sister, and directs that It 
 shall be given to them after his decease; 
 there is no other delivery but that: it is 
 replaced in the chest, and the keys are re- 
 delivered to the testator, or liy hira to 
 Iiersons whom he always nominates as his 
 servants for that effect, and he expresses
 
 118 
 
 BUKN B. MARKHAM. 
 
 a contiDual anxiety about the custody of 
 the keys. The question is, wliether tliis 
 be a sufiiciont delivery to make a dona- 
 tio mortis caunn ; and we are clear that 
 it is not. It is argued by the counsel for 
 the plaintiffs, that there needs not to l)e a 
 continuing possession in the donee: but 
 that the donor may resume the posses- 
 sion without determining the gift. There 
 is no case which decides that tlie donor 
 may resume the possession, and tlie dona- 
 tio continue. Smith v. Smitli, 2Str. 9.5:"), is 
 a very confused case. Where the master 
 died, it does not apjiear: inasmuch as it 
 is stated that the master delivered tlie 
 keys of his rooms to his servants when 
 he went out of town, probably he died in 
 the country, and tlien the delivery of the 
 keys last made to his servant, would lie 
 a continuing of possession up to liis de- 
 cease. But all the cases agree, that if the 
 donor resumes the possession, it ends the 
 sift. Lord Hardwicke expressly so holds 
 in Ward v. Turner, where it suited the 
 purpose of the counsel to argue, 2 Vez. Sr. 
 433, that if the donor, after making a com- 
 plete delivery, receives back the article, 
 the donation remains perfect. Lord 
 Hardwicke immediately denied that prop- 
 osition, and held, that if the possession 
 of the donee do not continue, the gift is at 
 an end. Seeing, therefore, that it is in 
 the power of the donor at any time to 
 revoke the donation before liis death, and 
 that there must be a continuing possession 
 of the donee after the deli very to tlie time of 
 the donor's death: seeing too, liere, that 
 there is neither a delivery, nor a continu- 
 ing possession, we are of opinion that no 
 interest in this property iiassed to Mrs. 
 and Miss Clifton under the supposed de- 
 livery to the son for the use of liis mother 
 and sister; and that therefore a nonsuit 
 must be entered. 
 
 DALLAS J. I am of the same opinion. 
 The facts of tlie case denote an intention 
 only: there is an indorsement of the 
 names of the mother and daughter on tlie 
 paper; but they denote the testator's in- 
 tention only. The property is disposed 
 in a chest belonging to the testator; he 
 retains tlie key ; lie docs not even deliver it 
 to the persons for whom tlie contents were 
 intended. If he had chosen to take out 
 the bank-notes tlie next day, and dispo.se 
 of them to another, it was competent for 
 him so to do. The donor, therefore, never 
 divested biniseli of the possession for a 
 moment, and therefore this is not a dona- 
 tio mortis causa. 
 
 PARK J. concurred. Both by the civil 
 and by the English law. In this kind of 
 donatio there must be an act of delivery. 
 Even in that strongest case of Smith v. 
 Smith, Lord Hardwicke C. .J. held that 
 there must be an act of delivery, to con- 
 stitute a gift: here is not only no evi- 
 dence of a delivery, but the evidence is 
 against a delivery; for the testator states 
 that it was to be delivered at a future 
 time; in addition to this, tlie donor gets 
 the keys, and is offended if any otlier gets 
 the keys: neither is there a continuing 
 possession, wliich is necessary. 
 
 BUnilDUGHJ. The son had no au- 
 thority whatever to deliver over these ar- 
 ticles into the hands of his mother, and if 
 he had no such authority, it was not a 
 donatio mortis causa. In Burn's Ecclesi- 
 astical Law, all the cases are collected: 
 they all indicate, that there must be a de- 
 livery either to the donee himself, or to 
 some one else for the donee's use: here is 
 no such delivery, and therefore a nonsuit 
 must be entered. 
 
 Rule absolute.
 
 BUTLER V. BUTLER. 
 
 121 
 
 BUTLER V. BUTLEU. 
 
 (77 N. Y. 472.) 
 
 Court of Appeals of New York. June 3, 1S79. 
 
 Appeal from a judgment, general tei-iii, 
 third department, allirmin); a judKiiient 
 in plaintiff's favor enterud upon tlie re- 
 port of a referee. 
 
 George W. Miller, for appellant. Samuel 
 Hand, for reKpondent. 
 
 DANFOKTH, J. The plaintiff submitted 
 a propohition in writing to the defendant, 
 and it was in like manner accepted. By 
 It (lie plaintiff said: "1 propose to fur- 
 nish yon, for your hotel in Luzerne, N. Y., 
 one of Butler's (ias Generators end Hold- 
 ers. • • • Tlie holder to beof suthcient 
 capacity to contain fifteen hundred cubic 
 feet of gas. To furnish all pijjcs to con- 
 nect the generator with the holder, and 
 the holder with the main |)ipe leading to 
 the hotel ; all weights and chains, sheaves 
 and pulleys to sujjport and balance the 
 holder. All labor for putting up and set- 
 ting the retorts, and banging the holder, 
 an<l connecting the pipes as before men- 
 tioned, and a sufficient air-mixing meter, 
 for the sum of $1,500. You (the defendant) 
 are to furnish the tank and bouse for 
 holder and generator, and gallows frame 
 for support of holder, to pay the freight 
 f»n the machine from New York, and 
 board one mechanic while putting up and 
 connecting as above, exclusive of the cost 
 of the machine, and furnish one man to 
 help rivet the gas-meter. I guarantee 
 • * • that the machine shall be put up 
 in the best and most workmanlike manner 
 and all ready to make gas by June 7, if 
 your part of the work does not delay us. 
 Payments to be $500 cash when the works 
 are on that ground, $.")00 in one bond, 
 due September 25, 1H72, and $5(10 in one 
 bond, due September 25, lS7i!, with Inter- 
 est. " 
 
 The plaintiff in his complaint alleges 
 that he "delivered the gas-works to the 
 defendant at Luzerne in accordance with 
 the contract ; " avers a constant readiness 
 on his part " to set the same up and make 
 the connectiona in accordance with the 
 agreement," but says, "the defendant has 
 never i)ermitted him to do so," and for 
 breach, that the defendant, "e.xcept to 
 pay freight charges on said gas-works, 
 has wholly failed to perform the agree- 
 ment on his part , and has not paid the 
 sum of fl,500, and for that sum, with in- 
 terest, he demands judgment." 
 
 Upon the trial the referee found la ac- 
 cordance with the complaint, and among 
 other tilings, "that the plaintiff delivered 
 the gas-works to the defendant at Lu- 
 zerne; that the extra e.sponse which the 
 plaintiff would have incurred to set the 
 same up and make the connections is 
 $100;" and deducting that from the eon- 
 tract-price finds that the plaintiff is enti- 
 tled to recover the balance, and directs 
 judgment therefor with interest from the 
 Ist of July, 1.S71. The defendant "Xcepted 
 to these tiiidings, and the exceptions. I 
 think, are well taken. Thecoii tract is sin- 
 gle and entire. If performed by the plain- 
 
 tiff he would be entitled to recover the full 
 sum of $1,.500, part in cash, part In bonds. 
 He was not to furnish niaterluls and per- 
 form labor upon them for the defendant, 
 but from his own materials and ljy his 
 own labor furnish to tlie defendant, prop- 
 erly aflixed to his premiHcs, a completed 
 machine of a particular kind, "all ready 
 to make gas." 
 
 It is not pretended that this hoR been 
 done; on the contrary, the defendant has 
 not permitted him to do it— and as the 
 coiilriict-price is not divisible, there Is no 
 ground on whicli a recovery can be had for 
 any part of it. Inchbald v. Westei-a, etc., 
 17 C. B. (S. S.) 7:i;i; Planche v. (.■olliurn. S 
 Bing. l-I. Nor is it in aiij- sense true that 
 the gas-works have been delivered to the 
 defendant. (,'ertain materials, among 
 others sheet and other kinds of iron, in 
 iiuiidles and rolls, castings, grates, rings, 
 retort covers, and "one machine bottom," 
 which, when properly arranged and joined 
 together, may compose a machine, were 
 delivered by the plaintiff to a common 
 carrier, who received them at ' owner's 
 risk." Tl'.ey were marked B. C. B., or B. 
 C. B. for B C. Butler, Luzerne, N. Y., and 
 the defendant paid the freight uiion them. 
 Even these things did not thereby become 
 his property; the freight was paid in ex- 
 ecution of the contract, but the goods re- 
 mained the goods of the jilaintiff. If lost 
 during trans|)ortatlon, or if destroyed 
 after reacliiug the place of destination, the 
 plaintiff would have to hear the loss. He 
 could change their destination, and ninke 
 such use of them as he saw tit. His cred- 
 itors could take them in execution (.At- 
 kinson V. Bell, S B. & C. 277), for the de- 
 fendant was to have, not these articles, as 
 separate parts or members from which 
 by the application of skill and labor a 
 machine couhl be constructed, but a com- 
 plete thing, placed u|)on his own prem- 
 ises, of the re(|Uired capacity and ready for 
 use; and until that was furnished the 
 property in the«e chattels did not pass 
 from the plaintiff, .\tkinson v. Hell. S H. 
 & C. 277; Johnson v. Hunt, 11 Wend. 1:!7; 
 Tripp V. Armitage. 4 M. & W. GltS; .An- 
 drew V. Dieterich, 14 Wend. ;15; Andrews 
 v. Durant, 11 N. Y. 35; 02 Am. Dec. ,55; 
 Ward V. Shaw, 7 Wend. 404; Decker v. 
 Furniss. 14 N. Y. fill; Clark v. Bulmer, 11 
 M. &W.243. Doubtless the plaintiff may 
 in tills, as in other cases where the per- 
 formanceof a contract has been prevented 
 by the act or omission of the other party, 
 recover what lie has lost thereby. If any 
 thing, or the damages sustuined. if any. 
 llosnier v. Wilson. 7 Mich. 2i)4; 74 Am. 
 Dec. 71(). Such a case however was not 
 presented to the referee, nor was it sug- 
 gested by the pleadings. The plalntlft 
 neither claimed nor proved damages aria- 
 iiig from the breach of the contract, nor 
 from being prevented from performing It. 
 On the contrary the cause of action was 
 treated by the plaintiff and referee and by 
 the court below as one where property 
 bargained for had been delivered and title 
 Vested in the purchaser, and for which 
 therefore the pluiutlff, within wcU-sel tle<l 
 rules of law. might maintain the action 
 and recover the purchase-price. .And such
 
 122 
 
 BUTLER V. BUTLER. 
 
 is the contention of the learned counsel 
 for the respondent upon this appeal. 
 There is however nothin/r in the evidence 
 to warrant that view of the case, or per- 
 mit the application of such rule of law. 
 
 The judgment should be reversed and a 
 new trial granted, with costs to abide the 
 event. 
 
 All concur. 
 
 .ludgraent reversed.
 
 BUTLI-:U V. THOMSON. 
 
 125 
 
 BUTUOK T. THOMSON et al. 
 
 (92 U. S. 412.) 
 
 Supreme Court of the United States. Oct. 
 Term, 1875. 
 
 Krror to the circuit court of the TTnltcd 
 States for tlic soutlu-rn district of New 
 Yorli. 
 
 Mr. William M. Evarts for the plaintiff 
 in error. Mr. E. U. Owen, contra. 
 
 Mr. Justice HUNT (ielivered the opinion 
 of the court. 
 
 The plaintiff alleged that on theolcvrnth 
 day of July, ISCT, he barnained and Hold 
 to the defendantH a quantity of iron 
 thereafter to arrive, at prices named, and 
 that the defendants agreed to accept the 
 same, and pay the purchase-money there- 
 for; that the iron arriveil in due time, and 
 was tendered to the defendants, who re- 
 fused to receive and pay for tlie same; 
 and that the pUintiff afterwards sold the 
 same at a loss of .f'j..")hil, which sum he re- 
 quires the defendants to make j;ood to 
 him. The defendants interposed a general 
 denial. 
 
 Upon the trial, the case came down to 
 this: The plaintiff emi)l<)yed certain 
 brokers of the city of New York to make 
 sale for him of the expected iron. The 
 brokers made sale of the same to the de- 
 fendants at 12% cents per pound in gold, 
 cash. 
 
 The following memorandum of sale was 
 made l)y the brokers; viz. : — 
 
 "New York. July 10, 1807. Sold for 
 Messrs. Butler & Co., Boston, to Messr.s. 
 A. A. Thomson & Co., New York, seven 
 hundred and five (7'J5) packs first-quality 
 Russia sheet-iron, to arrive at New York, 
 at twelve and three-quarters {\'2%) cents 
 per i)ound, gold, cash, actual tare. Iron 
 duo ai)ont Sept. 1, '67. White & Ilazzard, 
 Ilrokers." 
 
 The defendants contend, that, under the 
 statute of frauds of the state of New 
 York, this contract is not obligatory up- 
 on them. The judge before whom the 
 cause was tried at the circuit concurred in 
 this view, and ordered judgment for the 
 defendants. It is from this judgment that 
 the present review is taken. 
 
 The provision of the statute of New 
 York upon which the question arises (2 K. 
 S. p. 186, sect. :i) is in these words: — 
 
 "Every contract for the sale of any 
 goods, chattels, or things in action, for 
 the price of fifty dollars or more, shall be 
 void, unless (l)a note or meniorandum 
 of such contract be made in writing, and 
 lie sui)scrilied by the parties to be charged 
 thereby ; or (2) unless the buyer shall ac- 
 cept and receive part of such goods, or 
 the evidences, or some of them, of such 
 things in action; or (Ij) unless the bn.ver 
 sliall at the time pay some part of the 
 purchase-money." 
 
 The eighth section of the same title pro- 
 vides that "every instrument required 
 by any of the provisions of this title to 
 be subscribed l)y any party may be sub- 
 scribed bythelawful agent of such party." 
 
 There is no pretense that any of the 
 
 goods were accepted and received, or that 
 any part of the purchaHe-nioney was paid. 
 The (luestlon arises upon the first branch 
 of the statute, that a memorandum of the 
 contract shall be made In writing, and be 
 subscribed by the parties to be charged 
 thereby. 
 
 The defendants ilo not contend that 
 there Is not a sulllclent subscription to 
 tlie contract. White & Uazzard, who 
 signed the instrument, are proverl to have 
 been the authorized agents of the plain- 
 tiff to sell, and of the defendants to buy ; 
 and their signature. It Is conceded, is the 
 signature lioth of the defendants and of 
 the plaintiff. 
 
 The objection is to the sufficiency of the 
 contract itself. The written memoran- 
 dum recites that Butler & Co. had sold tlie 
 iron to the delendants at a prlro named; 
 but It Is said there Is no recital that the 
 defendants had bought the iron. There 
 is a contract of sale. It is argued, but not 
 a contract of (lurchase. 
 
 As we understand the argument, It is an 
 attack upon the contract, not only that 
 it is not in compliance with the statute of 
 frauds, but that it is void upon common- 
 law princli)lcs. The evidence required by 
 the statute to avoid frauds and perjuries 
 — to wit, a written agreement — is iiresent. 
 Such as it is, the contract is snillclently 
 established, and possesses the evidence of 
 Its e:(lbtence required Ity the statute of 
 frauds. 
 
 The contention would be the same if the 
 articles sold had not been of the price 
 named in the statute; to wit, the sum of 
 fifty dollars. 
 
 Let us examine the argiynent. Black- 
 stone's definition of a sale Is "a transmu- 
 tation of property from one man to another 
 in consideration of some price." 2 HI. 44C. 
 Kent's is, "a contract for the transfer of 
 property from one person to atiotlier." 
 2 Ivont, (!1.".. Bigelow, C. J., defines it in 
 these words: "Competent p.nrtics to en- 
 ter into a contract, an agreement to sell, 
 the mutual assent of the parties to the 
 subject-matter of the sale, and the price to 
 be paid therefor." Gardner v. Latie, 12 
 Allen, 3!), 4:). A learned author says, "If 
 any one of the Ingredients be wanting, 
 there Is no sale." .\tkiuson on Sales, 5. 
 Benjamin on Sales, p. 1, note, and p. 2, 
 says, "To constitute a valid sale, tliere 
 must be (1) parties competent to con- 
 tract; (2) mutual assent; (3) a thing, the 
 absolute or general proi)erty in which Is 
 transferred from the seller to the buyer; 
 (4) a price in money, paid or promised." 
 
 How. then, can there be a sale of seven 
 hundred and five packs of iron, uidess 
 there be a purchase of it? How can there 
 be a seller, unless there lie likewise a pur- 
 chaser. These authorities recpdre the ex- 
 istence of both. The essential Idea of a 
 sale is that of an agreement or meeting of 
 minds bv which a title passes from one, 
 and vests in another. \ man cannot sell 
 his chattel by a iierfccted sale, and still 
 remain its owner. There may be an offer 
 to sell, subject to acceptance, which would 
 bind the partv offering, ami not the other 
 partv until acceptance. The same may 
 be said of an optional purchase upim a 
 BUlliclcnt consideration. Tliere Is also a
 
 126 
 
 BUTLER V. THOMSON". 
 
 class of cases under tlio statute of frauds 
 where it is Iielfl that tlie party who has 
 Binned the contract may be held charge 
 aide upon it, and the other party, who 
 lias not furnished that evidence against 
 himself, will not be thus cliarKcable. Uni- 
 lateral contracts have been the subject of 
 much discussion, which we do not propose 
 here to repeat. In Thornton v. Kemp- 
 ster, 5 Taunt. 7S8, it is said, — 
 
 "("oiitraets may exist, which, by reason 
 of the statute of frauds, could be enforced 
 by one party, although they could not be 
 enforced by the other party. The statute 
 of frauds in that respect throws a diffi- 
 culty in the way of the evidence. Tlie ob- 
 jection does not interfere with the sub- 
 stance of the contract, and it is the negli- 
 gence of the other party that he did not 
 take care to obtain and preserve admissi- 
 ble evidence to enable himself also to en- 
 force it." 
 
 The statute of 29 Car. 11., c. 3, on which 
 this decision is based, that "no contract 
 for the sale of goods, wares, and mer- 
 chandise, for the price of £10 sterling or 
 upwards, shall be allowed to be good ex- 
 cept the buyer," &c., is in legal effect the 
 same as that of the statute of New York 
 already cited. See Justice v. Lang, 42 N. 
 v. 4y3,that such is the effect of the statute 
 of J^ew York. 
 
 The case before us does not fall witlin 
 this class. There the contract is signed by 
 one party only ; here both have signed the 
 paper; and, if a contract is created, it is a 
 mutual one. Both are liable, or neither. 
 
 Under these authorities, it seems clear 
 that there can be no sale unless there is a 
 purchase, as there can be no purchase un- 
 less there be a sale. When, therefore, the 
 parties mutually certify and declare in 
 writing that Butler & Co. have sold a cer- 
 tain amount of iron to Thomson & Co. at 
 a price named, there is included therein a 
 certificate and declaration that Thomson 
 & Oo. have bought the iron at that price. 
 
 In Newell v. Badford, L. R. 3 C. P. 52, 
 the memorandum was in these words: 
 " Mr. H., 32 sacks culasses at 3ys., 2S() lbs., 
 to wait orders;" signed," John Williams." 
 It was objected that it was impossible to 
 tell from this memorandum which party 
 was the buyer, and which was the seller. 
 Parol proof of the situation of the parties 
 was received, and that Williams was the 
 defendant's agent, and made the entry in 
 the plaintiff's books. In answer to the 
 objection the court say, "The plaintiff 
 was a baker, who would require the flour, 
 and the defendant a person who was in 
 the habit of selling it;" and the plaintiff 
 recovered. It may be noticed, also, that 
 the memorandum in tliat case was so 
 formal as to contain no words either of 
 purchaseor 8ale(" Mr. H.,32 sacks culasses 
 at 39s., 2SIJ lbs., to wait orders"); but it 
 
 was held to create a good contract upon 
 the parol evidence mentioned. 
 
 The subject of bought and sold notes was 
 elaborately discussed in the case of JSivew- 
 right V. Archibald, 6 Eng. L. & Eq. 286; 
 s. c. 17 Q. B. 103; Benj. on Sales, p. 224. 
 sect. 290. There was a discrepancy in that 
 case between the bought and sold notes. 
 The sold note was for a sale to the defend- 
 ant of ".500 tons Messrs. Uunlop, Wilson, 
 & Co. 's pig-iron." The bought note was 
 for "500 tons of Scotch pig-iron." The 
 diversity between the bought and sold 
 notes was held to avoid the contract. It 
 was held that the subject of the contract 
 was not agreed upon between the parties. 
 It appeared there, and the circumstance is 
 commented on by Mr. Justice Patteson, 
 that the practice is to deliver the bought 
 note to the buyer, and the sold note to 
 the seller. He says, " Each of them, in the 
 language used, purports to be a represen- 
 tation by the brokerto the person to whom 
 it is delivered, of what he, the broker, has 
 done as agent for that person. Surely 
 the bought note delivered to the buyer 
 cannot be said to be the memorandum of 
 the contract signed by the buyer's agent, 
 in order lliat he miiiht be bound thereby; 
 for then it would have been delivered to 
 the seller, not to the buyer, and vice versa 
 as to the sold note." 
 
 The argument on which the decision be- 
 low, of the case we are considering, was 
 based, is that the contract of sale is dis- 
 tinct from the contract of purchase; that, 
 to charge the purchaser, the suit should 
 be brought upon the bought note; and 
 that the purchaser c.nu only be held where 
 his agent has signed and delivered to the 
 other party a bought note,— that is, an 
 instrument expressing that he has bought 
 and will pay for the articles specified. 
 Mr. Justice Patteson answers this by the 
 statement that the bought note is always 
 delivered to the buyer, and the sold note 
 to the seller. The plaintiff here has the 
 signature of both parties, and the coun- 
 terpart delivered to him, and on which he 
 brings his suit, is, according to Mr. Jus- 
 tice Patteson, the proper one for that pur- 
 pose, — that is, the sold note. 
 
 We do not discover in Justice v. Lang, 
 reported in 42 N. Y. 493, and again in 52 N. 
 Y. 323, any thing that coiitlicts with tlie 
 views we have expressed, or that gives 
 material aid in deciding the points we 
 have discussed. 
 
 The memorandum in question, express- 
 ing that the iron had bef»n sold, imported 
 necessarily that it had been bought. The 
 contract was signed by the agent of both 
 parties, the buyer and the seller, and in 
 our opinion was a perfect contract, ob- 
 ligatory upon both tlie parties thereto. 
 
 Judgment reversed, and cause remand- 
 ed for a new trial.
 
 CAMPBELL PRINTING PUESS CO. o. THORP. 
 
 129 
 
 CAMPBELL PIUNTIXG-PRESS CO. v. 
 THORP et al. 
 
 (3G Fed. Rep. 414.) 
 
 Circuit Court, E. U. Michigan. Oct. IC, 18SS. 
 
 At Law. On exceptiona to referee's re- 
 port. 
 
 Tlie tacts fullv appear in the following 
 statement l)y BROWN, J.: 
 
 Plaintiff atrrced to sell to the defonrlDnts 
 certain [Jrinting-prensoH, rollers, ami other 
 property connected with a i)rinting estab- 
 lishnient. and (guarantied that the pre.nses 
 shonid lie "free from defective material or 
 workmanship, and should do their work 
 satisfactorily " The referee, to whom the 
 case was referred, found that neither of 
 the three presses was satisfactory to de- 
 fenilants; nor did they do their work rea- 
 8onat)ly well, yet he found as a conclu- 
 sion of law that the plaintiff was entitled 
 to recover the whole aj^reed price, less a 
 small sum, conceded as a set-off, upon the 
 theory that it was the duty of tjie defend- 
 ants to reject the presses if they were not 
 satisfied with thera.and that, ha vinj; kept 
 them, there was no method of estiniatinu 
 the loss they KufferiMJ by reason of their 
 dissatisfacliiin ; in other words, tliat the 
 value of a press that should work to their 
 satisfaction was not capable of pecuniary 
 estimation. 
 
 Charles A. Kent, for plaintiff. W. L. 
 Carpenter, for defendants. 
 
 Before .T.XCK.SON, Circuit Judge, and 
 BROWN, District Judge. 
 
 BROWN, J., (after stating the facts as 
 above.) The correctness of the referee's 
 ruling depends largely upon the proper 
 construction of the guai.-inly that the 
 l)rtss"s should he Iri'C from defects of 
 niateriiil or workmanshi|i, and should do 
 their work satisf.ictoiily. There is no 
 doubt of llie general proposition that 
 where one party agrees to do i'. piece of 
 work to the satisfaction of another, the 
 excellence of whiL-h work is wholly or in 
 part a nintler of taste, such, for instance, 
 as a portrait, a photograph or liust, a 
 suit of clot lies, a musical instrument, or a 
 piece of furniture, the buyer may reject it 
 without assigning .'iny reason for his dis- 
 satisfaclion. In such ease the law cannot 
 relieve against the folly of the vendor, by 
 incjuiring whether the dissatisfaction of 
 the vendee was based upon reasonable 
 grouiMis or not. It is even doul)tful 
 whetlier it can ini|uire into the good faith 
 of the vendee's deci^'ion. Brown v Fos- 
 ter. 11;! .Mass. Mti: McCarren v .McNnlty, 
 7 Cray, l:!!); Gibson v. Cranage,*) .\lii-h. 
 40; Hoffman v. Gallaher. (i Daly. 4l'; Za- 
 leski V. Clark, 4t Conn. 21s; McChire v. 
 Rriggs. .is Vt. Si>. 2 Atl. Rep. ."is:!. The true 
 doctrine is e.xpi'csscd in McCarren v. .Mc- 
 Nulty. 7 Cray. l:!'.). 14): "It may be that 
 the plaintiff was injudicious or indiscreet 
 in undertaking to labor and furnish niatp- 
 rials for a cotnp4-nsation, the layment of 
 which was made depc^ndent up<in a contin- 
 gency so hazardous or doubtful as the ap- 
 proval or satisfaction of a jiarly [larticu- 
 larly in intere-t. But of that he was the 
 sole judge. Against the consc<|uence8 re- 
 LAW SALKS — 9 
 
 iBiilting from his own bargain the law can 
 afford him no relief. Having voiuntarilv 
 assumed the obligations and risk of the 
 contract, his legal rights are to be aHcer- 
 tuiiied anil determined solely according to 
 its [irovisions. " other cases extend th» 
 same floctrine to contracts fur the per- 
 formance of labor, or tor the support of 
 another to his satisfaction. In such case 
 the employer may be wholly dlssatlBlied 
 with the character of the service rendered, 
 or the beneliciary made exceedingly un- 
 comfortable by his surroundings, without 
 in either case being able to assign what 
 the law would recognize as o sullicieut 
 reason for bis dissatisfaction. It inakeu 
 him, however, the sole judge ol the rea- 
 sonableness of his ijwn discontent. Tay- 
 lor v. Brewer. 1 .\Iaule & !S. -.".Itt; Rossitcr 
 V. Cooper. T.\ Vt. :>22; Tvler v. Ames, 6 
 Lnns. 2M); Hpring v. Clock Co.. 24 Hun. 
 17.'i; Hart v Hart. 22 liarb. COr,; Ellis v. 
 Mortimer, 1 Bos. & P N. It. 2.'i7 
 
 \\ hether these words shonhl receive the 
 same construction where the suitablenesH 
 of the article furnished invidves no ques- 
 tion of taste or personal feeling, but sim- 
 ply one of mechanical fitness tcj do a cer- 
 tain work, or accomplish a certain )iur- 
 pose, admits of some doubt. The author- 
 ities are not entirely httrniimious, but the 
 decided weight of authority is in favor of 
 the construction given to it by the ref- 
 eree. So far as this state is concerned, 
 two decisions seem to [lut the matter en- 
 tirely at rest. In Machine Co. v. .Smith. 
 ')() Mich. ."i(i5, 1.5 X. \V. Rep. '.mm;, it was held 
 that where the vendor of a harvesting- 
 machine gave a warranty that the con- 
 tract of purchase should l)eof no effect un- 
 less the machine worked to the buyer's 
 satisfaction, it was held the purchaser 
 had reserved the absolute right to reject 
 the machine, and that his reasons for dt)- 
 ing so could not he investigated. .\ still 
 stronger easels that of Manufacturing Co. 
 V. Ellis. (;s Mich. 101. :).-. N. W. Rep. h41. 
 The agreement was that a certain grain- 
 binder shoiil<l do good work and "give 
 satisfaction." It was held that, unless 
 the defendant was satislieil with the ma- 
 chine, although it did go id work, he was 
 not bound to purchase. See. also. Piatt 
 V. Rroderick, 70 .Mich. .".77. :Js N. \V. Refi. 
 .579. In the case of Machine Co. v. Ches- 
 rown. :y.^ .Minn. :!2, 21 N. W. Rep. sm\. plain- 
 tiff guarantied to furnish defendant n 
 cord-binder guarantied to work satisfac- 
 torily. It was held taat in c<ise, upon 
 reasonable trial, it did not work satisfac- 
 torily, it was unnecessary lor the defend- 
 ant "to return it to iilaintiff. but it was 
 sullicient for him. withiti a reasonable 
 time, to notify plaintiff, in substance, that 
 it did not work satisfactorily. and that he 
 declined to accept it. The same ruling 
 was made with regard ton steam-boat, in 
 Gray v. Itailroad Co., 11 Hun. 70; with re- 
 gard to a machine for generating gas. In 
 .Viken v. Hyile. !•'.• Mass. 1.^:1; with regard 
 to a fanning mill, in Goodrich v.VanNort- 
 wlck.4:t Ill.44.'i; and with regard to a pas- 
 senger elevator, ill SIngerly v. Thayer, los 
 Pa. St. 2'.tl. 2 .Ml. Rep. '-'in. In this latter 
 case a large number of aulhorilies Bre 
 cited liy counsel and court to the sniuo 
 effect. The New York cases at llrst lilusU
 
 i^n 
 
 CAMl'lJKLL I'lMXTING I'liESS (^O. v TIIOKP 
 
 would Kueiii to lay tiowii a tlifferent rule, 
 but wlicn enrefully i!xnniined the difforence 
 is more apparent than real. The earliest 
 case is that of Folliard v. Wallace, L' 
 Johns. 3!t.i, in vsiiieh one covenanted that 
 in case the title to a lot of land conveyed 
 to him should prove jjood and sufficient 
 in law, that lie woiilil pay to a third par- 
 ty, three months after he should be well 
 satisfied that the title was undisputed 
 and Kood against all other claims. It 
 was held that tlie award of certain com- 
 missioners on the title in favor of the cov- 
 •Miantor ou^'ht to satisfj' him, and that it 
 \VMS not euoush for the defendant to al- 
 lege that he was not satisfied with the ti- 
 tle without some good reason lieing as- 
 signed for his dissatisfaction, and that he 
 was not to judge for himself, but tliat 
 the law would determine when he ought 
 to be satisfied. Chancellor Kent, who de- 
 livered the opinion, observed that "if the 
 defendant were left at liberty to judge for 
 himself when he were satisfied, it would 
 totally destroy the obligation, and the 
 agreement would be absolutelj' void." 
 In City of Brooklyn v. Kailway Co., 47 N. 
 Y 475, an action was urought upon a cov- 
 enant in which the defendant agreed to 
 keep the pavement of certain streets in 
 thorough reiiair within the traclis, etc., un- 
 der the dirtction of such competent au- 
 thority as the common council might des- 
 ignate. The court held that, if the pave- 
 ment were kept in tliorough repair, it was 
 sutlicient though it was kept up without 
 dirfction from the competent authority 
 designated by the common council. 
 "That which the law shall sa.y a contract- 
 ing party ouj^ht in reason to be satis- 
 fied with, that the lau will say he is sat- 
 isfied with." A like ruling was made in 
 Miesell v. Insurance Co.. 70 N. Y. 11.5, with 
 reference to the certificate of a physician 
 in a life insurance case; and, finallv, in 
 Boiler Co. v. Garden, 101 N. Y. .'W, 4 N. E. 
 Rep. 740, the parties entered into a contract 
 by which plaintiff agreed to alter certain 
 boilers belonging to defendants, for which 
 the defendants agreed to pay the stipu- 
 lated price "as soon as they are satisfied 
 the l)oilers as changed are a success. " in 
 an action to rfcover the contract price, 
 the defendants claimed the nuestion as to 
 whether the work was a success was one 
 alone for them to determine. This was 
 held to be untenable, and that a simple 
 allegation of dissatisfaction without a 
 good reason therefor was no defense. 
 The prior cases were quoted as settling 
 the law in that state. None of these 
 cases, however, related to the sale of man- 
 ufactured articles. In none of them was 
 there an oijportunit.v for a rescission, and 
 re8ti>ring the parties to their statu quo. 
 The last caseparticularly is much like that 
 of Iron Co. v. Best, 14 Mo. .\pp. .")(«, 
 hereafter cited, and is subject to the 
 same criticism. 
 
 Notwithstanding the cases in New York, 
 and admitting all that is claimed for 
 them, the weiglit of aiitliority as well as 
 of reason iiiclines us to the opinion that 
 the parties must stand to their contract 
 as they have made it, and if the vendor 
 lias agreed to furnisli an article that shall 
 tie satisfactory to the vendee, he consti- 
 
 tutes the latter the sole arbiter of his own 
 satisfaction. It is entirely well settled 
 that if the acceptance of a machine is 
 made dependent u[)on the approval of an 
 engineer, or if a pavement is to be laid to 
 the satisfaction of a street commissioner, 
 or if lumber is to lie scaled by an inspect- 
 or, the decision of such agent, in the ab- 
 sence of fraud, bad faith, or clear error, is 
 conclusive. We know of no reason of pub- 
 lic polic.v which prevents parties from con- 
 tractine that the decision of one or the 
 other sliall be conclusive. In th? case of 
 chattel mortgages the rule is entirely well 
 settled that, if the mortgage provides 
 that mortgagee may take possession 
 whenever he deems his security unsafe, 
 the mortgagor thereby submits himself 
 to the judgment of the mortgagee on the 
 question of security, and the latter is not 
 bound to prove circumstances justifying 
 his action. Certain cases, however, estab- 
 lish a reasonalile modification of this 
 rule, to the effect that the dissatisfaction 
 must be real, and not feigned, and that 
 the vendee is not at liber'y to say he is 
 dissatisfied when in reality he is not ; in 
 other words, that his discontent must be 
 genuine. Manufacturing Co. v. Brush, 43 
 Vt. r>L'S; Daggett v. .lohnson, 49 Vt. 345; 
 iMcClure v. Briggs, .")S Vt. S2, L'Atl. Rep. 
 .5S3. The same cases, however, hold that, 
 while the vendee is bound to act honestly, 
 it is not enough to show that he ought 
 to have been satisfied, and that his dis- 
 cont'.'iit was without good reason. See, 
 also, Lynn v. Railroad Co., (iO Md. 404; 
 Railroad Co. v. Brvdon, 05 Md. 1!)S, (ill, 3 
 Atl. Rep. 30(i, and 'J Atl. Rep. U'G. In 
 Manufacturing Co. v. Cliico, 24 Fed. Rep. 
 S93, it was held that where, under a con- 
 tract, a fire-engine was to be made and 
 delivered which should be satisfactory to 
 the purchaser, it must in fact be satisfac- 
 tory to him, or he is not bound to take it ; 
 but that, where the purchaser was in fact 
 satisfied, but fraudulentl.v, and in bad 
 faith, declared that he was not satisfied, 
 the contract had been full.v performed by 
 the vendor, and the purchaser was bound 
 to accept the article. This I regaril as 
 an accurate summary of the whole law 
 upon the subject. 
 
 Somedoubt is thrown upon this case by 
 the stipulation that tlie presses shall 
 work satisfactorily, without stating the 
 person to whom they shall be satisfacto- 
 ry. We think, however, that there can be 
 but one interpretation fairly given to 
 these words. When, in common language, 
 we speak of making a thing satisfactory, 
 we mean it shall be satisfactory to the 
 person to whom we furnish it. It would 
 be nonsense to say that it should be sati.s- 
 factory to the vendor. It would be in- 
 definite to say that it should besatisfac- 
 tor.v toa third person, without designating 
 the i)ersou. it can only be inteiide<l that 
 it shall besatisfactory to the person whois 
 himself interested in itssatisfactory ojiera- 
 tion,and that is thevendee. This was the 
 view taken of similar words in Taylor v. 
 Brewer, 1 Maule & S. 290; Machine Co. v. 
 Chesrown, 33 Minn. 32, 21 N. W. Rep. S46; 
 and in Gingerly v. Thayer. 10»-Pa. .St. 291, 
 2 Atl. Rep. 230. The case of Iron Co. v. 
 Best, 14 Mo. App. 503, is clearly distin-
 
 CAMPBELL PRIXTIXG-PRESS CO.'c. THORP. 
 
 i:Jl 
 
 (iiiiHhnble from the ciiHes last cited. In 
 tliiH case (iefeiidfuit agreed to build an air- 
 furnace in plaintiff's wareliouse. acconl- 
 iuK to a plan to be furnished by himself. 
 The furnace thuH l)ecanie attached to the 
 freehold of the plaintiff, and was incapa- 
 ble of Be vera nee. It was a structure into 
 which the plaintiff had put all the mate- 
 rials and the (iefcndnnt had |)ut all the 
 lat)or. Defendant could not take away 
 the materials, because tliey were not only 
 attached to plaintiff's freehold, but actu- 
 ally beloDKed to him. His labor was 
 none, and couh] not be recalled. To per- 
 mit the plaintiff, under such circum- 
 stances, to refuse to pay, if in fact the fur- 
 nace worked reasonably well, and at the 
 Hanie time to retain the fruits of defend- 
 ant's labor, would have been an unwar- 
 rantal)le extension of the doctrine applied 
 to machines or articles of manufacture 
 which can be rejected. The court very 
 properly hehl that the covenant was sat- 
 isfied if the furnace worked reasonably 
 well. Conceding, then, that the i)1nintiff 
 was bound to furnish presses that should 
 Work satisfactorily to the defendants, it 
 is very evident that they were not satis- 
 fied with their operation, and that they 
 hud reasonable f^rounds for their dissatis- 
 faction, as the referee linds that the 
 presses neither worked to their Butisfac- 
 
 j tion, nor reas.mubly well. This undoubt- 
 
 ledlysave them the power to reject the 
 
 I machines. Instead, of dolni: this, how- 
 ever, they kejit them, and now seek to re- 
 coup their damnKes by reason of their fail- 
 ure to work as thev ought to. Had the 
 
 I covenant been that the presses should 
 work well, weshoiihl have no doubt that 
 
 ' the defendants niiirht have recoupeil such 
 damages, and that the referee would have 
 found them ca|)able of estimation. These 
 
 ; damages woulil linve been the illfference 
 in value between presses which would 
 work reasonably well and those wtilch 
 were actually furnished I!iit in attempt- 
 ing to apply the same rul<' in the prt-sent 
 case, we encounter a formidable dithculty 
 
 I from the impossibility of li.xing the value 
 of machines which shall work to the sat- 
 isfaction of the ilefendants. It will not do 
 to say that such value Is to be gauged by 
 that of a machine which shall work reu- 
 sonalily well, because such a press might 
 not have been satisfactory to the vendee, 
 or he might have been content with one 
 which would not have workeil to the sat- 
 isfaction of exjierts in the business. We 
 think that, having elected to retain the 
 presses, they are bound to pay the full 
 I)rice for them. The exceptions to the re- 
 feree's report will tliiTefore be overruled, 
 and judgment entered upon bi8 finding.
 
 u^
 
 CAKDIXF.LL o. BEWETT. 
 
 1:3:} 
 
 CARDIXBr.L T. BEXXKTT ct al. 
 
 (52 Cal. 47C.) 
 
 Sniircine Court of California. Oct. Terra, 187". 
 
 Action l).v John A. Cardinoll OKain.st 
 CharlpH A. lipnnctt and aiiotlipr, to recover 
 a horse or its value. From a jiiilj;ment 
 for plaintiff defendantK appeal. Keverwed. 
 
 One Carpenter, the owner of the horse, 
 flKreed with iilaintiff to Kive it to him on a 
 date named, in e.xehansu for a Ijuf^f^y and 
 $•.'.'>(), plaintiff payiuji one dollar at tlie 
 time the afiTeement was made. There- 
 after Carpenter Hold the horse to defend- 
 ant Bennett, and could not deliver it to 
 plaintiff wijen called on to do so. 
 
 Tilden & WilHon.fornppellant. ThomoH 
 V. O'Brien, tor respondent. 
 
 BY THK COUItT. Plaintiff had no 
 [>rop('rt.v, either Kffiieral or H|ierial, in the 
 lioTHe "Chief Crowley" at the time of the 
 alleged conversion, or when thin action 
 was commenced. The transaction did 
 not amount to a sale on credit from Car- 
 penter to Cardinell, hut a C(jntract wiiere- 
 hy it was agreed that the latter slionli] 
 acquire the property on the performance 
 of certain conditions promised liy liini to 
 be performed. 
 
 Judgment and order reversed and case 
 remanded.
 
 CAUI.KINS r. IIKIJ.MAX. 
 
 i:J5 
 
 CAULKI.VS V. IIKI.I.MAN 
 
 (47 N. Y. 440.) 
 
 Court of Appeals of New York. 1872. 
 
 Action to recover for winea and canks 
 sold. 
 
 Stephen K. Williams, for appellant. E. 
 G. Latham, for respondents. 
 
 RAPALU), J. The instruptions to the 
 jury as to tjie IcRol effect of the delivery 
 of the wine at IJIood'H Stution in conform- 
 ity with the terniH of tlie verbal contract 
 of sale were clearly erroneous. No act of 
 tlie vendor alone, in performance of a con- 
 tract of sale void liy the statute oi fruuds, 
 can Kive validit.v to such a contract. 
 
 Where a valid contract of sale is made 
 in writing a delivery i)ursuant to such 
 contract at the place agreed uiK)n for de- 
 livery, or a shipment (jf the Koods in con- 
 forn.ity with the terms of tiin contract, 
 will pasH the title to the vendee without 
 any receii)t or acceptance of the >?oods hy 
 him. Hut if the contract is oral, and no 
 part of the price i.s paid by the vendee, 
 there must be not onl.v a delivery of the 
 Roods by the vendor, but a receipt and nc- 
 ce[)tance of them by the vendee to pass 
 the title or make the vendee liable for the 
 price; and this accei)tance must be V(diin- 
 tary and unconditional. Kven the receipt 
 of the y;ou(ls, without an acceptance, is 
 nt)t KuHicient. Some act or conduct on 
 the |)art of the vendee, or his authorized 
 agent, manifestiufi an intention to accept 
 the goods as a performance of the con- 
 tract, and to appropriate them, is re- 
 quired to supply the place of a written 
 contract. This dJKtiiictioti seems to have 
 been overlooked in the charge. The 
 learned judge instructe<l the jury, as a 
 matter of law, that if the.v were satisfied 
 that the wine or any portion of it was 
 actually delivered in pursuance of the 
 verlial contract, that circumstance was 
 sufticient to take the contract out of the 
 statute of frauds, and the contract was a 
 valid one, and might be enforced notwith- 
 standing it was not in writing. The at- 
 tention of the jury was directed to the in- 
 quiry whether the plaintiffs had faithfully 
 performed their part of the contr.ict 
 rather than to theaction of thedefeinlnnt, 
 and the juilge proceeded to state that if 
 the wine was delivered to tliee.\press com- 
 pany at lUood's Station in good ord'M-, in 
 nierchau table condition, and corresponded 
 in quality and all substantial and mate- 
 rial respects with the saujples. then he in- 
 structed the jury as a matter of law. that 
 if they found the contract as dordon tes- 
 tilied with respect to the place of delivery, 
 that was a complete delivery under the 
 contract, and passed the title from the 
 plaintiffs to the defendant, and the plain- 
 tiffs were entitled to recover the contract 
 price of the wines. 
 
 The plaintiff's counsel suggests in the 
 statement of facts appended to his points, 
 that (Jordou was the agent of the defend- 
 ant, to accept the g'lods at l!lood"s .Sta- 
 tion, liut this statement is not borueiuit 
 hy the evidence: (>ordon was the agent of 
 the plaintiffs for the sale of the goods; it 
 
 was incumbent upon them to make the 
 shipment. All that (iordon testllies to is 
 that the delendant rciiuesteil him to make 
 the best bargain he could for the freight. 
 He does not claim that he had any au- 
 thority to accept tbegcMids for the defend- 
 ant. 
 
 According to the defendant's testimony 
 Gordon clearly had no such authority, 
 nor did the defendant designate any con- 
 veyance, and the judge submitted no ques- 
 tion to the jury as to the authority either 
 of (iordon or the express company to ac- 
 cept the goods. On the contrary, he re- 
 peated that if when the wine was deliv- 
 ered at lUood's Station it was in good 
 order and corresi)onded with the saajples. 
 the plaintiffs Would be entitled to a verdict 
 for the contract price. U(K)n the ground 
 that the parties by the ointract i assum- 
 ing it to be as claimed by the plaintiffs), 
 fixed upon that station as the jilace of de- 
 livery; "tliat it was true that the defend- 
 ant was not there to receive it. and had 
 no agent at Blood's Station to receive It, 
 and had no opportunity to inspect It 
 there; but that that was a contingency 
 he had not seen, and which lie might liave 
 guarded against in the contract. " 
 
 It is evident that the li'arncd judgt- ap- 
 I)lied to this rase the rule as to delivery , 
 which wotiiil t)e appliciilile to a valid, 
 written contract of sale, but which is In- 
 applicalile when the contract Is void by 
 the statute of frauds. 
 
 The effect of the delivery of goods at a 
 railway station, to lie forwarded to the 
 vendee iii pursuance of the terms of a 
 verlial ccmtract of sale, was ver.v full.v dis- 
 cussed in the case of Norman v riilllips, 
 14 .Mees. & Wels. 277, and a verdict for the 
 plaintiff foun<led upon such a ilelivery, 
 and upon the additional fact that the ven- 
 dor sent an invoice to the vendee, whicll 
 he retained for sevcial weeks, was set 
 aside. Tlie Knglish authorities on the 
 8ul)ject are revieweii in that case, and tlie 
 American anil Knglish authorities liearing 
 ujion the same question are also relerreil 
 to in tlie late cases of Kodgers v. I'hillips, 
 40 N. Y. .")19, and Cross v. O'Donnell. 44 id. 
 (Itil ; 4 .Vm. Uep. 7l'1. The latter case ia 
 cited liy the counsel for the plaintiffs as an 
 authority for the proposition tliat a de- 
 livery toa designated carrier is sullicienc 
 to take the case out of the statute; but it 
 does not so ilecide. It holds only that 
 the receipt anil acceptance need not be 
 simultaneous, but tliat they may takc^ 
 place at different times, and that after the 
 purchaser had himself inspected and ac- 
 cepted the goods, purchased the delivery 
 of tlicin by his direction to a designated 
 carrier was n good delivery, and tlie car- 
 rier was the agent of tlie purchaser to re- 
 crive them. No question however arlsett 
 in file present casi' as to a dell very to a 
 designated carrier, as tlie evidence in re- 
 spect totheagieed nioile of delivery is con- 
 flicting, and no (luesiion of acceptance by 
 the carrier as agent for the defendant was 
 submitted to the jury. 
 
 The jinlge submlttcfl to the jury two 
 (luestious, to which ho reciuired specitlc 
 answers. 
 
 Ist. Was the wine delivereil at the rail- 
 road station at the time agreed upon by
 
 13G 
 
 CAULKINS V. IIELLMAX. 
 
 the parties, and wns it tlicn in all rewpects 
 in S'xiil order, and like tlie samples exhih- 
 ited by tlie plaintiff to tliedeiundantV and, 
 
 2(1. Was the wine accepted by tlie de- 
 Jendant after it readied liis place of busi- 
 iioss in New York? 
 
 The jnry nnswered both of these ques- 
 tions "in tlie allirniative, and it is now 
 <:laiiiied that the answer to the second 
 question renders immaterial any error the 
 judse may have coniniitted in respect to 
 the effect of the delivfrv at the station. 
 
 it is (lifHcult to H/id any evidence justify- 
 ing lliesiiliniission to thejury of the second 
 <]iiestion; luit no excepticn was taken to 
 «uch submission. The motion foranonsuit 
 would have raised tiiat point, were it not 
 for the fact that there was evidence to go 
 to the jury on the claim of .ff)!' for barrels, 
 and tills precluded a nonsuit. We think 
 however that theerror in the cliarue may 
 have misled thejury in passing; upon thesec- 
 <)n<l question ; at allevents,it isnot impos- 
 sible that it should 'lavedone so. Having 
 lieeu instructed that upon the fact as they 
 found it in respect to the agreement for a 
 <lelivery at Blood's Station, the title to 
 the goods had passed to the defendant 
 liefore the receipt of theinat New York, and 
 that their verdict must lie for the iilain- 
 titfs. they may have examined thequestion 
 of his acceptance of them at New Y'ork 
 with less scrutiny than they would have 
 exercised had they been informed tliat the 
 result of the case depended upon their find- 
 ing on that question. And the construc- 
 tion of the defendant's acts and language 
 may, iu some degree, have been influenced 
 lij' theconsideration that when the winear- 
 rived in New York the title had, according 
 to the theory on which the case was sub- 
 mitted to them, passed to the defendant, 
 and lie had ncj right to reject the wines. 
 Furthermore, we think the judge erred in 
 excluding the evidence of the contents of 
 the telegram which thedefenrtant attempt- 
 ed to send to the pUiintiffs immediately 
 niion the receipt of the wine. If, as was 
 offeied to he shown, it stated that he de- 
 clined to accept the wine, it was material 
 as part of the res gestre. A bona fide 
 attempt, immediately on the receipt and 
 examination of the wine, to communicate 
 such a message, was an act on his part 
 explaining and qualifying his conduct in 
 receiving the wine into liis store ami al- 
 lowing it to remain there. And even 
 though the message never reached the 
 plaintiffs, it bore upon the question of ac- 
 ceptance by the defendant. The oltjec- 
 
 tion to the evidence of the contents of the 
 telegram was not placed <>■,] the ground 
 of omission to produce the original, and 
 the judge in his charge instructed the jury 
 that the attempt to .send this telegram 
 did not affect the plaintiffs' rights, tor the 
 reason that it was not shown to have 
 been received by them, and this was ex- 
 cepted to. In Norman v. Phillips, 14 .Mees. 
 & Wels. 277, the defendant was allowed 
 to prove that on being informed by the 
 railway clerk that the goods were lying 
 for him at the station, he said he would 
 not take tbem, and stress was laid upon 
 the fact. Yet this statement to the clerk 
 was not communicated to the plaintiff. 
 Evidence of an attempt to send a message 
 to them to the same effect, though un- 
 successful, would have lieeii no more ob- 
 iectioual)le than the declaration to the 
 clerk. The acts of the defendant at the 
 time of the receijit of tlie goods, and his 
 bona fide alteui])t to comnuinicate to the 
 . plaintiffs his rejection of tnem were I think 
 j material and competent to rebut any pre- 
 ; sumption of an acceptance arising from 
 I their retention by liim. 
 j The judge was requested to instruct the 
 i jury that the true meaning of the defend- 
 j ant's letter of March 31 was a refusal to 
 I accept the wine under tlie contract. A 
 j careful examination of that letter satis- 
 fies us that the defendant was entitled to 
 have the jui-y thus instructed. The letter 
 clearly shows that the defendant did not 
 accejit or appropriate the wines. After 
 cotnplaining in strong language of their 
 quality and condition, and of the time 
 and manner of their shipment, he says to 
 the iilaintiffs, "what can be done now 
 with the wine after it suffered so much, 
 and shows itself of such a poor qualit> '? 
 I don't know myself and am awaiting 
 your advice and opinion." He conclu<les 
 by expressing his regret that their first 
 direct transaction should have turned out 
 so unsatisfactory, and by stating that he 
 cannot be the sufferer by it, and he awaits 
 their <lisposition. 
 
 'J'liis language clearly indicates an in- 
 tention to throw upon the plaintiffs the 
 responsibility of directing what should be 
 done with the wine, and is inconsistent 
 witii any acceptance or appropriation 
 of it by the writer. 
 
 For these reasons the judgment should 
 be reversed, and a new trial granted, with 
 costs to abide the event. 
 All concur. 
 Judgment reversed.
 
 CHAN'DELOU v. LOPUS. 
 
 139 
 
 CriANDELOR v. LOPUS. 
 
 (2 Cro. Jac. 2.) 
 Exchoiiuor Chamber, Easter Term. 
 
 Action upon tlie coBe: Whereas the dc- 
 feixliint beirm a frf'ilHniith, and havinjr 
 skill in jewels and iirecioua stones, had 
 a stone, which he aftirnied to Lopus to he 
 a lipznr-stone, and sold it to him f'lr one 
 hunilred pounds; uhi revers. it was not a 
 bezar-Htone. The defenilant pU'ade<l not 
 guilt.v, and verdict was niven and judR- 
 raent entered for the plaintiff in the kinfi'K 
 bench. 
 
 But error was tliereof brought in theex- 
 chequer chamber; because tlie declaration 
 contains not matter sufficient to charKe 
 the defendant, viz. that he warranted it 
 to be n bezar-stone or tliat he knew that 
 it was not a bezar-stone; for it may lie 
 that he himself was ignorant whether it 
 
 were a bezar-stone or not. And all the 
 justices and barons le.xcept A.NDEHSON) 
 held, tliat for this cause it was error. For 
 the bare aliirmation that It was a bezar- 
 stone, without warrnntinu it to he ho, 
 is no cause of action. .\iid although he 
 knew it to be no bcznr-stoiic. it Is not ma- 
 terial. For everyone, in selling his wares, 
 will allirni that his wares are good, or the 
 horse which he sells is sound : yet if he 
 does not warrant them to be so," it Is no 
 cause of action. And the warrantyouglit 
 to be made at the same time as the sale. 
 Fitz. Nat. Brev, y4. c. & its, b; h lien. 7, 
 pi. 41; U Hen. ti, pi. ->:i; 12 Hen. 4, pi. 1; 
 42 Ass.S; 7 Hen. 4. pi. I."). Wherefore. foras- 
 much as no warranty is allegeil, they held 
 the declaration to belli. .V.NDEHSON to 
 the contrary ; for the deceit in selling It 
 as a bezar, whereas it was not so. Is cause 
 of action. Hut notwithstanding it was ad- 
 judged to be no cause, and the judgment 
 was 16 versed.
 
 Il
 
 CHAPMAN V. MUKcn. 
 
 141 
 
 CIIArMAN V. MLUCII. 
 
 (1!) Johns. 290.) 
 
 Supreme Cmirt of New York. Jan. Torm, 
 1S2-J. 
 
 In oiTor tdthe court or common plens of 
 Wnsliiiititdii county. Cliapnian L-rouKht 
 tin ii('ti<)ii of a.-<siinip8it auniiist Mnroli in 
 the coiiit Ik'Iow, The liecluration stated, 
 that the (It'iciidant, on the l.st of Dwem- 
 1(.M-, ISls. in ccjnKiileration that theiilain- 
 tiff would ilcliver to the dcicmlant, a cer- 
 tain horse of the plaintiff (jf j^reat value, 
 in exchange for a certain liorse of the dc- 
 fentlant. the defemlant undertook and 
 promised, that tlie liorse of the defendant 
 was then and there sound, &!•. ; lliat the 
 |)laintiff. confidinj;' in tlie said promise of 
 the defendant, delivered to jjim the said 
 horse of the plaintiff, in cxcliMUge for the 
 defendant's liorse, &c. Yet tlie defendant, 
 &c. fraudulently, &c. diti not perforin or 
 regard his said promise, &e., for tliat the 
 horse of the defendant was not sound, 
 liut, on the contrary, was unsound, and 
 had a certain disease, called the yellow 
 wafer, of which lie afterwards, to wit, on 
 the liil day of Deceinlier, Isls, died, wiiere- 
 liy, &v. The defendant pleaded the gen- 
 eral issue, and on the trial of the cause, 
 the pl;iintiff offered to prove, that the 
 parties exchanged horses; that the plain- 
 tiff let the defendant have a horse worth 
 1(10 dollai <, in consideration of which tlie 
 defendant let the plaintiff have another 
 horse, which the defendant, at the tiine, 
 representeil to be sound ; that the horse 
 of the ilefendant, so delivered to liim in 
 exchange, was not sound, hut that he had 
 the disease, called the yellow water,whicli 
 rendered him useless and of no value, and 
 that he died th(? next day. The evidence 
 So offered was utijected to by the defend- 
 ant's counsel, and rejected by the court, 
 on the ground, that this being an action 
 of assumpsit founded on a warranty of 
 the soundness of the horse, the plaintiff, 
 in order to entitle himself to n recovery, 
 was bound to prove an express warran- 
 ty, and that the testimony offered by the 
 plaintiff did not amount to such a war- 
 ranty. A hill of exce[)tions was taUen to 
 
 I the opinion of the riiirl, on which the 
 I writ of error was brought. The case waH 
 submitted to the court without argu- 
 ment, on a statement of the points and 
 authorities. 
 
 I 
 
 i SPENCER, C.J. , flelivTed the opinion 
 j of the court. In the various cases which 
 have been cited.it apiiears. atiiindaiitly, 
 ! that when the action is founded on a wa'r- 
 j ranty of the soundness of a chattel sold, 
 la warranty must be proved; but it no 
 I where appears, tiiat it is necessary that 
 the vender should use the express words, 
 that he warranted the soundness. If n 
 man should say, on the sale of a horse, " 1 
 pi-oaiise you the horse is souii<l,"it is 
 ilillicult to conceive, that this is not a 
 warranty, an<l an express one too. Peake 
 (on Evid. 'J2s) says, "in an aition on u 
 : wavranty, the plaintiff must prove the 
 sale and warranty." "In general, (he 
 says,) a!iy representation made by the 
 defendant of the stale of the thing sold, 
 at the time of the sale, will amount to a 
 ■ warranty." lie adils, "but where the de- 
 I fendant refers to any document, or to hlH 
 belief oiily, in such cases no action is main- 
 tainable, without proof, that he knew he 
 was ivpresenting a falsehood." In every 
 action on a warranty, it must be shown 
 that there was an express and direct 
 affirmation of the (piality and c<mditionof 
 the thing sold, as contradistinguished 
 from opinion, >.^c., and when that is made 
 out, it would be an anomaly to rcjiilre 
 that the word warrant should be used. 
 Any words of eijuivalent im|)ort, showing 
 the intention of the parties, that there 
 should be a warranty, will sullice. In 
 tlic present case, the plaintiff offered to 
 prove what, under the circumstances, 
 might be an express warranty; and that 
 was for the consideration of the jury, un- 
 der the advice of the court. Seixas v. 
 Woods, 2 Caines, iifi. Pasley v. Freeman. 
 3 Terisi Rep. 57. ("ramer v. C'-adshuw. lu 
 Johns. Rep. 4S4. 
 
 The judgment must be reversed, and a 
 venire de novo awarded to the court be- 
 low. 
 Judgment reversed.
 
 CLARK 0. DRAPER. 
 
 14;i 
 
 CLARK V. DRAPKK. 
 
 (19 N. H. 419.) 
 
 Superior Court of Judicature of New Hamp- 
 shire. Hillsiiorough. .Tuly Term, 1849. 
 
 Trover by one (.'lark iigaiiiHt Aarson 
 Draper for a pair of oxen. A verillct was 
 taken by oonHent for plaintiff, on which 
 juilRiiient was to be entered, or the ver- 
 dict was to be set aside and judjiinent en- 
 tered for defendant, as the opinion of the 
 court should be upon the whole case. 
 \'erdict set aside, and judgment for de- 
 fendant. 
 
 Plaintiff piirchaned the o.xen in suit of 
 defendant for .5(1(1. giving his note for that 
 amount, and defendant agreeiiiK to keep 
 the oxen for plaintiff until the following 
 Saturday. .\t the sanu! time deiendant 
 gave to plaintiff some l)rass knobs, which 
 he said the o.Nen wore on their horiis. 
 .Subse<iuently plaintiff sent for the oxen, 
 and defendant refused to give them up 
 without receiving the money for them, 
 whereupon this action was instituted. 
 
 Pierce, for plaintiff. Sawyer, for defend- 
 ant. 
 
 WOODS, .1. This is an action of trover, 
 and the i)laiiitiff, in order to maintain it, 
 raust hnveeither a B[)ecial or general prop- 
 erty in the thing demanded, together with 
 the right of immediate possession. The 
 jjroperty may be absolutely his, yet an- 
 other may liave had such a right to the 
 possession of it when the demand was 
 made and the action brought, tlijit the 
 plaintiff could not, against the will of such 
 person, lawfully have taken it into his 
 Dossession, and cannot, therefore, main- 
 tain the present action, founded, as it is, 
 upon the assuniiition that his right to 
 possess the chattels has been violated by 
 the defendant. 
 
 It appears that in the month of Septem- 
 ber, 1.S47, the |)laintiff bought the oxen of 
 the defendant for sixty dollars, who 
 agfeed to keep them till the following 
 .Saturday tor the plaintiff, at his re- 
 ♦luest. .No money or other thing was 
 paid for the oxen, and no credit was stip- 
 ulated for. Now that transaction consti- 
 tuteil a sale of the chattels from the de- 
 fendant to the plaintiff, who thereii()on 
 became the owner of them. .V loss or de- 
 struction of them, or any damage hap- 
 pening to them afterwards, would have 
 l)een the less or detriment of the pur- 
 chaser and not o( the seller, ami the claim 
 of the hitter for the price would have 
 been in no wise affected l>i' such an oc- 
 currence. 1 Inst. iM, -i. 
 
 I'.ut notwithstanding such change of 
 propei-ty or ownership, the vendor h;id 
 a right to retain the oxen till the price 
 was paid. This lien ol the vendor upon 
 the goods sold for the payment of the 
 purchase m(mey, has been universally 
 recognized at common law. and its prin- 
 ciples somewhat extensively di.icassed in 
 the cases. It will be sutiicient to cite one 
 or two of them. 
 
 .\ hop merchant sold to B. on diverse 
 davK in .\ugust. various parcels of hops. 
 Part of them were weighed and an ac- 
 
 count of the weights, together with sam- 
 ples, deliverer] to the purchaser. The 
 usual time of payment with the trarle was 
 the second Saturday subsequent to the 
 sale. B. did not pay for the hops at the 
 usual time, whereupon A. gave notice 
 that unless they were |)nid for bvaiertain 
 day they would be re-sohl. The hops 
 were not paid for, and A. re-sold a part, 
 with the consent of 15., who afterwards 
 became a bankrupt, and then A. Rold the 
 remainder of the hops without the i-onsent 
 of 1!. or his assicnees. .\ccount of the 
 hops so sold was delivered to B., in which 
 he was charged warehouse rent froni the 
 ;JUtli of .August. The assignees of B. de- 
 manded the hops of .\., anil tendered the 
 <diavges of warehouse rent, \-c., and on 
 the refusal of A. to deliver them, bri>iight 
 trover. Jt was holden that the assignecfl 
 could not maintain the action, because 
 the party must have for that imrpose. not 
 only a right of property but a right of 
 possession; and that although a ven<lee 
 of goods !u-i)uires a right of profierty by 
 the contract of sale, yet he does not ac- 
 (piire a right of i)o3scssion to the goods 
 until he ijavs or tenders the price. Blox- 
 am V. Sanders, 4 B. & C. 'J41, 10 Kng. C. 
 L. Rep. SGs. 
 
 Nor as between the original vendor and 
 vendee is the lien of the former <livested 
 by his giving to the vendee a delivery or- 
 der for the goods sold, but remaining in 
 the vendor's warehouse rent free, al- 
 though it appeared that by the usage of 
 trade in Liverpool, where the |i;irtles 
 dealt, goods sold while in warehouse are 
 delivered by the vendor's handing to the 
 vendef^ a delivery order, and that the 
 holder of such order may obtain credit 
 with a purchaser, as having possession of 
 the goods. Townlev v. Crump, 4 Ad. iVc 
 El. :,s. 
 
 To the same effect is the case of Tooke 
 V. Hollinsworth, 5 Term Rep. I'lo. 
 
 The doctrine is fully established in this 
 state bv the case of Williams v. Moore. ,"> 
 N. 11. Rep. 2:!.'i. 
 
 That there was no actual ilelivery In 
 this case, so as to destroy the lien of the 
 defendant for the price, is clear. Ami the 
 delivery of a part as and for the whole, or 
 a symbolical or constructive delivery, if 
 sutiicient for such an effect, is not made 
 out by the delivery of the brass knobs 
 that hail been worn upon the horns of 
 the oxen. They were not delivered with 
 the intention of thereby makini; a tradi- 
 tion of the oxen, which is the essence of 
 a symbolical delivery. Miit the casps 
 plainly show that the li^n is preserved 
 upon "all and every parcel of the goods 
 sold which actually remain in the hands 
 of the vendor. 
 
 .Nor can the giving of the note for the 
 price, payable on demand. In any view, 
 be conslilerfd as a payment of the price. 
 The doctrine on this head was fully con- 
 sidered and settled in .laffrey v. Cornish. 
 10 N. 11. Rep. ,">()■>, where it was held that 
 a promissory note given for the amount 
 of a partv's taxes, was not a paymeut ot 
 the taxes" for the purpose <if gaining a set- 
 tlement. The taking of a note Is in no 
 case the i)aynieiit .>f a debt, unless there 
 be a special agreement to that effect.
 
 CLAUK V. DRAPER. 
 
 The preficnt is a stI•<)ll^ and clear case for 
 the apiilication of that aoctrino; and dis- 
 tinct proof tha't the party talung the note 
 intended thereby to part with his lien 
 upon the property, wonid be reciuired. 
 
 Tlie conclusion, therefore, is, that tlie 
 present action cannot, upon tlie evidence 
 reported, he maintained; that the verdict 
 must be set aside, and there must be 
 
 Judgment for the defendant.
 
 CLARK 0. FEY. 
 
 14; 
 
 CLARK et al. t. FEY. 
 
 (24 N. E. Rep. 70.'?, 121 N. Y. 470.) 
 
 Court of Appeals of New York. June 3, 1800. 
 
 Appeal from supremecourt, general term, 
 first (U'partnicnt. 
 
 Action by Clarence II. Clark a^aiiiKt 
 John Fey for daniaKOH alleged to have 
 been caused by defendant's failure to ac- 
 cept goods (iron "T" rails) sold him by 
 plaintiff by a written contract of sale. A 
 judgment dismissing the complaint was 
 alfirmed b3' the general term, and plaintiff 
 appeals. 
 
 Troixiwcll Ch'velariil, for a[)pellants. 
 Jdliii JC. r.irsons and Albert G. McIlotmU], 
 for respondent. 
 
 FiNCU, J. It is not disputed that the 
 rails which were finally tendered to the 
 vendee, and then sold for his account and 
 risk, producing a dcticieucy below thecon- 
 tract price, which deficiency forms the 
 subject of the action, were not the rails 
 which the vendee bought and the vendor 
 sold. By the original written contract, 
 tliose rails were to be 500 tons, shippecl 
 "from the other side, January or Febru- 
 ary or March, seller's option." It is the 
 settled rule that, in a case like the present, 
 the date of the sliipment is a material ele- 
 ment in the identification of the i)roperf v. 
 Hill V. Blake, 97 N. Y. 216; Tol)ias v. J.iss- 
 berger, 10.") N. Y. 404, 12 N. E. Rep. 1.3. It 
 was not 500 tons of rails generally that 
 were the sul)iect of the contract, but a 
 specific quantity, 8hippe<l from the other 
 side during the three named months, and 
 unless such were tendered the contract 
 was not performed. The offer of other 
 rails would impose no obligation upon 
 the purchaser. It is clear, therefore, that 
 the tender finally made was not of the 
 property specified in the contract, and left 
 no liability upon the vendee resulting 
 from his refusal to accept, unless there is 
 BoMiething else about the case. 
 
 'I'here is something else about the case 
 upcm which 11 e vendors rel.v as eutitling 
 them to a recovery; and that is an al- 
 leged parol modification of the original 
 contract which made the final tender an<l 
 the sale founded upon it sufficient. A con- 
 versation relative to the existing agree- 
 ment took place between the vendee and 
 .Mr. Post, rei)resenting the vendors, on or 
 about the 20th day of .\pril. That was 
 within the permitted time of delivery. 
 The seller might have shipped during the 
 last days of March by sail instead of by 
 steam, and so had an average of from 35 
 to 45 days for the arrival. The conversa- 
 tion, us detailed by Mr. Post, was thus 
 stated : " Mr. Fey came in, and said that, 
 in eonse<iuence of the price of old rails fall- 
 ing from ;|f45 a ton to practically f 2:! a ton, 
 it was a very dilhcult thinii; for him to 
 take those rails; that he could not sell 
 them now to anybody, and wanted me to 
 be as easy with him as 1 could, and want- 
 ed me to carry the rails, and give him 
 eome rails latjr. I told him, on personal 
 considerations. — I had known him for a 
 long time,— that 1 would do everything I 
 could to accommodate hiui. 1 said I 
 
 would carry the rails for him, anrl nive 
 him some rails a little further on i[i plare 
 of them, and perhaps the [irice would Ki-t 
 better." It is evident that this convirHa- 
 tion on the part of .\fr. Fey was basnl up- 
 on the assumption that the contract rails 
 had arrived, and were ready tor delivery, 
 and had bi'en duly tendered. Indeed, Mr. 
 Postwas asked, "In that conversation, at 
 that time, did yoti say anything about 
 your rea<liness to deliver the iron that he 
 had bought of you'.'" and answered," Per- 
 haps I should ha ve said earlier that that 
 was the basis of having informed him we 
 were ready to do it, and wanting him to 
 pay for it was the reason he wanted us to 
 make it easy for him." Mr. Post was fur- 
 ther asked. "You did make such an offer 
 to him at that time'.'" and rejilied in the 
 affirmative. And thus the basis of this 
 hew negotiation was an nnderstaiiding 
 on both sides that the contract rails had 
 arrived, were ready for delivery, and that 
 payment was due. I5y tlie contract, the 
 purchase price was payable in part upon 
 delivery to the vendee of "order on ves- 
 sels, " and balance "on handing weigh- 
 master's return." No such order or return 
 was tendered in .\pril, and the facts leave 
 it doubtful whether thesellers in the month 
 of .\i)ril were in |)ossession of or could 
 have tendered either. I?tit assuming that 
 they coulil have made delivery in the mode 
 prescribed by the contract, and that they 
 were excused from the formal tender of 
 the papers by the act of Fey, it is yet ap- 
 parent that one of two things followed 
 dependent upon the construction of the 
 parol agreement. That is somewhat am- 
 biguous in its terms, but itcould have had 
 only one of two meanings. It must be 
 construed as an agreement, either tliat the 
 plaintiffs, having set aiiart and tendered 
 the contract rails which had arrived, and 
 payment f<jr which was due, would "car- 
 ry them "for the account, and at the risk 
 of Fey, for an indetinite l)Ut reasonable 
 perioii, or that the sale of the contract 
 rails shoulii be mutually abandoned, and 
 instead thereof the sellers should be per- 
 mitted to deliver, and the buyer would 
 ficcept. other and different rails from those 
 specified in the written contract. 1 do 
 not see how, upon either construction, the 
 plaintiffs could recover. 
 
 They did not "carry " the contract rails. 
 At the conversation in April, none had 
 been set apart and identified as the prop- 
 erty of Fey under the contract, even if we 
 concede tliat such separation and identifi- 
 cation was within tlie then power of the 
 sellers. They had not set apart rails for 
 Fey as his, and as being carried for hira. 
 It "was not until some time in June that 
 TM tons of rails were set apart as the 
 property of Fey. and that was done upon 
 the reiiiiirement of parties interested with 
 the vendors, who "insisted upon it that 
 Mr. Fey should take those rails so as to 
 make tiim pay the storage."- It is plain 
 that up to that tinu- no specific rails had 
 been set apart oridentitied as thecontract 
 lu-opertv of Fey upon which he was liable 
 for storage. But the sellers did not carry 
 
 ti,,. I rt mils. II lliey even in any 
 
 manner separated oridentitied them, they 
 sold them toother parlies; for Mr. Post
 
 148 
 
 CLARK V. FET. 
 
 says that lie told Fey in June. " Wc were 
 going to Hetnsiflf five hnndrcrt tonsof rails 
 for liini, and he «aid that was all rip;lit." 
 Tlie 500 tons thus set a])art in tlie month 
 of June, to be carried lor Fey, and npon 
 which, therefore, he was to pay titorage, 
 were rails not shipjied in the contract 
 months, or not shown to have been so 
 shipped. When ultimately sold, it ap- 
 pears from the bills of lading that some 
 were shipped on the Ivanhoe at Antwerp, 
 April 9, ISSO; some by the Apotheke Deis- 
 ingat Amsterdam, April 2S,1>5!S0; andsome 
 by the Sara Caiuo, whose date of sailing 
 from the other side is unproved. And it 
 was these rails which the vendee was 
 called upon to accept, and which were sold 
 for his account on his refusal. So that 
 the sellers did not carry for Fey the con- 
 tract rails, and tender them for final ac- 
 ceptance. 
 
 The other view of the April conversa- 
 tion dispenses with such tender of con- 
 tract rails, and permits the carrying and 
 offer of any old rails shipped trt)m the 
 other side, irrespective of the date of ship- 
 ment. But that is a new contract, and 
 not a modification of the old one. It 
 
 substitutes for the sale of the contract 
 iron a new sale of different iron, which 
 never before had been the subject of a con- 
 tract. It was not merely a change uf the 
 date of delivery and the time of payment, 
 but of the very subject-matter of the con- 
 tract,— of the thing sold on the one hand, 
 and ijurchased on the other. It touchecl 
 and altered the consideration and sub- 
 stance of the agreement, instead of merely 
 modifying the terms and manner of per- 
 formance. The old contract was not to 
 be performed at all. The isroperty which 
 it stipulated about was not to be sold by 
 one party or bought by the other, but in- 
 stead thereof, and in place of the iron to 
 which it related, a new contract for the 
 sale and purchase of different iron entire- 
 ly. That new contract was by parol, and 
 void under the statute of frauds; and so 
 neither view of the new agreement will 
 enable the plaintiffs to recover. The old 
 contract was rescinded; the new one re- 
 mained wholly executory on both sides. 
 We discover no ground upon which the 
 judgment can be deemed erroneous, and 
 it should be affirmed, with costs. All con- 
 cur. 
 
 \
 
 OLARKSOX V. STEVENS. 
 
 151 
 
 CLARK SON et al. v. STEVENS et al. 
 
 (1 Sup. Ct. Rep. 200, IOC U. S. 505.) 
 
 Supreme Court of the United States. Nov. 27, 
 1882. 
 
 In error to the court ot i-hancery of the 
 etate of New Jersey. 
 
 Wiilter L. Clarkfion and Frederick W. 
 Stevens, for plaintiffs in error. John P. 
 StoiUton, Atty. (ien., and Leon Abbett, 
 for (iefeiidaiits in err(jr. 
 
 MATTHR\V.S, .T. The controversy in 
 tlii.s case uriwee between the plaintiffs in 
 error, whoare, with others, heirs at law of 
 Robert L. Stevens, tleceased,and the state 
 of New Jersey, and involves the title to 
 an uncompleted ship-of-war known as the 
 Stevens battery. 
 
 The claim of the plaintiffs in error is 
 Jonnded on a resolution of congress ap- 
 proved July 17,1S(;2, (12 .St.OL'S,) asfollows: 
 "A resolution relensinf; to the heirs at law 
 of Hobert L. Stevens, deceased, all theriuht, 
 title, and interest of the I'nited States in 
 and to Stevens Imttery. Uesolved, by the 
 senate and house of representatives of the 
 United States of America, in congress as- 
 sembled, that all the right, title, and in- 
 terest of the United States in and to .Ste- 
 vens battery be, and the same hereby are, 
 released and conveyed to the heirs at law 
 of the said l{ol)ert L. Stevens, or their 
 legal representatives." 
 
 Itobert L. Stevens died in 1S.50, having 
 his domicile in New Jersey, and by his will 
 constituted his brother, E<) win .^.Stevens, 
 who was one of his heirs at law, and 
 whom he appointed one of his executors, 
 his sole residuary devisee and legatee. 
 
 Conceiving himself to be the owner of 
 the unfinished vessel, of which he had been 
 In possession since the death of his broth- 
 er, and claiming as his residuar.v legatee, 
 Kdwin A. Stevens, who died August 7, 
 IMls, directed, by his will, his executors to 
 complete it on his general plan, at a cost 
 not exceeding ?l,000,00u, and then to offer 
 it to the state of New Jer.sey as a present. 
 The executors, after having exiiended 
 t'.i]'.t.91.'..4!) upon the ves.sel, foiiml that 
 they could not linish it for the amount of 
 nioiie.v to wliicli they were limited, and 
 discontinuecl the work. In the mean time 
 the state of New Jersey had accepted the 
 be(iuest,and theconsent of congress there- 
 to was given in the following resolution, 
 niiproved .Inly 1, ISTO: "A resolution giv- 
 ing the consent of congress to the recep- 
 tion of a certain beciuest by the state of 
 New Jersey under the will of the late Ed- 
 win A. Stevens. Whereue, Edwin A. Ste- 
 vens, who was in his life-time the owner 
 of the ship known as the Stevens battery, 
 originally commenced under contract for 
 the United States government, and upon 
 the building of which large suras of money 
 were spent l)y his brother and himself, did, 
 by his last will and testament, (the United 
 States having ijreviously relinquished all 
 rlaims to saiil shij),) leave the same to be 
 finished by his executors, at an expense 
 not exceeding the sum of $1,000,000, aD<l 
 when finished to be offered to the state of 
 New .Jersey as a present, to be l)y her re- 
 ceived and diaposed of aa the said state 
 
 shall deem proper; and whereas, doubts 
 have been suggesterl as to the right <if the 
 said state to accept the said be(|ueMt with- 
 out the consent of congress, under the 
 prohibition of the tenth section ol the first 
 article of the constitution of the United 
 States; therefore, resolved, bv the senate 
 and house u{ representa lives of the I'nited 
 States of .\merica, in congress assemiiled, 
 that the consent of congress is hereby 
 given that the stateof .New Jersey shall re- 
 ceive and dispose of the said ship accord- 
 ing to the terms and conditions of said 
 beipiest. " 
 
 A bill in e<)uity was flied In the chancery 
 cr)urt of New Jersey by the executors of 
 Ed win A. Stevens, asking for a construc- 
 tion of the will in certain particulars, in- 
 cluding theijiiestions arising upon this be- 
 : quest to the state. The attorney general 
 appeared on behalf of the state, an<l filed 
 Ian information by way of cross-bill, to 
 i which the heirs at law of Uoliert L. .Ste- 
 vens Here ma<le parties, as claiming an 
 adverse title. A final deci-ce was made, 
 establishing the title of the state, which 
 was affirmed on appeal by the court of 
 : errors and ap[)eals. To reverse that de- 
 i cree the present writ of error was l)rought, 
 the question presented being one, whieh. 
 as it arises under a law of the United 
 States, and the decision thereon ol the 
 i state eourt being in lienial of the title 
 : claimed under the authority thereof, falls 
 j within the jurisdiction of this court. 
 I To determine the pro()er construction 
 and legal effect of the resolution of con- 
 gress ol July 17, Isfiy, it becomes necess.-iry 
 to trace from its origin the history of the 
 I .Stevens batter.v. 
 
 1 Hy the act of congress of April 14, 1S4:J, 
 "authorizing the constructiim of a war- 
 steamer for harbor defense, " it is enaeted 
 : " that the secretary of the navy t)e and he 
 is hereby authorized to enter into con- 
 j tract with Robert L. Stevens for the con- 
 struction of a war-steamer, sliot and shell 
 proof, to be built principally of iron, upon 
 I the plan of the said Stevens: provided 
 I the whole cost, including the hull, aruia- 
 Inient, engines, boiler, «nd equipment. In 
 all respects complete for service, shall not 
 exceed the average cost of tlie steamers 
 I Missouri an<l Mississippi;" and $L'.'>0,()00 
 ! was thereby ai)i)ropriated towards carry- 
 ing the lawinto effect. ."> St. at Large, 472. 
 I In pursuance of this law, the secretary 
 j of the navy entered Felirunry 10.1843, into 
 a contract with Hobert L. .Stevens for 
 the construction of a war-steamer for har- 
 bor defense, which recited Ids proposal, 
 describing the vessel, and containing cer- 
 tain specifications as to its construction, 
 with a covenant on his part that he would 
 faithfully build ami construrt the steamer 
 conformably to the plan submit tei!, and 
 complete tlie same within two years, pro- 
 vided congress shor.lil make the further 
 aiipriqiriations ne<-essary tor the purpose 
 within a reasonable period. 
 ! According to the plan proposed the war- 
 steamer was to lie shot and shell proof 
 against the artillery then in use on board 
 vessels-of-wnr, vie.. Ironi IS-pounders to 
 fi4poiinders: to h" propflled by sub- 
 meraed machinery, called Stevens' circular 
 shells; to have greater S|.eed than any o'
 
 152 
 
 CLARKSON V. STEVENS. 
 
 our steam vcsselsof- war thon l)uilt; the 
 whole engine to be out of the way of Hliot 
 trinii any ressel of an enemy; and with 
 otiier specUk'ations as to the character of 
 the material and the dimensionis and rela- 
 tions of the parts, whicli are important to 
 lie noticed only so far as to show tliat the 
 proposed vessel was to he constructed up- 
 on a plan original and novel, and with 
 the expectation Of results not previously 
 Qhtained in any naval construction. 
 
 The secretary of the navy and Stevens 
 entered, November 14, IS44, into an ex- 
 Ijlauatory contract, which recited that 
 the stipulations of the former had been 
 found to be too loose and indefinite as to 
 the details of its execution, and that the 
 parties considering tliemselves hound by 
 so much thereof as related to the dimen- 
 sions, power, ability to resist shot and 
 shell, and other qualities and arrange- 
 ments of tlie vessel, and the amount to lie 
 paid therefor, entered into further stipu- 
 lations modifying and explaining the 
 same. The time for tl)e completion and 
 delivery of tlie vessel was extended two 
 years from the date of the new contract. 
 Many additional specifications as to the 
 details of construction were inserted. It 
 was agreed that If the cost oi making any 
 models or jiatterus used in the construc- 
 tion sliould be included in bills paid by the 
 United States in the course of the work or 
 at its completion, they should become the 
 I)rnperty of the United States. 
 
 It was also agreed that the secretary 
 of the navy suould ai)poiut some person, 
 whom Stevens should admit within his 
 establishment for building said vessel, 
 whose duti' it should be to receive and re- 
 ceipt for, on account of the navy depart- 
 m;!nt, all materials delivered therein for 
 constructing said steamer; which mate- 
 rials, when so received and receipted for, 
 should be distinctly marked with the let- 
 ters U. S. and should become the property 
 of and belong to the Uniteil States ; and 
 it should be his further duty to certify all 
 accounts, presented and certified by Ste- 
 vens, for materials and labor, which 
 should form the evidence on which pay- 
 ment should be made; but the authority 
 of such inspecting officer, it was under- 
 stood, should not extend to a right to 
 judge of the quality or fitness of the ma- 
 terials or workmanship, l>ut merely as to 
 the cost thereof; "it being understood," 
 the contract proceeds, " that the quality 
 and fitness thereof, with otiier matters 
 concerning the performance of the con- 
 tract, are to be inspected and determined 
 in the manner hereinafter provided for." 
 
 It was tlierenpon further stipulated 
 that, liefore the final payment for tlie said 
 war-steair.er should be made, a certificate 
 should be rendered to the navy depart- 
 ment that in lier construction, armament, 
 and equipment, all the provisions of the 
 contract had been fully performed by Ste- 
 vens, which certificate should be given and 
 signed by persons appointed to examine 
 the vessel.— one by Stevens, one by the 
 secretary of the navy, and. in case of disa- 
 greement, a third by the other two,— the 
 decision of the majority to be conclusive. 
 It was also agreed that Stevens, in lieu of 
 other security for the faithful performance 
 
 of the contract on hia part, should make 
 to the United States a mortgage, which 
 should be a first lien on all the lan<l, docks, 
 wharves, slips, and all their appurtenances 
 belonging to and embraced within the es- 
 tablishment at Hoboken, New Jersey, at 
 which tlie war-steamer was to be con- 
 structed, with ample power to enter upon 
 and sell the same in case of failure on his 
 ](art to fulfill the contract, or so mucti 
 thereof as should be necessary to complete 
 any deficiencies on his part. 
 
 The secretary of the navy agreed to pay, 
 as the price of the said war-steamer when 
 fully completed and delivered at the navy- 
 yard at Brooklyn, in conformity with the 
 contract, the sura of $."JS().717.84, the sup- 
 posed mean cost of the steamers Missouri 
 and Mississippi, or any additional sum that 
 might afterv\ards be ascertained as prop- 
 erly included in that cost, to be indorsed 
 on the contract "as the price whicli is to 
 be paid for the said war-steamer when 
 fully completed, delivered, and accepted." 
 
 Payments were to be made, from time 
 to time, upon bills certified by Stevens 
 and the agent of the United States, for 
 not less than .f.T.OhO each, and approved 
 by the navy department, until the sum 
 of .f.iOO.OOO should have been paid: at 
 which time, it was stipulated, that an ex- 
 amination should be had of the war- 
 steamer, by persons to be appointed, as 
 before agreed, for final examination, and 
 if a majority of them should certify their 
 opinion that the vessel could be fully com- 
 pleted according to contract for the re- 
 maining balance which might tlien be 
 due, then payments of further bills in full 
 should continue, not exceeding the full 
 j amount of the whole agreed price; but 
 otiierwise the examiners were reipiired to 
 certify the amount which, in their opinion, 
 would lie required to comiilete the steam- 
 er, when the secretary of the navy was 
 authorized to withhold from future pay- 
 ments such deductions as might be neces- 
 sary to meet the probable excess of cost. 
 It was further provided that when Ste- 
 vens should have fully completed the said 
 war-steamer, and she should have been 
 duly delivered to and received by the agent 
 of the United States, according to the 
 terms of the contract, the full amount of 
 the price remaining unpaid and to become 
 due when she should be fully completed 
 and accepted, was required to lie paid and 
 the mortgage security canceled and re- 
 turned. 
 
 In pursuance of his contract to that 
 effect, Stevens executed and delivered a 
 mortgage on the premises therein de- 
 scribed, being the basin, dock, shops, etc., 
 wherein tlie war-steamer was to be con- 
 structed, conditioned to be void in case he 
 full.v performed his contract in relation 
 thereto, with a power of entry and sale, 
 on the part of the mortgagee, in case de- 
 fault should be made in the completion 
 and delivery of the said war-steamer at 
 the expiration of four years from that 
 date, according to theconditions and stii>- 
 ulations of the contract, and out of the 
 Iiroceeds of such sale to retain any dues 
 that might have accrued by reason of the 
 failure to [lerform tliecontract,or so much 
 thereof as should be necessary to complete
 
 CLARKSOX V. STEVEXS. 
 
 1- 
 
 any fU'iii'iciicics on the part of the eaid 
 Hteveiis. 
 
 The time for ihe perfoiiiiancfl of the con- 
 tract was hy a Htibseqiient aureeinent ex- 
 tt'iided for four vearn from September ij, 
 1S4S. 
 
 Finm .January 5, lS4r>, to December H, 
 1855. tliere was jiaid out hy the navy de- 
 partnient onarcount ol the vessel $.'.1)0, (100. 
 
 Koliert L. .Stevens had, in addition, e.\- 
 pemied in its construetioii, of l)is own 
 lueanH, ijli:!,.'.;'.). 
 
 The act of AuRnst 16, lS.")r,. (11 St. at 
 Larj^e, 4lS, ) contains an approiiriation "fur 
 Stevens war-steamer, $M).7]T.!<5, " l)einyr 
 the lemaindcr of the contract price, but 
 no [Kirtion ni this was ever paid. 
 
 Jn tl.'e mean time Edwin A. Stevens 
 tirolj possession of the work upon the 
 death of liis Urotlier, as executor and 
 residuary legatee, and expended tliei'eon, 
 prior to Septemlier 5, l-<.57, of his own 
 immey, the sum of $.S'.).lSr).a7. 
 
 Notliiufr furtlier hppears to have been 
 done until the passage of the act of April 
 17. lMi2. (V2 St. at Larse, 3S0,) makiuR- an 
 additional appropriation for the naval 
 service for the year cndiiis: .lOne MO, IMili. 
 Tl)e second section is as follows: "And be 
 itfni thercnacted, that the sum of §7s:(,L'!)-J. 
 beiiiK the amount necessary to Vie provid- 
 ed, as estiniated by a boai'd appninte I for 
 that purpose, to pay for and hnish the 
 Stevens battery, now partially construct- 
 ed at Hi>b(d\en, New Jersey, be and the 
 same is heivby appropriated out of any 
 money not otherwise appropriated for 
 the immediate construction of said bat- 
 tery: i)rovi(l('(l, that in the contract for 
 the completion of said vessel it shall be 
 stipulated I hut no part of the money 
 claimed by I^ilwin A.Stevens to have been 
 heietolore expended l)y him upon said ves- 
 sel sli.ill lie refunded until the amount of 
 said claim shall be established to thesatis- 
 faction of the secretary of the navy, ami 
 the |)ay ment of the said sum shall be con- 
 tingent upon the success of said ves.sel as 
 an iion-chid, seji-jjoinjr war-steamer, t<i 
 be determined by the president, and sncli 
 coiilr.'ict shall stijndato the lime within 
 which the vessel shall I.e completed: pro- 
 vided, nevertheless, that said money shall 
 not lie expended unle.-s the secretary of 
 the navy is <if opininn that the same will 
 secure to the public service an etticient 
 ste;im-!iattery." 
 
 The board, whose estimate is adopted 
 in this act, was one appointed by the sec- 
 retary of the navy, under the autliorit.v of 
 o joint resolnlion of couRiess, apiirovvd 
 July l'4, iMll, wliose re[)ort was curnmnni- 
 cated to the house of representatives in a 
 letter of the secretary of the navy to the 
 speaker, dated .Fanuary 2, iMil'. Ex. Hoc. 
 No. U:!, H. It. ;{7th Congress. 2d Sesp. I'p- 
 on the ipiestion of the ex|)edieney of coni- 
 pletinn tiie vessel, the board specif.v six 
 Jniportant particulars, as amon»; "the 
 man.v novel characteristics which she 
 would possess, "in which she differed from 
 ordinary war-vessels, and conclude hy 
 eayiui; : "We cannot recommend the ex- 
 lienditnre id in-portant sums of money up- 
 on projects of more than donbtful success 
 when |iut into practical execution; and 
 therefore we do not deem it expedient to 
 
 complete this vessel upon the plan pro- 
 posed." The report had previously stated 
 "that the orii;inal projectiir of t lie vessel 
 was the late Kiiheri 1^. Stevens. Ks<|., de- 
 ceased, and that his brother. Kdwin A. 
 Stevens, Es(|., « ho tniw proposes to com- 
 plete it, has materially chanKeil the plitus 
 from what appears to have been oriKlnal- 
 ly inteniled." 
 
 No part of the sum approftriated by the 
 act of .\pril 17, Iscj. was applied to the 
 purpose of completinj; the battery. The 
 secretary of tlie navy declined to do no, Ui 
 the exercise of the discretion contiileil to 
 him in the l.ist clause of the section, for 
 reasons set forth in his letter to the 
 speaker of the house o( representatives, 
 dated May L'7, 1N02, in which he stateH 
 that he had taken the opinion of a com- 
 mission of exjierts, who hail reported that 
 " the vessel, if completed on the plans of 
 Mr. Stevens, will not make an etllcicnt 
 steam-battery," and therefore that he did 
 not feel authorized to make the expend- 
 iture unless congress should so direct. 
 
 ("onKress thereupon passed the joint res- 
 olution, approved July 17. iM'i-'. on which 
 the fdaintiifs in error found their claim. 
 
 Nothing appears to have been done 
 towards res-iniin;: work on the vessel, 
 from the date of the last previous exiiend- 
 ilnre in ls.")7, until the death of Kilwln A. 
 Stevens, on -A uf^ust 7, iMiS, "lining which 
 time it remained in his possession, i.nd 
 control. His will contained the followiiiK 
 provision: "1 empower n!.v executors to 
 apply not exceedinsj the sum of .<1, 000, 000 
 to finish, on m.v Kcnerjil plans, as near as 
 may he, in the discretion of m.v said exec- 
 utors, the batter.v known as 'he Stevens 
 biitter.v. and for the accomplishment of 
 the said object I (rive to them the use of 
 the dock and yards and basin heretofore 
 api'ropri.'ited to the said battery, and all 
 the material provided for said battery. 
 When said battery shall be linished. 1 di- 
 rect m.v executors to offer the same to the 
 state of New Jersey as a jiresent, to be 
 disposed of as the said state shall deem 
 proper; and if not accpted l)y the said 
 stale, I direct my executors to sell the 
 same, and the proceeds thereof shall fall 
 into the residue of my estate." 
 
 In execution of this authority the esee- 
 ut<>rs. prior to February L'7. 1n7:I, exi)cnd- 
 ed ?'.)1'.I,'J1.'>.4".». of which $l'7.:!0<.l.7'.> was re- 
 ceived from the sale nf old material. 
 
 The legislature of New Jersey, on .Mandi 
 '21, 1S71, had authorized the ap|iointment 
 of commissioners w ith power to sell the 
 battery, and, in pursuance of that an- 
 thorltv. the vessel, r.evfr havinj; lieen Jin- 
 ished.was sold for the sum ol $7.'i.(MlO. 
 
 The contention of the idaintiffs In error 
 is that the title to the unhnlsheil vessel 
 passed, as the work proiiressed. to the 
 L'idted .States, anil became vested, fo- 
 jjether with the riuht to enforce the con- 
 tract for its conipleliin. and the swnrity 
 of the mortcaiie. as aj;ainst the estate of 
 Kobert I-. Stevens, in his heirs at law. by 
 force of the joint resolution of .Inly 17. iMJl'. 
 
 In supiiiirt of the proimsitlon that by 
 the biiildinii cimtract the title to the un- 
 htiislied ship vested, as the work prii- 
 ;rresse,l, in tlie rniled States, couiisi I relv 
 upon the rule of cimstnu-lion ai.nounced
 
 15i 
 
 CLARKSOTSr -v. STEVENS. 
 
 bv Lord Tenterden in Woods v. Russell, 
 .-) r.arii. & Aid. 042, and followed by the 
 Kiinlisli cases of ClarUe v. Spence, 4 Adol. 
 & K. 4-l.S; Carrnthers v. Paine, a King. 270; 
 Laidler v. JJnrlinson, 2 Mees. & W. (i02; 
 Wood V. Bell, .5 El. & Bl. 3.')."), aflirmed in 
 the cxcheqner ehauiber, G El. & Bl. 35.j; 
 McBairi v. Wallace, L. K. G App. Cas. oS9; 
 and the Amercan canes of Moody v. 
 Brown, 34 Me. 107; Butterworth v. Mc- 
 Kinley, n Humph. 20!); Sandford v. Wig- 
 gins Ferry Co.. 27 Ind. 522; Scudder v. 
 Calais Steamboat Co., 1 Cliff. 370. 
 
 This concluKion was assented to in the 
 present case by the chancellor, who pro- 
 ceeded to a final decree, however, against 
 the i)laintiff8 in error, on the ground that 
 the title of tlie United States passed by 
 the resolution of .July 17, 1SG2, not to the 
 heirs at law of Kobert L. Stevens for their 
 own benefit, but to or for the benefit of 
 Edwin A. Stevens, the residuary legatee. 
 The court of errors and apjieals while 
 atfirming his decree, took a different view, 
 and decided that the title of the ship never 
 vested in the United States as owner, fol- 
 lowing itsown previousdecision in Elliott 
 V. Edwards, 35 N. .1. Law, 2(i5; S. 0. 3G N. 
 J. Law, 449; the New Yorkcaseof Andrews 
 V. Durant, 11 N. Y. 35, and supported by 
 the decision in Williams v. Jackman, 10 
 Gray, 514, in which the rule is stated by 
 Bigelow, C. J., as follows: ''Under a con- 
 tract for supplying labor and materials 
 and making a chattel, no property passes 
 to the ven(lee till the chattel is completed 
 and delivered, or ready to be delivered. 
 This is a general rule of law. It must 
 prevail in all cases, unless a contrary in- 
 tent is expressed or clearly implied from 
 the terms iif the contract." 
 
 The rule first introduced in Woods v. 
 Russell, 5 Barn. & Aid. 942, as interpreted 
 by the English courts, according to Clark 
 V. Si)ence, 4 Adol. & E. 44S, is "founded on 
 the notion that provision for the pay- 
 ment, regulated by particular stages of 
 the work, is made in the contract with a 
 view to give the purchaser tlie security 
 of certain portions of the work for the 
 money he is to pay, and is equivalent to 
 an express provision that on pa^'ment of 
 the first installment tlie general property 
 in so much of the vessel as is then con- 
 structed shall vest in the purchaser." 
 This dictum from Woods v. Itussell, ac- 
 cording to Benj. Sales, 246, (2d Ed.,) was 
 deliberately adopted as a rule of construc- 
 tion by which, in similar shipbuilding con- 
 tracts, the parties are held to have, by 
 implication, evinced an intention that the 
 property shall pass, notwithstanding the 
 general rule to the contrary, and adds; 
 "The law thus established has remained 
 unshaken to the present time." 
 
 Neverthelp.ss, in Wood v. Bell, 5 El. & Bl. 
 791, Lord Campbell, C. J., said: " When a 
 man contracts with another to make any 
 article for him for a given price, the gen- 
 eral rule is, in the ab.>-ence of all circum- 
 stances from which a contrary conclusion 
 may be inferred, that no property passes 
 in the chattel until it be completed and 
 ready for delivery. On the ottier hand, 
 where a bargain ismadefor thepiirchaseof 
 an existing ascertained chattel, the gen- 
 eral rule, in the same absence of op[)osiiig 
 
 circumstances, is that the property passes 
 immediately to the vendee; that is, that 
 there is at once ^^ complete bargain and 
 sale. But these general rulesare both and 
 ec|iially founded on thepresumed intention 
 of the parties. If. in the lirst, there are 
 attendant circumstances from which the 
 intention may be inferred that the prop- 
 erty shall pass in the incomplete and 
 growing chattel as the manufacture of 
 it proceeds, or even in ascertained matt*, 
 rials from which it is to be carried to per- 
 fection, that intention will lie effectuated; 
 and, equally in the latter.if it appear that 
 theparties intended to posti)onethe trans- 
 fer of the proper!}' till the payment of the 
 price oi the performance of any other con- 
 Ulition, such intention will be upheld in 
 Ithecourts of law." "This principle," he 
 added, "we believe to l)e well settled;" 
 and referring to the eases of Woods v. 
 i Russell, Clark v. Spence, Laidler v. Bur- 
 llinson,and others cited in argument, he 
 I remarked that "previous decisions, there, 
 [fore, are mainly useful as serving to guide 
 ' our judgment in estimating the weight of 
 I circumstances as evidence of intention;" 
 and concluded by saying: "Still it must 
 I be remembered, after all, that what we 
 I have to determine is a question of fact, 
 ! namely, what, upon a careful considera- 
 I tion of all the circumstances, we believe 
 to have been the contract into which the 
 ' partie.s have entered." 
 
 It is, perhaps, worthy of remark that 
 this passage from the judgment of Lord 
 Campbell has by the editors of .\bb. Merch. 
 Shijis & Seamen, 4, been incorporated into 
 the text of that treatise. 
 
 The courts of this country have not 
 adopted any arbitrary rule of construc- 
 tion as controlling such agreements, but 
 consider the question of intent, open in 
 every case, to be determined upon the 
 terms of the contract, and the circum- 
 stances attending the transaction, (1 
 Pars. Shipp. & Adm. 03;) and such seems 
 to us to be the true principle. 
 
 Accordingly, we are of opinion that the 
 fact that advances were made out of the 
 purchase money, according to the con- 
 tract, for the cost of the work as it pro- 
 gressed, and that the government was 
 authorized to i-e(juire the presence of an 
 agent to join in certifying to theaecounts, 
 are not conclusive evidence of an intent 
 that the projierty in the ship should vest 
 in the United States prior to final delivery. 
 Indeed, in reference to the latter circum- 
 stance, it is noticeable, as indicating a con- 
 trary intentirin, that the authority of the 
 ins|)ecting officer was expressly limited, so 
 that it should not extend to a right to 
 judge of the quality and fitness of the ma- 
 terials or workmanship; sudi matters, 
 and all others concerning the performance 
 of the contract, being reserved for deter- 
 mination after the completion of the work, 
 as a condition of acceptance and final 
 payment. 
 
 .Much stress is laid, in argument, upon 
 that provision of the contract which re- 
 (|uired all iDaterials received at the yard 
 for use in constructing the steamer, to l)e 
 dintinctlv marked witli the letters U. S,, 
 and declare<l that they should become the 
 property of and belong to the United
 
 CLAEKSON V. STEVENS. 
 
 155 
 
 StatoH. But it does not follow, because 
 the inntorials provided for tliat use were 
 ilec'hired to be tlio proi)ertj' of tlie United 
 StiitcH, It was intciuied that they should 
 remain ko after becoming part of the 
 Htructuro. Such a precaution miKht well 
 liavL' been sujiKested, as a security againHt 
 a (livorHion o( the niaterialH to any unau- 
 lliorizcd iiKc, or to preserve them to the 
 United StaleH, in case, l)y reaHon of the 
 failure of the work or from any other 
 cauHe, they Hhould not be used in the 
 ve.ssel. Indeed, an is remarked by the 
 learned iiid^e who delivered the opinion 
 of tlie court of errors and appeals in 
 this case, the exiiress <ieclaration that 
 defined the property In the unused iiiate- 
 riala, seems to exclude the implication 
 sought to be raised as to the proi)erty in 
 the unfinished ship; for the inference is 
 obvious, from the |)articularity of such a 
 provision, that the larger interest would 
 n(jt lie left to more intendment. 
 
 There are two other provisions of the 
 contract, which seem to us conclusive of 
 the question, and, in a sense, adverse to 
 the construction of the plaintiffs in error. 
 
 The first of these is that wliich requires 
 Stevens, in lieu of other security, for his 
 faithful performance of the contract, lo ex- 
 ecute and deliver a niortgase on nil the 
 land, docks, wharves, slips, and all their 
 appurtenances belon^iUH; to and em- 
 braced within the estalilishment at IIo- 
 boken. New Jersey, at which the war- 
 steamer was to be constructed, with 
 power to the United States to enter upon 
 and sell the same In case of his failure to 
 fnllill his part of the contract, or so much 
 thereof as should be necessary to complete 
 any deficiencies on his part. 
 
 The taking of this security, as an in- 
 demnity to the United States, assumes the 
 anticipated ijossibillty thai the failure 
 misht be total, so that the vessel, when 
 offered for delivery, miffht be altoj^ether 
 rejected. And it does not detract from 
 the force of this conclusion, that the al- 
 ternative provides for completing de(icie;i- 
 cics, if they sliould prove to be remedia- 
 ble; for, in that case, the United Stales, 
 at its option, niijilit accept the vessel, 
 thus bocomins invested with the title, and 
 make (j;ood its deficiencies out of this se- 
 curity. 
 
 The other feature of the contract, which 
 corroborates this view, is that which 
 provides that final paymentfor thesteam- 
 er shall be made only upon the certificate 
 of examiners, to be appointed for that 
 purpose, that in her construction, arma- 
 ment and equipment, all the provisions of 
 the contract have l)een fully performed 
 and completed, which requires that the 
 steamer shall be fully completed and de- 
 livered at the nnvy-yar<l at Brooklyn, ami 
 fixes the gross amount which is to lie paid 
 for it when fully completed, delivered, and 
 aecepted. The fact that advances are to 
 be made in the mean time is expressly 
 slated to be in consideration of the se- 
 curity to be given by Stevens for the faith- 
 ful performance of his contract, and that 
 compensation for his time and services 
 must be wholly deferred until the final 
 completing and delivery of the vessel. 
 
 It is thus apparent, as we think, from 
 
 these stipulations, that the vessel was In 
 all respects to be at therisk of the builder, 
 until, upon its completion, the Unliel 
 States should accept it, upon iinal exam- 
 ination and cerliHcate. as conforming in 
 every particular with the requirements of 
 the contract, an<l answering the descrip- 
 tion and warranty of an eHiclent steam- 
 battery for harbor defense, shot and shell 
 proof. 
 
 And looking at the situation of the par- 
 tics and theobjects they must have had. In 
 view, all doubt is removed as to their in- 
 tention. Stevens was an ardent and san- 
 guine inventor, who hail convinced him- 
 self that his unique design of a naval 
 structure was practical)le and of great 
 value, and that, it adopted, it would prove 
 to be of immense pul)lic utility, lie sue- 
 eeeded also in persuading the government 
 to make the experiment and give him the 
 op[)ortunity of realizing his theories. But 
 it was understood to be merely an experi- 
 ment, and evidently, by the navy depart- 
 ment, naturally conservative ami inclined 
 to adhere with some tenacity to Its own 
 traditions, regarded, at best, as of very 
 doubtlul success. The steamer when built 
 was toconstitntea part of thenavaiestab- 
 I is h meat of the United States, fan It be sup- 
 posed that this was to take place except 
 upon condition that, after completion and 
 suflicient examination, it shotild be found 
 fit for the service? This Is the view, as it 
 seems to us, which congress by its legisla- 
 tion, and tlie navy department in all its 
 dealings with the subject, constantlj* en- 
 tertaiiieil and acted upon, and which both 
 Robert L. Stevens and his brother, Kclwin 
 .\. Stevens, did not hesitate to accept; the 
 latter not shrinking from n further invest- 
 ment of .$1,0(10, (lOD in an enterprise which 
 he still cherished wit.li conlideiice of ulti- 
 mate success, after it had become to al- 
 most every one else a demonstrated fail- 
 ure, and after the government, for whom 
 it waa originally intended, hod refused to 
 it all further subsidies. 
 
 We liiid, therefore, that on July 17. ISti:?, 
 the date of the joint resolution of con 
 gress, under which the plaintiffs in error 
 make tlieir claim, the l-nited States had 
 no title to the Stevens battery: but that 
 the property in it had continued in Rob- 
 ert L. .Stevens until his death, and passed 
 by Ills will to Edwin A. Stevens, as resid- 
 uary legatee. It follows that it (lid not 
 pass to the heirs at law of Robert L. Ste- 
 vens by virtue of the joint resolution. 
 
 It is urged, in argument, that, if the 
 right to the vessel Itself diii not pass, then 
 the joint resolution must be construeil as 
 a transfer to the heirs of Robert B. Ste- 
 vens of the right of action of the United 
 States to recover against his estate dam- 
 ages for his nonperformance of his con- 
 tract, together with the securities, by 
 wuvof mortgageand lien, it held asindem- 
 nity. We see no ground for a construc- 
 tion that leads to so remarkalile a result. 
 The plain meaning of the resolutitin is lim- 
 ited toa relinquishuient on the part of the 
 United States of any interest it might be 
 supposed to have in the vessel. In which 
 the heirs of Robert B. Stevens are men- 
 tioned, probably, because it was with him 
 that the builUiujj contract was made;
 
 156 
 
 CLARKSON V. STEVENS. 
 
 ami if it could operate at all as a release, 
 would be to them, for tlie benefit of those 
 who, by law, hail become his successors 
 in the title; and that release would neces- 
 sarily convey with it, as an Incidwnt, an 
 extin^rnlahnient of the obligation of the 
 contract for constructicjn, and all the se- 
 curities taken for its iierformanee. It 
 was, in effect, and was doubtlesM inteiuleil 
 as, a <)eclara tion on the part of the United 
 States, for the benefit of ivhom it mifiht 
 concern, of its entire abaniliininen t of all 
 further connection with the battery and 
 the contract for its construction. The 
 subsequent assent on the part of conjcress 
 
 to its acceptance by the state of New .Jer- 
 sey, as a bequest from Edwin A. Stevens, 
 while it conld not operate to affect any 
 rights vested in the interval, is, at least, a 
 legislative interpreta tio!) of its i)revious 
 release. This resolution ex[)ressly recites 
 that Edwin A. Stevens was the owner of 
 the battery in bis life-time, and is scarcely 
 more explicit in the recoKuition of his lilla 
 than was the conduct of all tlie parties, 
 including- the present i)laintiffs in error. 
 
 We are of opinion, for the reasons stat- 
 ed, that there is no error in the decree 
 coniplained of, and it is accordingly af- 
 firmed.
 
 CODDIXGTON v. GODDARD. 
 
 ir,9 
 
 C0DUI.\'(;T0N' ot n\. V. GODDAUD. 
 
 {IG Gray. 4:5G.) 
 
 Supreme Judicial Court of Massachusetta. 
 Nov., ISGO. 
 
 Action of contract to recover (InmnucM 
 f(jr n(jt ilclivcriiiR tno hiinclred tlioUHJind 
 poiinils of copper alleged to liave hccn 
 Kolil by tlie ileremlant to tlit- pliiinliff. 
 Trlnl and vcrdirt for tlic pi'.iintlff bifort 
 Alerrick, J., who rei)orted tlii' case to the 
 full court, in Hubstance aH folloWM: — 
 
 CharlcM (."antcrl)ur.v, called as a witness 
 fur the [ilaiMtiffs. te.-itilied that he was a 
 raerclumdise broker; that on the lit h of 
 Ucceiiiber, is.'iG, acting under iiistniitioiiK 
 contained in a telegraphic dcsiialc!) from 
 tlie iilaintiffs, raerchaiitH in New York, 
 which ne receivid between two and three 
 o'clock in the afternoon, he called at the 
 defendant's place of business in I'oston, 
 and iK.t findiii}; him there, followed hini 
 to his house, where he had an interview 
 with him, and staled lohnn the plaintiff's 
 offer to bay three hundred thousand 
 pounds of copiier, at twenty-four and a 
 quarter cents per pound, on a credit of 
 nine months, with satisfactory pajier, and 
 deliverable on board a vessel in Itoston 
 bound for New York, the seller to pay 
 trelKht to New Y'ork, and the buy?r to 
 pay the ir)siirance; that the defendant 
 asked if tlie steamer, which had that day 
 arrived in New Y'ork, brouKl't intelligence 
 of any advance in the |)rice of copper in 
 Europe; to which the broker replietl, 
 " None that I know of;" and the defend- 
 ant, after a moment's hesitation, said 
 that he would sell to the plaintiffs two 
 luindred thousand pounds of copper on 
 the terms proijosed. reserviny; the riy:lit 
 to aild one hundred thousand <;n the next 
 day if he should then elect to do so; that 
 the broker nr«ed him to sell the whole of 
 the three hundred thousand pounds then, 
 eayiufi that the purchase was made for 
 exportation, and would take that ((nan- 
 tity out of this market; but tliedefendant 
 8uid he would not do differently from 
 what he had proposed; and the broker 
 then said, " Well, if that is the ultimatum, 
 if is a sale, " and, returninj; to his oltice, 
 communicated to the plaintiffs by tele- 
 graph what he had done, informing them 
 that he should write the particulars by 
 the n^xt mail ; which he did ; and made a 
 memorandum in his books of the trans- 
 action, accordin.a; to his usual custom. 
 
 This memorandum was on a i)aKe of a 
 book headed, "Boston. December, IS.'ji;." 
 and was in the foUowinK terms:— 
 
 "9tli. W. \V. (Joddard to T. U. Coddinu- 
 ton & Co. 'JUO.IIOO pounils Chill pifj coi)per, 
 24)^ a i) mos. from delivei'y, f. o. I), iiacket 
 here for N. Y'., seller paying freight, and 
 buyer paying insurance to N. Y. To be 
 !•(> per cent pure copi)er, and paper satis- 
 factory to seller. " 
 
 The broker testified that in this inemo- 
 rnnduni the fijiures denoting the iiuantity 
 were written in peiicil. in order to facili- 
 tate alteration in case the defendant 
 Should, as he had a right to do, elect to 
 deliver a larger nuantity. No sale note 
 (M- letter relating to the sale or entry was 
 sent bv tlie broker to the ilefenilant. 
 
 The plaintiffs admitted that, before send- 
 ing their telegr,.phi<- despatth to the 
 broker on the '.»th of I>i'cemlier. tliey had 
 
 receive 1 intelligence by the stea r, which 
 
 arrived that morning in New York, of 
 an ailvanceof a penny a pound in the 
 price (if copper In i;urope; il.atthis intel- 
 ligence would have been of material im- 
 portance to the defendant i;i determining 
 whetlier to sell uiion the ti'rnis proposed: 
 and that if it had been known to him he 
 Would not have agreeil to sell his cojiper 
 upon those terms; an<l that they <lld nor 
 comiiuiiiirate it to tliedefendant or to the 
 bi-oler until after the completion of the 
 bargain. Tlie defendant conceded that 
 the brokei', at the time of his interview 
 with liiiii, was ignorant of the arrival in 
 New York of intelligence of tin advance in 
 the price of copper; and diil not contend 
 that the broker h;id any fraudulent de- 
 sign or pur|)(ise in making the entry in bin 
 books, or fraudulently oa.it teil in the en- 
 try any of the terms of the bargain agrec<l 
 upon. Itut th(> defe.'idant ilid contend 
 that by reason of the broker's answer 
 that no such irilelligence had arrived to 
 his knowledge, and of the omission of the 
 plaintiffs to communicate that intelligence 
 to the deffiidant, the bargain made by 
 him with the broker as the agent of the 
 tilaintiffs was not binding upon him. 
 .\nd thlH objection was reserved for the 
 determination of the full court, the par- 
 ties agreeing that if for this reason the ac- 
 tion could not be maintained, the veicliet 
 shoulil be set aside ;uiil a nonsuit entered. 
 
 The defendant, being called as a wit- 
 ness, tcstilled tha t in his interview with 
 the broker he said that he wiiuld sell to 
 the plaintiffs two hundred thonsanil 
 pounds of copiier in case no intelligence 
 had been received by the steamer of any 
 advance in the price of the article in Ku- 
 rope, reserving the right to add one hun- 
 dred thousand pounds thenextday on the 
 same terms at his option. And he con- 
 tended that, if there was any verlial con- 
 tract f'lr the sale of two hundre.l thou- 
 sand pounds ol copper, it was U|ion thiH 
 condition, and upon the further condition 
 that the copper, if s'>ld an<I delivered, 
 should be exported liy the plaintiffs, and 
 therefore the plaintiffs could not recover. 
 
 Tliedefendant also contended that the 
 entry in the broker's bonks was not a suf- 
 ficieut meniorandum in writing to take 
 the case out of the statute of frauds ; be- 
 cause no authority was shown in the 
 broker to sign the niemornnduni in bis 
 behalf or in behalf of the |ilaintlffs; be- 
 cau.se it was not intended liy the broker, 
 w hen he maile it, as a complete and llnal 
 statement of the bargain maile; because 
 it did not state all the material lernis of 
 the bargain; because it was not signed 
 as required by the statute; and because 
 the broker was not authorized by tliede- 
 fendant to tnake thebargain soentered by 
 liim. 
 
 Hut the judge ruled tha t if ' anterbury 
 was a inerchaiidise broker, and that was 
 liiiDWu to the parties, and tlicy were 
 dealing with him in tills trnnsacllon In 
 his caiiacitv of broker, and made a con- 
 tract through him lor the piirchnse nnd 
 sale of two liundrcd thousand pounds of
 
 160 
 
 CODDINGTON ». GODDARD. 
 
 copper, tliis gave liini authority to bind 
 tliein l)()tli by mnkiiij; a meniorandum of 
 the contrnct iti writing;, and siKiiinp; it in 
 their behalf respectively ; that the inenio- 
 raiicliini In his i)()ok was snfTicietit in form 
 Id l)iuil the parties, if he had authority to 
 make and sitrn it for tliem: that if lie 
 dill, in fact, make the entry in his book as 
 and for a complnte note or memorandum 
 of tlie contract of sale made by the par- 
 ties throMRh him, such memorandjm was 
 conclusive evidence of the terms of thecon- 
 tract, and was to be considered and treat- 
 ed in all respects as it it was a written 
 contract signed by the parties themselves; 
 that it was in its terms a |)erfectand com- 
 plete statement of a contract, and ca- 
 l)al)le of a clearand intelligible exposition, 
 and therefore parol evidence was inad- 
 missible to contradict or vary tl'.e terms 
 of it; and that even if the defendant did 
 in his verbal contrnct with (Janterbnry 
 make the sale upon siRdi conditions as he 
 cimtended, he could not avail himself of 
 either of those conditions, because they 
 were not contained or expressed in the 
 memorandum. To these rulings the de- 
 fendant alleged exceptions. 
 
 f. A. Welch and E. Bangs, for plaintiffs. 
 C. li. Goodrich and O. G. Peabody, for de- 
 fendant. 
 
 BIGELOW, C. J. Wecan see nothing in 
 the facts disclosed nt the trial, which 
 shows an.v misrepresentation or conceal- 
 ment in procuring the assent of the- de- 
 fendant to the contract of sale set out in 
 tlie declaration. Assuming the rule of law 
 to be, as stated by the counsel for the de- 
 fendant, that a contract, made by an 
 agent in liehalf of a vendee, his princii)al, 
 into which the vendor was induced to en- 
 ter liy a representation, which was false 
 within the knowledge of the [)rincipal. 
 but not so within that of the agent, would 
 be void on the ground of fraud, we do 
 not think the evidence brings the case at 
 bar within this principle. The broker did 
 not make any representation or state- 
 ment in behalf of the plaintiffs or as their 
 agetit. He was not asked concerning 
 their knowledge of any fact or circum- 
 stance bearing on the contract which he 
 was endeavoring to negotiate with the 
 defendant, it is true that he was inter- 
 rogated concerning a material fact, but 
 the question was addressed to him indi- 
 vidually and sought to draw out onl,v his 
 own personal knowledge, and not that of 
 his [irincipals upon the subject to which it 
 related. Clearly it was so understood Ije- 
 tween the parties. The answer given to 
 it, which the defendant received at the 
 time as satisfaetory, was expressly con- 
 fined to the broker's own individual in- 
 f(}rniation, and did not either afhrm or 
 ('[i^uy anyfact a1)solutely,or import, either 
 directly or by imi)lication, any knowledge 
 of it on the part of the plaintiffs. This 
 answer was strictly true, and did not tend 
 in any degree to deceive or mislead the 
 defendant. It is not a case, therefore, 
 where an agetit made any absolute repre- 
 sentation of a material fact which he he- 
 lieved to be true, though it was in fact 
 falseand known to be so liy his [irincipals. 
 8uch would have been the aspect of the 
 
 case, if he had stated to tlie defendant, In 
 answer to his inquiry, that the steamer 
 which had that day arrived in New York 
 had brought no intelligence of any ad- 
 vance in copner. Then the cases in which 
 the authority of Cornfoot v. Fowke, 6 .M. 
 & \V. 358, has been questioned and denied, 
 would have been applicable. Fuller v. 
 Wilson, 2 (jale & Da v. 4U0, 3 <Jale & Da v. 
 r)7(), 3 Ad. & El N. S. 5S, 68, lOOi); Fitzsim- 
 mons V. .Toslin, 21 Verm. 129. But. as the 
 case stands, upon the proof there was no 
 affirmation or denial by the agent of the 
 existence of this fact or even of the know I- 
 edgeof bis principals concerning it. There 
 w-as nothing more than a statement that 
 no such fact was known to him. This is 
 admitted to have ijeen true; clearly then 
 there was no misrepresentation or con- 
 cealment by which the contract can be 
 avoided. There can be no doubt that the 
 broker, if he acted as the agent of both 
 [larties in completing the contract of sale, 
 was empowered to do all that was neces- 
 sary to make the bargain valid and bind- 
 ing in law. For this purpose he had au- 
 thority to make the requisite memoran- 
 dum to satisfy the statute of frauds. IJev. 
 Hts. c. 74. § 4. It is not denied that this 
 memorandum may well be made in the 
 liook of a broker. Indeed, such entry may 
 be resorted to as the original evidence of 
 the contract, even when btiught and sold 
 notes of the bargain, differing from each 
 other, have been delivered to the parties. 
 Sievewright v. Archibald, 17 Ad. & EI. N. 
 S. 102, 10!». 
 
 But it is objected that themtmorandura 
 made by the broker in the present case 
 was insufficient to take thecase out of the 
 operation of the statute, because it does 
 not show who were the vendor and ven- 
 dee of the merchandise. This would be a 
 fatal objection if it was well founded; for 
 although a memorandum of this nature 
 may lie very brief, it must nevertheless 
 show with reasonable certaint.v who were 
 the parties to the contract, and the terms 
 of the sale, so that they may appear from 
 the writing itself. But in the present case 
 the entry Is perfectly intelligible and free 
 from doubt. If it is read with reference to 
 the book in which it is made, as an entry 
 by a broker in the regular course of his 
 business as an agent of third parties for 
 the purchase and sale of goods, it clearly 
 indicates a sale from defendant to the 
 plaintiffs. It is susceptible of no other in- 
 terpretation. 
 
 It is alsoobjected thatthemeniorandum 
 is deficient, because it does not state the 
 amount tor which insurance was to be pro- 
 cured, nor for whose benefit, and because 
 it contains no stipulation concerning the 
 modeor place in which the assaying of the 
 copper was to be had, in order to ascertain 
 its purity. The answer to these otijec- 
 tions is that the meniorandum states with 
 accuracy the terms of the contraet as tes- 
 tified to by the broker, and that there was 
 no proof at the trial that there was any 
 agreement made concerning the ])articc- 
 lars of the bargain which are now alleged 
 to be omitted. 
 
 Nor does it affect the validity of the mem- 
 orandum, that the broker did not incluile 
 in it the stipulation made by the defend-
 
 CODDINGTOX v. GODDARD. 
 
 161 
 
 ant, that lie should have the right to adil 
 to the Hale one hundred thousand pounds 
 of copper the next day. This was a wholly 
 sc|)arate and independent agreement, 
 which in no way affecteil tho sale actually 
 made, and which could not be properly en- 
 tered in the book of the broker, uiilesH it 
 had ripened into a hale by the election of 
 the defendant on the next day to sell tlic 
 additional quantity to the plaintiffs. lint 
 he made no such election, anil there was 
 therefoi-e no contract as to that porticju 
 of the copper of which the broker was em- 
 powered to make a memoranilum. 
 
 The remaining: objection to the suffi- 
 ciency of the entry in the book as a mem- 
 orandum within the statute is that it was 
 not duly sisned by the broker or the par- 
 ties. We know of no case in w!;ich it has 
 been held that the signature of the name 
 of the ajient throUKh whom the contract 
 is netiotiated should appearin the writing- 
 It is sufficient if the names of the parties 
 to be charjieil are properly inserted, either 
 by themselves or by some persons duly 
 authorized to authenticate the document. 
 Brokers and auctioneers are deemed to be 
 the afteuts of both parties, and by virtue 
 of their employment stand insuch relati(ji) 
 to their principals that they can sign the 
 names of the partie.« to a contract of sale 
 effected through their agency. .Such au- 
 thority is implied from the necessity of the 
 case; because without it they could not 
 complete a contract of sale so as to make 
 it legally binding on the parties. Nor is 
 it at all material that the names should 
 be written at the bottom of the memoran- 
 dum. It is sudicient if the names of the 
 principals are inserted in such form and 
 nianner as to indicate that it is theii' con- 
 tract, by which one agrees to sell and the 
 other to buy the goods or merchandise 
 s|)pci(ied, upon the terms therein e.\- 
 jiresscd. It is the substance, and not the 
 form, of the memorandum, which the law 
 regards. Thegreat imrposeof the statute 
 is answered, if the names of the parties 
 and the terms of the contract of sale are 
 authenticated by written evidence, and do 
 not rest in parol jiroof. Penniman v. 
 Hartshorn, l.*? Mass.iST, Hawkins v. t'hace, 
 11) Pick. ,")()2. .^0.) ; Fessenden v. Mussey, 11 
 ("ush. 127; Morton v. Dean. 13 Met.;!S.".; 
 Salmon Falls Manuf. t'o. v. GoddarJ, 1-J 
 How. UC. 
 
 The only other exception taken to the 
 ruling of the court i)resents a question of 
 some dilticulty. To understand it, it is 
 necessary to recur to the positions as- 
 sumed by the respective parties at the 
 trial. Theplaintiffs contended and offered 
 evidence to show that the sale was an ab- 
 solute one. and was made upon the terms 
 set oat in the written m>>morandum. The 
 defendant, on the other hand, insisted and 
 endeavcred t(j prove that the contract of 
 sale was a conditional one, and was not 
 to take effect, if intellignuce had been re- 
 ceived by the steamer of an advance in the 
 ]irice of copper, nor unless the plaintiffs 
 shoulil agree to export it. If the sale and 
 delivery were completed. In this state of 
 the case, one of the points urged by the 
 defenilant was that the broker had no au- 
 thority to bind him by the memorandum 
 which was offered in evidence. Among 
 
 LAW SALES — 11 
 
 ' the instructions given to the jury, they 
 were t<dd that if the defendant dill, in liiK 
 verbal contract entered into with Canter- 
 bury, make the sale un the conditloim 
 above stated, he coulil not avail himself 
 of cither of tlu-m, because they were not 
 contained in the written uiemorandnm 
 made by the broker. This instructloD 
 was strictly accurate as applied to the 
 contract, if it was madi- by the authorized 
 agent of both the pai ties. liut upon tlie^ 
 issue whether the broker was authorized 
 to sign the memorandum (tfft-rerl in proof 
 as the agent of the defendanr. it shuts, 
 him out from the benclit of testimony 
 which has a direct and material bearing. 
 Upon the facts as they appear in the re 
 port of the case, the broker was not the 
 general agent of the defendant. He had 
 no authority to bind him, except such as 
 was derived from the verbal contract into 
 which he entered for the sale of the coi»- 
 per. He was in the strictest sense a spe- 
 cial agent for a special and single object, 
 and could not bind the defendant beyond 
 the limits conferred by the precise terms 
 of the agreement to which he assented. 
 He was his agent <mly to sign a memo- 
 randum which contained the whole con- 
 tract, with the terms and conilitions an- 
 nexed to it b.v him. A broker. Iron. th<» 
 v(fvy nature of his emplo3-ment, has only 
 a limited authority, wlien it appears, as it 
 does in the present case, that he had nt> 
 relation to a party, otlicr than what it* 
 derived from a single contract of sale. 
 When he applies to a vendor to negotiat«» 
 n sale, he is not his agent. He does not 
 become so until the vendor enters into the 
 agreement of sale. It is from this agree- 
 ment that he derives his authority, and it 
 must necessarily be limited by its terms 
 ar.d conilitions. He is then the special 
 agent of the vendor to act in conformit.v 
 
 with the contract to which his principal 
 has agreed, but no further, and he cannot 
 be regarded jishis agent, unless hecomplies 
 with the terms of his s|)ecial authority n» 
 derived from the contract. In short, n 
 bi-oker is authorized to sign only that 
 contract into which the vendor has en- 
 tered, not another and different contract. 
 If he omits to include in the inemoraiKhnn 
 special exceptions and conditions to the 
 bargain, he signs a contract which he lian 
 no authority to make, and the party rely- 
 ing upon it must fail, biH-aiise it is shown 
 that the broker was not the agent of the 
 vendor lo sign that contract. It would 
 seem to follow as a necessary consequence 
 that evidence of the verbal agreement into 
 which the defendant entered lor the sale 
 
 ! of the copper was competent anil material 
 on the question of the ex tent of his author- 
 ity to bind the defendant. 
 
 Nor does the admission of this evidence 
 for this purpose at all contravene tlie rule 
 that parol proof is incompetent to vary 
 or contrid a written contract. It Is 
 offered for a wlio'ly different purpose. It 
 bears solely on a preliminary Inquiry. 
 The object is not to explain fir alter a con- 
 tract, but to show that no contract wan 
 ever entered into, because the person who 
 executed it had no nuthority to make it. 
 The authority of an agent may always l>e 
 shown by parol; but the contracts into
 
 1G2 
 
 CODDINGTON v. GODDARD. 
 
 which lie enters within the scope of his au- 
 thority, wlien reiln'.'ed to writing, can be 
 proved only by tlie writiiiy; itself. 
 
 The necessity of adtnittliig evidence of 
 the verbal contract entered into with a 
 broker, in cases where his authority is 
 <lrawn in question, is quite obvious. If 
 Buch proof were incompetent, a broker 
 
 who had entered into nesrotiHtions with 
 a person niiKlit make a memorandnni of 
 a contract wholly different from that 
 which he was authorized to sign, 'uid 
 thereby effectually preclude all proof that 
 no such contract' was ever nijide. .Mien 
 V. Pink, 4 M. & W.144; Pitts v. Beckett, 
 ];i M. & W. 743, 750. New trial granted.
 
 COE V. TOUGH. 
 
 105 
 
 COR T. TOUOn. 
 
 (22 N. E. Rep. 550, IIG N. Y. 273.) 
 
 Court of Appeals of New York, Second Divi- 
 sion. Oct. 8, 18S9. 
 
 Apjieal from supreme court, general terra, 
 tliinl dcpaitment, entereil upon an ordt-r 
 made June :iO, 1886, wliicli allirmed a judg- 
 ment in favor of the defendant, entered up- 
 on a verdict. 
 
 Tliis action was replevin, brought to re- 
 cover tlie possession of personal property to 
 wliich tlie plainlilT claims to have taken title, 
 by purchase from the defendant, by virtue 
 of the following written memoranda, to-wit: 
 
 "III DsoN, N. v., Feby. ISlh. 1885. 
 "Mr. E. Frank Coe,bouglit of William Tough, 
 
 2!i Thomas horsc-rakcs, $21 $ ■ltV3 
 
 2 Thomas hay tedders, 40 HO 
 
 12 Titror horse-rakes, 31 2.")3 
 
 1 KiuvcU leather top phaeton T.') 
 
 1 Babcock leather top phaeton 120 
 
 1 two seat standing top En?, spring watron 90 
 
 2 Columbus leather top side-bar buggies, 
 117..->0 2.^5 
 
 1 Broekvvay end-spring leather top buggy.. S5 
 
 1 Uroekway side-spring open buggy 49 
 
 1 Waterloo end-spring rubber-top buggy... 72 
 
 $1,.520 
 10 tons E. Frank Coe's phosphate, 2S 2S0 
 
 $1,S00 
 "The above goods are in my warerooms 
 No. 22 Columbia St., Varick street, at store- 
 room of Hudson Agricultural Society, and 
 are well insured. 
 
 "Hudson, N. Y. Feby. 18, 1885. 
 "E. Frank Coe — Dear Sir: In order to 
 liquidate and secure you in the payment of 
 your account as now due, I will propose to 
 do as follows: 
 
 Bill of sale of goods inclosed tl,.')20 
 
 10 tons E. Frank Coe's phosphate 'ZSO 
 
 Cash or customer's note in a few days .500 
 
 Customer's notes or cash '220 
 
 $2,500 
 "Balance your account to date, .'?1,975. 
 "Yours, truly, Wsi. Tul'uh." 
 
 It appears that defendant was indebted to 
 the plaintiff .■?2,000. That on February 18, 
 188-''), the collecting agent of the latter went 
 Id the defendant's place to collect the debt, 
 or obtain security for its payment. That the 
 defendant proposed to sell to tlie plaintilT, 
 and the agent offered to purchase property 
 on account of the debt. Thereupon the de- 
 fendant drew the tirst-mentioned paper, and 
 handed it to the agent, who then sugge.sted 
 that the defendant .also give him a note to the 
 pl.iinlill, slating what hud transpired between 
 them. The defendant wrote and subscribed 
 the other pajicr, wliieh was put in the en- 
 velojie in which the other had been placed. 
 The defendant on this occasion paid lo the 
 agent .■?J.">, to apply on the debt, thus reducing 
 it to .^l.gTS. The agent, having advised the 
 plaintiff what he had done, returned to the 
 defendant's place on the 21st of February, 
 
 taking with him a draft clialtel mortgage, 
 which the plaintiff had caused to be drawn, 
 and informed the defendant that if he pre- 
 ferred he might execute it. But the defend- 
 ant declined to do that. .\nd thereupon the 
 agent requested a delivery of the property, to 
 which the defendant assented, and promised 
 to furnish a room on tlie premises in wliich 
 it might be placed, and gave him the key to 
 it. 'J he agent said that was s.itislactory. 
 The defendant said he would not have tiine 
 to do it that time; and it was then under- 
 stood that the agent would come again on 
 Monday, the 24th, when the goods would be 
 separated aiul received by liim. For reason 
 of which the defendant was advised on Alon- 
 day, the agent did not go that day, but did 
 the next day, when the defendant refused to 
 deliver the property. The property was taken 
 upon the requisition in this action, and de- 
 livered by the sheriff to the plaintiff. The 
 trial court directed a verdict for the defend- 
 ant. 
 
 Henri/ D. HoMikiss, for appellant. H. E. 
 Andrews and L. F. Lonyleij, for respondents. 
 
 Bradley, J., (after stating tlte farts as 
 above.) The (irst question presented is 
 whether there was a v.alid contract made for 
 the sale of the jiroperty by the defendant to 
 plaintiff, and, if so, the fuitlier question will 
 arise whether it was an executed one, so as 
 to pass the title to the plaintiff, or was execu- 
 tory merely. As no jiart of the property was 
 delivered to or received by the plaintiff, and 
 none of the purcha.se money paid, as reijuired 
 by the statute of frauds, the sale was void, 
 unless a note or memorandum of the contract 
 was made in^vriting, and sidiscribcd bv the 
 defendant. 2 Kev. St. p. 13l), § ;S. The form 
 of the memorandum as drawn was, "K. 
 Frank Coe bought of William Tough," fol- 
 lowed by a list of the articles of i)ri>perty in 
 question, with pricesaddrd. This paper was 
 not at the end of it subscribed by the defend- 
 ant, so that, standing alone, whatever view 
 may be taken of its terms, it was not effect- 
 ual'as a contract of sale. .lames v. Patten, 
 6 N. Y. 9. But it is contended that the note 
 or letter written on the same occasion by the 
 defendant, subscribed by him, and addressed 
 to the plaintilT, may be taken in connection 
 with the last-mentioned memorandum, and 
 the signature to the one treated assubscril)ed 
 to both, each constituting part of the saiuo 
 instrument. To permit this to be done, so 
 as to relieve it from the operation of the stat- 
 ute, the two papers must have been so phy- 
 sically united, or such reference made by one 
 of them to the other, th.it they may be con- 
 strued together as one instrument without 
 the aid of oral evidence. Baptist Church v. 
 Bigelow, 10 Wend. '28; Wright v. Weeks. 25 
 X. Y. 15;i: Drake v. Seaman, '.17 N. Y. '230. 
 affirming 27 IIun,G3; Stone v. Browning, 63 
 X. Y. 508. The two papers by their date 
 purport to have been raadi- at the same time; 
 thcv are in the haudwritingof thedefendant;
 
 166 
 
 COE c. TOUGH. 
 
 relate to the same subject; and tlie refeience 
 to the paper designated as a "bill of sale" in 
 the one embraces m (igiires certain amounts 
 corresponding with those intheother. They 
 sufficiently releri(Hl to the same transaction 
 to permit them to be construed together, and 
 to be given such effect as they were entitled 
 to. Tallraan v. Franklin. 14 N. Y. 584; 
 Peabcxlv v. Sjievers, 56 N. Y. 230; Peck v. 
 Vandeniark, 9'J'n. Y. 29, 1 N. E. Rep. 41. 
 The more difficult qufstiim arises upon the 
 consideration of the construction and effect 
 which may be given to those papers. It has 
 been lield that a memorandum, in the form 
 of that here designated as a bill of sale, with 
 payment receipted, did not constitute a con- 
 tract of sale, so as to exclude parol evidence of 
 warranty, but was a mere receipt. Filkins 
 V. \Vhyland,24 X. Y. 338. M'hile presump- 
 tively, at least, a receipted bill in that form 
 will not have the character of a contract of 
 sale, the effect, when no receipt is added, may 
 be otherwise. Then it may be such a con- 
 tract, or the written evidence of it, within 
 the intention of the parties, and entitled to 
 such effect. Terry v. Wheeler, 25 N. Y. 520; 
 Bonesteel v. Flack, 41 Barb. 435. That paper, 
 standing alone, not being subscribed by the 
 defendant, had no validity, and in connec- 
 tion with the other it must be treated as re- 
 ferred to for the purpose indicated by the 
 terms of the latter, by which the defendant 
 says that, "in order to liquidate and secure 
 you [plaintiff] in the payment of your ac- 
 count as now due, I will propose to do as fol- 
 lows: Bill of sale inclosed, SI, 520;" and 
 then adds another item of property, with 
 two items of cash or notes to make up the 
 amount of .92,520; and, after stating tlie bal- 
 ance of the plaintiff's account at;ifl,'J75, sub- 
 scribes bis name. In aid of the construction 
 of the instrument, reference may be bad to 
 the extrinsic circumstances attending the 
 transaction between the defendant and the 
 plaintiff's agent. The latter called upon the 
 defendant to obtain payment, or security for 
 its payment, of the debt due his principal 
 from the defendant. The interview resulted 
 in an offer of the defendant to sell, and of 
 the agent to purchase, some personal prop- 
 erty, on account of the debt; and, for the 
 purpose of doing so, the bill of sale, so called, 
 was drawn by the defendant, and lianded to 
 the agent unsigned. Tlje note or letter ad- 
 dressed to the plaintiff was written upon the 
 suggestion of the agent that the defendant 
 put on paper a statement to be taken to the 
 plaintiff of what had transpired between 
 them. The amount of the prices designated 
 for the articles of property, with that of the 
 proposed cash or notes, was purposely made 
 to exceed the debt, with a view to enable the 
 plaintiff to realize from it tlie full amount of 
 his account against the defendant. It is not 
 important whether the purpose of the con- 
 templated sale was to pay or secure the pay- 
 ment of the debt. The apparent design, as 
 indicated by the oral evidence of the trans- 
 action, was a sale and uurchase, and the so- 
 
 called "bill of sale" was drawn, delivered, 
 and received for that purpose. That was not 
 accomplished by it. It is, however, con- 
 tended that the paper afterwards written, ad- 
 dressed to the plaintiff, and signed by the de- 
 fendant, was effectual to give to the former 
 the effect of a bill of sale subscribed by the 
 defendant; and that it was not embraced 
 within the executory character of the propo- 
 sition expressed in the other, but that only 
 the payment or delivery of the cash or notes 
 there mentioned was dependent upon the 
 future action of the defendant. The inten- 
 tion of parties to a written instrument must 
 be derived from it, although its construction 
 may be aided by the light of extrinsic circum- 
 stances. When this alleged bill of sale was 
 handed to the plaintiff's agent, it was inef- 
 fectual for any purpose, whatever may have 
 been the design of tlie parties. It does not 
 appear that the other paper was then in con- 
 templation, and its effect must be ascertained 
 from its terms as they may be construed. 
 In its relation to the former, it may be as- 
 sumed that reference was made to the articles 
 of property there mentioned. Biit it is diffi- 
 cult to distinguish the application of the offer 
 or proposition of the defendant to any one 
 from any other portion of the means men- 
 tioned for the payment or security of the 
 debt. It was to "liquidate and secure" it as 
 stated. The defendant proposed to do what 
 he had not alnady done in that respect, lie 
 had neither transferred any of the personal 
 property or notes, and had made no contract 
 to that effect. They altogether came within 
 the purpose expressed, and his proposition or 
 promise to accomplish it was in form execu- 
 tory. If the paper called a "bill of sale" bad 
 been independently valid, a different view 
 may have been taken upon construction of 
 the writings. It would therefore seem that 
 the sui)port of the plaintiffs claim of title re- 
 quires the conclusion that the offer or prom- 
 ise of the defendant to sell to him the proji- 
 erty was or became effectual for that [lur- 
 pose. It is a rule, as relates to personal 
 property, that when, by a valid agreement, 
 one party unconditionally agrees to sell to an- 
 other, who agrees to purchase, and nothing 
 remains to be done to complete the sale, the 
 contract will be treated as an executed one, 
 and title will pass, although no delivery 
 or payment is made. Olyphant v. Baker, 5 
 Denio, 379; Terry v. Wheeler, 25 N. Y. 520. 
 In the present case the proposition or piomise 
 of the defendant to sell the property was by 
 its terms and import made with a view to 
 a subsequent acceptance by the plaintiff. 
 There canwot, therefore, be said to have been 
 any concurrent undertaking on the part of 
 the latter to purchase. This proposition, 
 when made, seems to have had no considera- 
 tion for its support. It was a mere offer of a 
 debtor to sell goods to his creditor in pay- 
 ment or security of the debt due the latter, 
 founded upon no new consideration, but rest- 
 ing solely in the purpose, so manifested, of 
 the debtor to oav the debt or secure its uav-
 
 COE V. TOUGFI. 
 
 le- 
 
 nient in tliat mannor. Tlio conclusion would 
 seciii, foi- tliat reason, to follow tliat a siibse- 
 <|iipnt acceptance would not be effectual to 
 ( re.ite a valid contract of sale between the 
 liailies. Cooke v. Oxley, 3 Terin K. 053; 
 IJuinet V. IJisco, 4 Johns. 235; Railroad Co. 
 V. IJrinckeihoff, 21 Wend. 139: Railroad Co. 
 V. Dane, 43 N. Y. 240; Plaidv-Road Co. v. 
 Snediker, 18 Harb. 317. In that respect this 
 case differs from those determined in ]i\irrell 
 V. Root, 40 X. Y. 49tJ; Justice v. Lang, 42 
 
 N. Y. 493, ,52 X. Y. 323; M;ison v. Decker. 
 72 N. Y. 595. In those cases the offers and 
 promises of the defendants had the support 
 of consideration, arisiiif; out of mutualily of 
 agreement or produced in some other m. inner. 
 If these views are correct, there was no valid 
 contract made bv the defeudant for the sale 
 of the property in quesii.in to the pl.iintilT, 
 to support his claim of title. The jud'iment 
 should be alliriiied. All concur, except 
 rAUKKit, J., not siltirifj.
 
 I
 
 CO.MEIi c. CUXNIXGIIAM. 
 
 169 
 
 » 
 
 COMER T. CUXXIXGHAM. 
 
 (77 X. Y. 391.) 
 
 Court of Appeals of New York. 1879. 
 
 Ee()lt'vin for forty-five bales of cotton, 
 hrouKlit by {ilaintiff jih HurviviiiK member 
 of tlic firm of UatcH & ('omer, coiiimiK«ion 
 nuiTliiiiitH at Savannah, (la. It was 
 originally brought af^aiiiht James B. Cun- 
 ninifiiaiM. of the firm of .hiinei-- H.CunnitiK- 
 liam & Co. Ciinninirliam haviiiR died, his 
 admiiiistratri.x was snbstituted. The 
 fuetH appear in the opinion. Judgment 
 for defendant. 
 
 ICrastiis ("oolc, for a[)()ellant. I'.enjaniin 
 G. HileliinKs. f<'r resjiondent. 
 
 RAI'ALLO, .J. Tile forty-five bales of 
 cotton claimed by the plaintiff in this ac- 
 tion w ere part of a lot of sixty bales which 
 were mi tlie ISth of .November, ls70. sliip- 
 ped from Savannah, (!cor(;ia, to the firm 
 of James B. (■\iiiniii;iham & Co. of New 
 York, by F, S. Williams, a business cor- 
 respondent of that firm, who was in the 
 habit of shippiiiir cotton to tlioni and 
 drnwiiiK against it for advances thereon. 
 
 A bill of lading of the cotton on lioaril 
 the steamer .San Salvador, with a Hi;;lit 
 draft attached thereto, drawn by Wil- 
 liams upon Cunniiiuliam & Co., f-ir $4,.">l)0, 
 payable to the order of Bryan & Hunter 
 of Savannah, and indnrscd l)y them, were 
 presented to Ciiiiniii«liam i^ Co., at Xew 
 Vork, by the agents of Bryan & Hunter, 
 on the L'lst of Xoveinber, ]S7(), and Cun- 
 ningham & Co. thereupon paid the draft 
 and received the bill of ladint; in the usual 
 course of business. The payment of the 
 draft was made as an advance upon the 
 cotton on the faith of the bill of ladins;. 
 In the bill of ladiny; Williams was named 
 as the shipperof tlu- ciitton. It was deliv- 
 erable to order and the liill of lading: was 
 dul.v indorsed. Cunniny:hani & Co.liiid no 
 knowledge of any claim t'f an.v person on 
 the cotton, and upon the uncontrovcrted 
 evidence the.v stand in the position of 
 bona fide purchaser.^ of the cotton, or 
 lenders thereon in Kood faith. The defend- 
 ant is the representative of Cunningliam 
 & Co. 
 
 Cunnint:ham & Co. obtained possession 
 of the :-otton under the bill of l;idin>; anil 
 put it in store, where it remained until the 
 25 th of .Vovember. when the forty-five I )ales 
 in question were re|)levied in this action 
 by Bates & Comer of Savannah. 
 
 Th(> grounds uixin which they claim to 
 beentitled to take the cotton are. that 
 the sixty lialcs shipped by Williams as 
 above st.Mteil were part of a lot of one 
 hundred and seventeen linles sold by the 
 firm of Bates & Comer (of whom the iilain- 
 tiff is survivor) to Williams, at Savannah, 
 in November, 1^70, for cash. 'I'lie price of 
 the whole lot was lS;x.ri7r) 'JO. The plaintiff 
 testified that the one hundred and seven- 
 teen bales were delivered to Wjlli.inis on 
 the IStli of November. 1n7(I. and that on 
 the next day, Saturda.v the Bitli, Williams 
 gave to plaintiff two checks on Bryan & 
 Hunter; (me for $r.,OlJ(», which was paid, 
 ami one for $"J,ri7t>.20, which was not pai<l. 
 It appears that the sixty bales shipiied to 
 Cunninshani & Co. were on the ISth of 
 
 November delivered by the sellerH by di- 
 rection of Williams, at the compresH. ticInR 
 the place where cotton was pressed by the 
 steamers, preparatoiy to shipment, and 
 that they were on the same day laden on 
 board the steamer and the bill of ladliiR 
 before mentioned was issued to WilliaraH. 
 
 He thereu[)on drew the .«4,."j0() draft on 
 CnnninKham& Co.,aad |iresente<l theHume 
 withtlie bill of ladinu to Bryan & Hunter, 
 who discounted the draft, and nfjainst the 
 proceeds of this discount and other 
 moneys in their hands, Williams drew 
 the before-mentioneil checks on Brvnn & 
 Hunter for $(;,()00 and ^^.(niKi'n in favor of 
 the plaintiff's firm, for the pur|iose of pay- 
 ing for tlio one hundred and seventeen 
 bales, and plaintiff's firm <in the next day 
 cdlpcted the ?(;,(ll)0 check as before stated. 
 Will ia m s testifies that the check for ?2.<;:(i. 20 
 was dated some days ahead, and also 
 that he informed plaintiff of the shipment 
 at the time, but ;is these facts are contro- 
 verted they are not taken into considera- 
 tion. 
 
 Xo condition apiiears to have lieen at- 
 tached by the parties t<i the ilelivery of 
 Ihecotton on thelMhof November, "nor 
 is it alleged that Williams obtained pos- 
 session (jf it by means of any fraud. It 
 was voluntarily and absolutely delivered 
 by the vendors in the usual course of busi- 
 ness, jind no (|iiestion would arise as to 
 the title of Williams or of Cunningham Ac 
 Co., tint for a statute of the state of 
 (icorgla. upon which the plaintiff relies to 
 maintain tliis action. 
 
 This statute provides that "cotton, rlco 
 and other products sold by planters an<l 
 commission merchants on cash sale slinll 
 not be considered as the [iroperty of the 
 buyer, or the ownership given up, until 
 the same shall be fully pai<l for, although 
 it may have been delivered into the pos- 
 session of the buyer." 
 
 It Is not claimed on the i>art of the 
 plaintiff that this statute has any force, 
 ex proprio viuore. in this state, but the 
 claim maile is, that this statute lieing the 
 law of the state where the parties resided 
 and the [iroperty was, and »vhere the con- 
 tract was niaile and to lie perlormed, it 
 entered into the terms of the contract, 
 .•ind became a part of It, to the same ex- 
 tent as If its essential provisions had been 
 written into it. 
 
 .Assuming this )iosition to t>e correct, 
 the iiuestiuiis arise, first, what w;is the 
 nature and eilect of the <lealing bet ween 
 the vendors and Williams, , 'is construed by 
 including the provisions of this statute as 
 part of the contract, and secondly, what 
 are the rights of a bona tide purchaser 
 from WilliMUis. 
 
 The plaintiff contends that the effect of 
 incorporating the statute into the con- 
 tract was to make the sale to Williams 
 a conditional sale: lint I a|iprehend that 
 this is not an accurate view. The sale 
 was a present, alisolule sale; not execu- 
 torvnor depending upon any contingency. 
 The (diligation of tlie buyer to pay wa.'^ 
 absidute, and the property was at his 
 risk. If it had been dcstr.pyeil or lost on 
 the voyage, his obligation to pay would 
 not have lieen dlsi-hurgod, notwithstand- 
 ing that as between him anil his vendors
 
 170 
 
 COMER V. CUNNINGHAM. 
 
 tlie title liad not pnssed. The statute <lid 
 not i)iirj>()rt to .iffeet any of these rights, 
 or lo iittach !iny condition to tlie con- 
 tract of sale. It simply nia<le the delivery 
 conditional, anil if written into the con- 
 tract would affect nothing hut the deliv- 
 ei-y. The property in tliat case stood in 
 precisely the same c<indition after its de- 
 livery to Williams at Savannah as if the 
 transaction had taken place in this state, 
 and tlie vendor on a cash .*ale had ex- 
 pressly attached to the delivery a condi- 
 tion that the title should not pass until 
 payment of the price. iSnch transactions 
 aix' of common occurrence in this state, 
 and the rights of the vendor and vendee 
 and of bona tide (turchasers from the ven- 
 dee are well settled by the adjudications 
 of our courts. Wliere ^ooils are sold to 
 be paid for in cash or by notes on delivery, 
 if delivery is made without demand of the 
 notes or cash the presumption is that the 
 condition is waived, and a complete title 
 vests in the i)urchaser; but this presump- 
 tion may be rebutted by proof of acts or 
 declarations and circumstances showins 
 an intention that the delivery shall not be 
 Considered complete until pei-formanee of 
 the condition, and the question of inten- 
 tion is one of fact. But after actual deliv- 
 erj', although as between the parties to 
 the sale such delivery be conditional, a 
 bona fide ijurchaser from the vendee ob- 
 tains a i)erfect title (Smith v. I^ynes, 5 N. 
 ■¥.41; Fleeman v. McKean, 2.") Barb. 474; 
 Beavers v. Lane, li Duer, 238), though a 
 voluntary assignee of the purchaser does 
 not. llaegerty v. Palmer, 6 .lohna. Ch. 
 43S. The statute of Georgia having no 
 operation here as law, its only effect can 
 be to place the parties in the same posi- 
 tion as if it had been stipulated at the 
 time of the delivery to Williams that such 
 delivery sh(>uld be conditional ui)on pay- 
 ment, and we must apply to the case the 
 law o( this state whicli protects a bona 
 fide purchaser from one to whom goods 
 have been conditionally delivered, against 
 theclaiinsof the original vendor. Uawls 
 V. Ueshler, 3 Keyes, .")72, is very much in 
 point. Deshler sold a <4uantity of corn to 
 Gritfin and gave him an order on the ele- 
 vator to deliver the corn to liim "subject 
 to my order till paid for." This delivery 
 was clearly conditional. The Georgia 
 statute was actually incorporated into 
 the contract, and neither Griffin nor his 
 execution creditor or voluntary assignee 
 could have resisted successfully a claim of 
 the vendor to retake it. Yet this court 
 held that (Jriffin havine shipped the corn 
 and drawn against it, the drawees having 
 paid the draft on the faith of the bill of 
 lading, were protected as bona fide pur- 
 chasers, and also under the factor's act. 
 
 In Wait V. Green, 315 N.Y 55(i,the vendor 
 of a horse delivered it and took from the 
 purchaser a note, at foot of which was a 
 memorandum signed by the vendee: 
 "Given for one bay horse. The said Mrs. 
 Comins (the vendor) holds the said hoise 
 as her property iintil the above note is 
 paid." This court held that a bona fide 
 purchaser from the vendee obtained a 
 good titlj. This case is supposed to be in 
 conflict with Herring v. Hoppock. 15 N. Y. 
 409; Ballard v. Burgett, 40 id. 314, and 
 
 Austin V. Dye, 4() id. 500. If the transac- 
 tion is to be regarded as a conditional sale, 
 the case is in conflict with the two last 
 cited cases in 40 and 4G N. Y , l)ut it can 
 well be treated as a case only of condi- 
 tional delivery, lu Ballard v. Burgett it 
 was held that where the sale was condi- 
 tional, no title passed to the vendee, be- 
 cause there was no sale until the condi- 
 tion was perfoiined, and the so-called ven- 
 dee was a mere bailee with a contract for 
 a future sale. That the property while in 
 his hands was at the risk of the vendor, 
 and tlie so-called vendee was not liable 
 for the price. Tliat he had no title to the 
 property and could convey none, even to 
 a l)ona tide purchaser; that there was no 
 sale, and he had a mere possession, and 
 that the Hnding of the referee that the 
 agreement was that the property was to 
 remain the pro|)erty of the plaintiff till 
 the $]f>0 were paid, was incompatible with 
 the Hnding of a sale, and the true con- 
 struction of the contract was that the 
 oxen were delivered under an agreement 
 that when the party receiving thenishould 
 pay .flso, the party delivering them would 
 sell the o.xen. Wait v. Green was distin- 
 guished, and it was held that under the 
 circumstances of that case if the horse 
 had died before payment of the note such 
 death would have been no defense to the 
 note, and that was a conclusive circum- 
 stance showing that the condition ex- 
 pressed in the note was a mere security 
 for the price. Whereas in the case at bar 
 had the oxen died no action could have 
 been maintained for the purchase-money. 
 The cases holding that where there is a 
 sale and a conditional delivery a bona fide 
 purchaser from the vendee acijuiresa good 
 title discharged of the lien for tlie pur- 
 chase-money are cited, but they are not 
 attempted to be overruled nor are they 
 questioned. In Austin v. Dye, 40 N. Y. 
 500, the principle of this decision is clearly 
 stated, and is, that one having [lossession 
 of personal property as bailee, with an ex- 
 ecutory and c<inditional agreement for its 
 purchase, the condition not havinj; lieen 
 performed, can give no title to a pur- 
 chaser though the latteracts in good faith 
 anil [larts with value without notice of 
 the want of title. In that case the alleged 
 vendee was to [lay hire for the oxen until 
 he should pay a specified sum in a speci- 
 fied manner in lumber, and then he was 
 to become the owner. Until then there 
 was no sale, and they were at the risk of 
 the bailor, who received hire for their use. 
 The sale was executory as that in 15allard 
 v, Burgett was construed to be. In Her- 
 ring V. Hopiiock, 15 N. Y.409, and Strong 
 V. Taylor, 2 Hill, 32G, the question of the 
 rights of a bona fide jiurchaser did not 
 ariseand it is thereforeimniaterial to con- 
 sider whether those were eases of condi- 
 tion.! 1 sale or conditional delivery. In 
 the present case it cannot be pretended 
 that the sale was executory or condi- 
 tional. It was an absolute unconditional 
 sale, and the greater part of the |iurchase- 
 money, much more than sulliclent to cover 
 the price of the bales received by the de- 
 fendant's firm, hail actually been paid. 
 There is no feature, favorable to the plain- 
 tiff, by which it can be distinguished from
 
 COMER V. CUNNINf;irAM. 
 
 171 
 
 Smith V. Lynes, 5 N. Y. 41, and the cases 
 llitTi; referred to, and that cane and KawlH 
 V. IH'Hlilcr, ;> KeyeH, ')72. I'HtaliliHli that a 
 conilitiuti tliiit the title Khali not iiawn un- 
 til puymeiit, when attache!! to a delivery 
 upon an actual completed contract of 
 Hale, is available only as aKaiiiKt the ven- 
 dee and i)ersons claiming? under him, other 
 than liona fide purchasers witliout notice. 
 This view renders it unnecessarj- to ex- 
 amine that hranch of the defense which 
 rests upon the factor's act. The case fulls 
 literally within the provisions of the act, 
 hut it has been said in numerous cnseB that 
 
 the first section of the act applies only 
 when the slii|iment hiis been madi- witii 
 the consent of the owner. In the name of 
 another person. There is no adjudicated 
 case which rests nixm that proposition, 
 and it may lie an open tiuestion whether 
 under the circumstances of the present 
 case the statute wotdd not be a |)rotec- 
 tion. but as theKniund already discussed 
 la sullicient to decide the case time will 
 not lie consumed in that in<|uiry. 
 
 The judgment should be allirmed. 
 
 All concur. 
 
 .ludKi'ient aflirmcd.
 
 I, 
 
 11
 
 COMMERCIAL NAT. BAXK v. GILLETTE. 
 
 173 
 
 CO.M.MEKCIAL NAT. BANK 
 LETT13. 
 
 GIL- 
 
 (90 Ind. 2l!8.) 
 
 Supreme Court of Indiana. May Term, 188.3. 
 
 J. M. Vonfleet, for appellant. J. H. 
 Baker and J. A. S. Mitchell, for appellee. 
 
 ELLIOTT, J. The Elkhart Car Com- 
 |)uiiy. by a written contract, wold to the 
 appellant .')!() car wheels, conHtitutiiiK a 
 part of 1,100 wheels; at the time of the 
 Bale tiie wheels were in one common masH, 
 and there was no BCi)aration iior any doK- 
 il^nation of the wheels sold to the appel- 
 lant; after the execution of the contract 
 tlio entire lot of wheels was seized upon 
 executions issued at the suit of api)ellee, 
 and this action was brou>;ht for the pos- 
 session of tliose solil. 
 
 The contention of appellee is that ap- 
 pellant acquired no title, because the arti- 
 cles sold were not designated or separated 
 from tlieconinion lot of which they formed 
 a fiart, and this contention prevailed in 
 the court below. 
 
 There is much strife in the American 
 cases upon this (|uestion, but none in the 
 English. The weiKht of the former is, per- 
 haps, with the theory of appeiliuit, but 
 the text-writers are, so far as we have ex- 
 amined, all with the English decisions. 
 Our own cases are in harmony with the 
 loiif; estal)lished rule of the common law. 
 In the case of Brickev V. Huf?lies,4 lnd.l-)(i, 
 the Kufilish rule was approved and en- 
 forceil. In Murphy v. Stale, 1 Ind.I'ilG. the 
 court said: "To render a sale of ^loods 
 valid, the specific, individual K""ds imisl 
 be attreed on by the parties. It is not 
 enouj^h * * » that they are to betaken 
 from some specified larger stock, because 
 there still remains somethinj;; to be done 
 to designate the portion sold, which por- 
 tion, before the sale can be completed, 
 must be separated from the mass." This 
 doctrine found approval In 8cott v. Kinji, 
 12 Ind. 20.i, and there are other eases rec- 
 ojjniziiiK it as the correct one, amons; 
 them Moflit v. (Jreen, !) Ind.lDS; Indian- 
 apolis, etc., 15. W. Co. V. Masuire, G2 Ind. 
 14(1; liertelson v. Bower. SI Ind..')12; Lester 
 V. East. 4!) Ind. .5NS, vide opinion, p. 5i)4. 
 The rule which our court has adopted is 
 upheld by the .American cases of Hutchin- 
 son V. Hunter, 7 Pa. St. 14U; Haldeman v. 
 Duncan, .51 Pa. St.fiC; Fuller v. Bean, :!4 
 N. H. 2S)0; Ockington v. Kitchev, 41 N. H. 
 270; Morrison v. Woodley, S4 III. r.i2; 
 Woods v. Mc(jee, 7 Ohio, 4(17; McLauchlin 
 V. Piatti, 27 Cal. 4(13; Courtiitrht v. Leon- 
 ard, 11 Iowa, 32; Ropes v. Lane, 9 Allen, 
 .')02; Fersuson v. Northern Bank, 14 Bush, 
 !V)5 (2!) Am. R. 41S.) In MIchiKan, the rule 
 seems not to be definitely settled, liut in 
 
 a late case it was said: "To the elab- 
 orate argument made fi>r the defence to 
 show that there can be neither a sale nor 
 a pIed}>eot prrjperty without In some man- 
 ner specially distiii;^uishing it, we fully as- 
 sent, and we have no purpose to qualifj'or 
 weaken the authority of Anderson v. 
 Brenneman,44Mich. 10s." MerchantH'.etc, 
 Bank v, Hibbard, 4S Mich, lis, UN. \V. 
 Rep. S:i4; S. C, 42 Am. R. 4(m. 
 
 The civil law rule is the same as that of 
 the common la w, anrl our great lawyers 
 have given it unhesitating approval. 2 
 Kent, Com. 639; Story Sales, section 2'JO. 
 
 The American cases which have departed 
 from the long settled nde. are built on the 
 cases of KImberly v. Patchin, III N. V. :j:iO. 
 and Pleasants v. Pendleton, Rand. 473, 
 and these cases proceed upon the theory 
 that commercial interests demand a niorl- 
 Ificatitui of the rule. In our judgment, 
 commercial interests are best promoted 
 by a rigid adherence to the rule which the 
 sages of the law have so long and so 
 strongly approved. The rule secures real 
 transactions and actual sales, ami thus 
 checks the wild si)irit <)f speculation. It' 
 prevents, in no small measure, the making 
 of mere wagering cojitracts; it puts busi- 
 ness on a stable basis, and makes it essen- 
 tial that there should be real, and not 
 sham, transfers of property; it makes ti- 
 tles secure, protects creditors and pur- 
 chasers and represses fraud. If it were 
 granted that the rule does somewhat In- 
 terfere with the freedom of business trans- 
 fers, still the good it produces far out- 
 weighs this inconvenience. But we do not 
 believe it iloes interfere with actual busi- 
 ness transfers, for common experience In- 
 forms us that real sales are seldom, if 
 ever, m;ide without a siiecidc designation 
 of the thing bought. The rule may inter- 
 fere with dealcis in "margins," makers of 
 "corners," and framers of "options," and 
 to athrm that it docs do this is to give it 
 no faint praise. In i)rincli)le the rule is 
 sound, and in practical operation salutary. 
 
 The efforts made by the courts that 
 have departed fmin It to inakeexceptlons, 
 to mannfacturedistinctions and point out 
 differences in order to escape disastrous 
 consequences, afford strong evidence of 
 the wisdom of the rule. The line of deci- 
 sions in someof thestates, wherea depart- 
 ure has been taken, is a devious and tor- 
 tuous one, and this Is to be expected when 
 once sound principle is turned from and 
 newi-ules sought anti adopted which have 
 no support in funilnmental princlplfs. 
 
 We have no disposition tt) deiiart from 
 the rule which has so long prevailed in 
 this state and elsewhere. 
 
 .ludgment atHrmed. 
 
 Petition for rehearing overruled.
 
 1
 
 COMMOXWEALTir c. FLEMING. 
 
 175 
 
 COMMOXWEALTn v. FLEMING. 
 
 as Atl. Rep. 622, 130 Pa. St. 138.) 
 
 Supreme Court of Ponnsylvnniii. Nov. 4, 1S.S0. 
 
 Error to court of quarter sessions, Mercer 
 county. 
 
 The i)l;iintiff In error, Joseph Fleming, be- 
 ing a wholesale liquor dealer, licen.sed and 
 carrying on business in Allegheny county, 
 gold and sent from his place of business, C. 
 (). J)., to Mercer county, where he had no li- 
 cense, liquors ordereil by persons in the latter 
 county. For this he was, at the court of 
 quarter sessions of Mercer county, indicted, 
 tried, convicted, and sentenced for selling 
 liquor therein without a license. He now 
 brings error. 
 
 JJefore 1'ax.son, C. J., Sterrktt, Gkeen, 
 Clakk, Williams, McCollum and Mitch- 
 ell, JJ. 
 
 Geori/e Shiran, Jr., and William S. Pier, 
 for plaintifT in error. O W. M'liride, Dist. 
 Atty., J. A. Straiiahitn, and IS. H. Miller, 
 for the Commonwealth. 
 
 Gkeen, J. In the case of Garbracht v. 
 Com., 96 Pa. St. 441), which was an indict- 
 ment for selling liquor without license, we 
 held that "the place of sale is the point at 
 which goods ordered or purchased are set 
 apart and delivered to the purchaser, or to a 
 common carrier, who, for the purposes of de- 
 livery, represents him. " In that ease the or- 
 der for the liquor was solicited and obtained 
 by the defemlant in the county of Mercer, but 
 was sent to his principal, wlio was a liquor 
 dealer in the county of Erie. The order was 
 executed by the princii)al, who, in the county 
 of Erie, at iiis place of business, separated or 
 set apart from his general stock the liijuor 
 ordered, and delivered it to a common carrier 
 to be forwarded to its destination in Mercer 
 county. AV'e decided that this was no viola- 
 tion of the law proliibiling sales without li- 
 cense, although neither the defendant, who 
 was a traveling agent, nor his principal held 
 any license for the sale of liquor in Mercer 
 county. This decision was not changed in 
 the least u])on a subs6c|uent trial of the same 
 defendant on a different state of facts, as re- 
 ported in 1 Penny. 47L In the case now un- 
 der consideration the liquor vas sold upon 
 orders sent by mail by the purchasers, living 
 in Mercer county, to the defendant, who is a 
 wholisale liipior dealer in Allegheny county. 
 The goods were set apart at the defendanfs 
 place of business in Allegheny county, and 
 were there delivered to a common carrier, 
 consigned to tlie purchaser at liis address in 
 Mercer county, and by the carrier transported 
 to Mercer county, and there delivered to the 
 purchaser, who paid the expense of trans- 
 portation. Upon these facts alone, the de- 
 cision of this court in the Case of Garbracht, 
 supra, is directly and distinctly applicable, 
 and recpiires us to reverse the judgment of 
 the court below, unless there are other facts 
 
 in the case which distinguish it from that of 
 Garbracht. 
 
 It is claimed, and it was so held by the 
 court below, that, because the goods were 
 marked "C. O. I).," the sale was not complete 
 until the delivery was iiunle; and as that took 
 place in Mercer county, where t lie defendant's 
 license was inoperative, he was witlioiit li- 
 cense as to such sales, and became subject to 
 the penalty of the criminal law. The argu- 
 ment by which this conclusion w:i3 reached 
 was simply that the payment of the price was 
 a condition precedent to the delivery, and 
 hence there was no delivery until payment, 
 and no title j)assed until delivery. The legal 
 and criminal inference was, the sale was made 
 in .Mercer, and not in Allegheny. This rea- 
 soning ignores certain facts which require 
 consideration. The orders were sent by the 
 purchasers, in Mercer, by mail to the seller, 
 in Allet;heny, and in the orders the purchas- 
 ers requested the defendant to send the goods 
 C. O. I). The well-known meaning of such 
 an order is that the i)riceof the goods is to be 
 collected by the carrier at the time of the de- 
 livery. The purchaser, for his own conven- 
 ience, requests the seller to send him the 
 goods, with authority in the carrier to receive 
 the money for them. This method of pay- 
 ment is the choice of the purchaser, under 
 such an order; and it is beyond question that, 
 so far as the puichaser is concerned, the car- 
 rier is his agent for the receipt and transmis- 
 sion of the money. If the seller accedes to 
 such a request by the purchaser, he certainly 
 authorizes the purchaser to pay the money to 
 the carrier, and the purchaser is relieved of 
 all liabilities to the seller for the price of the 
 goods if he paj's the price to the carrier. The 
 liability for the price is transferred from the 
 seller to the carrier; and whether the ciurier 
 receives the price or not, at the time of deliv- 
 ery, he is liable to the seller for the price if he 
 does deliver. Substantially, therefore, if the 
 delivery is made by the carrier, and he chooses 
 to give credit to tiie puichaser for the pay- 
 ment of the price, the transaction is complete, 
 so far as the seller is concerned, ami the pur- 
 chaser may hold the goods. Of course, if the 
 seller were himself delivering the goods in 
 parcels upon condition that on delivery of the 
 last parcel the price of the whole should be 
 paid, it would be a fraud on the seller if the 
 purchaser, after getting all the parcels, should 
 refuse to perform the condition upon which 
 he obt:iined them, and in such circumstances 
 the seller wouUI be entitled to recover the 
 goods. This was the case in Henderson v. 
 Laiick, 21 Pa. St. 3.V.). The court helow, in 
 that case, expressly charged that if the seller 
 relied on the promise of the purchaser to pay, 
 and delivered the goods absolutely, the right 
 to the property was changed, although the 
 conditions were never performed: but if ho 
 relied, not on the promise, but on actual pay- 
 ment at the delivery of the last load, he might 
 reclaim the goods if tlie money was not ]iaid. 
 The case at bar is entirely dilTerent. So fur
 
 176 
 
 COMMONWEALTH v. FLEMING. 
 
 as the seller is concerned, be is satisfied to 
 take the responsibility of the carrier for the 
 price, in place of that of the seller. He au- 
 thorizes the purchaser absolutely to pay the 
 price to the carrier; and, if he does so, un- 
 donbteilly the piircluiser is relieved of all re- 
 sponsibility for the price, whether the carrier 
 ever pays it to the seller or not. lint the car- 
 rier is also authorized to deliver the goods. 
 If he does so, and receives the price, lie is of 
 course liable for it to the seller. But he is 
 equally liable for the price if he chooses to de- 
 liver the goods without receiving the price. 
 It cannot be questioned that the purchaser 
 would be liable also; but, as he had received 
 the goods from one who was authorized to de- 
 liver them, his right to hold them even as 
 against the seller is undoubted. In other 
 words, the direction enil)odied in the letters 
 "C. O.I).," placed upon a package committed 
 to a carrier, is an order to the carrier to col- 
 lect the money for the package at the time of 
 its delivery. It is a part of the undertaking 
 of the carrier with the consignor, a violation 
 of which imposes upon the carrier the obliga- 
 tion to pay the price of the article delivered, 
 to the consignor. We have been referred to 
 no authority, and have been unable to discov- 
 er any, for the proposition that in such a case, 
 after actual, absolute delivery to the purchas- 
 er by the carrier without payment of the 
 price, the seller could reclaim the goods from 
 the purchaser as upon violation of a condition 
 precedent. 
 
 If, now, we pause to consider the actual 
 contract relation between the seller and pur- 
 chaser, where the purchaser orders the goods 
 to be sent to him C. O. B., the matter be- 
 comes still more clear. Upon such an order, 
 if it is accepted by the seller, it becomes the 
 duty of the seller to deliver the goods to the 
 carrier, with instruction to the carrier to col- 
 lect the price at the time of delivery to the 
 jiurchaser. In such a case it is the duty of 
 the purchaser to receive the goods from the 
 carrier, and, at the time of receiving them, 
 to pay the price to the carrier. This is the 
 whole of the contract, so far as the seller and 
 the purchaser are concerned. It is at once 
 apparent that when the seller has delivered , 
 the goods to the carrier, with the instruc- ! 
 tion to collect the price on delivery to the 
 purchaser, he has performed his whole duty 
 underthecontract; he has nothing more to do. I 
 If the purchaser fail to perform his part of ( 
 the contract, the seller's right of action is 
 coinpUtp; and he may recover the price of the 
 goods from the purcliaser, where the pur- 
 chaser takes, or refuses to take, the goods , 
 from the carrier. Hence it follows that the 
 passage of the title to the purchaser is not 
 essential to the legal completeness of the con- 
 tract of sale. It is, in fact, no more than the 
 ordinary case of a contract of sale, wherein 
 the seller tenders delivery at the time and 
 place of delivery agreed upon, but the pur- 
 chaser refuses p.rlormauce. In such case it 
 is peifectly familiar law that the i)urchaser 
 is legally iialjle to pay the price of the goods 
 
 ' although, in point of fact, he has never had 
 them. The order to jiay on delivery is 
 merely a superadded term of the conti'tict; 
 but it is a term to be perlormed by the pur- 
 chaser, and has no other effect upon the con- 
 tract than any other term affecting the 
 factum of delivery. It must be performed 
 ' by the purchaser. Just as the obligation tore- 
 ' ceive the goods at a particular time or a par- 
 ticular place. Its non-performance is a breach 
 by the purchaser, and not by the seller, and 
 therefore cannot affect the right of the seller to 
 regard the contract of sale as complete, and 
 completely performed on his part, without 
 any regard to the question whetln-r the title to 
 the goods has passed to the purchaser as upon 
 an aitual reception of the goods by him. If 
 this be so, the case of the commonwealth falls 
 to the ground, even upon the most critical 
 ' consideration of the contract between the jiar- 
 ties, regarded as a contract for civil purposes 
 only. The duties which lie intermediate be- 
 tween those of the seller and those of the 
 purchaser are those only which pertain to, 
 and are to be performed by, the carrier. 
 These, as we have before seen, are the ordi- 
 nary duties of carriage and delivery, with 
 the additional duty of receiving the price 
 from the purchaser, and transmitting it to 
 the seller. Tlie only decided case to which 
 we have been referred which presents the ef- 
 fect of an order C. O. D. to a carrier is Hig- 
 gins V. Murray, 73 N. Y. 252. There the 
 defendant enii)lo3'ed the plaintiff to manu- 
 facture for him a set of circus tents. When 
 they were finished, the plaintiff shijiped them 
 to the defendant C. O. 1)., and they were de- 
 stroyed by fire on the route. It was held that 
 the defendant, who was the purchaser, should 
 bear the loss; that the plaintiff had a lien on 
 the tents for the value ot his labor and ma- 
 terials, and his retaining his lien by shipping 
 them C. O. D. was not inconsistent with, and 
 did not affect, his right to enforce the de- 
 fendant's liability. In the course of the 
 Opinion, Chief .Tustico Church said: "Sup- 
 pose, in this case, that the defendant had re- 
 fused to accept a delivery of the tent, his lia- 
 bility would have been the same, although 
 the title was not in him. The plaintiff had 
 a lien upon the article for the value of his 
 labor and materials, which was good as long 
 as he retained possession. * * * Retain- 
 ing the lien was not inconsistent with his 
 right to enforce the liability for which this 
 action was brought. That liability was com- 
 pl'te when the request to ship was made by 
 the defendant, and was not affected by com- 
 plying with the request, nor by retaining the 
 lien the same as when the request was made. 
 As the article was shipped at the request of, 
 and for the benelitof, tlie defendant, (assum- 
 ing that it was done in accordance with tlie 
 directions,) it follows that it was at his risk, 
 and could not impair the right of the plain- 
 tiff to recover for tlie amount due him upon 
 the performance ot his contract. * * * 
 As before stated, the point as to who had the 
 title is not decisive. It may be admitted
 
 COMMONWEALTU c. FLEMING. 
 
 177 
 
 tli:it the plaintiff retained the title as secu- 
 rity for the debt, and yet the defendant was 
 liable for the debt in a proper personal ac- 
 tion." It seenis to us this reasoning is per- 
 fectly sound. Practically, it was ruled that 
 the effect of the order C. O. D. was simply 
 the retention of the seller's lien, and that 
 such retention of lien is not inconsistent 
 with a right of recovery for the price of the 
 article, thoiiiih, in point of fact, it is not de- 
 livered to tlio purchaser. In other words, 
 the literal state of the title is not decisive of 
 the question of liability of the purchaser, and 
 he may be compelled to pay for the article, 
 though he never received it into his actual 
 possession. The cliief justice propounds the 
 very question suggested, heretofore, of a re- 
 fus;d by the purchaser to accept the article, 
 and holds that his liability would be the 
 same, though the title was not in him. 
 
 In Ilutcliinson on Carriers, at section 389, 
 the writer thus states the position and duty 
 of the carrier: "The carrier who accepts the 
 goods with such instructions [C. O. D.] un- 
 dertal<es that they shall not be delivered un- 
 less the condition of payment be complied 
 with, and becomes the agent of the shipper 
 of the goods to receive such payment, lie 
 therefore undertakes, in addition to his duties 
 as carrier, to collect for the consignor the 
 price of Ins goods." And again, in section 
 39U: "W'luni the goods are so received, the 
 carrier is held to a strict compliance with 
 such insti uctions; and, if tlie goods are de- 
 livered without an exaction from the con- 
 signee of the amount which the carrier is in- 
 structed to collect, he becomes liable to Ihe 
 consignor for it." This is certainly a correct 
 statement of the position and liability of the 
 carrier, lie becomes sulijcct to an added 
 duty. — that of collection; and, if he fails to 
 perform it, he is liable to the seller for the 
 price of tlio goods. We have searched in 
 vain for any text-writer's statement, or any 
 decision, to the effect that in such case no 
 title passes to the purchaser. AVe feel W'ell 
 assured none such can be found. But, if 
 this be so, the whole theory that the title 
 does not pass if the money is not paid falls, 
 and the true legal status of the parties re- 
 sults that the seller has a remedy for the 
 price of his gooils again.-t the carrier. In 
 other words, an order from a seller to a car- 
 rier to collect on delivery, accepted by the 
 carrier, creates a contract between the seller 
 and the carrier, for a breach of wliich by the 
 carrier the seller may recover the price from 
 him. So far as the seller and purchaser are 
 concerned, the latter is liable, whether he 
 takes the goods from the carrier or not, and 
 the order itself is a mere jirovision for the 
 retention of the seller's lien. While, if the 
 goods are not delivered to the purchaser by 
 the carrier, the title does not pass, that cir- 
 cumstance does nut affect the character of the 
 transaction as a sale; and the right of the 
 seller to recover the price from the purch;iser, 
 if he refuse to take them, is as complete as 
 if he had taken them, and not paid for them. 
 
 LAW SAI.hS— U 
 
 Thus far we have regarded thr^ transactions 
 between the parties in its aspect as a civil 
 contract only; but, when viewed in its as- 
 pect as the source of a criminal prosecution, 
 the transaction becomes much more clear of 
 doubt. It is manifest that, when the pur- 
 chaser ordered the goods to be sent to hira 
 C. O. D., he constituted the carrier his agent, 
 both to receive the goods from the seller, and 
 to transmit the price to the seller. When, 
 therefore, the goods were delivered to the 
 carrier at Pittsburgh for the purpose of trans- 
 portation, the duty of the seller w:ia per- 
 formed, as we h;ive already seen, so far as 
 he and the purchaser were concerned, and as 
 between them the transaction was complete. 
 The duty of transpartation devolved upon 
 the carrier, and for this he was, in one sense, 
 the agent of the seller, as well as of the pur- 
 chaser; but, as it was to be at the expense 
 of the purchaser, the delivery to the cjirrier 
 was a delivery to the purchaser; and this 
 was ruled In Garbracht's Case. The injunc- 
 tion to the carrier to collect the money on de- 
 livery imposed an additional duty on the car- 
 rier, which the carrier was, of course, bound 
 to discharge. This arrangement was a mat- 
 ter of convenience, both to the purchaser and 
 the seller, relative to the payment and trans- 
 mission of the price; butthatisall. Tocon- 
 vert this entirely innocent and purely civil 
 convention, resperting the mode of collect- 
 ing the price of the goods, into a crime, is, 
 in our judgment, a grave perversion of the 
 criminal law, to which we cannot assent. As 
 a matter of course, there is an utter absence 
 of any criminal intent in the case. The de- 
 fendant had a license. The sale was made 
 at his place of business, and both the sale 
 and delivery were completed within the ter- 
 ritory covered by the license. If, now, a 
 criminal character is to be given to the trans- 
 action, it must be done by means of a tech- 
 nical inference that the title did not pass un- 
 til the money was paid; and thus that the 
 place of sale, which in point of fact was in 
 Allegheny county, was changed to Mercer 
 county, where no sale was made. Even 
 granting that, in order to conserve the ven- 
 dor's lien, such a technical inference would 
 be justilied for the purpo.ses of a civil con- 
 tract, it l>y no means follows that the plain 
 facts of the case must bo clothed with a crim- 
 inal consequence on that account. So far as 
 the criminal law is concerned, it is only an 
 actual sale without license that is prohibit- 
 ed. 15ut there was no such sale, because all 
 the essential facts which constitute)! the sain 
 transpired in Allegheny county, where the 
 defendant's license was operative. The car- 
 rier, being the agent of the purch-aser to re- 
 ceive the goods, does receive them from the 
 seller in Allegheny county, and the delivery 
 to him for the purpose <if transport.it ion was 
 a delivery to the jiurchaser. This is the le- 
 gal, and'certainlv the eouiraon, understand- 
 ing of a sale. The statute, being criminal, 
 must be strictly construed; and only those 
 acts which are plainly within its meaning.
 
 178 
 
 COMMONWEALTH v. FLEMING. 
 
 according to the common understanding of 
 men, can be reg.'xrded as proliibiteil criminal 
 acts. We ciinnot consider, tlierefdre, tliat a 
 mere undertaking on the part of the carrier 
 to collect tlie price of the goods at the time 
 of his delivery to the purchaser, though the 
 payment of the price be a condition of the 
 delivery, can sullice to convert the seller's 
 delivery to the carrier for transportation and 
 collection into a crime. We therefore hold 
 that the sales made by the defendant upon 
 
 orders, C. O. D., received from the purchasers 
 were not in violation of the criminal statute 
 against sales without license, and the con- 
 viction and sentence in the court below must 
 be set aside. The judgment of tlie court of 
 quarter sessions is reversed, and the defend- 
 ant is discharged from his recognizance up- 
 on this indictment. 
 
 Williams, J., delivered a dissenting opin- 
 ion.
 
 COMMONWEALTH p. MIM.F.R. 
 
 181 
 
 COMMO>m'EAI/rH, to Use of ALLE- 
 GHENY COL'NTY et al., v. MILLER. 
 
 (18 Atl. Rep. 938, 131 Pa. St. 118.) 
 
 Supreme Court of Pennsylvania. Jan. 6, ISOO. 
 
 Appeal from court of common pleas, .\lle- 
 glieny county. 
 
 Before Pa.xson, C. J , Steriiktt, Giief.n, 
 Clauk. Williams, McCollum and Mitch- 
 ell, .JJ. 
 
 John S. Ferguson, for appellant. John 
 Rebmnn, Jr., and William Yost, for the Com- 
 uionwealtli. 
 
 Clahk, .T. The defendant is the proprie- 
 tor of a restaurant in the city of Pittsburgh. 
 Ills business consists, in part, in furnishing 
 meals to transient and regular patrons, who 
 pay for the same daily or by the meal, accord- 
 ing to the ordinary usage in that business. 
 From the facts set forth in the case stated 
 it appears that on the 31st of .January, 1889, 
 William McKay and (Jeorge Spence called at 
 this restaurant and ordered meals, which were 
 served to them in the usual manner. Among 
 other food furnished by the defemlant on this 
 occasion was a small nuantity of what ap- 
 peared to be butter, but which in fact was 
 oleomargarine, an article of manufacture and 
 sale which is prohibited by the act of May 21, 
 1885, P. L. 22, entitled "An act for the protec- 
 tion of the public health, and to prevent adul- 
 teration of dairy products, and fraud in the 
 sale thereof." P. L. 22. It is admitted that 
 this oleomargarine was furnished for food, as 
 an imitation of butler, and that it was design- 
 ed to take the place of butter in the meals thus 
 served. McKay and Spence, having partaken 
 of the food served to them, paid each 50 cents 
 for their meals, "including said small dish of 
 oleomargarine," which, however, for some 
 reason they did not eat, but carried the same 
 away, pnsumably for examination. This 
 suit is brought to recover the penalty pro- 
 vided in the third section of the act, for the 
 manufacture or sale of the prohibited article, 
 and the single question for our determination 
 is whether or not, under the facts stated, 
 there was a sale of the oleomargarine, with- 
 in the meaning of the act referred to. The 
 l)urpose of the art is expressed in the title. 
 It is to prevent the aiulteration of dairy 
 products, and fraud in the sale thereof, and 
 to protect tlie public health. It is plain 
 that the exact legislative intent was to pre- 
 vent the sale, and thereby prevent tlie use of 
 these adulterations and admixtures as arti- 
 cles of food. It was the use, as food, and 
 the frauds perpetrated upon the public in the 
 sale, which was the mischief to be remedied: 
 and the statute, of course, must be construed 
 with reference to the old law, the mischief, 
 and the remedy. That the food furnished to 
 McKay and Spence, or so much of it as they 
 saw lit to appropriate, was sold to them, can- 
 not be reiisonably questioned. When it was 
 set before them, it wiis theirs to all intents 
 
 and purposes, to eat all, or a part, as they 
 chose, subject only to the renlaiiraterir't 
 right to receive the price, which it is admit- 
 ted was promptly paid. They might not eat 
 all of the article set before them, but they 
 had an undoubted right to do so: and, even 
 assuming that the meal is the portion of food 
 taken, in the sense stated, the transaction 
 must be regarded as a sale wholly within the 
 purport and meaning of the statute. It is 
 certain that the oleomargarine comptosed a 
 part of the meal, the price of which wus paid, 
 and was embraced in the transaction as an 
 integral part thereof. If an unlicensed keej)- 
 er of a restaurant may set before his guests 
 a bottle of wine or other intoxicating liquor, 
 charging a regular price for the same, with 
 other articles of food furnished, with liljerty 
 to take much or little of the liquor as the 
 guest may choose, or, failing to drink it with 
 his meal, permit him to lake it away with 
 him, then the liquor laws of the common- 
 wealth are of no avail, and the license to sell 
 liquor is wholly unnecessary. When the liq- 
 uor is thus furnished and paid for, it is in 
 legal effect a sale, for the very act has been 
 done which it is the policy of the law to pre- 
 vent, and which it characterizes as a crime, 
 viz., furnishing intoxicating liquors at a 
 price which is jiaid. So, in this citse, the 
 oleomargarine was furnislied to the person 
 named as food, and the price was paid. As 
 the learned judge of the court below well 
 said, it was not given away, and the fact 
 that it was not sold separately, but with oth- 
 er articles, for a gros.s sum, would not make 
 it less a sale. It therefore comes within the 
 letter of the law, and it is also within its 
 spirit. If the use of such articles is injuri- 
 ous, it would seem to be especially wilhin 
 the spirit of the act to prohibit public cater- 
 ers from selling them to their guests as part 
 of an ordinary meal. Penal statutes are to be 
 strictly construed, hut both the letter and the 
 spirit "of the act of 1885 cover this c»ise, and 
 we think the judgment was properly entered. 
 Judgment aihrmed. 
 
 Paxson, C. J., (dissenting.) I am unwill- 
 ing to be held responsible for this judgment, 
 and therefore dissent. I am opposed to ex- 
 tending iienal laws beyond their plain and 
 obvious meaning. I am of opinion that the 
 act of 21st May, 1885. (P. L. 22,) prohibiting 
 the sale of the article of food known as "oleo- 
 margarine," was intended to apply only to 
 dealers, or persons engaged in the sale there- 
 of in the line of their business. When the 
 legislature used the word "sale," it is fair to 
 assume that it was employed in the sense in 
 which it is popularly understood. If it was 
 the intention not only to prohibit sales of 
 oleomargarine, but also its use as an article 
 j of food, or in the preparation of foo<l, by pro- 
 prietors of eating-houses, restaurants, and 
 hotels, it was ea.sy to have said so in express 
 I terms. As the act stands, there is nothing 
 I to warn the defendant that lie violated it by 
 I placing oleomargarine on his table as an ar-
 
 182 
 
 COMMOXWEALTH v. MILLER. 
 
 tide of food. I am unable to see how the 
 legal or the popular meaning of the word 
 "sale" will support this judgment. A sale 
 is the transfer of the title to property at an 
 agreed price. Story, Sales, § 1; Creveling v. 
 Wood, 95 Pa. St. 152. 1 find nothing in the 
 facts, as set forth in the case stated, to justify 
 the conclusion that there was a sale of the 
 oleomargarine. The two individuals referred 
 to entered the defendant's place of business, 
 and ordered a meal. It was furnished, but 
 oleomargarine formed no part of it. It is 
 true, there was some of that article on the 
 table. They miglit have partaken of it, but 
 they did not. When they left they carried 
 the oleomargarine away with them. This, 
 in my opinion, they had no right to do. A 
 guest at a hotel may satisfy his appetite 
 when he goes to the table. He may partake 
 of anything that is placed before hini, but, 
 after lilling his stomach, he may not also hll 
 his pockets, and carry away the food he can- 
 
 not eat. This I understand to be the rule as 
 applicable to hotels and eating-houses in this 
 country, and if there is anything in tliis case 
 to take it out of its operation it does not ap- 
 pear in the case stated. The illustration of 
 the bottle of wine, referred to in the opinion 
 of the court, does not appear to me a happy 
 one. Surely, if the proprietor of a hotel 
 places a bottle of wine before his guests, who 
 do not partake thereof, it cannot be said 
 that it is a sale of the wine, nor has the guest 
 the right to carry it away. He might as well 
 carry olf the table furniture. It is quite pos- 
 sible, under our construction of the act of 
 1885, (see Powell v. Com., 114 Pa. St. 265, 7 
 Atl. Rep. 913,) the legislature may have the 
 power to prohibit the use of oleomargarine 
 as an article of food in hotels and eating- 
 houses, and punish a landlord who places it 
 before his guests; but this has not yet been 
 done, and I would not extend a highly penal 
 law by implication.
 
 COX.VEK c. IIKNDKUSON. 
 
 185 
 
 CONXKU V. IIKNl)i:i!S(1.\. 
 
 (15 Mass. 31!).( 
 
 Supromc Jiulieial Court of Massachusells. Es- 
 sex. Nov. Term, 1818. 
 
 TliiH was ail action of the cawe in as- 
 8iinii)»<it. allciritifi Uiat the ilefeiidant iin- 
 <lert(i<)l< to Kell ami (h'liver to the pliMiitiff 
 piKhty-iiine caskH of lime of kih>i\ quality ; 
 but in fact ilelivered liim eiuh ty -iiiiie cawks 
 of lime of littU! value, not tnerdiantable. 
 There wb!^ a Heconii count much like the 
 fifHt; and a third count for iiioney had 
 and received. Trial on t!ie seneral issue, 
 before I'utnam .I.at the Hittinii.s here after 
 the lUKt November term.— The plaintiff 
 I)i-oduccd the ilefendaiit's hill of paiceln of 
 Hil caskti of lime to the i)laintil'f at lOs. 
 amountins to US dollars aii centsi. It was 
 proved that thecasUs were branded byone 
 I). .lenks, .)r.,an inspector of lime, and 
 there was satisfactory evidence that the 
 contents of the casks were of no value, 
 beinu: a mixture of sand and stones, and 
 wholly unlit for use as lime. 
 
 It was admitted by the plaintiff, that lie 
 had sold and cl)ar;j;ed to his customers 
 about thirty casks, which had not been 
 paid for, except two which were sold and 
 paid for at two dollars per cask, the 
 plaintiff and his customers then suppos- 
 inK the casks to contain good lime. 
 
 There was no eviilence of a speci.-il war- 
 ranty of the defendant that the lime was 
 gooii: nor any evidence that he knew it 
 was bad. The defendant was master of a 
 roastins vessel, and had received the 
 casks of one U. Sevey at Thoniastown, to 
 cari'y ou freight to Boston and to sed on 
 Sevey's account. 1 1 did not api)ear ho w 
 ever that the defendant disclosed his prin- 
 cipal to the plaintiff: nor had this latter 
 returned the casks, which he hail not sold 
 as aforesaid. 
 
 The judKe instructed the jury, that if 
 from tiie evidence they believed the de- 
 fendant had not practised Jiny frauil. they 
 must (ind a verdict for him upon the two 
 first counts; because the delivery of the 
 casks with the inspector's brand, together 
 with a l)ill of the same, did not amount 
 to a warinnty of the contents, of which 
 the defendiiiil iiii(;ht beiKnorant: — that to 
 charKe him upon those counts, they must 
 Hnd fraud or warranty on his part. l!ut 
 that in respect to the count for money 
 had and received, it was recoveralile, 
 where the money had been received by the 
 
 defcndaiit by mistake, or where the con- 
 sideration hnd failed, allhouirli no fraud 
 had been practised by him: and if llipy 
 should lielieve. from the evidence, that the 
 plaintiff intended to l)uy, and the defend- 
 ant to sell, Ml casks of lime, and not S9 
 casks witlioiit lime: and that the casks, 
 which ho delivered did not contain linip 
 but stones and stuff of no value; that the 
 consideration of the contract had failtd, 
 although the defendant had no bad inten- 
 tions; and the plaintiff nii>;ht receiver the 
 money he had paid upon the coiilrnct, 
 and considi r It as rescinded, notwith- 
 staiidiiij.'- he had not redelivered the casks 
 before he brought his action, he heiiiK ac- 
 countalile to the defendant for the same. 
 
 The jury unmd a verdict for the defend- 
 ant upon the two first counts, nn<l for the 
 plaintiff upon the money count; r)n the 
 iironiid abose stated by the jud;;e. .\n<\ 
 if upon the fads, the plaintiff was enti- 
 tled, in the opinion of tliei'ourt. to recover 
 upon either of the counts, judgment was 
 to be entered upon the verdict: olherwlse 
 it was to be set aside, and the plaintiff to 
 b"conie nonsuit. 
 
 L'ummings, for plaintiff. Phinney, for 
 defendant. 
 
 PKU CURIAM. The evidence reported 
 will not maintain the action on either o( 
 the two first counts. There was no ex- 
 press warranty respectinj; the quality of 
 the article.— Neither can the plaintiff re- 
 cover on his count for money had ami re- 
 ceiveil. If he woulil have rescindeil the 
 contract, and so have entitled himself to 
 a return of the money paid; it was neces- 
 sary that he put the defendant in thesame 
 situation he was in before the delivery of 
 the article. This w;is settled in the case 
 of Kiinliall vs. Cnnniimham. 4 .Maws. M'J, 
 and nltlioii«h the iirineipal subject of the 
 contract in the present case may lie pre- 
 sumed, from the evidence reported, to 
 have been absolutely of no value, and so 
 the returning of it would have been lint 
 an idle act; yet the casks were of some 
 value, and should have been restored, if 
 the ])laintiff would treat the sale as a 
 nullity, and dem.-ind iiis money, as paid 
 without consideration. 
 
 We think, however, that an action may 
 be framed, in which the plaintiff may re- 
 cover, on the evidence reported. He may 
 tlierefore file a new declaration, on which 
 atrial may be had: but he cannot have 
 his costs arising prior to the present time.
 
 COOKE V. MILLAKD. 
 
 1«7 
 
 COOKE V. MILLARD. 
 
 (Co X. Y. 352.) 
 
 Commission of Appeals of Kew York. 1875. 
 
 Action to recover thepriceof certain lum- 
 ber hoIiI and tlelivereiJ. Tlie rfferee found 
 that pinintiffij were copartners and vvliole- 
 Hale lumber rnercliantH. and proiirictors of 
 a |)laninun)ill, at Whiteliall, .\. Y., and 
 defendants were partners and luiiilier nier- 
 cliantH. at New llanilmrKli, on the Hud- 
 son. Tlie course of husinesH is, tliat the 
 lunilier is sliipped from Wliiteliall l>ycanal 
 to Troy, and thenco to New liainhur^^li 
 by the Hudson river. t)n tlie .">tl) day of 
 Sept., INC."), the defendants desiring to pur- 
 chase certain kind-iof luinlier, were sliown 
 by the plaintiff the lurnher tlieii in tlx'ir 
 yard at Whiteliall. This was of the de- 
 sired quality, l)Ut needed to liedressed and 
 cut into tlio different sizes which fliey 
 wished. There was much more lumlier 
 in the yard shown to the defendants than 
 was requisite lor their pur[)08es. The de- 
 fendants thereupon orally gave to the 
 plaintiffs an or<ler for certain quantities 
 and sizes of lumber, at specified prices, 
 atuounting in the whole to $'.tlS.L'2. A 
 meniurandum of the order so agreed to 
 was made l)y the plaintiffs, but was not 
 subscribed b.v any one. No particular 
 lumber was selected or set apart to till 
 the order, nor was any part of it tlien in 
 condition to be ac''epte<l or delivered. 
 The defendants told the plaintiffs that 
 Percival, a forwarder at Whitehall, would 
 send a boat to take the lumber, when no- 
 tified that it was ready to be delivered. 
 Percival, duriuE the same season, and 
 prior to Sept. ."). had taken up a boat for 
 the defendants, and shipped a part of a 
 load of lumber from the plaiiitiffK' dock, 
 making up the residue from his own yard. 
 He had frequently shijiped lumber for the 
 defendants. By the course of trade, a 
 bout could not be obtained to carr.v a 
 part of a load of lumber from Whiteiiall 
 to New Hamburgh, except for the [irice of 
 a full load. To avoid paying such full 
 price, arrangements had to be made to fill 
 out the load. The defendants knew of 
 this when they made the ordvr of .Sept. .">. 
 The order oidy amounted to one-half a 
 boat-load. I'ercival then had a pile of 
 lumber (seventeen thousand six hundred 
 and seven ty-one feet of culls) to ship to 
 the defendants, which was no part of the 
 lumlter to be dressed by plaintiffs. The 
 lumber ordered on .Sept..') was to be taken 
 from the lots examined by the defendants, 
 and the lumber dressed and piled on the 
 plaintiffs' dock, was all taken from the 
 lumber shown. After the oral order de- 
 fendants went into the lumberyard with 
 the plaintiffs' foreman. .Martin, and point- 
 ed out to him someof the i)iles from wl'.ich 
 they desired the lumber to lie manufac- 
 tured, and directed plaintiffs to put the 
 lumber, when ready, on plaintiffs' d<n'k 
 and to notify Percival; and told plaintiffs 
 that when this was done. I'ercival, who 
 was also a luuil>er dealer, would take up 
 a boat and ship the lumber, and make out 
 the load from his yard. Subseciuently, 
 
 I the l.")th of .Sept., the lumber linvine; bi-en 
 prepareil and dressed, aciording to the 
 
 I oral agreement, it was piled u|Mni the 
 dock of the plaintiffs nt Whitehull, along 
 the front of the planing-inill, and was, on 
 the Kith of that month, n.eaHun-d by 
 
 j rilainliffs, and was in all respects readyfoV 
 delivery by them, according to the oral 
 
 I agreement. 
 
 The plaintiffs, on the snine day, gave 
 notice to Percival that the lumber was 
 ready for delivery, and re<|iiested him to 
 send a boat and take it away. Percival 
 had not been notilied that he was to ship 
 the lumlier, and paid no attention to tlie 
 notice given him by pluintirfs. On the 
 
 , other hand, the plaintiffsdid not ascertain 
 
 j that Percival did not know of the arninge- 
 nient. which the defendants hud tulil them 
 they would make with I'ercival nsto ship- 
 ping the lumber, until after the H re here- 
 inafter mentioned. On the ne\t day. Sun- 
 day, the lumlier being still on the dock, art 
 it was at the time I'ercival was mititied, 
 wasc<inHumed by an accidental Hre. with 
 the planing-mill and much other property'. 
 Judgment far defemlant. 
 
 .Martin \V. Cooke, for appellaots. 
 Thompson & Weeks, for respondents. 
 
 DWIGIIT, C. No exceptions were taken 
 in this cause, except to the conclusions of 
 law derived by the referee frnni the tacts 
 astound in the report. There are tint two 
 questions to be considereil : One Is, 
 whether the contract is within the statute 
 of frauds ; the other is, if it be lield that it 
 is within the statute, were the acts, done 
 by the [larties, sulticient to I'ouiply with 
 it's terms, so as to make the contract en- 
 forceable in a court of justice? 
 
 In order to determine whether the con- 
 tract is within the statute, it is ini|iortnnt 
 briefly to state the exact acts which the 
 Iilaintiffs were to perform. 
 
 The contract was plaiul.v executory In 
 its nature. There were no specific articles 
 upon which tli" minds of the liuy«'r and 
 seller met, so that it could be ailirmed 
 that a title passed at the time of the con- 
 tract. The seller was to select fniiii the 
 mass of lumber in his yard, certain por- 
 tioi^s that would comply with the buyer's 
 iinler. The purposes of the parties could 
 not even be accomplished by the process o( 
 se'ection. The lumber must be put in n 
 condition to answer the order. It must 
 lie dresse<l and cut into required sizes. 
 The contract called for distinct parcels of 
 surface pine boards, clapboardn and 
 matched ceiling. I'art of the lumber was 
 surfaced, and a portion of it still in the 
 rough. The clapboanls were ma-Mifac- 
 tured from stuff one and a (iiiariei-inrh 
 thick. It had to be split, surfaced and 
 rabbeted. The or<ler for the various items 
 was a single one, there being tifteen thou- 
 sand four hundied anil forty-one feet of 
 the surface pine, ten thousand one hun- 
 dred and forty-four feet of clapbiinrds, 
 andeight thousand feet of inatchetl ceiling. 
 The surface boards and the ceiling were In 
 existence, ami only needed die.sslng to 
 comply with the onler. Whether the 
 clapboards can be ileeiucd to have been in
 
 188 
 
 COOKE V. MILLARD. 
 
 <>xistonce may iie more doubtful. It a 
 part of the order is within tlic Htatiite of 
 frjinds. anil a portion of it witlioiit it, tlie 
 whole transaction I'.iust he deemed to be 
 within it, aw an entire contraet cannot, in 
 thi.s ease, be divided or apportioned. 
 Coulee V. 'I'oniliH, 2 Annt. 420; Cliater v. 
 Beckett, 7 T. K. L'Ol ; Mechelen v. Wallace, 
 7 A. & E. 4'.); Thonian v. Williams, lu B. 
 & C. ()(i4; Looniis v. NewhaM. lo IMcU. l.")l. 
 I thinlv it clear that the contract was in 
 its nature entire. It was in evidence that 
 the intention was to liuy enough, in con- 
 nection with what Percival had on hand, 
 to make up a bout-load. This coulil only 
 be acconi|)lished b3' usiny; the entire 
 amount of the or<ler. Acc<jrdinKly even if 
 the contract for the clapboards was not 
 a sale, it cannot be separated from the 
 rest of the order, and the eases above cited 
 are applicable. 
 
 The question is thus reduced to the fol- 
 lowing proposition: Is a contract w hich 
 is, in forni, one of sale of lumber then in 
 existence for a fixed price, where the seller 
 aerees to put it into a state ni fitness to 
 fill the order of the p\irchaser, his work 
 being included in the price, in fact a con- 
 tract for work and labor and not one of 
 sale, and accordingly not within the stat- 
 ute of frauds? 
 
 The New York statute is made applica- 
 ble to the "'sale of any goods, chattels or 
 things in action," for the price of .foO or 
 more. The words "goods and chattels" 
 are, literally taken, probably more com- 
 prehensive than the expressions in the 
 English statute, "goods, wares and mer- 
 chanrlise." It will be assumed however 
 in this discussion, that they are etjuiva- 
 lent. 
 
 There are at least three distinct views 
 as to the nisaning of the words in the 
 statute. These may be called, for the 
 sake of convenience, the English, the Mas- 
 Haehusetts and the New York rules, as 
 representing the deci.sionsin the respective 
 courts. 
 
 The English rule lays especial stress up- 
 on the ))oint, whether the articles bar- 
 gained for can be regarded as goods capa- 
 ble of sale by the professed seller at the 
 time of delivery, without any reference to 
 the imjuiry whether they were in existence 
 at the time of the contract or not. If a 
 manufacturer is to produce an article 
 whicii at the time of the ileli\ery could be 
 the subject of sale liy him, the case is 
 within the statute of frauils. The rule 
 excludes all cases where work is done up- 
 on the goods of another, or even materials 
 supidied or added to the goods of an- 
 other. Thus if a cari'iageniaker should 
 repair my carriage, both furnishing labor 
 an<l supplying materials, it would be a 
 contract for work and labor, as the whole] 
 result of his efforts would not produce a 
 chattel which could be the sniiject of sale 
 by him. If on the other hand, by the con- 
 tract he lays out work or materials, or 
 both, so as to produce a chattel vrhich he 
 could sell to me, the contr;ict is within the 
 statute. This conclusion has been reached 
 onl,y after great discussion and much fluc- 
 tuation of opinion, hut must now be re- 
 garded as settled. The leading case upon 
 
 this point is Lee v.tJriflin, 1 Best & Smith, 
 27l!; Benj. Sales, 77. The action was thei'e 
 brought by a dentist to recover £21 sterl- 
 ing for two sets of artificial teeth, made 
 for a deceased lady of whose estate the 
 defendant was executor. The court held 
 this to be the sale of a chattel within the 
 statute of frauds. Blackburn, J., stated 
 the principle of the decision in a clear 
 ipaniier: " If the contract be such that it 
 will result in the sale (jf a chattel, then it 
 constitutes a sale, but if the work and 
 labor l)e bestowed in such a manner as 
 ] that the result would not be any thing 
 I which could propti'ly be said to be the 
 ■ subject of sale, the action is for work and 
 ; labor." 
 
 The Massachusetts rule, as applicable to 
 goods lufinufactured or modified after the 
 I bargain for them is made, mainly regard.s 
 [ the point whether the products can, at the 
 ! time stipulateii for delivery, be regarded 
 as "goods, wares and merchandise," in 
 the sense of being generally marketable 
 commodities made by the manufacturer. 
 In that respect it agrees with the English 
 rule. The test is not the non-existence of 
 the commodity at the time of the bar- 
 gain. It is ratlier whether the manufac- 
 turer produces the article in the general 
 course of his business or as the result of 
 a special order. Goddard v. Biiiney, II.t 
 Mass. 4.")(), 1.") .\m. Kep. 112. In this very 
 recent case, the result of their decisions is 
 stated in the following terms: "A eon- 
 tract for the sale of articles then existing, 
 or such as the vendor in the ordinary 
 course of his business manufactures or 
 procures for the general market, whether 
 on hand at the time or not, is a contract 
 for the sale of goods to which the statute 
 applies. But on the other hand, if the 
 goods are to be manufactured especially for 
 the purchaser and upon his special order, 
 and not for the general market, the case is 
 not within the statute. " Under this rule 
 it was held in (iardner v. Joy. 9 .Mete. 177, 
 that a contract to buy a certain number 
 of boxes of candles at a fixed price per 
 pound, which the vendor said he would 
 manufacture and deliver in about three 
 months, was held to be a contract of sale. 
 On the other hand in Goddard v. Binney, 
 supra, the contract with a carriage manu- 
 facturer was that he should make a 
 buggy for the person ordering it, that the 
 color of the lini:ig should lie drab, and the 
 outside seat of cane, and have on it the 
 monogram and initials of the partj' for 
 whom it was made. This was held not 
 to be a contract of sale within the statute. 
 See also Mixer v. Howartli, 21 Pick. 20.i, 
 H2 Am. Dec. 256; Lamb v. Crafts, 12 Mete. 
 :i.j-!, .Spencer v. Cone, 1 id. 2S3. 
 
 The New Y'ork rule is still different. It 
 is held here by a long course of decisions 
 that an agreeement for the sale of any 
 commodity not in existence at the time, 
 but which the vendor is to manufacture 
 or put in a condition to be delivered, such 
 as flour from wheat not yet ground, or 
 nails to be made from iron belonging to 
 the manufacturer. is notacontract of sale. 
 The New Y'ork rule lays stress on the 
 word "sale." There must be a sale at 
 the time the contract is made. The latest
 
 COOKK V. MIIJ.AI!!). ISO 
 
 iiiifl most antlioritative expression of the ' diffipiilt to draw tl.c line, luiil to tllKcover 
 rule i.-i I'oiiml in a recent ciise in this court, wlictlier the cliatlelH ure in cxiMt»'ncc or 
 Parsons v. hoiickH. 4s N. Y. 17, l'.», h Am. not. Thi- miiihh of tlie ciiHeH will iiowi-ver 
 IJcp. ■")I7. IMie ciintrnHt between I'arsons readily lje cUiHsifieil. If, on fiirther diHciiH- 
 V. Lom-ks, in this state, on the one hand, sion, the rule in Lee v. (irillin should he 
 and I^ce v. (irillin, supra, in EuKland. on found most desirulile nria|iplicalile to lioth 
 the otlier, is I ha t in the former case the kindsof transactions, a proper case will be 
 word sale refers to the time of enieriuK liresented for the consideration of tlie lej;;- 
 into the contr'act, while in the latter, ref- j islature. 
 
 erence is had to the time of delivery, as | The view that this case Is one of sale Is 
 eonteiuplu ted liy ihe parties. If at tha t ; suhtain''d hy Smith v. I'enti.il It. Co., 4 
 time it is a clialtel it is enouirli, aceordinu Keyes, iso, and l>y Downs v. I'.oss, 'SA 
 to the ICuKlish rule. Other cases in this | Wend. '.'70 
 
 state atfreein;; with l'ar>ons v. I.oucksi In tlie lirst of these cases there was a 
 are CiooUshank v. Ilnrrell, IS Johns. ,")S, contract for the sale and delivery of a 
 ".(Am.Uec. Is7; Sew'all v. Fitch, S Cow. rjuantity of wood, to he cut from trees 
 21."); Kohertson v. Vauirlin, .t Sandf. 1; standing on the plaintiff's land. The 
 Parker v Schenck, 'JS llarh. 3s. These court held that it could not he treated as 
 cases are based on certain (d.'i decisions in n.i a;;re"Miient for work and liih 
 Kn^land, siicli as Towers v. Osl 
 Strariir*, .')0<), and Clayton v. .\ 
 
 such existence maybe arKueil fri ni the sidered that the case of Towers v <)s- 
 
 fact tliat matter is iniiestructible. " So in l)orne, 1 Strange, ,i(Mi, whore an agreement 
 
 Sewall V. Fitch, supra, the nails which for tlie manufacture of a chariot was 
 
 were the subject of the contract were not contract for work and labor, was extre 
 
 *!.»» _i, ,. ....» I...*- I... 1... ..^n.i» ;*, ; fc. .,.. t^ .,•.., .,...1 ...,..» ».. I. ,.,.:,.. I .. 
 
 then wroufilit out, but were to be made in itsnature, and wasnot to becarried any 
 and <lelivei'ed at a future day. further. ra«e '.'CO. The eases of (iarbutt 
 
 Nothing of this kind is found in the pres- 1 v. Watson. T) U. \- .\ld. (il:i, and Smith v. 
 ent case. The lumber, with the possible | Surnian, '.» li. & C. .'jUI. were cited with ap- 
 e.xception of the claplioards, was all in ! proval. In Oarbult v Watson a sale of 
 existence; wlien tin; contract was made. ' tlour by a miller was held within the stnt- 
 It only nceiled to be pici)anMl for the pur- ute, althou;;li not ground when the bar- 
 chaser — dressed and put in a condilion to uain was ma<le. 
 fill his order. The court ac( ordincly is In Downs v. Hoss there was a contract 
 
 uhIi- 
 he 
 
 nil HIS oroei . i iie couri tici t»ruiii;iiy i.s iii i/owiis \. i\ifn» iiii-tt- « tin ti (.miiiu 
 not hampered in the disposition of this for Ihesaleof seven hundred and titty liuf 
 cause by authority, but may proceed upon <'ls of wlieat, two hundred and fifty of t 
 principle. (|uantity beinc: in a granary, and the res- 
 
 Were tliis snliject now open to full dis- idiie untlireshed, but which the vendor 
 cussion upon principle, no more cohvimi- a;ireed to >ret ready and deliver. The 
 lent and easily understood ru'e coulil be court held the contract to be within the 
 adopted than tliat enunciated in Lee v. statute ot frauds, notwithstanding Unit 
 • irillin. 1 1 is at once so iiliilosophical and the act of threshing was to be done by 
 so readily comprehensiliie, that it is a i the vendor. Tin- rule that jroveriied the 
 matter of surprise tliat it should liaye court was tliat if the thiny; sold exist at 
 been lirst .■innouiued at so late a stn^e in I the time in solido. the mere fact that 
 thediKcussioiiof tlie statute. It is too late | somethin;? remains to be done to |>iit it In 
 to adopt it in full in this state. So far as a marketalile condition will not take the 
 authoritative dicisioiis have Kone, they contract out o( the opiration of the stiit- 
 inust be respected, eyen at the expense of ute. I'ase -7-. This proposition is In 
 sound principle. The court however in marked coal cast to the view expressed hy 
 view of tlie present state of tlie la w, (owen, .1. in a dissenlinu opinion. His 
 should plant itself, so far as it is not pre- theory was that where the at tide which 
 eluded from doinsi so bv aiitiioritv. upon forms the sul jcct of sah' is understood 
 some dearlviiitelliirible ground, and Intro- by the parties to be defective in any par- 
 due no more nice and periilexiny: distinc- ticubir which dem.iuds the llnishbiK' labor 
 tioiis 1 think that tlie true rule to be I of the vendor in onler to satisfy the bar- 
 upplied ill this state, is that when the i snin. it is a contract for work and labor, 
 chattel is in existence,so as not to be Kov- and not of sale. The two theories ( where 
 erned by Parsons v. LoucUs. supra, the; the goods existat the time of sale; have 
 contract should bo deemed to lie one of nowhere been more tersely and ilistinctl.v 
 sale, even though it may have been or- stated than in the eoiillicting opinions -if 
 dered from a seller who i:, to do some Itroasoii and Co wen. .1.1 .. in this case. See 
 work upon it to adapt it to the use.s of also Courtright v. Stewart, 11) llarh. -I,.... 
 the purchaser. Such a rule makes iiut a The fallacy in the proposition of ( owen, 
 single distimtinn, and that is tietweenex- .1., is in a.-*sumiiig that there is any " """rK 
 isting and non-existing chattels. There and labor" .loa- for the vendee. Al tlie 
 will still be border cases wlieie it will be work and labor is done on the vendor b
 
 190 
 
 COOKK V. MILLARD. 
 
 property to put it in a condition to eniililo 
 him to Hell it. His compen.sjitioii for it i^ 
 found in tlie [iriop of the s'(>o(l.-( sold. It is 
 a jujjKle of words to i-;ill tills "a mixed 
 coiitriiet of sale and work and laijor. " 
 When tliesooilj^ le.ive the vendor's hands 
 and ijass over to the venilee the.v pass as 
 cliattels under an exeeuted contract of 
 sale. While an.v thin}; remained to be 
 done the contract was executory Tliere 
 is al)nndaiue of authori'y for nuiintainiiifr 
 that a contract in its origin executory 
 may. by tlie performance of acts under its 
 terms, l)y one of the parties, become in 
 the end executed. Kohde v. Thwaites, 
 6 B. I'i ('. 3.SS; Benj. Sales, chap. 5, and 
 cases cited. 
 
 Thecase of Donovan v. Willson, 2(i Barb. 
 13S, and Parker v. Schenck, 28 id. 3S, are 
 to l)e ui)held as falliutt within the principle 
 of Parsons v. Loucks, supra. Both of 
 these cases concerned aiticles not in exist- 
 ence, but to be produced bv the manufac- 
 turer; in the one ease beer was to be man- 
 ufactured, an<l in the other a brass pump. 
 S(i in Passaic Mannf. Co. v. Hoffman, 3 
 iJaly. J!l."i, the contract was for the man- 
 ufacture and delivery of fifty warps. 
 Noi\e of these were in existence when the 
 order was received. Wtiile the case ap- 
 pears to fall within the rule of Parsons v. 
 Loucks, the eminent judfjre who wrote an 
 elaborate opinion expressiuji tlie views of 
 the court would seem t(j rely upon the 
 Massachusetts rule rather than our own 
 AVhatever view miRlit be entertained of 
 the soundnessof that distinction it is now 
 too late to adopt it here, and the case 
 cannot be sustained on that Krouml 
 
 The only case in our rei)orts appearing 
 to stand in the way of the conclusion ar- 
 rived at in this cause is Mead v. Case, 33 
 Barb. 202. The court in that case recog- 
 nized the distinction herein upheld. The 
 only doubt about the case is whether the 
 court correctly applied the rule to the 
 facts. These were that several pieces of 
 marble put together in the form of a mon- 
 ument Were standing in the yard of a 
 marble-cutter. That person agreed with 
 a Iniyer to polish, letter and finish the 
 article as a monument, and to dispose of 
 it for an entire price — .1f20l). The court 
 held that there was no monument in ex- 
 istence at the time of the bargain. There 
 were i)ieces of stone in the similitude of a 
 monument, and that was all. 
 
 It is unnecessary to quarrel with this 
 case. If unsound, it is only a case of a 
 misapplication of an established rule. H 
 sound, it is a so-called "border case," 
 showing the refinements which are likely 
 to arise in applying to various transac- 
 tions the rule adopted in Sewall v Fitch, 
 and kindred cases. It is pro[)er however 
 to say that the notion that such an ar- 
 rangement of marble t>laced in a cenieter.v 
 over a grave cannot be regarded iis a 
 monument, in the absence of an inscrip- 
 tir)n, seeuis highly strained. Then there 
 could liot be a memorial chui-ch without 
 an inscription. Then it could not have 
 been said of Sir Christopher Wren, in his 
 relation to one of his great architectural 
 productions, "Si qua;ris monuiuentum,cir- 
 curaspice." It would seem to be enough 
 
 if the monument reminds the passer-b.y of 
 him whom it is intended tocomraemorate, 
 and this might be by tradition, inscrip- 
 tions on adjoining or neighboring objects, 
 or otherwise. 
 
 In the view of these principles, the de- 
 fendants had the right to set up the stat- 
 ute of frauds. I think that this was so 
 even as to the clap loards. Although not 
 strictly in existence as claiiboards. they 
 i fall within the rule in Smith v. Central 
 I!. (Jo. They were no uiore new jtrod- 
 ncts than was the wood in that case. 
 There was simply to be gone thi-ough 
 with a process of dividing and adapting 
 existing materials to the plaintiffs' use. 
 It would be ditfictilt to distinguish be- 
 tween splitting planks into clapboards, 
 and trees into wood. \o especial skill is 
 required, as all the work is done by ma- 
 chinery in general use, and readily man- 
 aged by any producers of ordinary intelli- 
 gence. The case bears no resemblance to 
 that of Parsons v. Loucks, where the pro- 
 duct was to he created from materials in 
 no respect existing in the form of paper. 
 The cases would have been more analo- 
 gous had tlie contract in that case been to 
 divide large sheets of paper into small 
 ones, or to make packages of envelopes 
 from existing paper. In Gllnian v Hill, 
 3G N H. 311, it was held that a contract 
 for sheep pelts to be taken from sheep was 
 a contract for things in existence, and a 
 sale. 
 
 The next inquiry is, whether there have 
 been sufficient acts doneon the part of the 
 buyers to comply with the statute. In 
 order to properly solve this question, it 
 is necessary to look more closely into the 
 nature of the contract. As has been al- 
 ready suggested, the contract w;!s in its 
 origin executory. It called for selection 
 on the jjart of the sellers from a mass of 
 materials. At the time of the bargain 
 there was no sale. There was at most 
 onl.v an agreement to sell. The plaintiffs 
 however lay much stress on the f.ict that 
 after the oral bargain and after the de- 
 fendants had inspected the lumber, they 
 gave directions, also oral, to the plaintiffs 
 to place the lumber after it had been 
 made ready fordelivery upon the dock and 
 togive notice to Percival. They urge that 
 the subsequent compliani'e with these di- 
 rections by the plaintiffs satisfy- the terms 
 of the statute. 
 
 It will be observed that all of these di- 
 rections were given while the contract 
 was still wholly executory, and before 
 any act of selection had been performed 
 by the plaintiffs. It will thus be necessary 
 to consider whether these directions are 
 sufficient to turn the executory contract 
 of sale into an executed one, independent 
 of the statute of frauds, and afterward to 
 inquire whether there was any sufficient 
 evidence of "acceptance and receipt" of 
 the goods to take the case out of the stat- 
 ute. These questions are quite distinct in 
 their nature and governed by different 
 considerations: (1.) If the contract had 
 been for goods less than $'>0 in value, or 
 for more than that amount, and ordered 
 by the defendants in writing, it would still 
 have been executory in its nature, and
 
 COOKE V. MILLARD. 
 
 191 
 
 would have i)aRHe(l no specific goods. It 
 would liuve been an agreement to sell and 
 not a sale. The case would not have 
 fallen within such authorities as Oofoot 
 V. Bennett, 2 N. Y. L'.')S, and Kiniherlv v. 
 Patchin. li) id. 330, T.j Am. Dec. 334. Since 
 the goods could not have been Identified 
 at all, except by the act of the seller in se- 
 lecting such as would comply with the or- 
 der, nor could the purpcjses of the contract 
 have been jjerforuied exce|)t by the labor 
 of the plaintiffs in adapting the goods to 
 the d'-feiidants' use, tlie case falls within 
 a I'ule laid down by .Mr. ISIackburn in his 
 work on sales (pp. I.'jl, 1,'5'J) : " Wlioi'e, by 
 the agreement, the vendor is to do any 
 thing to the gooils f(jr the purpose of put- 
 ting them into that state in which the 
 purchaser is to be bound to accept tlieiu, 
 or as it is some times worded, into a de- 
 liverable state, the ])erformance of these 
 things shall, in the absence of circumstan- 
 ces indicating a contrary intention, be 
 taken to be a condition precedent to the 
 vesting of the oropertv." Acraman v. 
 Morrice, SC. B. 44U; (Jillett v. Hill, 2 (;. * 
 SI. 531); Campbell v. .Mersey Docks, 14 C. B. 
 (N. S.) 412. 
 
 Proceeding on the view that this was 
 an e.'cecutory contract, it might still pass 
 into the class of executed sales tiy acts "of 
 subsequent appropriation." In other 
 words, if the subseciuent acts of the seller, 
 combined with evidence of intention on 
 the part of the buyer, show that specific 
 articles have been set apart in performance 
 of the contract, there may be an executed 
 sale and the property in Hie goods may 
 pass to the purchaser. Blackburn Sales, 
 12s; Benj. .Sales, chap. 5; Fragano v. Long, 
 4 B. &C. 21!); Kohde v. Thwaite8,r) id. 3^s; 
 Aldridge v. Johnson, 7 E. & B. SSo; Cal- 
 cutta, etc., Company V. Ue Matfos, 33 L. J. 
 HI. B.) 214. in Exch. Cham. This doctrine 
 requires the asseut of both parties, though 
 it is held that it is not necessary that 
 such assent should be given by the buyer 
 subsequently to the appropriation liy the 
 vendor. It is enough that the minds of 
 both pjirtics acted upon the subject and 
 assented to the selection. The vendor may 
 he vested with an implied authority by tlie 
 vendee to make the selection and thus to 
 vest the title in him. Browne v. flare, 3 
 H. & N. 4S4; S. C., 4 id. .^22. This doctrine 
 would be applicable to existing cha ttels 
 where a mere selection from a mass of the 
 same kind was re(]uisite On the other 
 hand, if the goods are to be manufactured 
 according to an onler, it would seem that 
 the mind of the purchaser after the manu- 
 facture was complete, should act upon 
 the quostion whether the goods had com- 
 plied with the contract. See Mucklow v. 
 Mangles,! Taunt. 31S: Bisho|) v. Craw- 
 shay, 3 B. & C. 415; Atkinson v. Bell, 8 id. 
 277. Tills point may be illustrated by the 
 case ()f a sale by sample, where the seller 
 agrees to select from a mass of products 
 certain items rorrespondlui' with the sam- 
 ple, and forward them to a purchaser. 
 The net of selection by the vendor will not 
 pass the title, fur the plain and satisfac- 
 tory reason, that the purchaser has still 
 remaining a ri^lit to detern.ine whether 
 the selected goods correspond with the 
 
 'sample. Jenner v. Smith, L. R., 4 C. P. 
 270. In this case the plaintiff et a fair, 
 orally contracted to sell to the defendant 
 
 . two pockets of hops, and alscj two other 
 
 ] pockets to correspcmd with a sample, 
 which were lying In a warehouse in Lon- 
 don, and which he was to forward. On 
 his return to London, he selected two out 
 
 I of three pockets which he had there, and 
 
 j directed them to be marked to " wait the 
 
 , buyer's order. '' The buyer did no act to 
 
 I show his acceptance of the gooils. The 
 court held that th'' appropriation waR 
 
 neither originally authorized nor subse- 
 quently assented to l)y the buyer, and 
 that the property did not pans by" the con- 
 tract. Brett. .1., put in a strong form the 
 objection to the view that the buyer could 
 have impliedly assented to the appropri- 
 ation by the seller. It was urged, he s.iid, 
 "that there was evidence that by agree- 
 
 ' meat between the |)arties, the purchaser 
 gave authority to the sellor to select two 
 pockets for him. If he did so, he gave up 
 ills power to object to the weighing and 
 to the goods not corresponding with the 
 sample; for he could not give sucli au- 
 thority and reserve his right to object, 
 and indeed it has not been contended that 
 he gave up thiise rights. That seems to 
 me to be conclusive to show that the de- 
 fendant never gave the plaintiff authority 
 to make the selection so as to bind him. 
 Under the circumstances therefore it is im- 
 possible to say that the property passed." 
 Page 'Jix. Toe same general principle was 
 
 : maintained in Kein v. Tupi>er. ."«2 N. Y. 
 5.")0, where it was held that the act of the 
 
 1 vendor putting the goods in a state to be 
 delivered did not pass the title, so long as 
 the acceptance of the vendee, provided for 
 under the terms of the contract, had not 
 
 : been ol)tnined. 
 
 The result is, that if this sale, executory 
 as it was in its nature, had not fallen 
 
 I within the statute of frauds, tlii're would 
 have been no sulHcient appropriation liy 
 the vendor to pass the title. The trans- 
 action, so far as it went, was even at com- 
 mon law an agreement to sell and not an 
 
 j actual sale. 
 
 (2.) But even if it be assumed that this 
 
 ' would have l)een an executed contract of 
 sale in its own nature, without reference 
 to the statute of frauds, was there "an 
 acceptance and a receipt" of the goods, or 
 a part of them, t)y the buyer, so as to 
 satisfy the statute'* 
 
 The acceptance and receipt are both nec- 
 essary. The contract is not valiil unless 
 the buyer does l)oth. These are two dis- 
 tinct tilings. There may be an actual re- 
 ceipt without an acceptance, and an ac- 
 ceptance without a receipt. The receipt 
 of the goods is the act of taking posses 
 sion of them. When theseller gives to the 
 buyerthe actual control of the goods, ami 
 
 ' the buyer accepts such control, he has 
 actually received them. Such a receipt Is 
 
 I often an evidence of an acceptance, but it 
 is not the same thing. Indeed the receli>t 
 by the liuyer may be. and often is, tor the 
 express i)urpose of seeing whether lie will 
 accept or not. Blackb. Sales, 106; see 
 Brand v. Koch t, 3 Keyes, 40'J; Stone v. 
 Browning, 51 N. Y. 211.
 
 192 
 
 COOKK 0. MI]>LAUD. 
 
 There are some dicta, of various judges, 
 cited by tlie pJMintiffs to the effect tliat ac- 
 ceptance and receipt are eiinivalcDt. Per 
 ('roiupton. J., and Cock!.Mirn, Ch. B., in 
 fastle V. Sworder. G H. & N. 8.T.'; perErle, 
 C. .1., in ilarrin v. Wallis, (i E. & B. 720. 
 Tliese remarks cannot be regarded as of 
 any wei^jlit, being contrary to tlie decided 
 current of autliority. Indeed a late and 
 approved writer says: "It may l)e con- 
 fidently assumed however that Ihe con- 
 struction which attributes distinct mean- 
 ing to the two expressions, ' acceptance' 
 and 'actual receipt,' is now too (irmly set- 
 tled to 1)6 treated as an open question, 
 and this is plainly to be inferred Irom the 
 opinious delivered in Smith v. Hudson," 
 6B. & S. 4315; Benj. Sales. 
 
 It cannot be conceded that there was 
 any acceptance in tlie present case by rea- 
 son of tlie acts and words occurring be- 
 tween the parties after tlie parol contract 
 and before the goods were prepared for 
 delivery. There could be no acceptance 
 without the assent of the Olivers to the 
 articles in their changed condition, and as 
 adapted to their use. 11 the case had been 
 one of specific goods to be selected from 
 a mass without any preparation to be 
 made, and nothing to be done by the ven- 
 dor but merely to select, the matter would 
 have presented a ver.v different aspect. 
 This distinction is well pointed out liy 
 Willes, .1., in Bog Lead Mill. Co. v. Mon- 
 tague, 10 C. B. (N. S.) 4S1. In this case the 
 question turned upon the meaning of the 
 word "acceptance," in anotherstatute, but 
 the court iiroceeded on the analogies sup- 
 posed to be derived from the construc- 
 tion of the same word -in the statute of 
 frauds. The question was as to wliat 
 was necessH.'-y to constitute au"acce])t- 
 anee" of shares in a mining company, un- 
 der 1!) and 'JO Victoria, chap. 47. The 
 court having likened the case to that of a 
 sale of chattels, said; "It may be that in 
 the case of a contract for the purchase of 
 unascertained property to answer a par- 
 ticular description, no acceptance can be 
 properly said to take iilace before the pur- 
 chaser has had an opportunity of rejec- 
 tion. In such a case, the offer to purchase 
 is sjbject not only to the assent or dis- 
 sent of the seller, but also to the condition 
 that the property to be delivered by him 
 shall answer the stipulated description. 
 A right of inspection to ascertain whether 
 such condition has been complied with is 
 in the contemplation of both parties to 
 such a contract; and no complete and 
 final acceptance, so as irrevocably to vest 
 the [iroperty in the buyer, can take place 
 before lie has exercised or waived that 
 right. In order to constitute such a final 
 and coiniiletc acceptance, the assent of 
 the buyer should follow, not iirecede, that 
 of the seller. But where the contract is 
 for a specific, ascertained chattel, the rea- 
 soning is altogether different. Equally, 
 wiiere tlieoffer to sell and deliver has been 
 first made by tlie seller and afterwards 
 assented to by the buyer, and where the 
 offer to buy and accept has lieen first 
 made b.v the buyer and afterward assent- 
 ed to by the seller, the contract is com- 
 plete by the assent of both parties, and it 
 
 is acontract the expression of which lesti- 
 Hes that the seller has agreed to sell and 
 deliver, and the buyer to buj' and accept 
 the chai tel. " Pages 4s9, 490. 
 
 This view is confirmed by Maberley v. 
 f^heppr.rd, 10 Bing. U',). That was an ac- 
 tion for goods sold and delivered, and it 
 was proven that the defendant ordered a 
 wagon to be made for him by the plain- 
 tiff, and, during the progress of the woik, 
 furnished the iron work and sent it to the 
 plaintiff, and sent a man to help the plain- 
 tiff in fitting the iron to the wagon, and 
 bought a lilt and sent it to the plaintiff 
 to lie put on the wagon. It was insisted, 
 on these facts, that the defendants had 
 exercised such a dominion over the goods 
 sold as amounted to an acceptance. The 
 court, per Tindal, Ch. .1., held that the 
 plaintiff had been rightly nonsuited, be- 
 cause the acts (jf the defendant had not 
 been done after the wagon was finshed 
 and capable of delivery, but merely while 
 it was in progress, bo that it still re- 
 mained in the plaintiff's .vard for further 
 worK until it was finished. The court 
 added: "If the wagon had been completed 
 an<l ready for delivery and the defendant 
 had then sent a workman of his own to 
 perforin any additional work upon it, such 
 conduct on the part of the defendant 
 might have amounted to an acceptance." 
 See also Benj. Sales, chap. 4, and cases 
 cited. 
 
 The iilaintiffs, in the case at bar, rely 
 much upon the decision in Morton v. Tib- 
 bett, l.'i .\(l. & El. (N. S.) 4-.'S. Tliey main- 
 tain tliat this case clearly establishes that 
 there may be an acceptance and receipt of 
 goods by a purchaser, within the statute 
 of frauds, although he has had no oppor- 
 tunit.v of examining them, and although 
 he has done nothing to preclude hiniself 
 from objecting that they do not corre- 
 spond with the contract. 
 
 The expressions in Morton v. Tibbett 
 are not to be pressed any further than 
 the facts of the case require. The buyerof 
 wh2at by sample had sent a carrier to a 
 place named in a verbal contract between 
 him anu the seller on August 2.5. The 
 wheat was received on board of oneof the 
 carrier's lighters for conveyance by canal 
 to Wisiieach, where it arrived on the 2Sth. 
 In the mean time it had been resold by the 
 buyer, by the same sample, and was re- 
 turned by the second jiurchaser because 
 found to be cf short weight. T'he defend- 
 ant then wrote to the iilaintiff on thcyotli, 
 also rejecting it for short weight. An ac- 
 tion vvas broiigijt for goods bargained 
 and sold. I'here was a verdict for plain- 
 tiff, witli leave to move for a non.-iuit. 
 The question for the appellate court was, 
 whether there vvas any evidence that the 
 defendant had accepted and received the 
 goods so as to render him lialile as buyer. 
 The court held that the acceptance under 
 the statute was not an act subsequent to 
 the receipt of the goods, but must precede, 
 or at least be contemporaneous with it ; 
 and that there might be an acceptance to 
 .satisfy the statute, though the purciiaser 
 might on other grounds disaffirm the con- 
 tract. 
 
 Morton v. Tibbett decides no more than
 
 COOKE c. MILLARD. 
 
 193 
 
 this, viz., that there may be n foiiilitiunal 
 acceptance. It is ;is if the piiicliu.ser had 
 Haiii: " 1 take tliesu Koo'ln on llie Hiippo- 
 Hilioii that tlie.vcoiniily with llio con tract. 
 I am not hound to decide tliat |)oint at 
 lliis moment. If, on examination, tliey 
 do not correspond witli the naniple, I Hhali 
 Mtill return tlieni under my common-law 
 ritilit, «rowinf? out of the very nature of 
 tl)e contract, to declare it void, liecause 
 our minds never met on its Hul)jcct matter 
 — non in haec foedera veni." It is not nec- 
 essary to decide whether this distinction 
 is Honnd. It is enuuKli to say tliat it is 
 intelliKiljIe. The case, in no respect, de- 
 cides that there can be an acceptance un- 
 der the statute of frauds witlHJut a clear 
 and distinct intent, or that unfinished arti- 
 cles can be presumed to be accepted before 
 they are finished. The act of acceptance 
 was clear and unequivocal. There was a 
 distinct case of intermcddlin;; with the 
 j?oo(lH in the e.xercise of an act of owner- 
 Bhip -a fact entirely wnntinfj; in the case 
 at bar. The proof of acceptance was the 
 act of resale l)efore examination. Tlie 
 point of the decision is, that this was such 
 un exercise of dominion over the ^oods as 
 is inconsistent with a continuance of the 
 rij^hts of property in the vendor, and there- 
 fore evidence to justify a jury in lindin^ 
 acceptance as well as actual receipt l)y the 
 buyer. Hunt v. Ilecht, S Exch. ,S14. 
 
 Even when interpreted in this way, Mor- 
 ton V. Tibbett cannot be regarded as ab- 
 solutely settled law in England. See 
 Coombs V. Bristol & Exetar Hy. Co., 3 H. 
 & N. .510; Castle v. Sw order, ti id. 82S. 
 The court of queen's beach recognizes It, 
 while the court of exche(iuer has not re- 
 ceived it with favor. I^ater cases distinct- 
 ly hold that the acceptance must take 
 place after an opportunity by the vendee 
 to exercise an option, or after the <loing 
 of some act waiving it. Bra m well, 1$., 
 said in Coombs v. Bri.stol & Exeter Ki'. 
 Co.: "The cases est.'iblisli that there can 
 be no acceptance wl.ere there can be no 
 opportunity for rejecting." All the ca.ses 
 were reviewed in Smith v. Hudson, G Best 
 & Smith, 4:J1, A. D. Iscr), wh.'re Hunt v. 
 Ueclit was approved. The two last cited 
 cases disclose a principle applicable to the 
 case at l)ar. 
 
 In Hunt V. Hccht the defendant went to 
 the pl.-untiff's warehouse and there in- 
 spected a heap of ox bones, mixed with 
 others inferior in quality. The defeiwlant 
 verbally agieed to purchase those of the 
 better (juality, which were to be separat- 
 ed from the rest, and ordered them to be 
 sent to his wharlinger. The bags were 
 received oh the !Uh. and examined next 
 day by the defendant, anil he at once re- 
 fused to accept them. There was liehl to 
 be no acceptance. Thec.-ise was put u|)on 
 the ground that no acceptance was possi- 
 ble till after separation, and there was no 
 pretense of an acceptance after that time. 
 Martin, B., said tliat an acceptance, to 
 satisfy the statute, must be Hoiiiething 
 more than a mere receipt. It means some 
 act done after the vendee has exercised oi' 
 had the means of exercising his right of 
 rejection. 
 
 In Smith v. Hudson, supra, barley was 
 
 LAW SALES— n 
 
 sold on November 3, 1803, bv sample, by 
 an oral contract. On the 7th it was taken 
 by the seller to a railway station, where 
 he had delivered grain to tl:e purchaHer 
 on several prior dealings, and where it 
 was his custom to receive it from other 
 sellers. The barley was left nt the freight- 
 house of the railway, consigned to the or- 
 der of the purchaser. It was the custom 
 of the trade for the buyer to compare the 
 sample with the bulk as delivered, and U 
 the examination was not satisfactory, to 
 reject it. This right continued in the pres- 
 ent case, notwithstanding the delivery of 
 the grain to the railway company. Ou 
 the 'Jtli the purchaser became bankrupt, 
 and on the 11th the seller notified the sta- 
 tion-master not to deliver the barlev to 
 the purchaser or his assignees. The court 
 held that there was no acceptance sutli- 
 cient to stitisfy the statute. The most 
 that could besiiid was. that the delivery 
 to the company, considered as an agent 
 of tlie buyer, was a recei|it. It could not 
 be claimed that it was an acceptance, the 
 carrier having no implied autliority to 
 accept. The buyer had a right to see 
 whether the bulk was according to tlieHam- 
 ple, and until he had exercised that right 
 there WHS no acceptance. Opinion of Cock- 
 burn, Ch. .I*J4li: see also Caulkins v. hell- 
 man, 47 N. Y. 4411, 7 Am. l{ep. 4G1 ; Halt- 
 erline v. Kice, (>2 Barb. .V.K!, Edwards r. 
 (Jrand Trunk Ky. Co., 4S Me. 379; S. C, 54 
 id. 111. 
 
 The case at bar only differs from these 
 cases in the immaterial fact that the de- 
 fendants, after the verbal contract was 
 made, gave verbal directions as to the 
 disposition which should be made of the 
 goods after they were put into a condition 
 ready for delivery. All that subsei|uenlly 
 imssed between them was mere words, 
 and had not the sliglitest tendency t«» 
 show a waiver of the right to examine the 
 goods to see if they corresponded with the 
 contract. Whatever effect these words 
 might have had in indicating an accept- 
 ance, if the goods hud been specific and as- 
 certained at the time of the ilirectious (see 
 Cusack v. Uobinson, 1 Best & Smith, IVJ), 
 they were witliout signilicance under the 
 circumstances, as the meeting of the minds 
 of the parties upon thesubject to be settled 
 was necessary. Sheiiherd v. l'ressey,3;.' N. 
 H. 5(. In this case the effect of subse- 
 (lucnt engagements by the buyer was 
 passed upon as to their tendency to show 
 a receipt of the goods by him. The court 
 said; " .Asmere words constituting a part 
 of the original contract do not constitute 
 an acceptance, so we are of opinion that 
 mere words after words used, looking to 
 the future, to acts afterward done by the 
 bu.ver toward carrying out the contract, 
 do not constitute an acceptance or prove 
 the actual receii)t required by the stat- 
 ute." The case was stronger than that 
 uniier discussion, as the goods were spe- 
 cific and fully set apart for tlte purchaser 
 at the time iif the subsequent conversa- 
 tions. No distinction is [lerceived bet ween 
 f'ture acts to be done by the liuyer aud 
 by the seller, as lioth equally derive their 
 force from the buyer's assent. 
 
 I see uo rea.son in the case at bar to hold
 
 194 
 
 COOKE V. MILLARD. 
 
 that the Jefeiiilants received the goods, 
 indepenik'iit of tlie matter of ncceptant'e. 
 There was no evidence that Peroival be- 
 came tlieir ajie'it for this purpose. The 
 most that can be KHid is tliat'tlicy prom- 
 ised tlie plaintiffs that they would make 
 Percival their af^eiit. Tliis promise being: 
 -oral and connected with the sale, is not 
 binding'. They did not in fact communi- 
 oate with him nor did he assvime any do- 
 minion or control over the property. The 
 proir.issor.v reprcseiitations of tlie plain- 
 
 tiffs are clearly within the rule in Shep- 
 herd v. Pressey, supra. 
 
 The whole case falls within the doctrine 
 in Shindlerv. Houston,! N. Y. "JGl ; 40 Am. 
 Dec. :!](j, there beins no suHicieiit act of 
 the pn''tie8 amountinR to tran.-*fer of the 
 possession of the lumber to the buyer and 
 acceptance by him. 
 
 The jndifment of the court below should 
 bo attirnied. 
 
 All cr ncur. 
 
 JudHineut affirmed.
 
 COON V. SPAULDING. 
 
 197 
 
 COON T. SPAULDING et al. 
 
 (10 X. W. Rep. 1S3, 4T Mich. 1C2.) 
 
 Supn-iue Court of Michigan. Oct. 26, 1S81. 
 
 Krror to Wayne. 
 
 F. A. Baker, for jiluintiff in prror. S. R. 
 Harris and Henry M. Cheever, for defend- 
 untH in error j 
 
 MAHSTON, C. .J. As stated in the brief 
 of counsel for plaintiff in error, the main 
 question in this case is, whether the plain- 
 tiffs lielow, defendants in error, went to 
 (;oon's to i)ress the hay contracted for 
 witliiii n reasonable time after the con- 
 tract was made. The following is the 
 written contract sued upim. "Dearborn,' 
 Mich., Septenil)er '-'.j, IS7!). Received from 
 Spanlding & liofjers $50 to apply on the 
 pnrchase of hay, estimated at 100 tons ] 
 more or less, to be delivered at Fisher's ; 
 station, at $10 jter ton, ineludinK board) 
 for men and teams, fuel for engine and 
 nien to i)itcli the hay to the press. Hay | 
 to be paid for as delivered, and to be de- 1 
 liverei in a reasonable time after being ! 
 pressed. .f."iO. .Joseph Coon." November 
 I'J, IsT'.), .Spauldinn & Rogers were at Mr. j 
 Coon's place ready to press the hay, but 
 Mr. Coon declined to let them have it. 
 
 It will be noticed that the contract is 
 silent as to who sliall i)ress the hay and 
 also as to when it shall be iiressed, and 
 assuming that Spanlding & Rogers were 
 to press the hay whether they were ready 
 and offered to do it within a reasonable 
 time will dei)end niion the admissil)ility 
 and weight to be given certain oral testi- 
 mony offered by them. 
 
 The plaintiffs below offered evidence, 
 viz., the testimonj- of Rogers one of the 
 plaintiffs, tending to show, that they were 
 ready to commence jiressing the hay at 
 the time tlie contract was entered into, 
 but tliat Mr. Coon was not ready and re- 
 • piested them to wait for three weeks until 
 he could get certain fall work done. The 
 plaintiffs also introduced a letterpress 
 copy of a letter mailed November 10th to 
 the defendant properly aildressed postage 
 prei)oid, with tlieir card In the envelope, 
 and a rec|uest to return in five days if not 
 called for, but which was not returned, 
 which letter was as follows: "Wayne, 
 Mich., November 10. 1S7!). .loseph Coon, 
 ICsq., Dearborn, Mich. — Dear Sir ■ Wehave 
 been waiting to hear from you about 
 hay, and let us know when it will be con- 
 venient to press your hay. We are now 
 pressing and loading at Plymouth, and 
 expect to finish the present job this week, 
 and shall then be prepared to come to 
 your place next, reaching there some time 
 next week. Moping tliis will prove satis- 
 factory we remain yours truly. SpauUling 
 & Rogers." To this they received no re- 
 ply. There was no further or other com- 
 munication between them, until they went 
 to press the hay November 2L'il as already 
 stated. And first was this evidence ad- 
 missible'? Counsel for plaintiff in error 
 Insists it was not for two reasons: viz.: 
 that the conversation about wailingthree 
 
 weeks until Mr. Coon should get his fall 
 work done, took place at Ihe time tlie 
 contract was enlercd into, having lieen 
 talked over immediately before and after 
 the contract was signeil. and that It was 
 therefore merged in the written agree- 
 ment. And the contract being one which 
 the statute of frauds re()uired to be In 
 writing, could not be modified by a subse- 
 quent pared agreement. The" position 
 taken l)y counsel for plaintiff in error us 
 to the time the conversation took idace i» 
 undoubtedly correct. On crosH-examina- 
 tion Mr. Rogers testified that "before the 
 conti'act was signed he and .Mr. ( oon had 
 talked about the timethe plaintiffs should 
 come to |)ress the hay, that Mr. Coon said 
 he should be busy for three weeks, and 
 they coidil have the hay any time after 
 that, which the witness unih'rstooil meant 
 a reasonable time after three weeks; that 
 no time was fixed within which the plaintiff 
 should come, tiuestion. That is then- was 
 no time agreed upon'/ .Vnswer. No. sir; 
 but the last thing I said to him was 'if 
 you get ready before we do let us know.'" 
 This witness further testified that he did 
 not see .Mr. Coon from tlie day the con- 
 tract was signed until the day he moved 
 the machine there and demanded the hay, 
 November 22d ; and that all he ilid in the 
 mean time was to write the letter of No- 
 vember lOtli above given. 
 
 The case therefore seems to come clearly 
 within the decision in Strange v. Wilson, 
 17 Mich. 342, and the reasoning in that 
 case njjplies witli full force here. The sub- 
 stance of all the testimony is set forth in 
 the bill of exceptions, and we are unal)le 
 to find any testimony fairly tending to 
 show that there was any sultsequent oral 
 modification of the contract even admit- 
 ting such to have been admissible. It was 
 therefore 4.") days after the contract was 
 made before the letter of Noveml)er 10th 
 was written s])ecifving that the following 
 week the jtlaintiffs would be ready to 
 proceed with the work on their part. 
 The oral evidence being admissilile the de- 
 lay was greater than in the ordinary 
 course of business could fairly have been 
 required, or nn<lerstood by the parties to 
 enable the plaintiffs to enter upon the 
 work. It exceeded any possible time re- 
 quired by reason or necessity, and consid- 
 ering the time of year, and that the de- 
 fendant had to draw and deliver the hay 
 at a place named after it was pressed. It 
 is not to be presutned that so longa delay 
 was contemplated. Phamix Ins. Co. v. 
 Allen, 11 Mich. olO: Druse v. Wheeler, 2ti 
 Mich. li).'>. 22 Mich. 441. 
 
 The juelgment must be reversed with 
 costs and a new trial ordered. 
 
 GRAAES and COOLEY, JJ., concurred. 
 
 CAMPBELL, J. I agree in the conclu- 
 sion that there shoulil he a new trial, and 
 I also agree in the construction of the con- 
 tract when taken by ltself,thnt Is explain- 
 ed by the chief justice. But I think there 
 was evidence of subsequent dealings suHl- 
 cient to make the question of reasonable 
 time proper to go to the jury.
 
 COPLAY IROX CO. v. POPE. 
 
 199 
 
 COPLAY IRON CO., Limited, v. POPE et al. 
 
 (15 N. E. Rep. 33o, 108 N. Y. 2.32.) 
 Court of Appeals of New York. Jan. 17, 18SS. 
 
 Appeul from general term, court of com- 
 inon pleas, city aiuJ county of New York, 
 entered upon an order made A|)ril 20, ISNj, 
 wliici) attirined a judgment in favor of 
 plaintiff, entered upon a verdict. 
 
 Tlieotherfacts fully appearin thefoUow- 
 ins Btatcmeut by KAKL, .7.: 
 
 TliiH action was brouulit to recover the 
 price of .'jOO tons of pin-iron huIU and deliv- 
 ered by the plaintiff to tlie defendants. In 
 their answer, by way of counter-claim, 
 the defendants aile|j;e that they aie deal- 
 ers in iron, and are not enjraKed as nian- 
 iifacliirers or consumers thereof; that on 
 or about the ei;;lith day of December, 
 1S7!), the plaintiff sold aiid aprreed to de- 
 liver to them '.t(Ml tons of No. 1 extra 
 foniKlry pi^-iron of the Coplay Iron Com- 
 pany, I^imited, make, at the price of $27 
 per ton , that it aureed to deliver and sliip 
 the iron on board the cars at its furnace 
 as and when ordered by tin,' defendants; 
 that they itnid it the full price of the iron ; 
 that No. 1 e.xtra was a ^rade of pig-iron 
 of certain well-known quality in the mar- 
 ket; that they purchased the iron to sell 
 again to their customers, which was well 
 known to the plaintiff; that, relying up- 
 on plaintiff's promiseand agreement, they 
 sold to E. P. Allis &. Co., one of their cus- 
 tomers in Milwaukee, "idll ton.s of the iron 
 at and for the agreed price of $->i per ton, 
 to be delivered lit the furnace of the Cop- 
 lay Iron Comjjany, Limited, and forwhich 
 E. P. Allis & Co. fully paid them; that 
 they ordered the plaintiff to ship the iron, 
 and thereupon it made a shipment of iron 
 uptm the contiact which it claiiDcd and 
 pretended was No. 1 e.xtra iron, which in 
 fact was not No. 1 extra iron, but a graile 
 of iron of inferior ([uality, and of less 
 value, than No. 1 extra iron, or the quality 
 it agreed to deliver, and it delivered to 
 them therefor a liill of lading, in which 
 the same was described as No. 1 extra 
 iron; that they sold the iron to their cus- 
 tomers as No. 1 extra iron; that they did 
 not examine the iron, and had no oppor- 
 tunity to examine the same; that they 
 relied upon the promise and agreement 
 and bills of lading, and .')(I0 tnns of the iron 
 wer« forwarded to their customer.s with- 
 out examining the same; that on or 
 about the thirty-tirst day of July, ISNO. as 
 soon as the iron arrived at Milwaukee, 
 and they had inspected the same, E. P. 
 Allis & Co. notified these defen<lnnt8 that 
 the .")U0 tons of iron sold and delivered by 
 these defendants to them was not No. 1 
 extra iron, but was of a iinnliiy or grade 
 greatly inferior thereto, and entirely unlit 
 for use as N<). 1 extra iron, and they re- 
 fused to accept the iron, and demanded 
 of these defendants the return of the pur- 
 chase price paid by them therefor, with in- 
 terest, and the cost of transi)orting the 
 same from the furnace of the Coplay Iron 
 Company, Limited, to Milwaidiee, and 
 storage expenses; that these defendants 
 forthwith duly notified the iilaintiff of the 
 inferior ((utility of the iron, and the claim 
 made by these defendants' customers, and 
 
 requested plaintiff to examine the Iron, 
 and notined it that they would hold it 
 responsible f<ir all damages they might 
 sustain by riason of its failure to deliver 
 the iron rei|uired by the contract; that 
 the iron so delivered, or agreed to be de- 
 livered, by the plaintiff to defendants, 
 was not No. 1 extra ir<jn, but iron of « 
 quality greatly inferior thereto, and not 
 of the standard or quality of No. 1 extra 
 iron, and wholly urisuitfible for use In de- 
 fendants' customers' business; that It 
 was not No. 1 extra Coplay iron; that de- 
 tentlants' customers refused to accept, anil 
 have not accejited, the iron, and it re- 
 mains siil)ject to the plaintiff's order, and 
 these defendants have not accepteil tho 
 same; that defendants have sustained 
 damages by reason of the inlerior quality 
 of the iron, ami the breach of the plain- 
 tiff's agreement as to the qiinlity thereof, 
 and its refusal to deliver the iron i.-ur- 
 cliased of it, and of its refusal to return 
 the money so received, defendants demand- 
 ed that the complaint he dismissed, and 
 tluit they have juilgment for the amoont 
 of tlirii- damages. 
 
 Thecasewa.s brought to trial, anrl a jury- 
 was impanele<l to try the same, ('ounsel 
 for the plairitiff then moveil the court for 
 judiiment upon the gr<»unds—" First, that 
 there is ncj defense set up to the cause of 
 action set forth in the c<>mplaint ; second, 
 that the facts set up by way of counter- 
 claim are not only iiot sufhcicnt to cmisti- 
 tute a cause of action, but show athrma- 
 tively that there is no liability whatever 
 on the part of this plaintiff to the defend- 
 ants." The defendants conceded that the 
 plaintiff's claim set forth in its complaint 
 was admitt(Ml by the answer, anil they 
 then offered to |>ri)ve the counter-claim 
 set op in the answer. Plaintiff's counsel 
 admitted, fur the jiurposcs of his motion, 
 that all the allegations in the answer were 
 proved. The court thereupon directed a 
 verdict for the plaintiff, to which direction 
 defendants' counsel excepted. 
 
 \Vm. W. Niles, for appellants. Chas. B. 
 Alexander and George A. Strong, for re- 
 spondent. 
 
 EARL, J., (after stating the facts.) We 
 must assume that the sale of iron allegeci 
 in the Cefendants' coniiter-claim was an 
 executory sale, as that is the fair and just 
 inference from the facts alleged. The 
 plaiutii'f was a manufacturer of iron, and 
 the contract of sale was made on the 
 eighth day of December, isT'.i. It covered 
 9110 tons of iron, and it was to be delivered 
 in the future, as and when the defemlants 
 ordered it to make delivery. There is no 
 allegation that the plaintiff, at the time of 
 this sale, had the iilentical !HI(I tons of iron 
 on hand, or that that quantity was sepa- 
 rated from other iron. It woidd bo 
 against all e.\|)erience, and certainly 
 against the usual course of business, to 
 sui)|)Ose that the maiiufjieturer had the 
 iron on hand, and that upon its purchase 
 by the liefeinlants it was separated and 
 set apart and stored (or them. It is rea- 
 sonable to suppnse-and as all the facts 
 wen' submitted ti> thecourt. neither party 
 asking to have them submitted to thi>
 
 200 
 
 COPLAY IRON CO. v. POPE. 
 
 jury, the court Iind tlie right to flraw the 
 inference — Ihat the inui was to be there- 
 after maiuifiictiirec!, weiffhed, designated, 
 and delivered, and thus this wa.s an exec- 
 utory contract of sale. In sueli a case, 
 tliefact of payment has very little signifi- 
 cancv. It is sometimes a controlling fact 
 to sliow that the sale was not executory, 
 and was completely executed. It is al- 
 ways evidence upon that (jnestion, hnt in 
 a case like tliis is not iinpoitant. The 
 price of property purcliased may lie paid, 
 and yet the contract of sale in every sense 
 be executory 
 
 Treating this, then, as an executory con- 
 tract of sale, the defemlants are not In a 
 po.sition to con!|''ain of the quality of the 
 iron, because they never offered to return 
 it, and never gave tlie plaintiff notice or 
 opportunity to take it back. They must 
 
 therefore becondusively presumed to have 
 acquiesced in the quality of the iron. 
 Hargons v. Stone, 5 N. V. 73; Heed v. 
 Randall. 29 N. Y. 3.')S; McCorniick v. Sar- 
 son,4r) N. Y. 2C5; Dutchess Co. v. Harding, 
 49 N. Y. 323; Manufacturing Co. v. Allen, 
 53 N. Y. .515. Here there was n(» collateral 
 warranty or agreenient as to the quality 
 of the iron. The representation as to the 
 kind and quality of iron was part of the 
 con tract of sale itself, descriptive simply 
 of till' article to be delivered in the future; 
 and clearly, within the cases cited, an 
 acceptance of the property by the defend- 
 ants, without any offer to return the same 
 at any time, deprives them of any right 
 to make complaint of its inferior quality. 
 Till' judgment should he afhrmed, with 
 costs. All concur, except ANDREWS, J., 
 not vo ting.
 
 CIJAWCOUH, EX PAKTE. 
 
 203 
 
 Ex parte CRAW'COUR. 
 
 In re ROBERTSON. 
 
 (9 Ch. Div. 419.) 
 
 Court of Appeal. June 27, 1878. 
 
 This was an appeal from a decision of 
 Mr. HeKibtror Ilazlitt, acting as cliief 
 juilRC in banlvruptcy. 
 
 t)n the L"Jth of November, 1S77, an aRree- 
 meiit in writing was entered into liotwem 
 \V. A. ItohertHon.a trader, of tlie one pnrt, 
 and l.ewin Crawc(iur& Co., ii|)l)i)lKter('rs, 
 of the othi-r port, wliieh contained tlie fol- 
 lowing provinions: — 
 
 (1.) "That Le win CrawcouriS: Co. thereby 
 let to UobertHon, and he tliereliy hired of 
 them, tlie sevcrnl articles of fiirnlture and 
 effects tielongingto tlieni nientioncd in the 
 Hcheiiule tlitreto,and which were ailmitted 
 by l!ot)ertson to be of tlie value of £<13 4s. 
 10(1., adding thereto ij per cent, on the said 
 value less the amount of first instalment. 
 
 (2.) "The said articles of furniture and 
 effects are hired by W. A. Ilol)ert8nn upon 
 the following terms and conditions: — 
 
 (:i.) " \V. A. Robertson is to |)ay to Lew- 
 inCrawcour & Co. the sum of £10 on the 
 signing heieof, £5 on the 4th of .lanuary 
 next, and .t.j on the 4th day of each suc- 
 ceeding calendar month during the con 
 tinuance of tliis airreement, and is also on 
 the signing hereof to deposit with Lewin 
 Crawcour & Co. |ironiissory notes for the 
 total amount of the instalments to be 
 paid hereunder, such promissory notes be- 
 ing given as collateral security, and entire- 
 ly without prejudice to the title of Lewin 
 Crawcour & Co. in or to the said furniture 
 and effects, and of all rights reserved to 
 them by this agreement, and subject to 
 this 8tii)nlation, that, in case of the goods 
 being seized and removed by Lewin Craw- 
 cour & Co. under clause 5, the whole of 
 Buch promissory notes, or so many of 
 them as shall then be current, shall after 
 Buch seizure and removal l)e given up on 
 demand to \V. A. Robertson, and shall 
 from and after such seizure and removal 
 become alisolutely void. 
 
 (4.) " \V..V. Robertson is to keep thereat 
 of the premises in which t!)e said furniture 
 and effects arc placed regularly and punc- 
 tually paid, and not to part with posses- 
 sion of, remove, or otherwise deal \>ith 
 the said goods, or any part thereof, nor to 
 part with the possession of, or assign his 
 interest in, tin? liouse or premises wherein 
 the said goods may be, without the con- 
 sent in writing of I..ewiu Crawcour & Co. 
 being first obtained. 
 
 (.').) "In the event ofnon-payment of any 
 of the above notes on the days upon 
 which tliey respectively become d\ip, or ol 
 the bread) of any of the conditions herein 
 expressed to be performed by W. A. Rol)- 
 ertson, or in case the said furniture and 
 effects, or any jiart tliereof shiill be seized 
 or taken in execution nnd"r any process 
 of any court either of law or of equity, 
 Lewin Crawcour & ('o. may by llieni- 
 Belves, or others, tiieir servants or agents, 
 enter into any liouse or place where the 
 said articles of furniture or any of tliem 
 shall then be, and seize, remove, and re- 
 take possession of tlie same, as iu their 
 
 first ami foriner esl.-ite, notwithstanding 
 any paynients made liy W. A. Ibiliertsou, 
 and Rol)ertHon shall be barn-d from com- 
 mencing or maintaining any action o( 
 trespass or otiierwise l>y reason of such 
 taking [lossfssion as aforesaid, or of the 
 temporary (lossession of the premises 
 wherein the said goods may be. for such 
 time as may be reasonaldy occupied In 
 snch removal, or for the recovery of uny 
 part of the moneys paid under lliis agree- 
 ment, wldch, upon such default or breach 
 as aforesaid, it is hereby agreeil are to be 
 absolutely forfeited to Lewin Crawcour & 
 Co. 
 
 ((!.)" I'pon payment by W. .\. Robert- 
 son to l^ewin Crawcour & Co. of the full 
 sum of £<■>."> 178. lOd. by tlie InstalmentH 
 aforesaid tlie agreement shall be dei-med 
 completed, and shall thenceforth close and 
 determine, and the said fiirniturp and 
 effects shall become and be the pr<iperty of 
 \V. .\. Robertson; but until the whole of 
 the sqid sum sliall have been paid the said 
 articles of furniture and effects shtill re- 
 main tlie sole and absolute i>roperty of 
 Lewin Crawcour & Co., and are only let 
 on hire to \V. A. Robertson, who hereby 
 agrees to taUe all proper cure of the same 
 during the hiring, and, in case of damage 
 by tire or otherwise, W. A. Robertson will 
 bear the loss or risk." 
 
 Tlie articles mentioned in the schedule 
 to the agreement consisted of ordinary 
 household furniture. .Soon after the exe- 
 cution of the agreement they vs-ere deliv- 
 ered at Robertson's private residence. t)n 
 the ilth of January, 1n7s, Robertson filed a 
 li(|Uidation petition, iindei which a trus- 
 tee was appointed, who, on the L'fith of 
 February, took possession of the furniture 
 comprised in the agreement of the -J'.itli of 
 November. Ifs77, which was still in oelit- 
 or's house, and remained in possession of 
 it until the lUth of March, 1n7S. when Lew- 
 in Crawcour & Co. took possession of it. 
 Tlie instalments of rent due in lebrunry 
 and .March had not been paid. On the 
 L'Jnd of .March the trustee olitaincd from 
 the court of bankruptcy an injunction re- 
 straining Lewin Crawcour & Co. from re- 
 moving the furniture, and the injunction 
 was coiitiiiued from time to time. On the 
 30tli of .March the trustee gave notice of 
 an application to the court for an order 
 declaring tiiat the furniture formed part 
 of the property of the debtor divisilde 
 among Ins cieditors. and belonged to the 
 trustee. This application was heard on 
 the L'4tll of .May, ls7.s. On behalf of the 
 trustee it was contended that the hiring 
 ! agreement was void as against him. be- 
 cause it laid not been registered under the 
 Inlls of sale act, ls.')4; and, iiiiireover. that 
 he was entitled to the furniture as beinar, 
 at the conimencenii'iit of the li'iuiilatinn. 
 in the order and ilisposiiion of the debtor, 
 with the consent of the true owners. On 
 the latter point a number of atlidnvits 
 were filed by Lewin Crawcour & Co. to 
 Iirove that there is a notorious custom of 
 I letting furniture upon tiTiiis similar to 
 those of the agreement of the Ltitli of No- 
 vember, 1^77, and it was saiil that this 
 custom excluded the operation of the ro- 
 [luted ownership clause. These ntlldavlts 
 were answered liy a nniuber of allidavits
 
 204 
 
 CliAWCOUn, EX PARTE. 
 
 filpd on belinlf of the triistoo, which denied 
 the cxisteiu'f, or at any rate tlienotoiiety, 
 of any such rustoiu. Tlie voj-istrar held 
 that the agreement oiiglit to have been 
 rcKistered as a l)i!l of sale, and tliat, hy 
 reason of its non-registration, it was void 
 neaaainst the trustee; and on tliis ground, 
 without going into tlie question of order 
 and disposition, he made the oriler asked 
 for, granting a perpetual injunction to 
 restrain Lewin C'rawcr.ur & Co. from in- 
 terfering with the furniture. Lewin Craw- 
 eour & Co. appealed. 
 
 AVinsIow, Q. C, and Finlay Knight, for 
 appellants, i'ate Lee, for trustee. 
 
 JESSEL, M. R. :— I cannot concur in the 
 ground of the registrar's decision. 
 Whether it can lie supported on other 
 grounds will be a matter for discussion 
 at a future time. The registrar rested the 
 title of th3 trustee simply on this, that the 
 agreement w us a hill of sale, and that it 
 was void as against the trustee because it 
 was not registered. It appears to me 
 that the agreement was not a bill of sale 
 by Robertson, who is the person by whom 
 a bill of sale must have been executed if it 
 is to be hit by the bills of sale act. Rob- 
 ertson never had any projjerty in the 
 goods. Crawcour & Co., to whom they 
 originally belonged, agreed to let them 
 on hire to Robertson at a rent to be paid 
 by instalments, with this further provi- 
 sion, that, until all the inst/ilnipnts had 
 been paid, the property should remain in 
 ■Crawcour & Co., ;nul that, if any instal- 
 ment should not be paid when it became 
 due, they should be at liberty to retake 
 possession of tlieir own goods, and the in- 
 stalments already paid should be forfeited 
 to them. That does not make the docu- 
 ment a bill of sale e,\ecuted by Robertson, 
 or a license given by hfm to take posses- 
 
 sion of jiersonal chattels as security for 
 a debt. It is sim|)ly one of the tirnis of 
 the letting for hire and conditional sale 
 of the goods l)y Crawcour & Co. to him. 
 When the liquidation petition was filed, 
 some instalments of the rent being over- 
 due, Crawcour & Co. attempted to take 
 possession c»f their goods. It appears lo 
 me that they were entitled to do so, and 
 tliat there was no reason for granting 
 the injunction. 
 
 JAMES, L.J. : — I am of the same opin- 
 ion. 
 
 BRETT, L. J.:— It is said that this 
 agreenientcontains a licenseby Robertson 
 to Crawcour & Co. to take possession of 
 his goods, and that it therefore amounts 
 to a bill of sale within sect. 7 of the bills of 
 sale act. The only way, however, in 
 which Robertson could have any interest 
 in the goods or arj' right to deal with 
 theai was liy virtue of the agreement it- 
 self. It is said that the agreement passed 
 the property in the goods to Robertson, 
 and that by it he at the same time mort- 
 gaged the goods to Crawcour & Co., and 
 gave them a license to seize them. The 
 sole question therefore is, whether the 
 property in the goods passed to Robert- 
 son. In my opinion the property did not 
 pass by the agreement. To hold that it 
 did would be clearly contrary to the ex- 
 pressed intention of the parties. Nor do I 
 think that the property passed by the de- 
 livery of the goods, which was made in 
 accordance with the agreement. In my 
 opinion the property could not pass until 
 all the instalments had been paid, and that 
 has not been done yet. 
 
 The api)tal was allowed, with costs 
 fixed at S.'M, and the case was referred 
 back to the registrar to try the question 
 of reputed ownership.
 
 CROFOOT V. BEXNETT 
 
 307 
 
 CROFOOT V. BENNETT. 
 
 (2 N. T. 258.) 
 
 Court of Appe.ils of New York. Dec. Term, 
 18-lS. 
 
 Sylvester Crofoot eiied Bennett in the 
 supreme court in trespass for taking n 
 quantity of brick. On the trial lieforo 
 Willard, J., at tljc Wasliinf^ton circuit in 
 1S47, it appeare<l tliat Hiirace Crofciot, on 
 tliu :i(l of September, 1S4(;, in consideration 
 of 11 previous indehtedness to and a iii'W 
 advance by tlie defendant, transferred to 
 liiiii tiy writing; all the brick in two kilns 
 previously burnt in Crofoot's yard, sup- 
 posed to be forty-tive thousand, and for- 
 ty-three thousand to l)e taken out of a 
 new kiln which lie was then puttiii;; up. 
 It was stated in the writing tliat the de- 
 fendant had paid for the brick, and that 
 they were to be Kood merchantable brick. 
 On the next day the defendant went to 
 the yard for the purpose of having all the 
 brick delivered to him, and on that occa- 
 sion the lirick already burnt, as well as 
 those unburnt. were pointed out tr) thede- 
 fendant by Horace Crofoot, and thedcfend- 
 ant took possession of the preiuise.s where 
 the lirick were and gave directions about 
 them; but none of thosis in the unburnt 
 kiln were counted out or marked, or set 
 apart from the residue. Horace Crofoot 
 agreed with tlie defendant to burn the 
 unlinished kiln, which he accordingly did. 
 On the (itii of October following Horace 
 Crofoot executed to the [ilaintiff, who was 
 his brother, a bill of sale of all the bricks 
 in such new kiln. On the Sth of the s;nne 
 month the defendant opened tlie Uiln and 
 took therefrom and carried away the 
 (|iiantity wl'ich had been purchased by 
 him out of that kiln, and for that taking 
 the iilaintiff brought this action. .Justice 
 Willard held that these facts made out a 
 good delivery to the defendant on the :.'d 
 and .'!d days of September of the bricks in 
 (lUCBtlon; that as against him the plnin- 
 tiff had no title, and that the defense was 
 made out. The defendant had a verdict, 
 which the supreme court refused to set 
 aside on bill of exceptions, and the ])lain- 
 tiff, after judgment in tlie defendant's 
 favor, appealed to this court. 
 
 A.T.Wilson, for appellant. J. Parr}', 
 for respondent. 
 
 STUONU, .1. It is said in the opinion of 
 the supreme court, that the title to the 
 unburnt brick passed to the defendant on 
 the :!(! of September, before they had been 
 separated from the mass in the new kiln, 
 or burnt. In this I taiiik they were 
 wrong, ('hancellor Kent says that when 
 the goods sold are mingled with others, 
 they must be ascertained, designated and 
 separated from the mass, before the prop- 
 erty can pass. It is a fundamental prin- 
 ciple pervading everywhere the doctrine 
 of sales of chattels, that if goods be sold 
 while mingled with others, by number, 
 weight or measuie, the sale is ineompU-te. 
 and the title continues with the seller, 
 until the bargained property be separate<l 
 and identitied. (J Kent's Com. •)9(>.) These 
 rules are fully supported by the authori- 
 
 ties cited by the chancellor. The reason 
 Is, that the sale cannot apply to any ar- 
 ticle until it is clearly di-^ignated, and Its 
 Identity thus ascertaiaerl. In the case un- 
 der consideration, it couM not be said 
 with certainty that any particular brick 
 belonged to the defendant until they had 
 been separated from the mass. If some of 
 those in an unfinished state had been 
 sjjoiled in the burning, or had been 
 stolen, they could not have bci'ii consid- 
 ered as the [iroperty of the defendant, and 
 the loss would not have fallen upon him. 
 But if the good.-, s(dd are clearly iilenti- 
 lied, then, althou;jli it may be necessary 
 to number, weigh or measure them, in 
 order to ascert;iiii what would be the 
 Iiricc of tlie whole at a rate agreed niion 
 lietwecn the parties, the title will pass. 
 If a Hock of sheep is sold at so much the 
 head, and it is agreed that they shall be 
 counted after the sale In order" to deter- 
 mine the PI. tire jirice of the whole, the 
 sale is valid and complete. Hut if a given 
 number out of the whtde are sold, no title 
 is acquired by the (lurchaser until they 
 are separated, and their identity thus 
 ascertained ami determined. The distinc- 
 tion in all these cases do(>s not depend so 
 much upon what is to be done, as upon the 
 oliject which is to be effected 1-y it. If that is 
 specification, the property is not changed; 
 if it is merely to ascertain the total value 
 at designated rates, the change of title is 
 effected. In this case, the judge who tried 
 the cause did not deride directly that the 
 defendanr hail aciiuired a title to the 
 bricks which lie took before they had been 
 separated. The (juestion was, however, 
 distinctly raised by the plaiiitifl's counsel, 
 and was in effect decided against him. 
 Although the judge erred in that, thejudg- 
 nieiit will not, therefore, be reversed if in 
 Icfjal intcndnieat the error eoulii not in 
 any m;iiiner have prejudiced the plaintiff. 
 It conhl not have had that effect if the 
 plaintiff must still have failed in the suit 
 hid the point been decided in his favor. 
 
 If the counsel for the plaintiff hail in- 
 sisted that the question of delivery of the 
 brick should have been suliniitted to the 
 jury as one of fact, there was enough in 
 the evidence to have called upon the judge 
 to adopt that course; l)iit this position 
 was not taken liy the counsel; on the 
 contrary, he called upon the jiiilge to de- 
 cide it as a (iiiestion of law. upon facts 
 which were not controverted, and,assui>-.- 
 ing those (acts to lie true, the juilne de- 
 cided that point correctly. The delivery 
 was not simply of the specilic bricks 
 eviiitually taken by the plaintiff, but of 
 the whole with the privilege of selection. 
 The formal delivery of theyard must have 
 been designed by the parties to carry 
 with It the iiossession of the bricks, or it 
 would have been a mere Idle ceremony. 
 The defendant then took possession of tlie 
 whole, and gave directions atiout burning 
 those which were yet in an naliiiished 
 state. It made no difference that such 
 directions were given to one who had an 
 in'erest in a portion of them, and had 
 previously owned the whole. If one sel|i 
 an article, and delivers it. the delivery 
 would be none the less effectual because 
 the vendor happened to be employed to
 
 20^ 
 
 CROrOOT V. BENNETT. 
 
 perform somo auditional work upon it, 
 ovon at luH own expense. Anil surely, 
 fIoorl>? UMiy be delivereil by ono to another 
 having an interest in them, althougli the 
 prior possessor may not tJiU't with all bis 
 title to the whole. Uiuler these circum- 
 stances, trespass would not lie at the suit 
 of the vendor, or bis subsequent vendee. 
 Tlie goods being in the possession of an- 
 otlier, the vendee took his title with an 
 implied, if not a positive, notice of the 
 rights of the possessor, to which the in- 
 terest acquired by him was subordinate. 
 In order to maintain tresi)ass, it is nec- 
 essary that the plaintiff sliould have tlie 
 actual possession of the proi)erty, or, an 
 absolute title to it, which gives the right 
 
 of possession. In this case, while the ac- 
 tual possession was in the defendant, it 
 does not appear that any possession what- 
 ever bad been delivered to the plaintiff; 
 neither had he the absolute property in 
 any of the brick until the defendant had 
 exercised his right of selection. The de- 
 fendant had. therefore, made out a full 
 defense to the plaintiffs action, as was 
 correctly decided by the jud«e; and al- 
 though he may have placed the decision 
 on different and possibly insutlicient 
 grounds, yet, as the judgment was right, 
 it should not be disturbed. 
 
 JEVVETT, C. J., and BKONSON, J., dis- 
 sented.
 
 CROSS V. pi; riCRs. 
 
 :ii 
 
 CROSS et al. v. TETERS. : 
 
 (1 Greenl. 370.) 
 
 Supreme .Tudiciul Court of Maine. Nov. Terra, 
 1821. 
 
 Replevin for n ])ipe of l)riin(ly and divert 
 olhiT Koods. Tlie defendant pleaded that 
 the piiiperty of the Kiiod» \va» in one 
 \\illiiini I'lirker, 1 ruverwin« the pi<i[)erly 
 cif the pl.Miiitiff, on which traverse JHsne 
 wiiH taken. 1 1 wnH admitted at the trial 
 of thiH i.«sne tliat the | roperl y of the^oodH 
 WBH orijrinnllv in the plaintiff, anil so eon- 
 tiiuied nnless altered liy a sale to Parker; 
 tliey havinfi lieen attaelied as his |)r()perty 
 liy the defendant, who was a depnty sher- 
 iff, by virtne of writs in liiH liundH at the 
 sviit of (JnHtavuH Hului and of Benajtnin 
 T. Chase. 
 
 To prove the debt of Ilolin & Chase the 
 defendant railed Parker as a n itness. who 
 was ohjei-teil to hy the plaintiff's eonnsel 
 as Ix'inK interested, and also as having 
 coiniiiitted a fraud in obtainini; tlieKoods 
 improperly from the plaintiffs for the 
 express purpose of ha vinjr them attached 
 at the suit of Holm and Cltase. Rut the 
 jndfie who presided at the trial of the 
 cause admitted liiiu to testify, it appear- 
 ing that he had not paid the plaintiffs for 
 tlie property. 
 
 Parker testified that on the tenth or 
 eleventh day of March last he called a: the 
 plaintiff's store, and ])urchased tlie irooils 
 replevied on a credit of four months, 
 wliich he took away on the eleventh of 
 March. Kivin-; no note, and rereivins no 
 l)ill of lliem at that time, thon^rh one of 
 the ]ilaintiffs was present at the dell very, 
 hut too liusy to write one, or to receive u 
 note. He said that the plaintiffs and two 
 other niercliants offered him other coods 
 on credit, which he declineil purchasing; 
 and that lie stopiied payment on the same 
 eleventh day of .March. 
 
 On liiH cross examination he testified 
 that he had fjiven sundry notes to the 
 <"uml)erland P>ank and to the P)nnk of 
 Portland, amounting to .'Sl'.KM.n.'), a note 
 to John \Villi;ims for ^'.UKI, an<l another to 
 Benjamin T. Chase for $:tl.'i. all of which 
 were indorsed liy Holm, hut none of them 
 were payalile on the 11th .March. He 
 further testified, and it was proved liy 
 other witnesses, that on the day and two 
 days preceding his failure he went to eight 
 different stores in the same town and pur- 
 chased sundry articles of merchandize, all 
 on credit, and for wliicli he was still in- 
 debted; l>uf which he said he inirchased 
 with no oilier view than to trade upon as 
 usual, and that he did not know that 
 Holm knew of these purchases. It was 
 proved that Parker had all sai<l goods 
 carried to his slio|) on the lOtli and Hth i 
 days of March; that (Ui the aftern<ion of j 
 the 11 til which was Saturday, at the ur- 
 gent reipiest of Holm, to which he made 
 some olijections. he gave n note to saiil ! 
 Holm for #Jsl.-).70. this heing the amount, ' 
 as ascertained liy a hasty estimation, ' 
 which Holm had indorsed for him on the i 
 notes aforesaid, none of which were then ! 
 payable; — that at the same time he took 
 up the note he had given to H. T. Clinsel 
 
 for 5:515, which was indorsed by Holm, ami 
 was not payable, giving inHtead of it his 
 own note, without on indorser, and pay- 
 able on demand ;- that he took no dln- 
 charce, or bond of indemnity from Holm; 
 —that Holm & Chase, the same afternoon, 
 on obtaining said notes payable on de- 
 mand, immediately sued out writs bgainst 
 Parker, and attaihed the whole profierty 
 in his possession, of which the gooris re- 
 plevied were a part ;— that after <'hnse 
 had given up the note indorseil by Holm, 
 and taken Parker's own note in Its stead, 
 lie said to Holm that his own attachment 
 ought to be laid on the gooils first, be- 
 cause he had thus exonerateil lilin from 
 his liability as indorser, to whi<-li Holm 
 assented ; — and that Parker had lieen 
 trans.-icting business at <i loss liefore this 
 time, anil on one occasion appeared dls- 
 turlieil when n person entered his shop 
 after the goods were removed thither, and 
 found him offering tea under its value. 
 
 The counsel tor the plaintiffs hereupon 
 conteniled, Ist that here was sufiicieiit evi- 
 dence of a conspiracy bet ween Holm and 
 Parker to [irocure the goods for the ex- 
 press purp()Seot their alt acliment by H(dm, 
 for wliicli cause the contract of sale was 
 void, as being n frau<l on the creditors, 
 aiid they might well reclaim the goods: — 
 L'd that if the jury were not sntislled of 
 the '•cir.spiracy, yet If they believed from 
 the evidence that Park-', when he bar- 
 gaineil for anil received the goods, well 
 knew that he was insolvent, antl meant 
 not honestly to pay according to the 
 terms of tlie Cfintract. and thereby Ini- 
 po.st-i! on the plaintiffs, the contract was 
 void for that imposition. 
 
 Put the judge instructed the jury that 
 though at the time of making the pur- 
 chases from the plaintiffs and others it ap- 
 peared that Parker was insolvent, yet his 
 insolvency, unattended by any mlsrepre- 
 Hentations or falsehood in obtaining the 
 credit, would not render the sale void; 
 and that unless they believed that he ob- 
 taineil such credit with a fraudulent In- 
 tent and secret agreement or undcrstauil- 
 ing wit!) Holm that the gooils should be 
 attached by him to secure his debt, the 
 plaintiffs could not maintain tlie action; 
 but th.it if they believed that the goods 
 were purchased with such Intention and 
 understanding, their verdict ought to be 
 for the plaintiffs. The jury tliereupon re- 
 turned a verdict for the plaintiffs, which 
 was to be set .-islde and a new trial grant- 
 ed if the judge's instructions were errone- 
 ous, or if Parker was improperly admitted 
 as a witness. 
 
 Todd, for plaintiffs. E. Whitman, for 
 defendant. Longfellow, In reply. 
 
 MEF-LEN, C. .T. afterwards delivered the 
 opinion of the court, as follows: 
 
 Two i|uestions are presented for consid- 
 eration; one. as to the admission of 
 Parker as a witness;— the other ns to the 
 opinion deliv.re.l by the presiding justice 
 to the jury. 
 
 As to the first i|uestlon, the objection 
 seems unfounded —The case finds tbiit the 
 goods the witness purchased have not 
 been liaid for:— He therelorestnnds entire-
 
 212 
 
 CROSS 0. FETERS. 
 
 ly indifferent. He is liable to tlie plaintiffs 
 for tlie pi-ioe of tlie rooiIw, if tliey do not 
 succeed in this action: and will remain 
 liable to Holm if they do succeed. Let 
 this cause be decided either way, one of 
 the witnesses debts must be cancelled an<l 
 the other will I'cniain due and unpaid. To 
 this poiut may be cited the case of Bean 
 r. Bean, 12 Mass. 20. Tlie objection as to 
 interest, therefore fails. But it is urjjed 
 that be is inadmissible on the ground of 
 bis connection with the alleged fraud. In 
 the case in 4 Mass. '!)2, ( Bliss v. Thomi)- 
 soii,) cited by the plaintiffs' counsel, such 
 an (jbjection is considered as of no im- 
 portance. 
 
 As to the other point reserved, tlie pre- 
 siding justice instructed the jury that un- 
 less they should be satisfied that the 
 goods reiilevied were purchased by Parker 
 pursuant to some secret agreement or un- 
 derstanding between him and Holm, so 
 that they might be attached by Holm for 
 bis indemnity, they ought to tind in fa- 
 vour of the defendant. It is now neces- 
 sary to examine and determine whether 
 that instruction was correct. If not, the 
 verdict must be set aside and a new trial 
 granted. As it appears by the report of 
 the case that no arts or devices were prac- 
 ticed, nor any false representations or pre- 
 tences whatever were made by Parker at 
 the time of imrchasing the goods on credit, 
 or at any other tiir.e by means of which lie 
 obtained the credit ; and as the jury ha ve 
 found that there was no such c(jncert or 
 secret agreement or understanding be- 
 tween Parker and Holm; and as it does 
 not appear that Parker knew, at the time, 
 that he was insolvent, though in fact he 
 was so; the simiiie inquiry is this: " If a 
 man doing business as a trader and in 
 good credit (tliough insolveut at the time, 
 but not aware of that fact) obtains goods 
 oil credit in the town where he lives and is 
 known, without practising any artifice or 
 making any false representations or pre- 
 tences, or in fact any representatioiis or 
 liretences at all; — and removes these 
 goods to his own store openly : Can such 
 vender, upon learning the insolvency and 
 circumstances of the purchaser, reclaim 
 the goods in the possession of the pur- 
 chaser or maintain replevin for them 
 against the attaching officer, on the prin- 
 ciple of his legal right to rescind the bar- 
 gain?" — This seems a clear and fair state- 
 ment of the question. 
 
 If in the present case the plaintiffs had 
 a right to rescind the contract of sale, it 
 must be on the ground of fraud on the 
 part of Piirker the purchaser ; an<l th<iugh 
 in many instances contracts maj' he 
 avoided by reason of the fraudulent con- 
 duct of one of the parties: and the party 
 attempted to be charged may for that 
 cause be excused from the periormance of 
 his contract ;— yet in eases of the kind un- 
 der consideration, where a vender claims 
 the right of rescinding a contract of sale 
 which has been carried into effect and ex- 
 ecuted on his part by a delivery of the ar- 
 ticles s(dd, it would seem that bis right to 
 rescind must be founded on such a fraud 
 on the part of the vendee as would render 
 him liable to an indictuient; or if not, 
 would at least subject him to an action of 
 
 [deceit: or In other words, that a vender 
 has not a legal right to rescind a contract 
 of sale and reclaim the goods sold, unless 
 j such fraud was practised in making the 
 I contract, that if the vender did not rescind 
 , it, he would recover damages against the 
 ] vendee for the injury sustained liy that 
 j fraud. — But without advancing any ilirect 
 opinion as to the correctness of this priii- 
 cii;le, it anjiears to us to be clear that it 
 would require as much proof of fraud and 
 false representation to maintain an action 
 against a vendee in the aliove circumstan- 
 ces, as an action against a third person, 
 by wliose fraudulent and false representa- 
 I tioiifi tlie vender was induced to give 
 : credit to the vendee. — Artifice, misrepresen- 
 i tation, falsehood and fraud constitute the 
 j foundation of all such prosecutions. 
 I It may not be useless to e.xainine tlie 
 I subject in l)oth points of view. 
 j In the case we have stated, would an in- 
 i dictment lie against the |iurcliaser'.' 
 i 1. Cheating, at common law, was an in- 
 i dictable offence; but to constitute the of- 
 i fence two things were necessary. First, 
 ; the act must be of such a nature as to 
 I affect the public. Secondly, it must be 
 j such against which common prudence 
 could not have guarded. 1 Ha«k.P. C. 
 i ch. 71. Kex V. Wheatly, 2 Burr. 112."). 
 
 2. The statute of 33 Hen. S,ch. 1, made it 
 • an offence to obtain money, goods, etc. by 
 
 a false token. Though this statute in 
 some respects altered tlie common law, it 
 did not affect those cases against which 
 common prudence would be a sufficient 
 securitv. 
 
 3. The statute of 30 Geo. 2, c!l. 1, goes 
 still further and makes it an indictable 
 offence to olitain money, goods, etc. upon 
 a false pretence. Before this last statute 
 was enacted it was not an offence to oli- 
 tain money, goods, etc. by a false pretence, 
 unless false tokens were used. See .\noii.. 
 
 :G Mod. ]0.">. Queen v. Macarty, Id. 3(11. 
 > Queen v. Orliell. Id. 42. Queen v. Dixon, 
 : Id. 61. King v. City of Chester, .5 Mod. 11. 
 i Queen v. (Jrantbaiu, 11 Mod. 222. Reg. v. 
 j Jones, 2 Ld. Rayin. 1013. 
 ! This statute was never in force in Mas- 
 sachusetts, as we are informed by Par- 
 sons C. J. in the case of Commoinvealtli v. 
 Warren, (i Mass. 72. But the Stat. 1S15, ch. 
 i:3i), contains similar provisions, and Ihere- 
 I fore those decisions which %ve meet with 
 [ in the English books upon the Stat. (ieo. 
 t 2, are applicable to the statute of Ifilii. 
 
 In the case of Young in error v. Rex, 3 D. 
 & K. us. it is decided that to bring a case 
 i %vithin llie act of Cieo. 2, there must be 
 false [ireteiices or stories, and misrepresen- 
 tations, deceiving and intended to deceive 
 the person with whom the offender is 
 dealing, and fraudulently contrived for 
 I tliat purpose. — Buller J. says, "Barely 
 asking another for a sum of money, is not 
 Isutticient: but soraepretence must lie used, 
 I and this pretence must fce false, and the 
 [intent is necessary to constitute the 
 I crime." — The case of Rex v. Lara, 6 D.«S; E. 
 j 505, sliews the nature of those false tokens 
 I and pretences which are necessary to suyi- 
 port an indictment. — Lara pretended that 
 he wished to purchase certain lottery 
 tickets tea large ainount. He did so, and 
 paid for them by a draft on a certain
 
 CROSS V. PETKK* 
 
 213 
 
 bunker with wliora he said he had fundH, i 
 thoiiK>> nt the time ho Iviww he hud siut.— 
 Tlie court (k-cided tliiit tlic indictment 
 foidd ni't l)e maintained. Lei. Ken.von 
 observed that Larii used notliiiiK hat lii« 
 own UHHertion tt) tjain credit. — "tliat lie 
 Kut down and drew a cliecl< on a lianker; 
 hut it would lie ridifuious to call that a 
 falHe tolcen:— that it left hin credit just 
 where it was before. What tlie dci'ciidnnt 
 dill was lii;;hl.v rei>reliensiideand immoral; 
 hut as he used no false tokens to aetoni- 
 plisli his designs, judgment must bear- 
 rested." 
 
 Hawk. B. l,ch.71, sect. 2. says that 
 "the deceitful receiving money from one 
 man to anotlier's useupona false ))re;ence 
 of liavinn' a msssa^e and order to that 
 purpose, is not punishable Ijy criminal jiros- 
 ecution, because it is accconipaaicd by no 
 manner of artful contrivance; but wholly 
 depends on a l)are. naked lie." 
 
 The above-cited else of ('<»mmon wealth 
 '. Warren was decided before the act of 
 Inssachusetts for the punishment of 
 leats v,-ai passed. Had it been in 
 .orce at the time of tlie trial, Warren 
 would probably have been convicted, as 
 he used several false ijretences to obtain 
 eredit l)y means of wliicli his fraud was 
 successful. The case further shews that if 
 another person had been connected with 
 him in tlie fraud, the offence woulci have 
 anioiinted to a conspiracy without any 
 fnls;- pretences; and ini;:lit have been 
 charged and punished as such. — This dis- 
 tinction it is of importance to notice, as it 
 ma.v have a bearing on tlie main (piestion 
 reserved in this cause ; and fortliat reason 
 it may under this head be also remarl-.eil 
 that where two or more conspire to do 
 an iiiila Willi act.tir a lawful act for an nii- 
 hiwful piii|iose, it is a crime; nml the ^ii^t 
 of the conspiracy is the unlawful confed- 
 eracy. Coiiimon wealth v. .Iu<ld iV ;il. 1' 
 Mass. . "51'!). Commonwealth v. Tibbetts & 
 al. 2 Mass. ."):!•;. 
 
 (Jur ne.\t iiuiuiry is whether, in the case 
 stated, an action of deceit, or an action 
 on the case in nature of deceit, would lie 
 for dnmnne.-^ occasioned by the fraud. — 
 Oar law books must answer the oueslion. 
 
 Some of the cases relatinji to tliis point 
 are founded upon an alleged fraud and de- 
 ceit on the part of the vender: others on 
 the part of the vendee. — 'I'liose which are 
 grounded upon an express warranty do 
 not come within thernntreof our present 
 view. In .Medina v. StouKliton 1 Ld. 
 Raym. .')!):!, it is settled that pcsscssion is 
 a warranty oi the implied kind, that the 
 goods belong to the seller; for possession 
 is a colour of title, and an action lies upon 
 a bare allirinntion of the possessor that 
 the goods are his own. Itoberts on frauds 
 .'iL';!.— " .\n action npoii the ease lies fora de- 
 ceit when a man does an.v deceit to tlie 
 damage of anoth)>r. Com. Dig. .\ction on 
 tlie case lor deceit A.l." " Kraud with- 
 out damage or damage without irauil 
 gives no cause of action — both must eon- 
 cur." Baily v. .Merrell, :! Bulst. !».-.. l!oh- 
 erts .")2:i. "No action lies against a man 
 for his declaring that a cert.ain person 
 would have given him a certain sum for 
 his farm ; though no such offer was ever 
 maile.— It is a mere ground of estimation 
 
 with which no prudent man should be nat- 
 Istied;" — but a declaration of the fact 
 that the rent was so much, when it wan 
 not, whereby a purchaser is deceived, will 
 support an action. See lioherts ."i2:i, and 
 the cases there cited. .Many other cases or 
 false or fraudulent representations on the 
 part of the vender might he stated, shew- 
 iiig the principles on which actions for de- 
 ceit maybe maintained against them :— 
 but these are sufficient. It is much more 
 to our present purpose to e.xaiiiiiie thuHe 
 cases in which actions have been support- 
 ed against venilees or receivers of mone.v, 
 tor fraud anil deceit on their part, and the 
 facts necessary to support such actions. 
 In the case of ISullington v. (Jerrish, 15 
 .Mass. l.'iC. Walker was guilty of gross 
 fraud, and stated a series of falsehoods 
 well calculated to gain him credit, by In- 
 spiring coatidence in his responsibility; — 
 and by means of this fraud and false pre- 
 tence, he succeeded In obtaining credit to 
 a large nnionnt. In Badger v. I'hliiiiey, l.'> 
 Mass. :5.")H. Band, the minor, obtained 
 credit by falsely allirming that he was of 
 full age: and this atlirmaliDn was point- 
 edly made, too. in reply to the iiii|uiries of 
 Badger. Putnam. .1. in giving the opin- 
 ion of till- court says. " the goods were de- 
 livered to the plaiiilin Kand because he 
 undertook to pay for them anddtclared 
 he was of full age. The basis of this con- 
 tract has failed from the fault it not the 
 fraud of the infant: and the fraud which 
 induced the contract, furnishes the ground 
 for the impeachment of it. Thus in the 
 case of Butliiigton v. (ierrisl-. where one 
 purchased goods on credit by means of 
 false representations, it was holden the 
 vender had not parted with his iiroperty. 
 but might maintain replevin against the 
 at tacliiag ollicer." 
 
 In the case before mentioned of Com. v. 
 W.Miren. the court observed that the man 
 defiauded should s ek his remedy by a> 
 tion. In that instance falsi- and fraudu- 
 lent representations had been made. In 
 till! ini|iortant case of I'asley v. Kreeman, 
 :! 1). & E. ")1, Buller ,J. observes, "The fraud 
 is that the defendant procured the plain- 
 tiff to sell gooils on credit to one whom 
 they would not otherwise have trusieil. 
 by "asserting that which they knew to lie 
 false. Here then is the frauil and the 
 means by which it was coinmitted : — the 
 assertion alone is not sullicient: b.it the 
 plaintiff must go on and (irove that it 
 was false and that the defendant knew it 
 to be so." The action of Basley v. Kree- 
 man was maintained ii|ion the principle 
 that the defendant had been guilty of that 
 fraud and misrepresentation to induce 
 tlie plaintiff to sell goods on credit lo 
 Kalch. which would have mainiained the 
 action against I'aii li if he had hiinseif biH'ii 
 gniltv of the fraud and falsehood.— Buller 
 ,). concludes with observing that "If a 
 man will wickdily asiert that which ho 
 knows to be false and thereby draw his 
 neighbor into a heavy loss he is liable In 
 damages." .\shliuist .l.in delivering his 
 opinion savs " In order to make it action- 
 able it must be averred that t!ie defend- 
 ant intendiui.' to dec-iveand defraud the 
 plaintiffs, did d.reilfiilly enconrnge and 
 persuade them to do the act and for that
 
 214 
 
 CROSS V. PETERS. 
 
 purpose made the falseafflrmation.in con- 
 He(|iience of which tlie.v did act." "If A. 
 Keiul his Mervant to liuy a house, who 
 buys it and pays for it, and the seller 
 affirms to A. that he was not paid, 
 whereby A. pays him ; an action lies. So 
 if a man affirm himself to he of full age, 
 when he is an infant, and thereby procure 
 money to be lent on mortfiase." See 
 ('om. Dip;, action on the case for deceit A. 
 10. and the authorities there cited; also 
 I?ean v. I!ean, 12 Mass. 20. Numerous 
 other instances of similar imposition and 
 falsehood minht be collected and stated; 
 but it is not necessary, as they are all 
 founded on the same principle, viz. that 
 the money, goods or credit had been ob- 
 tained by means of false and fraudulent 
 assertions of the defendant. We have not 
 been able to find a siiiRleinstance in which 
 an action of this kind has been supported, 
 except where the party charged had suc- 
 ceeded in his plan by false assertions and 
 fraudulent misrepresentations. lii3Chitty 
 on Pleading are a number of forms of dec- 
 larations in actions of deceit — one for sell- 
 ing goods as and for a larger quantity 
 than there was ; — one for selling a piece of 
 land as contaitiing more acres than it did 
 contain; — one for misrepresenting the 
 value or profits of a certain trade; — one 
 lor representing himself as authorized by 
 a third person to do a certain act or re- 
 ceive a certain sum of money; and one for 
 personating the plaintiff In each of these 
 forms there is a strong averment that the 
 defendant made a diiect, false and fraud- 
 ulent rejiresentation of facts, with an in- 
 tent to accomplish his object and defraud 
 the plaintiff; and that by means thereof 
 he had succeeded. 
 
 We have thus taken a brief review of 
 some of the general principles of law ap- 
 plicable to indictments for frauds and de- 
 ceits, anil to actions on the case brought 
 by the party injured against him who 
 commits the fraud ; whether he is the ven- 
 dee of the goods or his artful and fraudu- 
 lent friend. It a[)pears by the precedents 
 to which we have alluded, that in case for 
 a fraudulent purchase or obtainment of 
 money, the declaration must contain an 
 allegation that the plaintiff was imposed 
 upon by artifice and false declarations 
 — calculated and intended to deceive; and 
 in .'ill the cases which we have cited, the 
 piosecution on civil action wiis maintained 
 or defeated, according as tlie proof aj) 
 peared on trial touching the false and 
 fraudulent represents tions alleged to have 
 been mude by theparty charged : heknow- 
 ing them to be false and deceptive. — Judg- 
 ing, then, from legal fctrnis and ilecdded 
 cases, it seems to l)e settled that deceptive 
 assurances and false representations 
 fraudulently made are essential to thesup- 
 port of an inilictmr'ut or civil action for a 
 fraud committed in the manner above 
 supposed; and of course, tliat such proof 
 is equally necessary to the sui)port of an 
 action of replevin by the vender who 
 claims the riglit of rescinding the sale he 
 has made on the ground of fraud in the 
 vendee. Let us for a moment look at the 
 facts in the case at bar. — Parker, it turns 
 out, was insolvent when he purchased the 
 goods, but there is no proof that he was 
 
 apprized of thefact;— he bought thegoods 
 on credit in usual form, refusing the offer 
 of further credit from the plaintiffs :— he 
 made no professions or promises; — no rep- 
 resentations or assertions; practised no 
 other art thRii ol)taining the credit with- 
 out disclosing hisinsolvency ; a fact, which 
 it does not appear that he himself km-w. 
 These facts are essentially different from 
 those appearing in the cases we have col- 
 lected and stated; in which it is declared 
 not only that there must have been asser- 
 tions and represencations made— but 
 I they must also have been false: and to 
 I complete the proof the defendant must 
 have known them to be false. Under 
 these circumstances we are not aware of 
 any legal principles on which an indict- 
 ment could be sustained or an action for 
 deceit against Parker; and we do not per- 
 ceive how it is competent for the plaintiffs 
 to rescind the contract they have made 
 and reclaim the goods in this action, un- 
 less upon the ground of concealment, 
 which has been also urged by the counsel 
 for the plaintiffs, and which we will pres- 
 ently consider. —As the jury have decided 
 that no secret understanding existed l)e- 
 tween Parker and Holm of a fraudulent 
 nature relating to this property, we do 
 not see why the rule of law is not appli- 
 cable in this instance, melior est conditio 
 defendentis. The plaintiffs may have l)ecn 
 guilty of negligence or want of due care; 
 but as it regards the question before the 
 court the defendant and he whom he rep- 
 resents seem not liable even to that imi)u- 
 tation. 
 
 But is is contended by the counsel for 
 the plaintiffs that a vender may rescind a 
 contract of sale on account of fraud in the 
 vendee by concealment of the truth as 
 well as by false assertions and misrepre- 
 sentations; that the consequences are the 
 same and of course the la w is the same. 
 Before answering this argument, it is nat- 
 ural to inquire wherein this concealment 
 consisted. — It is stated by the counsel for 
 the i)laintiff that it was the duty of 
 Parker, as an honest man, to have dis- 
 closed his insolvency to the plaintiffs at 
 the time he ajiplied to purchase the prop- 
 erty The first reply to be given, is, that 
 it does not appear in tlie case that he 
 knew he was insolvent. — He might he sus- 
 picious of it, and he might not be; on that 
 point we have no information. It d( es 
 not appear, then, that he concealed any 
 facts which he was liound to disclose. — If 
 the principles of law respecting this part 
 of the canse were to be carried to the 
 same extent t)y the court .-is they have 
 been in the argument of the counsel, all 
 conlidence in dealing woidd be destroyed, 
 and perfect confusion, as to the title of 
 personal property, would be the conse- 
 (uience. — The vendee would never feel safe 
 in purchasing, nor any other person safe 
 in purchaslcg of him, lest the creditor 
 should afterwards discover that the ven- 
 dee, when he [)uichased, was actually in- 
 solvent, and that those who afterwards 
 bought of him knew of the insohency; 
 and then should come forivard, with a 
 sweeping claim of the property he had 
 sold, on the principle of rescinding the sale 
 for a fraudulent concenlmeut.— But sup-
 
 CROSS 0. PETERS. 
 
 215 
 
 posine; thnt Parker did know of his own 
 insolvency nt the time of Ills contract: wo 
 are perfectly Ha ti.sliod tliat tlie Hale iH not 
 void on tlie Ki'onnd of fiaud becauKelie did 
 not discloKe tlie fact. 
 
 It is true, the fraudulent concealment by 
 the veniler of a secret defect in an article 
 Hold by liini, wholly unknown to the ven- 
 dee, may be the foundation of an action 
 for daiiiji>j;eH by him HKHinst tlie vender, 
 and perhaps authorize ilio vendee to re- 
 scind the contract on discovery of the 
 fraud; because the law implies a warranty 
 that the Koods or articles sold are of a 
 merchantable <]uality. liilb. Evid. 1S7. 
 Roberts U'£i. IJut we apprehend no case 
 can be found by whicli it has been settled 
 that the law implies anything like a war- 
 ranty on the part of a purchaser that he 
 is a man of property, and sound as to his 
 pecuniary concerns. — In tlie commerce and 
 intercourse of mankind, such an implica- 
 tion was never un<lerstood to exist. 
 
 It is also true that in the case of policies 
 of assurance tlie concealment of the truth 
 Is nearly allied to misrepresentation. If 
 the fact be material, it uvoids tlie policy. 
 But it is not on the ground of fraud in the 
 concealment that the contract is void ; be- 
 cause if tlie concealment be the effect of 
 accident or mistake, net;lif;ence or inad- 
 vertence, It is equally fatal to the policy 
 as if it were intentional and fraudulent. — 
 See Marshal, 347, and cases there cited. 
 But it will be difficult to find a case where 
 a policy was declared void, because the 
 
 assured, when the policy was effected, was 
 insolvent and yet concealed that fact:— 
 still the reasoning of the plaintiffs' counsel 
 seems to leail to the conclusion that the 
 [lolicy would In such a case be void 
 b'jcause the assured was insolvent and 
 unable to pay the note he ha<l Riven for 
 the premium.— We apprehend no Cfinclu- 
 sion can be drawn from these principles of 
 ttielawof insurance unfavourable to those 
 on which we place the decision of this 
 cause. 
 
 We have before stated that there miKht 
 be a conspiracy between two or more to 
 obtain goods or money from another 
 without any false pretences, etc. and 
 which would he punishable as a crime. 
 In reference to this principle of law the 
 jury were instructed that if they believed 
 such conspiracy or secret urrangement 
 existed between Parker and Holm, though 
 I there were no false pretences or rejiresen- 
 tations, they ought to find a verdict for 
 the plaintiffs, but not otherwise. 
 
 It is to be lamented. If the plaintiffs have 
 lost tlieir property by reposing confidence 
 where it was not deserved; but this If 
 not a circumstance for our consideration 
 in the decision of the cause. 
 
 On the whole, after much thought and 
 the most careful examination, we are sat- 
 isfied with the correctness of the liistnic- 
 tions which were given to the jury; that 
 the motion for a new trial must be over- 
 ruled, and that there be an entry of judg- 
 ment according to the verdict.
 
 CUNNIXGIIAM 0. ASHBUOOK. 
 
 .'17 
 
 CUNNINGHAM v. ASHBROOK et al. 
 
 (20 Mo. 553.) 
 
 Siiprciui: Court of Missouri. March Term, 
 1855. 
 
 Acti(jn Ity one Cunningliani UKiinRt 
 AHlibrook and otIierH for the price of eer- 
 tulii lioKN. .Ju(l;j;iueut of Doiisuit, and 
 plaintiff liriiiurH error. 
 
 At tli(! friiil, lipfore a jury, it appeared 
 tliat defendants were onKaKi'd iu slui)t;li- 
 terinn ami packing liogH for tlieniHelveM, 
 and al.so sImukIi terinK f(jr other i)ackerH. 
 Tlie.v had an arrauKeinent with one .\lc- 
 .MliHter and one W hitaker, wlio were 
 pufkers, that eueh should have one-third 
 of all the hoRH KlaUKhtered hy them, de- 
 fendants attendiim tt» the huyiog and the 
 slauKhterine:, for the sale of the offal. 
 I'laintiff'n Iio-^h were l>ou;^ht liy a [lernon 
 who honyrht hoK« for defendnnts, and 
 oceaHionally for the other two |)a<'kers, 
 and who leHtitied that in Ijuyini; these 
 liojiH he did not know wlio would take 
 then). The lions were taken todefendants' 
 slaughter hou.-'e, and There killed, and de- 
 fendants notified plaintiff to call next day 
 at the paekinji liouHe of McAllister, who 
 would take the hotrs, to see them weiuhed 
 and set his pay. That night, however, 
 the Hianghter house and the liogB were de- 
 stroyed hy fire. It was in evidence that 
 it was customary for licjgs to Le weighed 
 at the packing house, in the presence of 
 the seller, who then received his [lay, and 
 one witness testified that by custom the 
 seller's ownership continued till the hogs 
 were weighed. The lower court gave the 
 following instruction: "If the hogs were 
 sold liy net weight, to lie ascertaineil by 
 weighing the lio^s after they were slaugh- 
 tered and clcaiied. and not to be paid for 
 until so weighed, and the hogs wei-e de. 
 stroyed by an accidental fire before they 
 were weighed, then the loss falls upon the 
 seller, unless he shows that the parties In- 
 tended the sale to lie absolute and com- 
 plete before the weighing. 
 
 Clover iSt Kichardson, (with whom was 
 0. C. Woods,) for plaintiff in error. J. A, 
 Kasson, for defendants in error. 
 
 LKONAHl), .J. The only things essen- 
 tial to a valid sale of personal property at 
 couunon law were, a proper subject, a 
 price, and the consent of the contracting 
 parties, and when these concurred, the 
 sale was complete, and the title jinssed 
 withoiil anything more. (2 Black. I'oni. 
 447; i!l<ixam v. Sanders. 4 liarn. & (."res. 
 'J41.) The term sale, however, in its lar- 
 gest sense, may include every agreement 
 for the transferring of ownership, whether 
 immeiliate or to lie completed afterwards, 
 and goods, in reference to the disposition 
 of them by sale, may be consiilered as ex- 
 isting separately and ready for immediate 
 delivery, or as a part (>f a larg"r mass 
 from which tliey ninst be separated hy 
 counting, weighing or measuring, or as 
 goods to be hereafter procured and sup- 
 plied to the buyer, or to be manufactured 
 for his use. (ioods of the tirst sort are 
 the only jiroper subjects of a common law 
 sale, which is strictly a transaction oper- 
 
 ating as a present transfer of ownership, 
 ami does not include executory contractH 
 for the future sale and delivery of personal 
 property, although there are some ap|>ur- 
 eutly anomalous eases In our books in 
 which transactions in reference to g(iod8 
 to be separated from a mass seem to have 
 heeu treated, where there had been a con- 
 structive deli very, as valid sales, producing 
 a present change of property. 
 
 The general rule, however. Is otherwise, 
 and all the different soits of goods to 
 which we have referred, except the tirst. 
 are. under our law, the proper sulijects 
 only of executory agreements — contractu 
 for the future sale and delivery of them. 
 
 The Iloman law, however. It Is said, 
 dealt differently with this suliject. In 
 that system of jurisprudence (Hell on Con- 
 tract of Sale, 'J, ) "a sale was not an im- 
 mediate transmutation of property, liiit a 
 contract of mutual and personal engage- 
 ments for the transference of the thing on 
 the one hand and the payment of the price 
 on the other, without regard to the time 
 of performance on either part, that being 
 left to be regulated by the agreement of 
 the parties, the seller being liound to de- 
 liver the thing in jiroperty to the buyer at 
 the time agreed on, ami the buyer to pay 
 the price iu the manner settled between 
 them. The distinction was carefully cili- 
 served bet ween the direct right of prop- 
 erty (jus in re) conferred liy delivery, and 
 the indirect right (jus ad rem) to demand 
 of the seller delivery of the thing sold. 
 There tlius arose out of the contract the 
 donlilc relation of delitor ami creditor, as 
 to llie thing sold and the price to lie paid 
 for it. Corresponding with these rela- 
 tions, two actions were given, both |ier- 
 sonal and direct; one for the thing sold, 
 the other for the price due. 'I'he claim for 
 the price being alisolute on delivery or 
 tender of tlie thing and the demand for 
 the thing conditional, iirovided it had not 
 in the meantime perished without fault of 
 the seller. " Thus, it is seen, a Homan sale 
 was applicable to all the possible circum- 
 stances in whicli goods to lie transferred 
 coulil be found, end the respective engage- 
 ments of buyer and seller ( under such a 
 transactinn,) were specifically enforceil 
 l>y the appropriate actions. 
 
 Although at common law consent alone 
 wassullicient to constitute a valid sale, 
 the statute of fraud has now intcrveneil 
 and other formalities, ore prescribed, 
 which must be observed or what was be- 
 fore a valid transfer of property is now of 
 no validity. Thest.-itute, lieginning wliere 
 the common law stopped, reipilies some 
 one of these solemnities to lie adde<l to the 
 transaction before it shall be considered 
 as complete, so as to effect a change of 
 ownership; and tlie matter here relied up- 
 on, as the statute evidence of the comii'.e- 
 tion of the contract, was the change of 
 possession. This provision of tin- statute 
 implies it is saiil a delivery nf the tliina 
 sold on the part of the debtor, and an ac- 
 ceptance of it liy the luiyer, with an inten- 
 tion on the one side to part with, ami on 
 the other to accept the ownership of it ; 
 and it is not enough that the mere nat 
 ural, actual, curporenl possession sliould
 
 218 
 
 CUNNINGHAM v. ASHBIIOOK. 
 
 be chunsed, but there must be a chanire of 
 the civil possession, wlik'li is a holding of 
 the thing with the design of keeping it <is 
 owner; and this brings us to an exam- 
 ination of the instruction complained of, 
 and which resulted in non-suiting the 
 plaintiff. 
 
 The proof given shows (or. at least, 
 conduces to show, which, for the present 
 purpose, is the same thing,) that the thing 
 sold had been delivered in point of fact to 
 the bu.ver, and the true question in the 
 cause, (indeed the only one that could be 
 raised,) was, whether this cliange of 
 actual possession was also a change of 
 the civil possession; or in other words, 
 whether the hogs were delivered and re- 
 ceived by the parties respectivel.v, with 
 the intention of changing the ownership. 
 If the facts were so, tlie sale was perfect, 
 the title passed, and the loss fell upon the 
 new owner. 
 
 It is to be remarked that this is the sale 
 of a specitii- commodity, the whole drove, 
 and not of a part, to be ascertained by 
 counting out the required number, and 
 therefore, the title passed as soon as the 
 bargain was completed by the delivery. 
 It was not a transaction in relation to 
 the sale of part of a mass, which could 
 not take effect as a present sale, immedi- 
 ately changing the property, until the sep- 
 aration was iictually made; and it is pos- 
 sible some confusion may have arisen liere 
 by not dearl.v distingui^ihing between the 
 sale of a specific commodity, clearly sep- 
 arated and distinguished from all others, 
 as a specific drove of stock, and of an in- 
 definite commodity, as a hundred barrels 
 of corn out of the party's crib, or a liun- 
 dred mules out of his drove, when the 
 seller is bound to separate and identify the 
 particular part sold, l)efore it can pass in 
 property to the purchaser. 
 
 Nor is there any objection to the valid- 
 ity of this transjiction as a present sale, 
 growing out of the supposed uncertainty 
 as to the price. Although there is no sale 
 until the price is settled between the par- 
 ties, .vet it is settled, within the meaning 
 of this rule, when the terms of it are so 
 fixed thut the sum to be paid cnu be ascer- 
 tained without further reference to the 
 parties themselves; and, indeed, by the 
 common law, the price is fixed within this 
 rule, even when it appears that parties 
 have agreed that it shall be the reasona- 
 ble wcjrth of the thing sold, leaving it to 
 the tribunals to ascertain the Jimouiit, if 
 they cannot agree upon it themselves. 
 (Bell on Sales, IS-20; Acebal v. Levy, 10 
 Bing. 3.S2.) 
 
 This, then, was a present agreement be- 
 tween these parties for the sale of a spe- 
 citiccommodityfor a price settled between 
 then), so as to be capable of future ascer- 
 tainment, without further reference to 
 themselves, and we repeat, immediately 
 passed the title to the buyer, if the cere- 
 mony of delivery required by the statute 
 of frauds was complied with, and there 
 having been a delivery in fact, the whole 
 question was, as before remarked, with 
 what intention that delivery was made, 
 whether merely that the hogs might be 
 weighed, neither party being bound in the 
 meantime by what had passed between 
 
 them, or as the formal completion of the 
 bargain to bind the parties and vest the 
 ownership in the purchaser. 
 
 We Clime now to an examination of the 
 instruction complained of, the substance 
 of which is, that If the hogs were sold by 
 net weight, to be ascertained by weigh- 
 ing after they were slaughtered and 
 cleaned, then the presumption that the 
 sale was completed by the delivery is met 
 and repelled, and the loss falls on the 
 plaintiff, as owner, unless he shows that 
 the parties intended the sale to be com- 
 plete upon the delivery. The jury would, 
 no (loul)t, have so understood the direc- 
 tion, when they came to appl.v it to the 
 case, and such, too, we suppose, was the 
 meaning of the court ; but we do not con- 
 cur in this view of tlie law. Certainly, this 
 circumstance was jiroper for the jury up- 
 on the question of the intention of the 
 parties in changing the actual possession, 
 and might have afforded a very proper 
 topic of comment to counsel, in arguing 
 the question of fact before them; but we 
 do not think anj^ well considered case has 
 gone the length of declaring that it 
 changed the strong natural presumption 
 to be derived from the actual delivery of 
 the property, and imposed upon the other 
 party tlie necessity of showing that "the 
 parties intended the sale to be absolute 
 and complete before the weighing," and 
 we feel well assured that there is no prin- 
 ciple upon which this position can be 
 maintained. We find it fre(iuently repeat- 
 ed in the books, that when anything re- 
 mains to be done by tlie seller, such as 
 counting, weighing or measuring, the title 
 does not pass; and thi9 is certainly cor- 
 rect, when this operation is necessary in 
 order to se|)arate the goods from a larger 
 mass, of wiiich they are a part; but that 
 is not this case, and we think that by 
 keeping the distinction between a specific 
 and an indefinite commodity in view, most 
 of the cases upon this subject can be ex- 
 plained, and their apparent conflict recon- 
 ciled. It is also certainly true that, in de- 
 termining the question as to th(( purpose 
 of the parties in changing the actual pos- 
 session, the fact that the price is to be 
 sul)sequently ascertained by reference to 
 the net weight, and then paid, is proper 
 to go to the jury; but possession is so 
 much of the essence of property, as it is 
 that alone which enables us to enjoy a 
 thing as pro[)crty, and the natural con- 
 nection between property and po.-isessiou, 
 es|)ecially in movables, is so strong, that 
 the presumption arising from a change of 
 actual possession, that it was intended 
 also as a change of the property, is not, 
 in our view, overcome, as a matter of law, 
 by the fact here relied upon, that the thing 
 bargained for was to be paid for by 
 weight, to be ascertained after the deliv- 
 ery. 
 
 Weshall content ourselves by a reference 
 to a few cases whidi we consider directly 
 in point, in support of the position we 
 have taken. Scott v. Wells, (6 Watts & 
 Serg. 8G8,) was a case of the sale of a raft 
 of lumber at twelve dollars per thousand 
 feet, to be ascertained by measui-ement. 
 There had been a delivery, and the raft 
 being lost by a freshet, the question was,
 
 CUXXIXGIIAM V. ASIinilOOK. 
 
 •il!) 
 
 wlictlicr thn property [)asHeil so aH to cast 
 the lowH upiin the buyer. The court lie- 
 low instructed tliejury that " [jarfieH muy 
 tnake a Hale of koocIh ho as to i>aHH the 
 property by the actual delivery thereof, 
 without (irnt fixing the quantity upon 
 which the price is to be computed," and 
 the Hupienie court approved of the direc- 
 tion, .luiliic (iibson remurkiiiii. "that a 
 Kale in imperf(ct only when it in left o|ien 
 for the addition of terniH iieceH-<ary to 
 complete it, or where it is defective in come 
 indispensable ingredient, which cannot be 
 supplied from extrinsic sources. I'ut 
 wiien possession is delivered pursuant to a 
 contract w hich contains no provision for 
 additional terms, the parties evince, in a 
 way, not to be mistaken, that they sup- 
 pose the liart;ain to be consummated. " 
 
 Macomber v. I'arker, (ll! Pick. ]N'.', ) was 
 a sale of a (luaiitity of brick in a kiln at a 
 certain rate per thousand, to be aHcer- 
 tained by counting;, and the court, in de- 
 liverinu its opinion, says: "it is true the 
 bricks were to be counted, but that was 
 to be done lo enable the parties to come 
 to a settlement of their accounts, and not 
 lor the purpose of completing the sale. 
 TakiuK the whole of Iluntin^'H testimony 
 together, this we think is the reasonalile 
 Inference to be drawn from it. If the 
 bricks had been actually delivered, there 
 could have been no question that the sale 
 would have l)cen coni|)lete, notwithstand- 
 ing the bricks were to be afterwards 
 counted. The fieneral princi|)lo is, that 
 when an operation of weight, measure- 
 ment, counting or the like, remains to lie 
 Iierformed in order to ascertain the price, 
 the quantity or the particular conimodit.v 
 to be delivernd, and to put it in a deliver- 
 able state, the contract is incornplcte, un- 
 til such operation is performed. (Ilrown 
 on Sales, -14.) Hut where the goods or 
 coniiuodities are actuall.v delivered, that 
 shows the intent of the parties to com- 
 plete the sale b.v the delivery, and the 
 weixhins, or measurinp; or couutiuK after- 
 wards would not be considered as iiny 
 part of the contract of sale, but would be 
 taken to refer to the udjustmenr of the 
 liaul settleiriCnt as to the price. The sale 
 woulil be as ct)mplete as a sale upon 
 credit l)ef(ire the actual payment of the 
 l)rice. .N'othiiijj can be found in any of 
 the numerous cases on this point, which 
 militates a^iainst this j)osition." 
 
 The remaiks of the same court in Kiddle 
 V. Varnum, (20 I'ick. 2s:J-i,) to whic-h we 
 have been referred by the counsel for the 
 respoudeiitH are not intemled to conflict 
 with what hail been previously determined, 
 but expressly allirin that decision. 
 
 It is true the court say that "the party 
 
 aflirminK the sale must sntlMfy the jury 
 that it was intended to be an absolute 
 transfer, and all that remained to be done 
 was merely for the purpose of ascerlain- 
 lUK the price- of the articles sold at the 
 sjleaKreed upon." .\nd of this there can 
 lie no doubt, l)ut yet th<i t is a not tier for 
 (he jury, and it is not intiinateil in this 
 case that when there is an actual delivery, 
 the jury cannot lie alloweil to Infer such 
 Intention without some additional evi- 
 dence. 
 
 These questions Renerally arise when 
 the thin;; Hold has perisheil, and the con- 
 test is uiion whom the loss shall fall, and 
 it may not be improper here to rem-irk 
 that, not withstandiiiK the marked differ- 
 ence between a Itoman and common law 
 sale, in other [larticulars, when a loss oc- 
 curs, it falls upon the same person uniler 
 either system. I'nij?r our law, the maxim 
 is that the owner liears the loss, a rule. It 
 would seem, of universal a|iplira(ion, res 
 lierit domitio. Pad'-r the Koman law, the 
 debtor of a speciHc tliiim was not answer- 
 able for its loss, when it iierished In his 
 han<lH without fault, and when there had 
 been a purchase of a specillc commodity, 
 ulthouixh the [)roperty was not clianued 
 U[itil delivery, the seller, by the bargnln, 
 became (lel)tor to the b'lyer of the partic- 
 ular thing liought. ami st) not liable if it 
 perished without fault. 
 
 We repeat what we have liefore said. It 
 is a question for the jury. If the delivery 
 were tor the purpoi;e of passing the prop- 
 erty, it had that effect although the price 
 was t<i be afterwards iiscertained and 
 paid according to net weight, and there is 
 no rule of law that, under such circum- 
 stances, the presumption arising from the 
 delivery is met and repdied. and that 
 other evidence becomes necessary in or- 
 der to make out a pritna facie case of n 
 present sale. The seller has a right, not- 
 withstanding the bargain, to retain his 
 property till he is paiil, unless lie ngrtH's 
 to allovv the p'Tchaser a credit (the bar- 
 gain fiir an immediate transfer of prop- 
 erty implying a present payment of the 
 price,) anil hence, when there Is no under- 
 standing as to the time of payment other 
 than wliat is implieil In the postponement 
 of it until the i)nanlity of the thing sold is 
 a.scertained in the manner Indicated In the 
 contract, this circumstance is certainly en- 
 titled to consideration with the jury, in 
 determining the character of the delivery, 
 which, if Inteaded to pass the thing in 
 property, deprives the seller i>t his security 
 upon it for the price. at Ihesametlme that 
 it throws upon the buyer the future risk. 
 The judgment is reversed, and the cause 
 remanded.
 
 CUSACK V. ROBIXSON. 
 
 221 
 
 CL'SACK et al. v. ROKINSON. 
 
 (1 Best & S. LfJO.) 
 
 (Jihcirs Hciicli, Trinity Tcriii. May 2."., ISf.l. 
 
 Dpcliirallon tnr Koods Bold anil dcliv- 
 t'ri'd.atid Koodx liiirKulnccI uiidKuld. I'lea, 
 never indebted. At the trial before lilack- 
 biirii. J., at the Liverpool win ler uHHizeM in 
 iNOd, it appeared that the defendant, who 
 was a London merchant, on the LMth Oc- 
 tolier. IMIO, at Liverpool called on the 
 plaintiffs, who are importers of Canadian 
 prodnee. and Haid he wanted to liuy from 
 150 to I'Ul) 111 UiiiH of Canadian hatter. He 
 then went with one of the plaintiffs to 
 their cellar, where he was Rliewn n lot of 
 I'll! (irkins of butter, "e.\ liidieniian, " lie- 
 loPKin^ to the plaintiffs, which he then 
 had the opportnnity of inspecting, and in 
 fMic he did open and inspect six of the fir- 
 kins in that lot. After that e.samination, 
 thi'.v went to another cell;ir to see other 
 liutter, which however ilid not salt the 
 defendant. At a later period of the same 
 (lay (he plaintiffs and the defendant made 
 a verbal agreement by which the defend- 
 ant agreed to biiv that K|)ecilic lot of !.")(; 
 firkins at 77s. per cwt. When the jirice 
 had been agreed on. the defeniljint took a 
 card o!i which Ids name and aildress in 
 London were written, "Mdnnind Itnbin- 
 Hon, 1 Welliimton Street. London I'.ridKe, 
 London," and wrote on it " l.'iCilirkins but- 
 ter to be delivered at Kenninjt's Wharf, 
 Tooley Street." He nave this to the plain- 
 tiffs, and at tlie same time saiil that Ids 
 asents Messrs. Clihborn, at Liverpool, 
 woidd Kive directions how the couds were 
 to be forwarded to Kenninjj's Wharf. The 
 ])laintiffs by Cliliborn's directions deliv- 
 ered the l)iitter to Pickford"ri carts to be 
 forwarded to the ilofendant at Fenninu's 
 Wharf. The plaintiffs sent an invoice 
 dated the -.'.jth October, IscO, to the ad- 
 dress on the defendant's card. They re- 
 ceived in answer a letter purporliny; to 
 come from a clerk in the defend an fsotlice, 
 acknowledKiUK the leceipt of the invoice, 
 and statiiiK that on tliedeiendant's relnrn 
 he would no doubt attend to it. There 
 was no evidence that the writerof this let- 
 ter had any authority to sisii a memoran- 
 dum of a contract. On the".'7th October the 
 plaintiffs in J>iverpo(d received a telejiram 
 Irom the defendant in London, in effect 
 assert ins that the butters had lieen sold 
 b.v the plaintiffs subject to a warrant.v 
 that was equal to a sample, but that they 
 were not ei|ual to sample, and therefore 
 would be returned. The plaintiffs replied 
 b.v telegram that there was no such war- 
 ranty, and they must be kept. \ clerk 
 at FenninH:'s Wharf ))roved that .Messrs. 
 Fenninsfs stnreil noods for their custom- 
 ers, and had a but ter warehouse : that the 
 • lefeuilant hn<l used the warehouse for fif- 
 teen .years, and was in the habit of keepini; 
 his butters there till hes.dil them. On the 
 L'tUh Oct(d)er I'ickford A: Co. had delivered 
 a part of the l.'iC lirkins in (luestion at the 
 warelutuse, and delivered tlie residue on 
 the morninu of the l^th October. The 
 witness could not say whether an.v one 
 eaine to inspect them or not. but he proved 
 that they were delivered up by Kenidng to 
 I'icUford iV- Co. under a delivery orderlioiu 
 
 I the defendant dated l.'7th October. Th* 
 1 defendant's counsel ailndtted that it iniiHt 
 I be taken that the sale was not subject to 
 any warranty; liut ol.j(cted that the 
 j price of tlie Koods exceeded £10. nnil that 
 I there was nothiiiu proved to satisfy the 
 
 ■ reiiuisitions of the statute of frauds. The 
 
 ■ verdict was entered tor the plaintlfTs for 
 t:4-J0 Ids. Id., with leave to the defendant 
 to move to enter a nonsuit. It tin re was no 
 evidence proper to be lett to the jurv either 
 of a memorandum of the contract or of an 
 ueceptanee and actual receipt of the 
 goods. 
 
 I In Hilary term. IstJl, Kdward James ob- 
 ' tallied a rule nisi. Mellish and Cjunin 
 
 shewed cause. Mil ward, in support of the 
 
 rule. 
 
 BLACK BFRN, J. (After fully stntlnj: 
 tlie facts Ills lordship proceeded.) It was 
 not contended that there was any sulli- 
 cieiiL memorandum in writiuK in the pres- 
 ent case; but it was conteiideil tliat there 
 was sulRcient evidence Hint the defendant 
 had accepted the woods sold and actually 
 received the same; and on cousiderution 
 we ;ire of that opinion. 
 
 The words of the statute are express 
 that tliere must be an acceptance of Hie 
 {foods or part of them, as well as an actu- 
 al receipt; and the authorities are ver,- 
 nuiuerous to shew tlin t both these reigui- 
 sites must e.\ist. or else the stntiito Is not 
 satisfied. In the recent case <if Mcholsoii 
 V. liower.i wlii.-h was cited lor the de- 
 fendant. 141 (|uarters of wheat were sent 
 b.v a railway, addressed to the vendees, 
 'i'hcy arrived at thi-ir destination, and 
 were there wan-housed by the railway 
 eompan.v under circumstances that initflit 
 have lieen held to put an end to tlie un- 
 paid venilor's riirhts. I'.ut the contract 
 was not orijrinally a sale ofspecillc wheat, 
 and the vendees had never agreed to take 
 those particulari|uartersof wheat: on the 
 coiitrnr.v it was shewn to lie usual, before 
 acce|)tiiiK wheat thus warehoused, to 
 compare a sample of the wheat »vith tlie 
 sample by which it was sidd , and it ap- 
 peared that the venilees, knowini; tliat 
 they were ill embarrassed circuiiistances. 
 purposel.v abstained from acceptiim the 
 goods; and eacli of the judges mentions 
 th'it fact us the ground of their decision. 
 In .Meredith v. .Meigli- the uoods, which 
 were not specilied in tlieori;;iiial c<iiitract, 
 had been selected by the viMidor ami put 
 on lioard ship by the directions of the ven- 
 dee, so that they were in the hands of a 
 carrier to convey them from the vendor 
 to the veiiilee it was there held, in con- 
 formii.v with Hanson v. .Vrmitage,-' that 
 the carrier, th-iiiirh named by the vondeo, 
 hail no ;iuthority to accept the soods. 
 .\iid in this we (julte aiiree; for though 
 (he selection of the i;oods by the viMidor. 
 anil putting them in transit, would but 
 for the statute have been a siitllcient deliv- 
 ery (o vest the property in the vendiH>. it 
 coulil not be said that (lie selection by the 
 vendor, or the receipt by the carrier, was 
 
 '1 E. & E. 172. 
 
 "2 E. & B. au. 
 
 '5 B. & Al.l. 5o7,
 
 222 
 
 CUSACK V. ROBINSOX. 
 
 fln aecei)tance oi those particular goofls 
 hy tlip vendee. 
 
 In BaUloy v. Parker,* which was inucii 
 relied on i).v Mr. Milward in arf;iiing in 
 support of this rule, the sround of the de- 
 cision was that pointed out l).v Holroyd, 
 J., who says (p. 44): "Upon a sale of 
 specific goods for a specific price. Iiy part- 
 ing with the possession the seller parts 
 witli his lien. The statute contemplates 
 such a parting with the pussession ; and 
 therefore as long as the seller preserves 
 his control over the goods so as to retain 
 his lien, he prevents the venilee from ac- 
 cepting and reieiving them as his own 
 within the meaning of the statute." The 
 principle here laid down is, that there can- 
 not be an actual receipt by the vendee so 
 long as the goods continue in the posses- 
 sion of the seller as nii])aid vendor so as 
 to preserve his lien ; and it has been re- 
 peatedly recognized. But though the 
 goods remain in the personal possession 
 of the vendor, yet if it is agreed between 
 the vendor and the vendee thattheposses- 
 sion shall thenceforth l)e kept, not as ven- 
 dor, but as bailee for the purchaser, the 
 right of lien is gone, and then there is a 
 sufficient receipt to satisfy the statute. 
 Marvin v. Wallis.s Beaumont v. Bren- 
 geri.B In both of these cases the specific 
 chattel sold was ascertained, and there 
 appear to have been acts indicating ac- 
 ceptance subsequent to tlie agreement 
 which changed the nature of the posses- 
 sion. 
 
 In the present case there was ample evi- 
 <lence that the goods when placed in Fen- 
 ning's Wharf were put n])der the control 
 of the defendant to await his further di- 
 rections, so MS to put an end to any right 
 of the plaintiffs as utipnid vendors, as 
 much as the change in the nature of the 
 possession did in the cases cited. There 
 was also sufficient evidence that the de- 
 fendant had at Liverpool selected these 
 specific 15(i firkins of butter as those which 
 he then agreed to take as his property as 
 the goods sold, and that he directed those 
 specific firkins to be sent to London. This 
 was certainly evidence of an accejitance ; 
 and the onl.v remainingquestiou is, wheth- 
 er it is necessary that the acceptance 
 should follow or be contemporaneous 
 with the receipt, or whether an acceptance 
 before the receipt is not sufficient. In 
 Saunders v. Topp,'' whi(di is the case in 
 which the facts approach nearest to the 
 present case, the defendant bad, accord- 
 ing to the finding of the jury, agreed to 
 
 ' 2 B. & C. 37. 
 > 6 E. & B. 726. 
 "5 C. B. 301. 
 '4 Exch. 390. 
 
 buy from the plaintiff forty-five couple 
 of sheep, which the defendant, the pur- 
 chaser, had himself selected, and tlie plain- 
 tiff had by his directions put them in the 
 defendiinl's field. Had the case stopped 
 there, it would have been identical with 
 the piesent. But there was in addition 
 some evidence that the defendant, after 
 seeing them in the field, counted them, 
 and said it was all light ; and as this was 
 some evidence of an acceptance after the 
 receipt, it became unnecessary to decide 
 whether the acceptance under the statute 
 must follow the delivery, Parke, B., from 
 the report of his observations during the 
 argument, seems to have attached much 
 im[)ortance to the selection of particular 
 sheep by the defendant; but in his judg- 
 ment he abstains from deciding i>n that 
 ground, though certainly not expressing 
 any opinion that the acceptance must be 
 subseiinent to the delivery. The other 
 thri'c barons — .\lderson, Rolfe, and Piatt — 
 express an inclination of opinion that it is 
 necessary under the statute that the'ac- 
 cfptance should be subsequent to or con- 
 temporaneous with the receipt; but they 
 expressly abstain from deciding on that 
 ground. In the elabijrate judgment of 
 Lord Campbell in Morton v. Tibbett,^ in 
 which the nature of an accejitjince and 
 actual receipt sufficient t<j satisfy the 
 statute is fully expcunded, he says (p. 434) : 
 "The acceptance is to be something which 
 is to precede or at any rate to be conteni- 
 I)oraneous with the actual receipt of the 
 goods, and is not to be a subsequent act 
 after the goods have been actually re- 
 ceived, weighed, measured, or examined. 
 The intention of the legislature seems to 
 have been that the contract should not be 
 good unless partially executed; and it is 
 partially executed if, after the vendee has 
 finally agreed on the sjjecific articles which 
 he is to take under the contract, the ven- 
 dor by the vendee's directions parts with 
 the possession, and puts them under the 
 control of the vendee, so as to put a com- 
 plete end to all the rights r)f the unpaid 
 vendor as such. VA'e think therefore that 
 there is nothing in the nature of the en- 
 actment to imply an intention, which the 
 legislature has certainly not in terms ex- 
 pres.sed, that an acceptance prior to the 
 receipt will not suffice. There is no deci- 
 sion putting this construction on the 
 statute, and we do not think we ought so 
 to construe it. 
 
 We are therefore of opinion that there 
 was evidence in this case to satisfy the 
 statute, and that the rule must be dis- 
 charged. 
 
 Rule discharged. 
 
 ' 15 Q. B. 428.
 
 GUSHING V. BKEED. 
 
 225^ 
 
 GUSHING et al. v. BREED et al. 
 
 (14 Allen, 37G.) 
 
 Supreme Judicial Court of Massachusetts. 
 Jan. Term. 1807. 
 
 Contract to recover the prlceof SOObuah- 
 eJHofontH Rold and delivered. The nn- 
 Hwer admitted the sale and delivery of 10.5 
 Inisliels, and offered judKinent for the price 
 thereof, and denied the residue. It ap- 
 ))t'ared that the i)laintiff8 wereownerH of n 
 car^o of oatH, wliien. on being vvei;;hed. 
 was found to contain G,OU.J bushels, and 
 was stored in the Merchants' (Jrain Kle- 
 vntor in lioston, which belonged to per- 
 sons whose business it was to receive, 
 elevate, store, weiuli, and deliver K''ai>i- 
 The plaintiffs thereafter agreed to sell to 
 the defendants .")00 bushels thereof, and de- 
 livered to them the following order upon 
 the i)roprietor8 of the elevator, dated 
 June 2;i, lMi4: " I'lease deliver Breed & 
 Co.. or order, .'lOO bushels of black oats 
 from cariro, per schooner Seven Brothers, 
 storage commencing, to the person or 
 persons in whose favour this order is 
 drawn, .Inne L".), 1SG4." This order was 
 l)rcsented on J nne U'5, 1><(')-}. and accepted 
 in the usual manner. 'I'he order was en- 
 tei-ed in the booUs. and on the same day 
 10.') bushels of the oats were delivered to 
 defendants, and before ,Iuly a. lS(i4, the 
 whole cargo had been sold and delivered 
 (in<l removed from the elevator, except 
 1,L'74 bushels, w!)icli included the 30.") bush- 
 els agreed to be sold to the defendants. 
 On tiie .")tli of July a lire occurred, which 
 rendered the oats which remained in the 
 elevator nearly worthless. It was the 
 general usage of dealers in grain in Bos- 
 ton to ()lace large ijuantities of grain in 
 elevators, where the same remained until 
 sold, by orders given to the purchaser, 
 and after such sale it was removed from 
 the elevator or kept therein, at the elec- 
 tion of the purchaser, .\lter the accept- 
 ance of such order by the proprietors of 
 the elevator, the grain covered thereby 
 was treated by them as tho i)roperty of 
 the puchaser; the vendor had no further 
 control over it, but the proprietors held 
 the same subject to th^- order of the i)ur- 
 chnser. received orders from him in the 
 same manner as fioni the original vendor, 
 or weigheil it out to him as he required, 
 they guaranteeing to ileliver out the full 
 number of bushels weighed into the ele- 
 vator, charging him with storage. Differ- 
 ent cargoes of the same (juality, belong- 
 ing to different owners, were sometimes 
 mingled in the bins, (.rain so bought was 
 paiil for without regard to whether or 
 not it had been separated and removed 
 from the elevator, and all damage to 
 grain so sold, from internal causes occur- 
 ring after the delivery of the order, was 
 borne by the purchaser. All the aliove 
 usages were known to the defendants, but 
 they objected to the evidence to prove the 
 same. The judge ruled that there was no 
 such change of title to the grain, except 
 as to the 10.") bushels actually renioveil 
 by the defendants from the elevator, .-is to 
 make the defendants liable, and fouml 
 that the plaintiffs were only entitled to re- 
 cover the price agreed for the 10."> bushels, 
 i..\\v .s.\i.i-:d — 15 
 
 with interest. The plalDtlffs alleged ex- 
 ceptions. 
 
 W. Gaston and W. A. Field, for plain- 
 tiffs. C. B. Goodrich and I. J. Austin, for 
 defendants. 
 
 CHAPMAN, J. The use of elevators for 
 the storage of grain has introduced some 
 now methods of dealing, but the rights of 
 parties who adopt these methods must be 
 determined by the principles of the com- 
 mon law. The proprietors of the ele- 
 vator are the agents of the various par- 
 ties for whom they act. When several 
 parties have stored various parcels of 
 grain in the elevator, and it is put into 
 one mass, according to a usage to which 
 they must be deemed to have assented, 
 they are tenants in common of the grain. 
 j Each is entitled to such a proportion ai* 
 the (|uantity placed there by him bears to 
 I the whole mass. When one of them hcIIh 
 a certain number of bushels, it is a sale of 
 property owned by him in common. It 
 is not necessary to take it away in order 
 to complete the purchase. If the ven<lor 
 gives an order on the agents to deliver 
 it to the vendee, and the agents accept 
 the order, and agree with the vendei' to 
 store the property for him. and give him a 
 I receipt therefor, the delivery is thereby 
 'complete, and the projierty belongs to the 
 I ■vendee. The venilor has nothing more 
 to do to complete the sale, nor has he any 
 I further dominion over the property. The 
 I agent holds it as the property of the ven- 
 I dee, owned by him in common witli the 
 [Other grain in the elevator. It Is elemen- 
 tary law that a te'uint in common of per- 
 sonal property in the hands of an agent 
 may sell the whole or any part of his inter- 
 est in the property by the method alpovc 
 stated, or by any other niethoil equivalent 
 toit. Actual separation and tnkingnwny 
 are not necessary to (M)mplete the sale. 
 As to tlie property sold, the agent acts for 
 a new principal, and holds his |)roperty 
 for him. Tlie law is the same, whether 
 the proprietors are numerous or the ven- 
 dor and vendee are owners of the whole. 
 If the vendee resells the whole or a part of 
 what he has purchased, his venilee may, 
 by the same course of dealing, become also 
 a tenant in common as to the part which 
 he has bought. 
 
 I This is not like the class of sales where 
 the vendor retains the possession. li.fauBP 
 there is somethini; further for him to do. 
 ' such as measuring, or weighing, or mark- 
 ing, as in Scudder v. Worcester. II CuMb.-l'S: 
 1 nor like the ca.se of Weld v. Cutler. 2 tJray. 
 VX>, where the whole of a pile o: coal wnt# 
 delivered to the vendee in onler that he 
 might make the separation. But the 
 property is in the hands of an agent: and 
 , the same person who was the agent of the 
 i vendor to keep, becomes the agent o( the 
 vendee to keep: and the possession of the 
 ' agent be<on;es the possession of the prin- 
 cipal. Hatch V. Bayley, 12 Cush. 27. and 
 cases cited. The tenancy In common re- 
 ! suits from the method of storage which 
 has been agrec.l upon, and supersedes the 
 necessity of measuring, weighing, or sep- 
 aratingthe part sold. 
 No delivery Is necessary to a tenant la
 
 226 
 
 CnSIIING 0. BHKKD. 
 
 common. Beaumont v. Crane, 14 Mass. 
 400. 
 
 Upon these principles, the plaiiitiff.s are 
 entitled to recover the amount dne them 
 ior the property thus sold and delivered 
 
 to the defendants. The damage occa- 
 sioned to tlii.s property hy the fire must 
 he borne Ity tlie defendants, as owners of 
 the proi)erty. 
 Exceptions sustained.
 
 I
 
 DAVIS V. RUSSELL. 
 
 229 
 
 DAVIS V. RUSSELL et al. 
 (52 Cal. Gil.) 
 
 Snnii'Mio ('ourt of (California. .Tan. Term, 
 
 1S7S. 
 
 B.vcra & Elliot and Hewpll & Turner, 
 for iippolluiits. Terry, MoKinne & Terry, 
 IJiidil \- Suu, ami F. T. lialdwin, for re- 
 n[> lent. 
 
 l!Y THE COl'I'.T. Davi.s Ix'inR the 
 owner of a lot of wheat, deposited it in 
 the warehouse of Kiisseli, tool; a ware- 
 iiouse receipt for it in the nsuul form. 
 an<l tliereafter indorsed the same in blank 
 and delivered it to liarney. Barney trans- 
 ferred the receipt to the Bank ot Stockton, 
 and the hank transferred it to a i)erHon 
 not a party to the action, and the wheat 
 was afterward delivered liy Knwsell to the 
 licdder of the receipt. Tlie hank was noti- 
 lied hy Davis that he had not sold the 
 wheat to Barney, luit the witnesses do 
 not aurce whether the notice was l)ef<>re 
 or after the hank transferred the receipt. 
 Before the wheat was delivered to the 
 Irolder of the warehouse receipt, Davis 
 ina<le a demand upon KtiRsell for a deliv- 
 ery of the wlieat, hut Russell refuseil ho to 
 <!o unless the receipt was returned to him. 
 Davis claims tliat Barney was only his 
 a;ient for the sale of the wheat, and that 
 he — Barnej' — transferred the receipt to the 
 bank as security for an antecedent debt 
 due from him to tlie bank. The <lefend- 
 ants claim tliat Barney purchased the 
 wheat from Davis, tliat iie transferred the 
 receipt to the bank not only as security 
 for an antecedent debt, but also for fur- 
 ther advances, which were afterward 
 made, and that the transfer hy the bank 
 was prior to the time wlien it was notified 
 tliat Davis had not sold tlie wheat to 
 Barne.v. 
 
 The jury found for the plaintiff. 
 
 The court was recinested by the defend- 
 ants to Kive the foUowinjr instruction: 
 "The possession of theinstrumeut in writ- 
 ins; produced in evidence, dated Aujjust 
 iNtli, INT."), and called n warehouse receipt, 
 coverint; this wheat in controversy, to- 
 jsether with the plaintiff's indorsement 
 thereon, is of itself iiresumptive evidence 
 of tlie ownership of the grain, l>y the per- 
 son liaviiist such possession of such receipt 
 so indoised;" liut the court refused to 
 (jive the instruction, and cave the follow- 
 ing instructions at the plaintiff's re<)uest: 
 " li the jury believe from the evidence that 
 the plaintiff did not sell tlie wheat in con- 
 troversy to liarney, but nuthorized him 
 to sell the same at a fixed price for cash, 
 to be paid on or before delixery, then the 
 Indorsement and delivery of the warehouse 
 receipt did not vest Barney with the title 
 of said property, or cleprive plaintiff of his 
 title and riH;ht to the jiossession of the 
 wheal;" also, that "the Instrument in 
 writiiiK called a warehouse receipt is not 
 a contract for the payment of money or 
 personal property, and cannot be trans- 
 ferred by indorsement, like a necotiahle 
 promissory note." Other instructions 
 were civen embodying the same legal prop- 
 OHltii)n. There was evidence Introduced 
 
 by the defendnnts tending to nhow that 
 Barney had purchased the wheat from the 
 plaintiff, and that the warehouse re<-elpt, 
 indorsed in Idank by the |)lalntiff, had 
 been transferred to the Bank of Stockton, 
 and by the hunk transferred to a pei-son 
 not a party to the action, before the bank 
 was notified by llm plaintiff that he had 
 not sold the wheat to Barney; and the 
 <lefendants were entitled to have iiistrur- 
 tions given to the jury which would state 
 the effect of such transfers of the ware- 
 house receipt. 
 
 The foregoing Instruction, requested by 
 the defendants, expresses very fairly tin- 
 law in that regard. It was held In many 
 cases in the English courts that an assign- 
 ment of su^ha receipt does not amount to 
 a constructive delivery of the goods until 
 the warehouseman is notified Ihereol, and 
 agrees to hold the goods for the ossignee. 
 (Benjamin on Sales, sec. M.'i. I No sub- 
 stantial reason is offered for giving to the 
 assignment of such an instrument an effect 
 differing materially from that of an assign- 
 ment of a bill of lading. In Ilorr v. Barker, 
 (SCnl. 013) a warehouse receipt was re- 
 garded as standing on the same footing 
 as a bill of lading; and it was held that 
 a transfer of sucli receipt opiTnted as a 
 transfer of the title to the g.iods. The 
 doctrine of that case has not been ques- 
 tioned, so far as we are aware, li.v the 
 courts of this state. If an nssiguinent of 
 the receipt will transfer the title to the 
 goods, it must necessarily follow that the 
 liossession of the receipt. Indorsed in 
 blank, is presumptive evidence of the own- 
 ershi|) of the goods by the holder of the 
 receipt. The defendants were entitlecl to 
 an instruction which would give them 
 the benefit of that presumptive evidence; 
 although, as between the plaintiff and 
 Barney, and thosedaiming \iiider Barney, 
 with notice that he was only Hie agent of 
 plaintiff, (if such was the fact) the plain- 
 tiff remained the owner of the wheat. 
 
 The court also instructed the jury that 
 "if you believe from all the?vi(ience in this 
 case that Davis did sell the wheat in ques- 
 tion to Barney, your verdict will be for 
 the defendants. • • • If, however, you 
 find that there was no sale of this wheat, 
 and that there was a demand and lefusnl 
 of it by the party, then it is your duty to 
 find a Verdict for the plaintiff for a return 
 of the wheat or its value." This Instruc- 
 tion entirely Ignores any rights which 
 any of the defendants may have acquired, 
 in reliance upon thi> aiipari'Ut ownership 
 or authority of the holder of the ware- 
 house receipt, and in that respwt Is erro- 
 neous. It is provided hy the Civil Code, 
 see. L".*!!!, that "one who has allowed an- 
 other to assume the apparent ownership 
 of property, for the purpose of making 
 anv transfer of it. cannot setup his own 
 title to defeat a pledge of the property 
 maile by the other to a pledgee who n-- 
 ceived the property In good faith, in the 
 ordinary course of business, and for 
 value." The evidence seems to leave no 
 room for doubt that the Bank of Stockton 
 received the warehouse rereii>t from 
 Barney In gooil faith, and In the ordinary 
 course of business; and upon the author- 
 ity of Payne v. Bensley. iS Cal. 'XO) Rohlo-
 
 230 
 
 DAVIS V. RUSSELL. 
 
 Hon V. Sniitli, (14 Col. 94) N'.i^^lec v. Ly- 
 man, (14 Cal. 4o0) and Frey v. Clifford, 
 (44 (;al. S.'io) it raust be lield that the pre- 
 existins debt of Barney to the bank con- 
 Btitnted a valuable consideration within 
 the meaning of that section. If the evi- 
 
 dence brings tlie case within that section, 
 neitlier the Bank of Stockton nor Russell 
 would be liable to the pluintiff in this ac- 
 tion. 
 
 .ludnment and order rever.sed, and cause 
 remanded for a new trial.
 
 DENNY V. WILLIAMS. 
 
 233 
 
 DEXXY V. WILLIAMS. 
 
 (5 Allen. 1.) 
 
 Supreme Jiidif-ial Court of >Ias.-<!irhusett8. 
 Worcester. Oct. Term, 18C2. 
 
 Contract to recover the price of about 
 V'j.OUU pouuds of wool. The declaration 
 contained six counts, three of which net 
 forth an executory contract for tlie pur- 
 chase of the wool, and three were for 
 wool Hf)ld and delivered. The anwwer Het 
 up in defence, amouKHt other thitiK'f, the 
 Htatute of fraudH. At the trial th° plain- 
 tiff proved that the defen<lant agreed to 
 purchase the wool of his hrokers, in New 
 York, anil introduced in r-viilence the 
 hrnUers' note uf the contract, which the 
 jud^e ruled was in.-:utlicii'nt to take the 
 caK(^ out of the statute. The plaintiff 
 then introduced evidence to show a de- 
 livery and acceptance of a portion of the 
 wool, sutlicient to satisfy the statute. 
 The defendant requested the court to rule 
 that, in order to entitle the plaintiff to a 
 verdict, he must prove that there had 
 lieen a ilelivery of the jiroperty sold to the 
 defendant, and an acceptance of it l>y 
 him, and that there was no evidence to 
 warrant the jury in findin;i either a deliv- 
 ery or an acceptance. He also contended 
 that, assuuiinic the testimony offered hy 
 the plaintiff to l)e true, the case ou^l't to 
 be withdrawn from the jury, and a ver- 
 dict directed tor the defendant, or tlint the 
 jury should be instructed that the defend- 
 ant wan entitled to n verdict, on the 
 ground that the evidence was not sutH- 
 cieut to prove such a delivery and accept- 
 ance of the wool, or any i)art thereof, as 
 to make him responsible upon the con- 
 tract. 'I'hejudjre jjave the jury instruc- 
 tions requii'iuK them to find a delivery and 
 acceptance of a portion of the wool, in 
 order to warrant them in ^ivin;; a verdi<'t 
 for the plaintiff, and defining what would 
 be a sulficient delivery and acceptance for 
 this purpose. The jury returned a verdict 
 for tlie plaintiff, with duiiiaKea in the sum 
 ol ^l(),t):i'.).7I, and the delendant alleged ex- 
 ceptions. 
 
 P. C. Bacon & F, H. Dewey, for plaintiff. 
 I). Foster. (T. L. Nelson with him,) for 
 defendant. 
 
 CHAP.MAN, J. The rulinp; of the judge, 
 that there was no sufficient nienuirandnra 
 in writing of the contract, made it neces- 
 sary foi' tlie plaintiff to prove either an e.\- 
 ecuted ouitract, by sale and delivery, or a 
 delivery and acceptance of a [lart of the 
 property, no as to satisfy the statute of 
 frauds, and supply the lack of a sullicient 
 memoranduu). 
 
 As tlie contract was made in the city of 
 New Vork, and was to be performed 
 there, the la ws of the state of New York 
 must govern us in respect to its construc- 
 tion and ()erformance. In Sliimller v. 
 Houston, I Coinst. L'til. the court of ap- 
 peals say that, to constitute a delivery 
 and acceptance of goods, such as ine stat- 
 ute of frauds rc'iuires, s<»iiiething more 
 than mere words is necessary. .Siiper- 
 adde-J to the language of the contract, 
 there must be some act of the parties 
 
 amounting to a transfer ol the posses- 
 Bion. and an acce[)lance thereof by the 
 buyer; and the case of cunilirous nrticlcH 
 is not an exceiition to this rule. The case 
 is fully discnsseil, and the authorltifH are 
 cited, irnder our statute.it is alKo held 
 that the acceptance must be proved by 
 some clear anil 'ini.-quivocal act. Snow 
 V. Warner, in .Met. l.H!. Weighing and 
 measuring are not always necessary tt> 
 constitute a <lelivery and transfer of 
 property, even when it is sold by weight 
 or measure; but in cases where the prop- 
 erty to be sold is in a state ready for ile- 
 livery, and the payment of in(<ney or glv- 
 intf security therefor is not a condition 
 precedent to the transfer, it may well be 
 the understanding of the parties that the 
 sale is [lerfccted ; and the interest passes 
 immediately to the vendee, although the 
 weight or measure of the articles sold re- 
 mains to be ascertained. Such a case pre- 
 sents a question of the intention of the 
 parties to the contract. IJidille v. Var- 
 niirn, L'O Pick. INO. It is nls<j settled that 
 a contract may be one and entire In Its 
 origin, and yet. looking to the performance 
 of different things at different times. It 
 may be divisible in its operation. Knight 
 V. New ICngland Worsted Co., 'J Cash. 1.7L 
 If the performance is several, and the con- 
 tract divisible, an action will lie on each 
 default. Badger v. Titcoml). 1.'. I'irk. 4ii!t. 
 The case is to be examined in the IlKht of 
 these principles. 
 
 The |)laintiff offered evidence tending, as 
 he contended, to [irove a delivery and ac- 
 ceptance, sufficient to satisfy the statute. 
 After the evidence on both sides was Id, 
 the defenilnnt'scounsel requested thecourt 
 to rule that there was no evidence to war- 
 rant the jury in finding either a deliveri' 
 or an acceptance. The court declineil to 
 give this instruction, but left it to the jury 
 to decide, under instructions that ar« 
 reported, whether there were a ileliver.v 
 and acceptance or not. The exception to 
 this ruling brings the whole evidence he- 
 fore this court; and the principal point 
 argued here is, whether there was such 
 evidence as ought to have been submitted 
 to the jiirv. 
 
 The question whether the jury have 
 found a verdict for the plaintiff aiiainst 
 the weight of thecvidence is not before us. 
 That (luestion could not he raised In any 
 way except by a motion for a new trial. If 
 there was any evidence which it was 
 proper to submit to a jury, the judge 
 was right in submitting it to them, and 
 the exception must be overruled. It Is 
 only in a very limited class of cases lliat 
 such a question can be brought to this 
 court by exceptions. They are cases 
 where the evidence is iiisullicimt in law to 
 support a verdict. Commonwealth v. 
 Packard, .') Gray. KlI. Chase v. Breed, lb. 
 AW. Conimonwenlth v. Merrill. 14 Gray, 
 417. Policy V. Lenox Iron Works. 4 Allen, 
 :j-".t. 
 
 In such cases, a refusal of the judge to 
 instruct the jury that the evi.lence l« In- 
 sutnclent is a good ground of exception. 
 It is not necessary that there sliouhl be 
 absolulelv no evidence. The rule, as stat- 
 ed In Browne on the St. of I'rBuds. c. 1."). 
 §:!J1. is sustained by the authorities cited :
 
 234 
 
 DEXNV V. WILLIAMS. 
 
 "Whether tliere has lieen a fU'livery and 
 acceptance sullkient to Katisfy the stat- 
 ute of frauds Is a mixed fiuestion of law 
 and fact. But it is for the court to with- 
 hold the facts from the jury, when they 
 are not such as can afford any sronnd 
 for findiuK an acceptance; and this in- 
 cludes cases where, tliouf^h the court 
 might admit that there was a scintilla of 
 evidence tending to sliow an acceptance, 
 they would still feel bound to set aside a 
 verdict finding an acceptance upon that 
 evidence." What this scintilla is, needs 
 to Restated a little more definitely ; other- 
 wise it may be understood to include all 
 cases where, on a motion for a new trial, 
 a verdict would be set aside, as against 
 the weight of the evidence. It would be 
 impossible to draw a line theoretically, 
 because evidence in its very nature varies 
 from the weakest to the strongest, by im- 
 perceptible degrees. But the practical line 
 of distinction is, that if the evidence is 
 such that the court would set aside any 
 number of verdicts rendered upon it, to- 
 ties quoties, then the cause should be 
 taken from the jury, by instructing them 
 to find a verdict for the defendant. On 
 the other liand, if the evidence is such 
 that, though one or tv\'o verdicts ren- 
 dered upon it would be set aside on mo- 
 tion, yet a second or third verdict would 
 be suffered to stand, the cause should not 
 be taken from the jury, but should be sub- 
 mitted to them under instructions. This 
 rule throws upon the court a duty which 
 may sometimes be very delicate; but it 
 seems to be the only practicable rule which 
 the nature of the case admits. 
 
 It appears by the report in this case, 
 that in the summer of IS.JT the plaintiff 
 purchased a ()uantity of wool at Chicago, 
 and sent it at various times to Pettibone 
 & Co. of New York, wool brokers, whom 
 he had made his agents to receive, store, 
 grade and prepare it for sale, and also to 
 sell it; their rates of compensation being 
 stipulated. In the month of .August, 
 after two hundred and eighty-one bales 
 of the wool had been received, and about 
 one hundred bales which had been pur- 
 chased were on their way and expected to 
 arrive, the defendant called on Pettibone 
 & Co., and made some examination of the 
 wool on hand, and some inquiries about 
 the whole; but made no contract. But, 
 as the conversation at this time seems to 
 have been referred to subsequently in mak- 
 ing tlie bargain, it may be well to state it, 
 as represented in the twentj--fifth answer 
 of Pettibone's deposition. Tliis witness 
 was the person with whom the plaintiff 
 dealt. He says, "Mr. Williams came to 
 our place in New York, and the conversa- 
 tion turned on the subject of wool, as 
 usual, to my best recollection. I think I 
 told him I had a lot of wool to sell, as 
 usual. We went up stairs and there the 
 wool lay opened. My impression is, he 
 asked me what I asked for that wool. I 
 answered ' Fifty-two and a half cents, six 
 months.' I think lieasked, ' What paper? ' 
 I think I answered, • Krastus Williams's, if 
 I could get it.' I don't rec(dlect what fol- 
 lowed. The conversation became general 
 about the wool, its quality and condi- 
 
 ' tion, and where it came from. Then I 
 think he asked me if fifty cents, six months, 
 
 ' would buy it. I answered, 1 think, if I 
 could get the offer, 1 would submit it to 
 the owner." 
 
 The defendant called again on the 5th 
 of September. The most particular state- 
 ment of tlie conversation on that day is 
 contained in the tenth answer, which was 
 
 I excluded l)y tlie court. It is as follows: 
 "Mr. Williams remarked that he might 
 want some portions of the wool for his 
 son, or Winslow, I forget which words 
 he used. I think he mentioned number 
 two, but am not certain. (The witness 
 
 (had already stated that the wool had 
 
 I been gradeil, and described the grades.) 
 I tliink that was it; that he would advise 
 
 I us on his return home. The rest he should 
 
 I want sold; iis to sell for him ; that was 
 
 j the substance of it. There miu;ht have 
 been some other things, I don't recollect." 
 In his thirteenth answer he says, "I think 
 
 ! ihesubstanceof theconversation was this: 
 that I offered him the wool for fifty cents, 
 six months, his notes, and hesaid he would 
 take it; or he offered me his notes, fifty 
 cents, six months, and I took it." In his 
 thirtieth answer he says, "I told Mr. Wil- 
 
 ! liams I thought there were aboutonehun- 
 dred bales to arrive of this same lot. The 
 wool that was to arrive was to equal in 
 grade and condition the wool already 
 
 1 opened, agreeing that the wool should 
 average as number one grade." In his 
 thirty-first answer he says, "Tare actual, 
 or three pounds to the bag. Bags to lie 
 charged at fifty cents apiece." In the 
 thirty-second answer, "Don't recollect as 
 to unwashed wool; presume it was one 
 
 j third off for wool unwashed. That was 
 our custom. " The thirty-fifth cross-inter- 
 
 ; i-ogatory is, "Will you s\vear Mr. W'il- 
 
 I liams ever did agree that his notes should 
 bear date before lie had examined and ac- 
 cepted the whole wool'.'" .\nswer, "I 
 won't swear to anything. No, 1 don't 
 suppose he (lid. I have uo idea about it. " 
 To the forty-third cross-interrogatory he 
 says, he agreed on the HtU of September 
 
 ] that the whole lot of wool, both on hand 
 and to arrive, should average number one 
 of the grade that he divided it into. In 
 his eighteenth answer he says: "The 
 question arose, how long can this wool 
 
 ' remain here free of expense to the buyer, 
 to Mr. Williams, for instance. I think I 
 stated, until the first of October: after 
 that, he was to assume the expense of the 
 wool. The substance was, that if a man 
 
 I came in and wanted to buy the wool, I 
 should have taken him up, and sold him 
 
 I the wool as Mr. Williams's wool. That 
 
 I was the way 1 understood it." His twen- 
 ty-first answer states that "he wanted 
 we should sell it if we could." 
 
 I The statements of Mr. Pettibone are 
 fragmentary, and his memory seems to be 
 very defective. His deposition is quite 
 long; but the foregoing extracts are all 
 that need be made from it. 
 
 On the 7th of September a sale note was 
 made by a member of the firm and sent 
 to the defendant. It was supposed to be 
 sufficient to bind the bargain; but proved 
 
 I to be defective. On the 11th of September
 
 DEXNY o. WILLIAMS. 
 
 235 
 
 tlie (Ipfendant called anrl inquired if nil the 
 wool had arrived, and Hiiid he did nf)t 
 wiHh to Kive liiH nctes till ;ill tlie wool 
 had arrived. Pettiljone then added to 
 hiH memorandum of the snle on IiIh hookH, 
 "The notes to he dated when all the wool 
 iH e.xumined and ready to deliver. H. A. 
 v." On the Ha me day, the defendant 
 said to Snyder, a menilier of the firn), 
 after Kome (■onvernati«jn alioiit the wool, 
 ".My Han would like one or two of the 
 ^radeH to work in his mill, and 1 Hhall 
 want that jiart to beshippcd to him ; and 
 the rest I kIuiII want you to sell for nie. 
 1 will let you know which of tlie grades 
 my Mon will want, and shall look to you 
 to sec that the wool that is eoming Ih 
 eijunl to what is here. " The witness an- 
 swered, " We will do so." Tliis was after 
 the defendant hacl received the sale note, j 
 
 Tlie corresponilcnce of the parties has j 
 been iiroduced. .None of the letters of! 
 Mr. Williams contains anything tendint; | 
 to cstaldish tlic plaintiff's case. A letter 
 of Denny to I'ettil)one of Septeniljer l.'ith. 
 Is sijjraifieant : "The wool is in your lofts; | 
 is all right and ready to deliver; and be- 
 fore that can be delivered, the balance will 
 be reacly, and if it is not, he certainly will 
 not be obliged to pay for it l)efore he re- 
 ceives it." It api)ears from this that the 
 plnntiff did not then understand that any 
 of the wool liad then been delivered ; or 
 that the notes were to be given till the 
 whole was delivered. A letter of Fetti- 
 bone & Co. of Seiitember Ihth says, " We 
 cannot get the paper f.<r the wool until 
 we Ret all the wool in. We want to get 
 the wool in order ami weiglied up as soon 
 as possible to do it." On the 1 1th of Sep- 
 tember they write, "He will claim a delay ! 
 in the date of the notes, as he says the ! 
 wool is not in a condition to deliver, i 
 What Is the matter, and why this delay?" [ 
 On the 12111 of .September they write, " We | 
 are as an.\ious as yourself to get the sale ; 
 to Williams settlecl. The only delay will 
 be in thearrival of tlieoneliundred bales." 
 Septetnl)er I'lst, they write, "We are now 
 packing anil getting it in shape to weigh, 
 and get in order to settle. We hope the 
 balance will lie along this week, or that 
 we shall know where it is." These let- 
 ters admit that none of the wool had 
 then been di'livered, and Indicate that it 
 could not lie, till the remaining one hun- 
 dred bales should arrive and be grndeil 
 and weighed. 
 
 The residue did not arrive until Septem- 
 lier L*,"Jth. and proved to be niiifty-aeven 
 bales. On the LTitli of September the de- 
 fendant wrote to Fettibone & Co., declin- 
 ing to take the wool, and assigning the 
 
 delay an a reason. The wool wag not all 
 graded and weighed till October 2<)th. 
 
 All this testimony, as well as the testi- 
 mony not cited, concurs in showing that 
 the execution of the contract was to be 
 entire. The defendant wished the whole 
 to be graded and weighed, ho that he 
 could decide, before making any sales, 
 what portion to forward to his si.n : and 
 also ascertain whether the <|uality of the 
 whole conformed to the contract; and 
 the amount for which he was to give hlH 
 notes. There is no intimation in the coo- 
 versation or the letters (hat the delivery 
 was to be in Heparaie parceU or at differ- 
 ent times, or that thecontract was In any 
 respect divisible. And as to the agency 
 of l'ettiboiie& Co. theconverHatiiin stated 
 docs not show that they were to be tlie de- 
 fendant's agents to accept the wool. They 
 were the agents of the iilaintiff as to the 
 sale and delivery, and acted exclusively 
 for him. The agency for the iletendant. 
 which was spoken of, related to the dis- 
 posal of the wool after the delivery of It 
 to the defendant and the acceptance by 
 him. It could not havi- been a present 
 agency to fell ; because the defendant had 
 not then determined what part he would 
 desire to sell. He had first to consult his 
 son. And before Fettibone & Co. could 
 sell the wool as his agents, they would 
 ni'ed instructions as to the terms of sale. 
 There wpre no instructions on this sub- 
 ject. 
 
 It appears, therefore, that up to the 
 time when the defendant re(>iidiated the 
 contract on the I'Cth of Sciitember, It 
 stood merel.v in parol, without ai.y act of 
 delivery or acceptance, either actual or 
 constructive. 
 
 The defendant would haveliad no right. 
 b3- the terms of the contract, to take pos- 
 session of any part of the wool, or sell 
 any part, against the consent of the plain- 
 tiff; and there is no evidence that the 
 plaintiff had in any communication with 
 the defendant waived his rights in this re- 
 spect, or that the defendant desired him 
 to tlo so. The property remnineil un- 
 clituiged. And as the contract was in- 
 valid by the statute of frauds, for want of 
 a sutticient writing, and for want of a de- 
 livery and acceptance to satisfy the stat- 
 ute, instead of a writing, we think the 
 jury should have been instructed to find 
 a verdict f<ir the defendant, on the ground 
 that the evidence was insultlcient In law 
 to sustain a venlict for the plaintiff. 
 There iloes not seem to us to lie even a 
 scintilla of evidence to pri>ve any act ot 
 di'livery or acceptance. Exceptions sus- 
 tained.
 
 DEVOE 0. BRANDT. 
 
 287 
 
 DEVOE T. BRA>rDT. 
 
 (53 N. Y. 4C2.) , 
 
 Court of Appeals of New York. Sept. 30, 1873. 
 
 Appeal from order settlnn uHlde n ver- 
 dict lor plaintiff, nnd grantirifi a new trial. 
 
 Action to rccovtr kooiI.h frniiduleiitly 
 imrcliOML'il by defendant, Uuortje SuniuelH, 
 of i»laintiff. 
 
 A. R. Dvett, for appellants. C. Bain- 
 l)rl(lge iSinitli, for respondent. 
 
 Pr:CKHAM,.T. Replevin in the del inet for 
 certain {■oods of the value of over $('AH), 
 frulidulontly |>nicliaHed, aH iw aliened hy 
 defendant Samuels, of the plaintiff, with 
 intent to cheat plaintiff out of their value. 
 They \vere Hulise(iiiently found in the poH- 
 scHHion of the defendant IJfaiidt. The de- 
 fendant Satiiueln made (lefault; lirandt 
 answered, denying tlie complaint, and 
 HettInK up amonc other thiiiijH, that he 
 liou^lit tile '.■•oodH at a piitilic auction 
 thereof as the yooda of Samuels. 
 
 Tiiei-ase was tried at the New York cir- 
 cuit. It appeared in proof, that in March, 
 isi;.'), Brandt commenced an action a^aitiHt 
 thiH .Samuels for goods sold nnd delivered 
 to hint in lS(i;i and 18(14, chiefly in ISC:!. 
 That Samuels i)ut in no answer, Ijut no 
 jud;;nient was perfectted until the 7th of 
 November, I.SIKJ, and tlien for .'$4,078. :!4 
 damaKes and ccjsts; and execution issued 
 thereon on the same day to the sheriff of 
 New York, wliicli was returned on the 
 10th of Decemlier, Isoo, satisfied to .If:.',. 
 712.77, and nulla bona as 1o the residue. 
 It was shown tliat Samuels had been in 
 the habit of pui-chasinfj;Koods of tlie plain- 
 tiff, to a limited extent, prior to this sale. 
 That this .-falo was made, and tlie larger 
 part of the «()ods delivered on the LV)th of 
 ()ctol)er, iNtii;, a portion on the aiitli of <)c- 
 tol)er, and tlie remainder on the 8th of 
 November following. That Samuels, at 
 tlie time of tlie purchase hy him, said 
 nothing;; as to his circumstances, or as to 
 the suit then pendint; aii;aliist liim in favor 
 of lirandt. in which the rinht to enter up 
 judgment had lieen then rUie over a yejir 
 and a half; evidence was also siven of the 
 replevin papers in this case, and of an un- 
 dertaking ftiven by the defendants for a 
 return of tlie property replevined, before 
 it had lipcn clelivered to plaintiff. 
 
 The defendants offered iioevidence. The 
 jury found for the plaintiff. The ireneral 
 term, in the first district, granted a new 
 trial. 
 
 It is clear that there was siifliclent evi 
 deuce to j^o to the jury upon the <]uestion 
 whether this was a fraudulent pui-chase 
 by Samuels. Here wasabuudant evidence 
 for their consideration that this punhase 
 was made with a view of cheating; the 
 plaintiff, nnd that be never intended to 
 pay for the goods. He concealed ironi the 
 plaintiff a fact (the right of Brandt to en- 
 ter U|) hisjuilgment for:$4,000l, whidi he 
 knew to be most material, and he well 
 knew that if plaintiff had been a ware of 
 that fact lie never would have made the 
 sale. 
 
 There is Kood ground for inferring, from 
 the facts proved, that he iuteiided to com- 
 
 mit a fraud In this purchnse, nnd he delib- 
 erately proceeded to Its conHunin.ntlon. 
 Such a fraud maybe as easily I'dnMummnt- 
 •-'d by a suppression of the truth as by the 
 suggestion of a falsehood. The law U 
 guilty of no Buch absurdity as to re(|ulro 
 a f:ilse alhrniatlon as the only IiiihIs on 
 which to prove a fraud among iiierehuntH. 
 It is not necessary f>r usual for iiK-reliantH 
 to iiKiuire of their frustomers as to Ihelr 
 pecuniary conrlitiun at each sale. The 
 fact to be proved is that the punloiNe tvas 
 made with intent to delrnud. .\ny evl- 
 ilence that will satisfy a jury of that fact, 
 that affords reasonable proof of suili a pur- 
 pose makes a case for a jury. 'I'h.it evi- 
 dence maybe positive or eircuiiistanlial, 
 and as various as the proof of any other 
 fact. 
 
 'J'lie proof here is abundant : obviously 
 defendant Samuels was then wli(dly In- 
 solvent. The deficiency on the execution 
 showed him able to pay only about lifty 
 per cent, of these two debts. He pur- 
 chased when he knew the gooils would or 
 might be all sei/.ed and consumeil upon 
 this execution. In fact a portion of these 
 goods was delivered after the e.xwution 
 was issued. It would seem as if he bought 
 in order to subject the goods to that ex- 
 ecuMon; and he offers no explanation. 
 Nichols v. Michael, 2:1 N. Y. I'lU, •.•74;S0 
 Am. Dec. '.'."i!); Hennequin v. Naylor, 24 N. 
 Y. i:!!); Karl of Bristol v. Wilsmore. 1 
 Barn. & ("ress. ,^14. We may assume then 
 that these goods were fraudulently pur- 
 chased. No title then jiMssed, and the ven- 
 dor can retake them from any one but a 
 bona tide purchaser. Is Brandt such a 
 purchaser? The goods are found In his 
 possession, and it rests with him to show 
 that he is a bona lide purehaser thereof. 
 He shows nothing. He alleges in his an- 
 siver that he lunight them at public auc- 
 tion, as the goods of Samuels. But he 
 gives no proof of that; and It would not 
 aid him if he did, unless he showeil lh;it 
 he imid v:iliie for them. But assume that 
 Braiiilt seized these goods upon his exei-u- 
 tioii and purchased them at a sale there- 
 on, he dill not thereby bi-come a bona lide 
 purchaser. 
 
 In this case, upon several grounda: 
 First. Tlie facts dls?losed show that there 
 was enough, to put him upon ini|uiry as 
 to the frauil of Samuels, even if he could 
 otherwise beoire a bona li le purchaser 
 (I)urell V. Haley. 1 Paige, 402, a case much 
 like tiie one at bar); Second. Because the 
 plaintiff in tlie execution made no ad- 
 vances thereat. It was not lu-cessary. to 
 avoid such sale, that the execution cred- 
 itor knew of the fraudulent purchase (.\hIi 
 V. I'utnam, I Hill, :i(rj; Root v. Ireiich, IS 
 Wend. ,')70; 2S Am. l)cc. 4^2; Cary v. Ho- 
 tailing, 1 Hill, .■til;. -17 .\in. l)e<-. ::2:t; .\t- 
 woodv. Dearborn. 1 .Mien, 48;!; 70.\ni.l)ec. 
 7.",.'.; Mortiey V. Walsh, s fow. 2:is; .Acker 
 V. t'anipiielk 2:1 Wend. :v72; Karl of Bristol 
 V. Wilsmore. su| ral ; Third. IWca use such 
 jiropcrtv.Ko fraudulently |iurcliased. Is not 
 the subji-ct of levy and sale by a sheriff. 
 Replevin in the ccplt will lie then-fore at 
 the suit of the defrauded vendor. Seo 
 same authorities. 
 
 It is only necessary toile<lile In this case 
 (hat Brandt, the exi-culion creditor, doe»
 
 238 
 
 DEVOE V. BRANDT. 
 
 not become a Ixiiia fide purcluiser by boy- 
 iriK K'xi'ls at a sale thereon which were 
 fraudulently purchased by the defendant 
 in that execution. That proceeding gave 
 him no better title tlian a mere delivery 
 would from the fraudulent vendee. He 
 advanced nothinfr, and he lost notliinp; by 
 the proceedinj;. Tlie sale on the execution 
 did not contain the tiist element to con- 
 stitute this defendant a bona fide purchas- 
 er. The execution was returned unsatis- 
 
 fied in part. No lien was therefore relin- 
 quished, and the amount realized from a 
 strauser's property would bo stricken 
 from the execution on application to the 
 court. The charge of the court was there- 
 fore riKht. 
 
 The order of the general term granting 
 a new trial should be reversed and judg- 
 ment ordered upou the verdict for the 
 plaintiff. 
 
 All concur.
 
 DEXTER 0. XOIITOX. 
 
 241 
 
 DKXTER V. NORTON et al. 
 
 (47 N. Y. 62.) 
 
 Court of Appeals of New York. 1S71. 
 
 Action for (Jamnges for breach of a con- 
 tract to sell and deliver cotton. 'J'iic 
 o))inion states tlic facts. JuilRnient tor 
 defendant disniis.siug tne coniphiiiit. 
 
 James C. Carter, tor appoiiant. Win. \V. 
 McFariane, for respondents. 
 
 CHOHCH, C. J. Tiie contract was for 
 tlie sale and delivery of specilic articles t)f 
 personal property. Eacli l)alc' scjld was 
 desi;;nated liy a particnlar niark, and 
 there is nothing in the case to show tliat 
 these marks were used merely to dlstin- 
 guish the general kind or (luality of the 
 article, l)nt they seem to have Ijeeii used 
 to descril)e the particular bales of cotton 
 then in possession of the defeutiant. Nor 
 docs it appear that there were othei- hales 
 of cotton in the market of the same kind, 
 and marked in the same way. The plain- 
 tiff would not liavR l)een oldigcd to ac- 
 cept any other cotton than tlie hales spec- 
 ified in the houcrht note. 
 
 Tlie contract was executory, and vari- 
 ous tilings remained to he done to the one 
 hundred and sixty-one Ijales in question 
 by the sellers licfore delivery. The title 
 therefore did not pass to tlie vendee, but 
 remained in the vendor, .loyce v. Adams, 
 8N. Y. 291. 
 
 This action was lirought liy the pur- 
 chaser against the vendor to recover dam- 
 ages for the nun-delivery of the cotton, 
 and the important and only (juestion in 
 the case is, whether upon an agreement 
 for the sale and delivery of specitic articles 
 of ])erHoual [iroperty, under circuinstaiices 
 where the title to the property does not 
 vest in the vendee, au<', the property is de- 
 stroyed by an accidental fire before deliv- 
 er.v without tlie fault of the seller, the lat- 
 ter is liable upon the contract for dam- 
 ages sustiiincd by the purchaser. 
 
 The general rule on this subject iR well 
 establi-hed that where the performance 
 of a tluty or charge created by law is pre- 
 vented by inevitable accident ivithout the 
 fault of the party iie will l)c excused, but 
 when' a person alisolutely contracts to do 
 a certain thing not impossible or unlaw- 
 ful at the time, he will not be excuseci 
 from the obligati(pns of the ccjiitract un- 
 less the performance is made uidawful, or 
 is preventeii by tlie other party. 
 
 Neither inevitntile accident nor even 
 those events denominated acts of God 
 will excuse liim. and the reason given Is, 
 that he might have provided against 
 them by his co'itract. Paradinc v. .Taiie. 
 Alevn, 27: llannouv v. Ilingliam. 12 .V. 
 Y. yj, 02 Am. l>ec. 142; Tompkins v. Dud- 
 ley, 2.") N. Y. 272, S2 Am. Dec. 34!». 
 
 But there are a variety of cases where 
 the courts have implied a condition to tlie 
 contract itself, the effect of which was to 
 relieve the party when the performance 
 had without his fault, het-oine impossible; 
 and the aiiparent confusion in the author- 
 ities has grown out of the dirtieulty in de- 
 termining in a given case whether the im- 
 LAW SA1.^S — IG 
 
 plication of a condilion should be npidled 
 or not. anil also in some cases in placing 
 the decision upon a wrong bui-ls. The re- 
 lief afforded to the party in the cascH re- 
 ferred to is not baseil upon exceptions to 
 the general rule, but upon the con«trur- 
 tion of the contract. 
 
 For instance, in the case of an absolute 
 promise to marry, the death of either 
 (larty disdiarges tlie contract, liecauxe It 
 is inferred or presumed that thi' contract 
 was inudu upon the condition that botU 
 parties should live. 
 
 So of u eontract made by a painter to 
 paint a picture, or an author to conipose- 
 a work, or an apprentice to serve liln ina«- 
 ter a specified numlior of years, or in any 
 contract for personal services dependent 
 upon the life of the individual making It. 
 the contract Is discharged upon the death 
 of the party, in accordance with the con- 
 dition of continued existence, raised by 
 implication. Cutter v. I'owell, 2 .Smith 
 Lead. Cas. 50. 
 
 The same rule has been laiil down as to 
 property : " As if .\. agrees to sell and deliver 
 his horse Eclipse to 15. on a fixed future 
 day, and the horse die in the interval, the 
 obligation is at an end." Ili'iij. Sales, 424. 
 In replevin for n horse and jndgnient of 
 retorno haliendo, the death of the horse 
 was liehl a good plea in an action upon 
 tlie bond. Carpenter v. Sti'vens, 12 Wend. 
 ."iS!). In Taylor v. Caldwell. :! Best & 
 Smith. S3(;, .\. agreed with It. to give 
 him the use of a music hall oa specified 
 days, for the purpose of liohliiig conci-rts. 
 and before tlie time arrived tlie build- 
 ing was aeciilerilally liiirned ; Held, that 
 lioth p.irlies were dischargecl from the 
 contract. liiackliurn, .1., at the close of 
 his opinion, lays down the rule as fol- 
 lows: "The principle seems to us to be. 
 that ill contracts in which the per- 
 formance (lepenils on the continued exist- 
 ence of a given person or tiling, a conili- 
 tion is implied that the Impossibility of 
 performance, arising from the perishing 
 of the jierson or thing, sliiill excuse the 
 performance." .\nd the reason given for 
 the rule is. "because from the nature of 
 the contract, it is apparent that the par- 
 ties contracted on the basis of the contin- 
 ued existence of the particular person or 
 chattel." 
 
 In School District v. Dauchy, 2.'> Conn. 
 ,130, (is Am. Dec. ;S71, tlie (lefemlnnt had 
 agreed to liuiM a scliool-lioi.se by the 1st 
 
 of .May, and Had it nearly c pleted mi 
 
 the 27th of April, when It was struck liy 
 lightning and liurned ; and it was licl.l 
 that he w,is liable in damages fortlie non- 
 performance of the cot^tract. Hut tlip 
 court, while enforcing that general rule 
 in a case of evident hardship, recognlien 
 tli4> rule of an implied condilion In case of 
 the destruction of the spirilic subject-mnt- 
 ter of thee intract; and this Is the rule of 
 the civil law. I'othler Cont. Sale, art. 4, 
 $l,p. ."1. We were referred to no author- 
 itv against this rule. Itilt the learned 
 counsel b)r the appellant, in his very able 
 and forcible arLrunient, insisted that the 
 general rule should be applied in this case. 
 While it is dillicult to trace a clear ills- 
 tiuction between thiscaseiunl iliose wliere
 
 242 
 
 DEXTER V. NORTON. 
 
 no condition lias been implied, the tend- 
 ency of the authorities, so far as they go, 
 recognize such a distinction, and it is 
 based upon the presumption tliat the par- 
 ties contemplated the continued existence 
 ■of the subject-matter of the contract. 
 
 The circumstances of this case are favor- 
 able to the plaintiff. The property was 
 raercliandise sold in the market. The de- 
 fendant could, and from the usual course 
 of business we may infer did, protect him- 
 self by insurance; but in establishing 
 rules of lial)ility in commercial transac- 
 tions, it is far more imixirtant that they 
 should be uniform and certain than it is 
 to work out equity in a given case. There 
 is no hardship in placing the parties 
 (especially the buyer) in the position 
 they were in before the contract was 
 •nade. The buyer can only lose the prof- 
 its of the purrhuse; the seller may luse 
 the whole contract price, and if his'liabil- 
 ity for non-delivery should be established, 
 the enhanced value of the property. 
 After considerable reflection, 1 am of the 
 opinion that the rule here indicated of an 
 implied i-ondition in case of the destruc- 
 tion of the proijerty bargained without 
 fault of the party, will operate to carry 
 out theintention of the parties under most 
 circumstances, and will be more jrist 
 than the contrary rule. The buyer can of 
 course always protect himself against the 
 effect of the implied condition, by a pro- 
 
 vision in the contract that the property 
 shall be at the risk of the seller. 
 
 Ijpon the grounds upon which this rule 
 is based of an implied condition, it can 
 make no difference whether the property 
 was destroyed by an inevitable accident 
 or by an act of God, the condition being 
 that the property shall continue to e.xist. 
 If we were creating an exception to the 
 general rule of liability, there would be 
 force in the considerations urged upon the 
 argument, to limit the exception to cases 
 where the property was destroyed by the 
 act of God. upon grounds of public policy, 
 but they are not material in adopting a 
 rule for the construction of the contract so 
 as to imply a condition that the property 
 was to continue in existence. It can make 
 no difference how it was destroyed, so 
 long as the party was not in any" degree 
 in fault. The minds of the p.-irties are 
 presumed to have contemplated the pos- 
 sible destruction of the property, and not 
 the manner of its destruction; and the 
 supposed temptation and facility of the 
 seller to destroy the property himself can- 
 not legitimately operate to affect the prin- 
 ciple involved. 
 The judgment must be afflrraed. 
 
 ALI>EN, GROVER, and RAPALLO,.!.!., 
 concur; PECKHAM and FOLGER, JJ.. 
 dissent. 
 
 Judgment affirmed.
 
 DOANE V. DUNHAM. 
 
 245 
 
 DOANE et al. v. DUNHAM. 
 
 (79 III. 131.) 
 
 Supreme Court of Illinois. Sept. Term, 1875. 
 
 .AHSiimpsit by John H. Dunlinn) agiiiiiHt 
 Joliii \V. Donne nnd others for certain 
 Hiimir Hold ami delivered. From a judg- 
 ment for plaintiff, defendants n|)[)eal. He- 
 versed. 
 
 I'laintiff, a commisHion mercliant, had 
 on hand a lot of Mollar & Martin's pow- 
 dered KUKar.and one of his emplo.vescalled 
 on defendants, wholesale groeers, and 
 sold them L'O barrels of sneh sUKur, at V.'j]{ 
 rents per pound. No time was H[)eeiMed 
 for the delivery of the suKar, but from the 
 course of business it wouhl seem to lie at 
 the option of the buyer, to ho exercised 
 within a reasonable time. No si)ecitic 
 barrels were set apart at the time of the 
 sale, but (lel'endantH, two days later, sent 
 to plaintiff's store for the sugar, and 20 
 barrels were delivered. It was l<ept by de- 
 fendants without any examination for L'G 
 days, when it was found to be of an un- 
 nicrcliantalile quality. It appeared orig- 
 inally to have been powdered sugar, of 
 .Mollar & Martin's make, but waseaked so 
 hard as to be useless as powdered sugar, 
 and not worth the price paid for any pur- 
 pose. Defendants' offer to return it was 
 refused. 
 
 Hugh A. White and Sidney Smith, for 
 appellants. Hnwes & La wrenre, for ap- 
 pellee. 
 
 WALKEH, J. This case was previous- 
 ly before this court, and is reported in 0.1 
 III. .")12. The facts presented by this record 
 do not vary materially from those stated 
 in the opinion, as reported, except there 
 seems to be u conflict of evidence on the 
 liist trial as to the length of time the 
 sugar was retained by appellants before 
 it was examined, found to be different 
 from that intended to be purchased, nnd 
 the notice to lake it hack. 
 
 When the case was formerly before us, 
 it was hchi that this was an executory 
 contract, and after the sugar wasrecelveil 
 appellants were entitled to a reasonable 
 time within which to make an examina- 
 lion, and to give notice to remove the 
 sugar; and that whether the notice was , 
 given in apt time was a question to be 
 determineil by the jury, in the light of all 1 
 the attending circumstances, and, of! 
 course, with proper instructions from the 
 court. I 
 
 .Vppellce having again recovered a judg- 
 nienl lor the supposed value of the sugar, 
 aiipi'llants again bring the rccoi'd to this 
 court, and seek a reversal, upon the 
 grounds that the court below gaveini-. 
 proper instructions on behalf of appellee, I 
 and refused to give proper ones asked by j 
 ap[)ellantH. " j 
 
 An examination of those given, of which i 
 com|)laint is made, fails to disclose error. ' 
 They inform the jury that there should 
 have been an examination of the sugar, 
 and a notice to take It back, within a rea- ' 
 sonnlile time, considering all the circum-, 
 stances. This is, no doubt, true, as a le- 
 gal proposition, b^ven iiniler clear nnd 
 Ba I isfactory evidence that it wasthegeu-| 
 
 pral and uniform usaKO for the kind of 
 goods in (juestion never to be examined 
 until the wh(de«ale m. rchaat sold to his 
 customer, the proposition is correct. If 
 sucli was the usage, ami both partiesdenlt 
 with reference to It, then it would, accord- 
 ing to such usage, be within a reasonnldo 
 time to exandne it when offered for sale 
 by appellants. lint the rule, no doubt, 
 has the limit that it must be so ofrered in 
 due course of tratle. A person whoshould 
 buy as speculation, or with the intention 
 of holrling it forsali'ata distant period 
 of time, coulil not claim Its benefits. It 
 could oidy be applieii in cases fulling with- 
 in the general course of trade. 
 
 The court below refused to Instrnct for 
 ni)pellaiits, that: 
 
 "If tlie jury believe, from the eviilence, 
 that it is not the custom among wholeHale 
 <lealers in Chicago, engaged iti business as 
 defendanls were, to examine sugnrofthe 
 kind and quality sold by plaintiff to the 
 defendanls, upon receiving the same In 
 store, or upon sale of the same to custom- 
 ers, and that it was not customary for 
 such sugar to be examined until opened 
 by dealers to sell from to customers, nnd 
 that the sugar « as damaged w Ih'u It was 
 delivered, and not of the quality sold 
 them, the jury are to take into considera- 
 tion all of these facts and things In deter- 
 mining whether defendants gave plaintiff 
 notice, within a reasonable time, to take 
 back said sugar; and If they find there- 
 from that they did, then they must llnd 
 for the defi-ndants. " 
 
 If such was the uniform custom, under- 
 stood and a( ted ujion by the trade In Chi- 
 cago, then it is but a fair preHumption 
 thai tlie parlies acted upon it, and should 
 be governed by it. There was sutlicient 
 evidence upon which to base the Instruc- 
 tion, nnd it should have been given. 
 
 Appellants asked, but tliecourt refused 
 to give, this instruction : 
 
 "II the jury believe, from the evidence, 
 that, accoriiing to the well established 
 usage and custom of trade among whole- 
 sale dealers in standard powdiTtd sugar 
 in (.'hicago, the same is sold and handled 
 In original packages, an<l no examinatluo 
 is made as to i|u;ility or condition tlier^ 
 of upon [)urchase or sale thereof, nnd that 
 tlie plaintiff was familiar with said usage 
 and custom, ami had longbcen in thehub- 
 it of hanilling and dealing in salil sugar 
 in Chicago, and that the sugars in ques- 
 tiou were nut examined by either parties 
 when taken from plaintiff's store; anil If 
 the jury also believe, from the evidence, 
 that said sugar was caked when so taken 
 from plaintiff's store, and not in the con- 
 dition contemplatetl by either plaintiff or 
 defendants, and that the defendants dealt 
 with said sugars pursuant to said usage 
 and custom, and that as soon as they 
 found out that said sugar was damaged 
 thev oftereil to return the same, nnd noti- 
 fied said plaintiff to take same away, and 
 thot the plaintiff m-i-'lected so to do, and 
 that the same was destroyed by lire n hllo 
 being so held by defendants, subject to 
 the <irder of said plaintiff, then they must 
 tiixl for the defendants." 
 
 In this, we think, the court erred. 
 
 It has been fre<iuenlly held by thlscourt.
 
 246 DOANE V. DUNHAM. 
 
 K. ho ,r,.nPinl that I nresumntion, then it was manifest error 
 to enter into and f""^'-' « P""^' "J '„ ,"" instrnctions the judsraeut of the court 
 the contract relates. Aud if such be the Judsment leveiseu.
 
 DONALDSON o. FAUWELL. 
 
 249 
 
 DONALDSON V. FAIIWELT. et al. 
 
 (93 U. S. &"!1.) 
 
 Supreme Court of the United States. Oct. 
 Term. 1S7G. 
 
 Error to the ciri-uit court of the Dnited 
 StutBH for the eaHteri) district of Wim-on- 
 Rin. 
 
 lOmaiiuf'l Mann, a merchant ntRlrhficlO. 
 UiM., lileil. May 21, ISTJ, his petition in 
 hankniptcy. 1-ie was duly niljiid^te,] n 
 bankrupt the (Itli day of .June, ami the 
 plaititllT waw. on the list day of ,Iuly, ap- 
 pointed \i\» assicnee. in the month of 
 April of that year the deleiidante sold, at 
 Cliicntco, ti) Nlann, on credit, merchan<liise, 
 amounting in value to .1f.'i,(lilO. The last of 
 the invoices bears date the 17th of that 
 month. Ilia son was the a^cnt in muUint; 
 the pureliase, and diret toil the f-oods to 
 lie shipped to .Milwauliee, to lie liaided 
 from tliere to Kiclilield. He knew that 
 his father was then, and for two or three 
 .vears before had been, insolvent, and tes- 
 tified that at the time of the purchase he 
 did not e.xpcct that his father would pay 
 lor the ttoods; that he did not expect to 
 pay for them himself; ami that his ob- 
 ject in having tliein sent to .Milwaukee 
 was to plare thi'in in the hands of one 
 Schram. in order that they should he there 
 (lisposed of, an<l tlie pfoceeds p:iid to some 
 creditors of his father, who had sold him 
 produce and advanced liini money. 'J'he 
 troods were shipped to " E. .Mann, Mil- 
 waukee," and, on their arrival, sent to 
 Suliram'H store. Mann was reiiuted to be 
 solvent. The defendants hail tio notice of 
 his insolvency until the last days of May. 
 In .lune they took possession olthe^ioods, 
 with the exception of §1IM( in value, in the 
 store of .Mann, at Iticlitield. and, after 
 formally ilemaiulint; them of the assi;;me. 
 shipped them to Chiciigo. This action is 
 l)rou(;lit by the asnignees to recover thc 
 value of them. The court save the jury a 
 flf'iieral charKe, to the f(dlowinK parts of 
 which the plaintiff excepted: "The sale 
 made by the defendants jiassed the title in 
 the property to the liankrupt. Iiut It 
 passed a defeasil)le title; that is to say, it 
 could b(> rendered inoperative at the In- 
 stance of the vendors. Farwell & (,'o. If 
 the bankrupt retained the iimperty at the 
 time of the lilirifj of the petition in bank- 
 ruptcy, the title passed to the assij;nee; 
 and, as we think, the weight of authority 
 is it passed as a defeasible, and not as an 
 
 absolute, title, with the rlflit still on the 
 part of the viiiilors to reclaim the prop- 
 erty, provlrled it was ilone within a rea- 
 Konnble lime alter the sale, and after 
 knowledi;e <if thi^ fraud which had been 
 perpetrated." There was a verdict for the 
 tIefendantH. .JudKnient havint; been ren- 
 dered tliere<in, the asslKuee sued out this 
 writ of error. 
 
 W. V. Lynde, for pluiutiff in error. .Mr. 
 E. Mariner, contra. 
 
 Mr. Justice DAVLS delivered the opinion 
 of the c<iurt. 
 
 The instructions present the <ineHtlonH 
 of law arising upon the facts which iIiIh 
 controversy involves. The iloctrlne In 
 now esl.iblishcd by a preponderunce of 
 authority, that n party not intending to 
 pay, who, as in tills instance. Induces the 
 owner to sell hliniioodsoD credit by fraud- 
 ulently concealinn his Insolvency and liiH 
 intent not to pay lor them, is uuilty of a 
 fraud which entitles the vend<ir,lfno Inno' 
 cent third party has ai'(|uired an intrrest 
 in tliLMii, to disallirni the contract and re- 
 cover the goods. I'vrd v. Jliill. L" Keyes, 
 <)17: .lohnson v. Monell, Id. r,.V.; Notde v. 
 .■\ilams. 7 Taunt, ."ill; Kllliy v. Wilson, 
 Hyan A: .Moody. I7S; llristol v. Wilsmore. 
 1 Itarn. & Cress. .'lU; Stewart v. ICinerson, 
 .'il' .N. II. .'iOI ; Itenjaniiii on Sales, s(rt. 440, 
 note of the .American editor, and tases 
 there citi'd. 
 
 Mere the vendors exercised the right of 
 rescission shortly after the sale in ques- 
 tion, and as soon as they obtaineil kn<iwl- 
 edge of the fraud. If. therelon-. this con- 
 troversy were betwi'en .Mann and them, 
 it is dear that he would not bo entitled to 
 recover. 
 
 The ahsignment relates back to theconi- 
 inencement of the prcu-eedings In bank- 
 ruptcy, and vests, tiy operatiiui of law, In 
 the assignee the property of the bankrupt, 
 with certain spccilied exceptions, a It In mgh 
 the same be then attaclieil. It also dis- 
 solves an> attachment made within four 
 UKinths next preceding thccommencenient 
 of the proceedings. If there bo no such 
 lii'lis. and the property has not been con- 
 veved in fraud of creditors, he has no 
 greater interest in or b.ttir title to It 
 than the Imnkrupt. Only the defeasllde 
 title of the latter to the goods In contro- 
 versv passed to the assignee, and It waH 
 determined by a prompt diHalllrmaiice ot 
 the contract. 
 
 Judgment alllrmed.
 
 DORIl 0. riSIlKli, 
 
 251 
 
 DORR T. FISHER. 
 
 (1 Ciish. 271.) 
 
 Supreme Judicial Court of Massachusetts. 
 Suffolk and Naatucket. March Term, 1848. 
 
 This wa8 an action to recover the price of 
 two tul)M of hutter. The iilaiiitiff liavinjr 
 been allowed, aKuiiiHt oliji-clioii on the 
 part of the (lefendant, to prove hi.>i claim 
 an a hook account, the defendant then 
 introduced evidence that in November, 
 lM-45, lie offered several kegM of liutter to 
 the defendant f(jr sale. On examining the 
 butter, (two or three keuH only,) the de- 
 fendant told the i)lnintiff that he was un- 
 able to decide whether it was sjood or 
 not, but that he wanted it of a lirst-rate 
 quality. The plaintiff then said that he 
 called the butter first-rate, and the defccid- 
 unt replied that, if it was good, the plain- 
 tiff might leave him two tubs. The two 
 tubs were left at the defendant's store, 
 where they remained for about a week, 
 when the plaintiff came to the store, and 
 some conversation ensued relative to the 
 butter. The plaintiff was there again 
 some time afterwards and reiiuested that 
 the liutter should be put into the cellar. 
 The principal question was as to th'jqual- 
 ity of the butter, and the eviilence upon 
 this point was conflicting. The defendant 
 contended that the butter was sold under 
 a warranty that it was of the best (piali- 
 ty, and that Ihe burden of proof was on 
 tiie plaintiff to prove tliat it was of such 
 a (piality. Judge instructed the jury that 
 if the butter were sold with a warranty 
 as to (piality, or with a representation 
 aniountiug to a warriinty, the burden of 
 proof was on the defendant to show that 
 it was not e(|ual to th-; warranty or rep- 
 resentation. 'I'lie jury returned a verdict 
 against the defendant, who thereupon 
 filed exceptions, 
 
 T. Willey, for plaintiff. T. Went worth, 
 lor defendant. 
 
 SII.WV. C. J. Tills cause lins been ar- 
 gued. i)u the part of tlie defendjuit. as if 
 tile suit were brought upon an open, un- 
 executed contract for the purchase of 
 goods; whereas tlie declaration is in In- 
 debitatus assumpsit for goods sold and 
 delivered. To maintain thiiJ action, it is 
 not necessary to set out the contract of 
 sale, with its conditions and limitations; 
 it is enough to prove an agreement for a 
 sale of the goods, at a fixed price in mon- 
 ey. <ir witliout a price, (in which case, the 
 law imjilies an agreement to pay so much 
 as they are worth.; and an actual deliv- 
 ery, ivhereby a debt arises. A delivery by 
 the vendor implies an acceptance by the 
 vendee. An offer, by the vendor, not ac- 
 cejited by tlie vendee, may lie a good 
 tender, and a good [lerformance on ills 
 part, but It Is not a delivery. If there are 
 conditions annexed to the agreement of 
 sale, respecting tlie quality, or other clr- 
 cuiustances, wliich are not complied with 
 by the vendor, the vendee should ilecline 
 to acce|it the goods; but, it he does accept 
 them, the acceptance is a waiver. And. 
 8o, In an indebitatus assumpsit, for goods 
 sold and delivered, the plaintiff must prove 
 
 a delivery, or he will fall In the action. 
 And this is not conliticd to the case of an 
 implied assumpsit, on a quantum valebut; 
 if the sale be made by an express contract, 
 not under seal, and the goods an- actually 
 delivered, it Is siifliclent to allege that the 
 defendant is indebted to the plaintiff for 
 gooils sold and delivered, and the law lin- 
 [ilies a promise to pay. .No matter, there- 
 fore, what may have been tbe terniH and 
 conditions, under which goods are sold 
 anil delivered; If notiiing remiiln but the 
 obligation to pay for them, this Is a debt, 
 the existence of which Hupports theallega- 
 lion (jf being indebted, and supersedes the 
 necessity of setting out specially sucb 
 terms and conditions. 
 
 " Where goods have been sold and actu- 
 ally delivered to the delendant, though un- 
 der a special agreement. It is in general 
 sullicient to declare on the indebitatus 
 count, provided the contract were to pay 
 in money, and the credit be expired." 1 
 ("hit. I'lead. :',:!S. 
 
 This is not a mere technical rule of 
 pleading, but a sound rule of law and jus- 
 tice, growing out of the nature of a sale. 
 Were it otherwise, and were the plaintiff, 
 after a delivery cjf goods on a contract of 
 sale, bound to prove the terms and condi- 
 tions of such sale, and to prove allirma- 
 tively that he liati complied with those 
 conditions, on his part, the result would 
 lie. that the vemh'e, having accepted the 
 goods, as and for the goods ronti acted 
 for, and without offering to return them, 
 or giving notice to the vendor, to come 
 and take them back, might hold ami re- 
 tain the goods, without [iiiying any thing 
 for them. The vendor could not recover 
 them liack in an acthm. because he has de- 
 livered them to the vendee, in pursuance 
 of a contract, as his own. 
 
 It is asked, then, has the venilee no rem- 
 edy against the vemlor, after clelivery, i( 
 the vendee fails to clerive the beiietits. ex- 
 pected and stipulated for on the sale? 
 Certainly not. If he has been deceived, as 
 to the title. <iuality, or character of the 
 thing purchased, he may rescind the con- 
 tract, restore or tender back the goods, 
 and recover back the purchase money; or 
 he may be secnreil by a warranty on the 
 
 sale. The law the sale of personal 
 
 property, implies a warran'y of good title, 
 so that" if the vendee be deprived of his 
 purchase by a paramount title, he has a 
 remedy on his warranty. Or he may take 
 an express warranty, as to the (|uality, 
 c<indition. value, age, origin, or other rlr- 
 cuir.stances respecting the thingsolil. Hut 
 a warranty is a separate, Indepeiiileiit. 
 c<illateral stipulation, on the part of the 
 vemlor. with the vendee. for which the sale 
 is the con.sideratlon. for the existence or 
 truth of some fact , relating to the thing 
 sold. It is not strictly a condition, for 
 it neither suspends nor deleats tlie com- 
 pletion of the sale, the vesting of the thing 
 sold in the vemlee, nor the right to the 
 puichase money in the vendor. Ami. not- 
 withstanding such warranty, or any 
 breach of it, the vendi-o m«y hold the 
 goods, and have a remedy for hl8 tlain- 
 ages bv action. 
 
 Ilut.to avoid cin-iity of action, a war- 
 ranty may be treated as a condition suli-
 
 252 
 
 DORK V. FISHER. 
 
 sequent, at the election of the vendee, wlio l 
 may, upon a hreacli thereof, rescinJ tlie I 
 contract, and recover hack the amount i 
 of his purchase money, as in case of fraud. 
 But, if lie does this, he must tirst return | 
 the property sold, or do every thing in his j 
 power requisite to a complete restoration \ 
 of the property to the vendor, and, with-j 
 out this, he cannot recover. Conner v. 1 
 Hen<lprson, 1.5 Mass. 319; Kimball v. C!un- 
 ninftham, 4 Mass. .502; Perley v. Balch, 23 
 Pick. 283. Such a restoration of tliegoods, 
 and of all other benefits derived from the 
 sale, is a ilirect condition, wifhout a com- 
 pliance with which, the verulee cannot re- 
 scind the contract, and recover l)a<-k the 
 money or other property, paid or delivered 
 on the contract. 
 
 But his other remedy is by an action ou 
 the warranty, or contract of the vendor, 
 on which, if there be a breach, he will re- 
 cover damages to the amount of the loss 
 sustained l)y the breach, whatever that 
 may be. If it bo a warranty of the quali- 
 ty of goods, and the breach alleged is, that 
 the goods delivered were inferior to the 
 goods stipulated for, the damage will or- 
 dinarily be the difference in value between 
 the one and the other. Such an action 
 affirms instead of disaffirming theeontract 
 of sale, leaves the property in the vendee, 
 and gives damages for the breach of such 
 separate, collateral contract of warranty. 
 
 This remedy is so familiar, that it scarce- 
 ly requires to be sujiporfed and explained 
 by authorities. But it naturally requires 
 an action to be brousrht by the vendee 
 against the vendor, whicli, if the vendor 
 Is at the same time suing for the price, is a 
 cross action. 
 
 But the general tendency of modern 
 judicial <lecisions has been, to avoid circu- 
 ity and multiplicity of actions, by allow- 
 ing matters gr(>wing out of the same 
 transaction to be given in evidence bj- way 
 of defence, instead of requiring a cross ac- 
 tion, when it can be done without a viola- 
 tion of principle, or great inconvenience 
 in practice. 
 
 And it has lately been decided, in this 
 court, after consideration and upon a re- 
 view of the authorities, that, when a 
 cross action will lie for a deceit in the sale 
 
 of a chattel, the deceit may be given in 
 evidence in reduction of the damages, in a 
 suit for the purchase money Harrington 
 v. Stratton, 22 Pick. 510. And the princi- 
 ples, which govern that ease, are precise- 
 ly applicable to the casa, where a cross ac- 
 tion will lie to recover damages on a 
 breachof warranty on a sale, and thesame 
 may be given in evidence, and a like 
 amount deducted from the purchase mon- 
 ey, in assessing damages in a suit by the 
 vendor for the price. Poulton v. Latti- 
 more, i> B. & Cr. 250; Perley v. Dalch, 23 
 Pick. 283. 
 
 It appears by the report in the present 
 case, that these are thepriucipleson which 
 the trial of ihe action proceeded. The 
 plaintiff must first have [iroved a sale and 
 delivery of the two tubs of butter. Some 
 objection was made to the jilaintiff's ac- 
 count book; but it was not alluded to in 
 the argument. Indeed, the other proof 
 tends to show, that the defendant agreed 
 to take the two tubs of butter, and direct- 
 ed the plaintiff to leave them at his store, 
 which the plaintiff did the same day. No 
 offer was made afterwards to return the 
 butter. No notice was given to the de- 
 fendant to take it away. This was evi- 
 dence, from which a jury might well infer 
 a sale and delivery. The only way, then, 
 in which the defendant could avail himself 
 of proof of warranty of iiuality, and a 
 breach of it, was in obtaining a reduction 
 of damagfcs, b.\ way of set-off, in nature 
 of a cross action, and as a sul)stitute 
 cherefor. Had the defendant brought his 
 action, it is quite clear, that the burden of 
 proof would have been on him to prove 
 such warranty and breach, and the dam-' 
 aire sustained by it. The burden was on 
 him ill thesame manner, when heresorted 
 to this line of defence, as a substitute for a 
 cross action. We are of opinion, there- 
 fore, that the direction of the judge was 
 strictly correct, that if the article was sold 
 to the defendant with a warranty as to 
 its quality, or with a representation 
 amounting to a warranty, the burden of 
 proof was on the defendant, to show that 
 it was not e(iual to the warranty. 
 
 Exceptions overruled and judgment on 
 the verdict.

 
 DOWS 0. XATIOXAL EXCIIA\f;i: I5AXK. 
 
 DOWS et al. v. NATIONAL KXCH. BANK 
 OF MILWAUKEE. 
 
 (91 U. S. 618.) 
 
 Supreme Court of the United States. Oct 
 Term. 1S75. 
 
 Error to the circuit court of tlie L'nited 
 StatCB for the soutliurii dintrlct of New 
 Yorli. 
 
 Action of trover hy the Xationnl Kx- 
 chanire littak of Miln-iiul<ee for the nlleK<'<I 
 conversion by Dowh & Co. of 22,:!41 l)u.'ili- 
 elH of wiieut. Tlic wlieat waH iiurciia.sed 
 In .Milwauliee, Wis., hy McLaren .V; Co., 
 in tlie mouth of Sci)tenil)er. IsCp'J. upon 
 onlerw from .Siiiitli & Co. of f)swe;co, N. 
 Y., wlio requested that till! rlraftH on' ac- 
 count tliereof l)e drawn on tlieni thniUfili 
 tlio MercliantH' lianli of Watertown, N. 
 Y. McLaren & Co. paid for the wheat, 
 nnil Hliii)ped it on tiiree vesselH. the "Kate 
 Kelly," "Grenada, " and "Corwican," and 
 received from the captains of said ves.sels 
 triplicate bills of lading in tlie name of Mc- 
 Laren & Co. as shippers, to the account of 
 \V. (i. Filch, cashier, care .Merchants' 
 linnk, Watertown, N. Y. McLaren & Co. 
 presented drafts drawn on .Smith & Co., 
 with the ori^final hills of lading attached 
 thereto, to theNalional ExchanRel!aid< of 
 .Milwaukee. which discounted them, placin>r 
 the proceeds to the credit of McLaren & 
 Co. Its casliier wrote a special indorse- 
 ment on each hill of lading. The indorse- 
 ment on that of tlie "Grenada" was as 
 follows: — 
 
 "t)n paytnent of two drafts drawn by 
 McLaren & Co. on .Smith & Co., Oswego, 
 N. \'.. to my order, dated Sept. l.'i, ISC.il,— 
 one draft at thirty days' date for Sis,(l(io, 
 and the other at forty-live days' date 
 for SfN.DiiO. botli drafts heing payable at 
 the Merchants' Hank, Watertown, N. Y., 
 —you will surrender the within-mentioned" 
 wheat to Smith * Co. or order. Should 
 drafts above mentioned not be promptly 
 l)aid, hold the wheat for mv account, 
 without recourse. W. <i. Fitch, Cashier' 
 Milwaukee. V.n\\ September. ISUO, To 
 Merchants' Bank, Watertown, N. Y." 
 
 Similar indorsements, except as the 
 anioiinls and dates of the drafts, were 
 niade on the bills of lading of the " Kate 
 Kelly "and the "Corsican." .McLaren & 
 Co. insured the cargoes from .Milwaukee 
 to Oswego, and transferred the insurance 
 eertilicates to the bank. After making 
 the indorsements on the bills of lading, 
 the cashier enclosed the drafts, bills of 
 lading, and eertilicates of insurance, to 
 the .Merchants' liank, Watertown, N. Y'.. 
 with the following letter as to the " Kate 
 Kelly:" 
 
 "Sept. 2. To Cashier Merchants' Itank, 
 Vyatertown, N. Y.:— I hund you for collec- 
 tion and remittance to .Mercantile Na- 
 tional Hank, .New York, for my credit,— 
 McLiiren & Co., on Smith & 
 
 Co.. OswoKO .$1,080 SI exg. 
 
 McLan-n & Co., Oct. .". 7..'iOO 00 " 
 
 _ ■' " Oct. -20 7,.^00 m '• 
 
 B. L srhr. "Kate Kelly." 8,727 bushels Auibor 
 
 Mil. wheat. 
 B. L. schr. "Kato Kelly." .->.r>27 20/GO bush- 
 els No. 1, Amber Mil. wheat, consicnod lo 
 
 ' your l.nnk for my apcv.nnt. and to bo held by 
 
 ilrnft.s" ""^^ '° ^^ payment of the above 
 
 Insure<l North-Western Nat. Ihh. Co... $.-(i«iO 
 
 Nat. Ins. Co., Boston .'.'. runt)) 
 
 Aetna Ins. Co.. Hartf.,nl .Soikj 
 
 lit'l'ulilic Ihh. Co ""jooo 
 
 Security Ing. Co ...!.'." '■{.(MX} 
 
 "I consign this wheat to vou, to be held 
 a8 per indorsed bill of lading, and sur- 
 render only on iiayment of the draftH 
 drawn against it, hohling yon responHlhle 
 for the same in caseof non-payment of the 
 drafts. Will you receive consignments 
 in this way, charging reas.inablv lor the 
 sjine? Yours truly, W. G. Fitch. Cash- 
 ier. 
 
 On the sixth of Seiitetnher. 1S»1«. ,T F 
 Moffatt, cashier of the .Merchants" Hank 
 acknowledged tlie receipt of the letter and' 
 Its enclosures. On the sth of that month 
 I- itch addressed niiolher letter, as fol- 
 lows: — 
 
 "To Merchants' I$nnk of Watertown 
 N. Y.:— In my letter of the 2d. I renuested 
 you to state In your letter whether you 
 would hold all wheat I consl:;n to vou 
 strictly for my account, holding y'our 
 bank responsible for the sale keepini; of 
 the properly for this bank, airl h<duiiig 
 such firoperty subject to mv orders in all 
 cases where the drafts made against It 
 are not paid. Your reply of the Uth In- 
 stant does not answer my eiKiuirv. Will 
 you please write me by return ninil. ile- 
 tining your positi<in? We have adopted 
 the invariable rule, to in no Instance con- 
 sign riroperty only on condition Muit the 
 consignee acknowledges himself respon- 
 sible for it, until instructed to hand over 
 to a third party. Very respectfully, W. 
 G. Fitch. Cashier." 
 
 Moffatt wrote on the 11th: 
 "In reply to yours of the 2d instant. I 
 would say that we will receive, until fur- 
 ther notice, such consignments ns ytiu 
 clio<ise to send us, hobling us responsible 
 for the grain in case of non-pnymeiit of 
 drafts, and shall charge % per cent, com- 
 missions for so doing. "On the 1:1th he 
 acknowledged the receirit of Fitch's letter 
 of the Sth. and said: "I believe your en- 
 (luiry was answered in mine of the lllh 
 instant." .Similar letters were written to 
 the casliier of the .Mendiants' Itank, en- 
 closing the flrafts, bills of lailing. anti cer- 
 tificates of insurance, of the cargoes «if 
 the "Grenada" and "Corsican." The 
 cashier of the Merchants' Itank. upon 
 receipt of the drafts and bill of lading of 
 the "Kate Kelly." wrote three btters. — 
 one to Smith & Co.. dated Watertown, N. 
 Y'., Sept. (i. IsC.'.t. as follows:— 
 
 "Please find enclo.sed for ncreptance, 
 and return the frdlowing: to wit: — 
 Mclxireu & Co., on your st. ?4.0SO 81 and vig. 
 
 Oct. ."i 7..".oo 00 
 
 " Oct. 20.. . 7.,">O0 00 " 
 
 "Also inspection cerllHcate. " 
 
 Another bearing the same date, ns fol- 
 lows: — 
 
 "Proprietors of Corn Exchange Eleva- 
 tor, Oswego. N. Y.:— Please find enclosed 
 an order for cargo schooner Knte Kelly ' 
 for S.72r busliels of .Amber Milwaukee 
 wheat, and .">..'>27 20 (id bushels No. 1 .\iDber 
 Milwaukee wheat, to be delivered to you;
 
 256 
 
 DOWS V. NATIONAL EXCHANGE BANK. 
 
 and y<ui will please hold the same subject 
 to, and deliver tlie grain only on payment 
 of, the following drafts ; to wit : — 
 
 McLaren & Co., on Smith 
 
 & Co., St $4,080 81 and exg. 
 
 McLaren & Co., Oct. 5 7.500 00 
 
 Oct. 20 7,500 00 
 
 And the third, of the same date, as fol- 
 io w.s:— 
 
 ".Merchants' Bank, Watertown, N. Y., 
 Sept. (i, 1N6!). Rotiert Hayes, Esq., Mas- 
 ter schr. 'Kate Kelly,' Oswego, N. Y: — 
 Please deliver to the Corn E,\change Ele- 
 vator, Oswego. N. Y., .your cargo, 8,727 
 bushels of Amber Milwaukee wheat, and 
 5..i27 211/00 bushels of No. 1 Amber Milwau- 
 kee wheat, consigned to us by W'.G. Fitch, 
 Es().. cashier." 
 
 Similar letters were written as to the 
 cargoes of tlie"Grenada" and "Corsioan," 
 e.xcept that, in the case of the "Uorsican" 
 the letter enclosing the order to the mas- 
 ter of that vessel to deliver hei- cargo was 
 addressed to ".Smith & ('o.. Proprietors 
 Corn E.\change Elevator. " Suittli & Co., 
 on receipt of the letters, paid each of the 
 sight drafts, and returned the time drafts, 
 accepted, to the Merchant.s" Bank, with- 
 out objection. Thesight drafts vr ere paid, 
 and the time drafts accepted, several days 
 befoie the arrival of the cargoes at Os- 
 wego. Mcl/aren& Co. forwarded to Smith 
 & Co. invoices of the purcliases, with 
 statement of account for disbursements 
 and comniissiofis. The invoice of the 
 "Kate Kelly" is headed, "Account pur- 
 chase of 14,250 20/()0 bushels of wheat, 
 bought for account, and b.v order of 
 .Smith & Co., Oswego, N. Y., through .Mc- 
 Laren & Co." Th(>se of the "Grenada" 
 and of the "Corsican" differ only in the 
 number of bushels. No bills of lading were 
 sent to Smith & Co. The "Kate Kelly" 
 arrived in Oswego Sept. Ifi, ISW). Her 
 cargo was discharged into the Corn Ex- 
 change Elevator anil a bill of lading, 
 dated Sept. IS, 1S6'.), signed by G. A. Ben- 
 nett, was delivered to Smith «& Co. The 
 wheat was shipped by canal boat and 
 arrived in New York October !). ISG'J. 
 Smith & Co. paid the time draft of $7,.'.()U, 
 drawn at thirty days. The time draft of 
 .f7,.'>i)0, drawn at forty five days, was un- 
 paid at the date of this shipment. The 
 "(iienaila" arrived on the twenty-fourth 
 day of September, 1S60. Her cargo was 
 shipped by canal l)oat by Smith & Co., 
 and a bill of lading of that date, signed 
 liy G. A. Bennett, was delivered to them. 
 This canal boat arrived in New York, 
 Oct. 27, ISI".'.). The two time drafts 
 drawn on the cargo of the "Grenada" 
 were unpaid at the date of this ship- 
 ment. The "Corsican" arrived on the Sth 
 October, ISdO; and on thesame day Smith 
 & Co. ship[)ed by the canal boats. These 
 canal Ijoats arrived in New York on the 
 4th November, ISdO. The tlmo drafts 
 drawn on the cargo of the "Corsican" 
 were not paid at the time of these ship- 
 ments. The drawees of the drafts were 
 the proprietors of the Corn Exchange Ele- 
 vator. The captains of the vessels, on 
 their arrival at Oswego, called at the of- 
 fice of the Corn K.xchange Elevator and 
 received from Smith & Co., before deliver- 
 
 ing their cai-goos, the orders in the letters 
 of the cashier of the Merchants' Bank to 
 the "Pnjprietors Corn Exchange Ele- 
 vator," and to "Smith & Co., Proprietors 
 Corn Exchange Elevator". The latter 
 paid the freight on the cargoes, and re- 
 ceipted therefor on the back of the bills of 
 lading retained by the captains. The 
 shipments by Smith & Co. were maile with- 
 out the knowledge or consent of the of- 
 ficers of the Merchants' Bank. There was 
 no mixture in the elevator of the cargoes 
 of the "Kate Kelly", "(Jrenada", or "Cor- 
 sican". Smith & Co., on receiving the 
 canal boat bills of lading, sent thesame 
 witli drafts attached, through banks in 
 New York city, to Dows & Co., defend- 
 ants. They paid the drafts, and received 
 the bills of lading. All of the time drafts 
 drawn by McLaren & Co. (m Smith & Co. 
 (except the thirty day draft on the cargo 
 of the "Kate Kelly"), being unpaid, were, 
 with the original bills of lulling and cer- 
 tificates of insurance, returned by the 
 Merchants' Bank to the Milwaukee Bank. 
 The iatter having been advised in October 
 that the wheat had liecn shipped by 
 Smith & Co., Wilham P. McLaren, a mem- 
 ber of the firm of McLaren & Co., went to 
 Oswego to look after it. He was there 
 from about the 2(lth to the 2.")th of that 
 month, and, on examination, found no 
 wheat in the elevator. Having ascer- 
 tained on ll'.e 22d that portions of the (car- 
 goes had been shipped to Dows & Co., a 
 telegram was sent to and received by 
 them on that day, notifying them that 
 the wheat shipped was the property of 
 the National Exchange Bank of Milwau- 
 kee. Thefollowing day, i)arties interested 
 in the wheat called on Dows & Co., who 
 agreed, that, if no attempt was made to 
 stop the wheat on the canal, it shoidil, 
 on its arrival in New York, be kept sepa- 
 rate; that the Milwaukee Bank should 
 be notified of its arrival; and that th?y 
 (Dows & Co.) would identify it as the 
 wheat coming out of the said canal 
 boats, and would require proof of the 
 identity of the wheat in the canal boats 
 at Oswego. On the arrival of the wheat, 
 a formal demand in writing therefor was 
 made on Dows & Co. b.v the Milwaukee 
 bank. They refused to deliver it unless 
 they were reimbursed the amount of their 
 advances to Smith & ("o. and freight and 
 charges, and unless the Milwaukee bank 
 would take careof an ordergiven bySn)ith 
 & Co. to Norris WInslow on them for any 
 margins in their hands due Smith & Co. 
 
 The jnrv found a verdict in favor of the 
 plaintiff f;)r $31,111.51. 
 
 Mr. C. Van Santvoord for plaintiffs in 
 error. Mr. H. M. Finch for defendant in 
 error. 
 
 Mr. Justice STRONG delivered the opin- 
 ion of the court. 
 
 The verdict of tlie jury having estab- 
 lished that the wheat came to the pos- 
 session of the defendants below (now 
 plaintiffs in error), and that there was a 
 conversion, there is reall.v no controversy 
 respectinir any other fact in this case than 
 whether the ownership of the plaintiffs 
 had been divested before the conversion. 
 
 I
 
 DOWS 0. NATIONAL EXCHANGE BANK. 
 
 257 
 
 Tlie evklencp Iicaiing upon thu transiniH- 
 siuii of the title whs cotitaiiKMl iiiiiinly in 
 written inHtruinentH, the Ipk'iI effect of 
 which was for the court; iind, so far as 
 there was ekMileiice outside of tliese instru- 
 ments, it was either uncontradicted, or it 
 had MO licarint; upon tlie construction to 
 he uiven to tlieni. We liave, therefore, on- 
 ly to iiKiuire to wlioin the vvlieat helonge'l 
 wluMi it catne to tlie hands of llie defenil- 
 ants, aiKl vvlien they refused to surrender 
 it at tlie demand of tht! plaintiff. 
 
 It is not open to (inestion that .McLaren 
 & Co., havin;.; piircluised it at .Milwaukee 
 and paid for it 'vith their own money, he- 
 came its owners. Thoiiuli they ha(i re- 
 ceived orders from Smith & Co. to huj 
 wheat for them, and to ship it, they had 
 not been supplicil with funds for the pur 
 pose, nor hail tliey assumed to contract 
 with those from whom they purchased 
 on behalf <if their correspondents. Tlic.v 
 were uniler no obligation to ;{ive up their 
 title or the possessitm on any terms othei' 
 than such as they might ilictate. If, after 
 their purchase, they had sold the wheat 
 to any iierson living in .Mil waukee or else- 
 where, other than .Smith & Co., no doubt 
 their vendee would ha ve succeeded to the 
 ownership. Nothing in any agenc.v for 
 Smith & Co. would have prevented it. 
 Tliis we do not understan<l to be contro- 
 verted. Having, then, aci|iiired the abso- 
 lute ownership, .McLaren & Co. had the 
 complete i)ower of disposition : ami there 
 is no pretence that they dii'ectly trans- 
 mitted tlieii- ownership to Smith .V: Co. 
 They doubtless expecteil that tirm to be- 
 come purchasers from tliem. They bought 
 from their vendors with that expectation. 
 Accordingly, they ilrew drafts for the 
 Iirice; but they never agreed to deliver 
 the wheat to the drawees, unless upon the 
 condition that the drafts should be ac- 
 cepted and )iaid. They shipped it: but 
 they did not consign it to Smith ic Co., 
 and they sent to that finii no bills of lad- 
 ing: on the contrary, they consiirned the 
 wheat to the cashier of the .Milwaukee 
 bnnk, and handed over to that bank the 
 bills of lailiag as a security for the drafts 
 drawn against it,— drafts which the bank 
 inircliased. It is true, they sent invoices. 
 Tilat, however, is of no signllicanoe by it- 
 self, 'i'he iiiisition taken on behalf of the 
 defendants, that the transmission of the 
 invoices |)assed the property in the wheat 
 without tile acceptance and payment of 
 the drafts dr.iwn against it, is utterly iin- 
 terialile. .An invoice is not n bill of sale, 
 nor is it eviilence of a wale. It is a mere 
 detailed statement of the nature, (jiianti- 
 ty, anil cost or price of the thingsinvoiced. 
 and it is as ap|iropriate to a bailment as 
 it is to a s;ile. It does not of itself neces- 
 sarily indicate to whom the things are 
 sent, or even that they have been sent at 
 all. Hence, standing alone, It is never re- 
 garded as evidence of title. It seems un- 
 necessary to refer to authorities to sus- 
 tain this positiun. Heference may, how- 
 ever, be made to Sheidierd v. Harrison, 
 Law I{e[). ."> H. L. llti. and Xewcomb v. 
 l?o8ton & Lowell U. U. Co., ll."> Mass. 
 T-M. In these and in many other cases 
 it has been regarded as of no import- 
 ance that an invoice was sent by tlie 
 
 LAW SALES— 1 1 
 
 shipper to the drawee of the drafts drawn 
 against the shipment, even when the 
 goods were described as bought and 
 shipped on account of and at Hie risk of 
 the lira wee. 
 
 It follows that McLaren & Co. remained 
 the owners of the wheat, notwithstand- 
 ing their transmission of the Invoices to 
 Smith it Co. .\s owners, then, they had 
 a right to transfer it to the plaintiff as a 
 security for the accepta nee nnd payment 
 of their ilralts diawn against It." ThlH 
 they did by taking bills of biding delivera- 
 ble t(i the cashier of the [ila in tiff, and hanil- 
 ing them over with Ihe drafts when the 
 latter were discounteil. These lulls of lad- 
 ing unexpliilaed are aiinost conclusive 
 proof of an intention to reserve to the 
 shipper the jus disponenili. and prevent the 
 property in the wheat from iiassing to 
 the drawees of the drafts. Such in the 
 rule of interpretation as stated In Ilenja- 
 min on Sales, :;iir,: and in support of it he 
 cites numerous authorities, to only one 
 of wliiih we make special reference, — .leak, 
 yns v. Brown, 14 (.y H. 4!Mi. There it ap- 
 peared that the plaintiff was a conindH- 
 siou merchant, living in London, and em- 
 ploying Klingender & (Jo. as his agents 
 at New Orleans. The agents iiurchased 
 for the plaintiff a cargo of corn, payingfor 
 it with their own money. They then 
 drew upon him at thirty days' slcht, stat- 
 ing in the body of the drafts that they 
 were to be placed to the account of the 
 corn. These drafts the.v sold, handing 
 over to the purchaser with them the bills 
 of lading, which were made di liverable to 
 the order of Klingender & Co.. I he agents : 
 and they sent invoices and a letter of ad- 
 vice to the plaintiff, informini: him that 
 the cargo was bought and shipped on his 
 account. On this state of facts, the court 
 ruled that the propert.v did not pass to 
 the plaintiff : that the taking of a bill of 
 lading by Klingender & Co., deliveratile 
 to their own order, was nearly conclusive 
 evidence that they did not intend to pass 
 the property in the corn: and that, by in- 
 dorsing the liills of lading to the liuyer of 
 the bills of exchange, they had conveyed 
 to him a special property in the cargo, so 
 that the plaintiffs riirht to the corn could 
 notarise until the bills of exchange wen* 
 paid by him. That such Is the letral effect 
 of a bill of lading taken deliveralde to the 
 shipper's own Older, that It Is inconsist- 
 ent with an intention to pass the owner- 
 ship of the cargo to the person on whose 
 account it may have been puivhased. even 
 when the shipment has been mttde in Ihe 
 vessel of the drawee of the drafts against 
 the cargo, has been repeatedly decided. 
 Turner v. The Trustees of the Liverpool 
 Hocks, fi Kxch,,">4:!: Schotsmansv. Kail way- 
 Co., LawUeii., 2 Ch. .\p. :!:ii".: Kllershaw v. 
 Magaiac, (i Kxch. 'uO. In the present case 
 the wheat was not shipped on the vessels 
 of Smith & Co.. and thelillls otiadlng stip- 
 ulated for deliveries to the cashier of the 
 Milwaukee bank. Wlien, therefori". the 
 drafts against the wheat were discounted 
 bv that bank, and tne bills of lading were 
 hjinded over with the drafts as se»-iirlty. 
 the bank became the owner of the «heat, 
 and had a complete right to maintain It 
 until payment. The ownership ot Mc-
 
 258 
 
 DOWS V. NATIONAL EXCHANGE BANK. 
 
 Ijaren & Co. was transmitted to it, and it 
 succeeded to tlieir jiower of (lisposition. 
 That the bank never eon.sented to |)art 
 with its ownersliip thus acquired, so Ions 
 as the drafts it had (iiscounted remained 
 unpaid, is rendered certain by the uncon- 
 tradicted written evidence. It .■lent the 
 drafts, with tlie Ijills of lading attaclied, to 
 the Merchants' Baid<, Watertown, accom- 
 panied with tlietnost positive instructions, 
 toy letter and by indorsement on the bills, 
 to hold the wheat until the drafts were 
 paid; and when, sulisequently, the Mer- 
 ■chants' Bank sent orders to the masters 
 •of the carryins vessels to deliver it to tlie 
 "Corn KxclianKe Elevator, Oswes(^, N. Y.,"' 
 they accompanied the orders witli letters 
 to Smith & C'o.. the proprietors of the ele- 
 vator, containing clear instructions to 
 hold the arain, and "deliver" it only on 
 payment of the drafts. To these instruc- 
 tions Smith & Co. made no objection. 
 Now, as it is certain that whether the 
 property in the wheat passed to Smith & 
 ,<Jo. or not depends upon the answer which 
 .must be «iven to the question whether it 
 Avas intended by McLaren & Co., or by 
 the Milwaukee bunk, their successors in 
 ownership, that it should pass before pay- 
 ment of the drafts, where can there be 
 any room for donl)t? What is there upon 
 wliich to l)ase an inference that it was in- 
 tended Smith & Co. should become Imme- 
 diate owners of the wheat, and be clotl)ed 
 with a right to dispose of it at once? 
 Such an inference is forbidden, as we have 
 already said, by the bills of lading made 
 deliverable to vV. G. Fitch, cashier of the 
 Milwaukee bank; and it is inadmissible, 
 in view of the e.xpress orders given by 
 that bank to their special agents, the Mer- 
 ■ohants' Bank at Watertown, directing 
 them to li(dd the wheatsubjectto tlie pay- 
 ment of the drafts drawn against it. No 
 intent to vest immediate ownership in the 
 drawees of the drafts can be implied in the 
 face of these express arrangements and 
 positive orders to the contrary. It is true 
 that Smith & Co. were ti'e proprietors 
 of the Corn Exchange Elevator, and that 
 the wheat was handed over to the "cus- 
 tody of the elevator" at the direction of 
 the Merchants' Bank; but it cannot he 
 claimed that that was a delivery to the 
 drawees under and in pursuance of their 
 contract to purchase. The .Merchants' 
 Bank, having been only special agents of 
 the owners, had no power to make such 
 « delivery as would divest the ownership 
 of their i)rincipals. Stollenwerck et al. v. 
 Thacher, 11,T Mass. 124. And they made 
 '.no attempt to divest that ownership. 
 They guardedly retained the jus d:s|)oneii- 
 '<Ji. Concurrently with their directions 
 that the %vheat should be delivered to the 
 ■elevator, in the very orders for the deliv- 
 ery, they stated that the cargoes were for 
 the account of W. G. Fitch, cashier, and 
 were to be held subject to their order. 
 By accompanying letters to the proprie- 
 tors of the elevator, they stated that the 
 cargoes were delivered to them "to be held 
 subject to and delivered only on payment 
 of the drafts drawn by .McLaren .SrCo." 
 All this contemplated a subsequent deliv- 
 ery, — a delivery after the receipt of the 
 grain in the elevator, and when the drafts 
 
 should be paid. It negatives directly the 
 possibility that the delivery into the ele- 
 vator was intended as a conaunimation 
 of the purchase, or as giving title to the 
 purchasers. It was a clear case of bail- 
 ment, utterly inconsistent with the idea of 
 ownership in the bailees. A man cannot 
 hold as bailee for himself. By the act of 
 accepting goods in bailment, he acknowl- 
 edges a right or title in the bailor. When, 
 therefore, as was said in the court below, 
 "the proprietors of the Corn Exchange El- 
 evator, or Smith & Co., received the wheat 
 under the Instructions of the Merchants' 
 Bank, they received it with the knowledge 
 that the delivery to them was not abso- 
 lute; that it was not |ilaced in their 
 hanils as owners, and that they were not 
 thereby to acquire title." They were in- 
 foruieil that the holdei-s of the tlrafts, and 
 bills of lading, had no intention to let go 
 their ownei-sliip so long as the drafts re- 
 mained unpaid. The possession they had, 
 therefore, was not their possession. It be- 
 longed to their bailors; and they wei-e 
 mere warelK)Usemen, and not vendees. 
 
 We agree, that where a bill of lading 
 has been taken containing a stipulation 
 that the goods shipped shall be delivered 
 to the order of the shipi)er, or to some 
 person designated by him other than the 
 one on whose account they have been 
 shipped, the inference that it was not in- 
 tencied the property in the goods should 
 pass, except by subsequent order of the 
 person holding the bill, may be rei)utted. 
 though it is held to be almost conclusi\e: 
 and we agree, that where there are cir- 
 cumstances pointing both ways, some in- 
 dicating an intent to pass the ownership 
 immediately, notwithstanding the bill of 
 lading, in other words, where th^re is any 
 thing to rebut the effect of the bill, it be- 
 comes a question for the jury, whetlier the 
 property has passed. Such was the case 
 of Ogg v. Shuter, 10 Law Rep. C. P. 1,59. 
 There the ordinary effect of a bill of lading 
 deli vera l)le to the shipper's order was held 
 to be rebutted by the court sitting with 
 power to draw inferences of fact. Tlie 
 delivery to the carrier was "free on 
 board." and the bill of lading was sent to 
 the consignor's aLjent. The goods were 
 also delivered into the purchaser's bags, 
 and there was a part payment. But in 
 this case there are no circumstances to re- 
 but the intent to retain ownership exhib- 
 ited in the liills of lading, and confirmed 
 throughout bv the indorsements on the 
 bills, tind by the written instructions to 
 Mold the wheat till payment of the drafts. 
 Nothing in the "vidence received or offered 
 tended to show any other intent. Hence 
 there was no necessity of submitting to 
 the jury the question, whether there was 
 a change of ownership. That would have 
 been an invitation to find a fact of which 
 there was noevidence. Theeircumstances 
 as relied upon by the plaintiffs in error, 
 as tending to show tliat the property 
 vested in Smith <&, Co., cannot have thesig- 
 niticance attributed to them. 
 
 It is certainly immaterial tbatthe wheat 
 was consigned to W. G. Fitch, cashier, 
 care of the Merchants' Bank, Watertown, 
 and that it was thus consigned at the re- 
 quest of Smith & Co., made to McLaren &
 
 DOWS V. NATIONAL EXCHANGE BANK. 
 
 259 
 
 €0. llacl It bf>en consigneil rlirectlj- to ' 
 that bnuk, and had there heen no reserva- 
 tiori of the jus (lispoiiendi acconiijanyinj; 
 the cotiHignmcnt. the case mit^ht have 
 been different. Thtn au intent to deliver 
 to the purchaserH niisht pt)Hisil)l.v liave 
 been prcHumel; bnt, as tlie caBe waw. no I 
 room was left for such a presuiniition. I 
 Tlie e.xpress direction to hold the wheat 
 for the payment of the drafts, and to de- 
 liver it only on [)aymcnt, removes the 
 possibility of any preKiinie<l intent to de- 
 liver it while the drafts remained unpaid. ' 
 A shipment on the purchaser's own vessel 
 Is ordinarily held to [jass the projierty to 
 the purchaser but not so if the bill of lad- 
 inK exhibits a con ti-ary intent. — if there- 
 by the .shipper reserves to liitiiseif or to his 
 assigns the dominion over the goculs 
 ship])ed. Turner v. The Trustees of the 
 Liverpool DocUs, supra. There are many 
 such decisions. A stronir caKc may be 
 found in the court of ()ueen'H bench, derid- 
 ed in 1S40. It is Mitehel v. ICile. 11 Ad. 
 & K. sss. A Jamaica planter, beins the 
 owner of sugars, and imlelited to the 
 defendant, residing in London, for more 
 than their value, shipped them iit.Iamaica, 
 on the 4th of April, on 11 ship belonging 
 to the defendant which was in the habit 
 of cati-yinK supplies to .laniaica to the 
 owner «)f the sugars, and others, and 
 taking back consifrniiients from him and , 
 others. On the same day he took a l)ilL 
 of lading by which the goods were stipu- 
 lated to be delivered to the defen<lant at 
 Lontlon, he paying freiglit. Two days 
 aft<'rwards (April (i) the sliipper made an I 
 indorsement on the bill that the sugars | 
 were to be delivered to the ilefendant only j 
 on condition of his giving security for cer- | 
 tain payments, but otherwise to the plain- i 
 tiff's agent. He also drew drafts on the j 
 f'efendant. At the same time he indorsed 
 the bill of lading, and delivered it to the 
 plaintiff, to whom lie was indebted. The 
 l)ill was never in the defendant's hands. 
 The sugars arrived in London; and tin- 
 defendant paid the drafts drawn by the 
 shipper, but did not com|)ly with the con- 
 ditions of the indorsement cf .\pril r>. On 
 this state of facts, it w;is held by thecourt 
 that the plaintiff was entitled to the su- 
 gars; that the shipiier had not parted 
 with the |)r«)perty by delivering it on 
 board the defendant's ship, employed as 
 it was. nor by accepting tlie liill of lading 
 as drawn on the 4tli of April ; and that he 
 was en t it led to change the destination of 
 the sugars till he had delivered them or the 
 bill. In the case now in hand, there never 
 was an instant, after the iinrcliase of the 
 wheat by .McLaren & <'o., when there was 
 not an express reservation of the right to '• 
 withhold the delivery from Smith & Co., 
 and also an avowed purpose to withhold 
 it until the 'Iraftsshould bepaid. Consent 
 to consign the wheat to \V. (!. I'itch, 
 cashier, careof .Nierrhants' Flank, amounts, 
 therefore, to no evidence of consent that it 
 should pass into the control and owner- 
 ship of til" purchasers. 
 
 It has been argued on behalf of the plain- 
 tiffs in error that the corres(iondence be- 
 tween .Smith & Co. and .\;rl.,nren & Co. 
 shows that the wheat was wanted by the 
 former to supply their immediate need; 
 
 and that, therefore, it was a legitlmnte In- 
 ference that both parties to the corres- 
 pondence intended an immediate delivery. 
 If this were so, it was still In the power 
 of the vendors to change the destination 
 of the property until delivt-ry was actual- 
 ly, or at least symlioliciilly, made; and 
 that the intention, if any ever existed, 
 was never carried out, thebills of bHling 
 prove. It may be that .Smith & Co. ex- 
 pected to secure early possession of the 
 wheat by ol>taiiiing discounts from the 
 U'atertown t)ank, and then by taking up 
 the drafts. If so, it would arciiint for 
 their lerjuest that the drafts and bills of 
 lading might be si'nt through that bank; 
 but that has no tendency to show an as- 
 sent by either .McLaren & Co. or the .Mil- 
 waukee bank to an unconilitionaldeliv^ry 
 of the proiiertv before pavmenc of the 
 drafts. 
 
 Nor does the fact that any engagement 
 to liidd themselves responsible for the safe 
 keeping of the wheat for the plaintiff, and 
 subject to its orders until the drnlttt 
 drawn against it sliould be paid, was ex- 
 acted from the Watertown bank, have 
 any tendency to prove such an assent. 
 This was an additional protection to tlie 
 continued ownership of the plaintiff; and 
 the words of the engagement plainly neg- 
 ative any cimsent to a divestiture of that 
 ownershi[). 
 
 Without referenee, therefore, to the tes- 
 tiniony of .McLaren, — which was. In snii- 
 stance, that, before the shipments, the 
 agent of .Smith & Co. wa.s inlormed, that 
 wliile the shipping linn would agree to 
 send their time drafts through any bank 
 he might designate, anil consign the prop- 
 erty to an}' responsllde bank .Smith & Co. 
 might designate, they would adhere to 
 their jxisitive business rule In such cases, 
 ard on no account consent that any prop- 
 erty so shipped sliould pass out of the 
 control of the banks in whose care It had 
 been placed until all drafts made against 
 it had been paid, — without reference to this, 
 we think it clear th;it the ownershipof the 
 wheat. for the conversion of whi<-h the de- 
 fendants were sued, never vested in Smith 
 & Co.. never passed out of the plaintiff. 
 
 This is a conclusion iicessarily dr»wn 
 from the written and uncontradicted evi- 
 dence; and tliere is nothing in any evi- 
 dence received, or offered by the defendants 
 and overruled by thecourt, which hasany 
 tendency to resist the conclusion. It Im 
 unnecessary, therefore, to examine in de- 
 tail the nnnieroiis assignnn-nts of error In 
 the admission and rejection of e\ idcnce. 
 None of the rulings have injured the de- 
 fendants. 
 
 If, then, the Kxchange Hank of Mil- 
 waukee was the owner of the wheat when 
 Smith & Co undertook t<. ship it to the 
 defendants, and when the defendants 
 ri'ceived it and converted it to their 
 use. the right of the bunk to n^cover In 
 this action is incnnfrovertllde. Smith & 
 Co. were incapable of divesting that own- 
 ership The defendants could nc<inlr«» no 
 title, or even lien, from n tortious poR- 
 sessor. However innoi-ent they may have 
 been (and they were undoiilitedly Inno- 
 cent of any attempt to do wrongl. they 
 could not obtain ownership of the wheat
 
 260 
 
 DOWS V. NATIONAL EXCHANGE BANK. 
 
 from any otlier than tlie owner. The 
 owner of personal property cannot be di- 
 vested of liis ownership witiiout Ilia con- 
 Bent, except by process of law. It is not 
 clainicij, and it conld not be, tliat the de- 
 fendants wore deceived or misled by any 
 act of the plaintiff. They are the victims 
 of a gross frand perpetrated by Smith & 
 Co.; and, however unfortnnate their case 
 may be, tliey cannot be relieved by cast- 
 
 iuff the loss upon the plaintiff, who is at 
 least equally innocent with themselves, 
 and who has used the extremest precau- 
 tion to protect its title. 
 
 It is sufficient to add, that, in our opin- 
 ion, there is no just reason for complaint 
 against the instruction jj;iven by the cir- 
 cuit judj^e to the jury, and his rulings up- 
 on the sul)ject of damages and interest. 
 
 Judgment affirmed.
 
 I 
 
 I
 
 DRAKE, EX PARTE. 
 
 263 
 
 Ex parte DKAlvli.. 
 
 In re W AUK. 
 
 (5 Cli. Uiv. S(iO.) 
 
 Court of Aiipeal. May 10, 1877. 
 
 This was un jippeal fnim a declBJou of 
 Mr. KeKiNtrar P«p.VK, Hitting aH chief 
 juilnf in itankruptr-y. 
 
 Ill Martli, Int.'), JaiiiPM Ware, a earner 
 anil eaiiiiiiii, liirpd a urey ni.nre of Haiiiel 
 Drake. He iiculeeted to return the mare 
 when reiiiiiieil by iJrakf to do no, and in 
 May, INTO. Drake coiiiiiieneed an action in 
 th(! exchei|iier division auninst Wore for 
 the recovery of the inare. The iieiiuii was 
 trieil on the Jiid of Deeeailier, ^s~i^,, when 
 a verdict wa.s found for the plaintiff for 
 ilid. the value of the mare, such amount 
 to lie reiliiced to Is. if the mare was re- 
 turned t«; the plaintiff on the Itli of De- 
 eeinher, and tJ."i d.-iniam w for the wronuful 
 detention. And the jud^e dirccteil jiidfj;. 
 ment for £^^>, and the costs of the action. 
 Tlie defendaat iliil not return the lUiirc, 
 anil on the lith of Decenilier, the plaintifl's 
 Holicitor's bill of costs wa.s taxed at £71) 
 10s. 2d. .\t an earlier hinir on the same 
 day Ware had filed a liquidation petition, 
 and notice of the petition was niven to 
 the plaintiff's solicitor by Ware's scdicitor 
 when they attended the taxation. On 
 thesaine day Drakesi;rned judtimeat in the 
 action for il.").") lus. I.M., and issued and 
 lixlsed with the sheriff of .Middlesex a writ 
 of li. fa. on the judsimcnt. On the 7th of 
 December the sheriff levied on the Koods 
 of Ware, not including the mare. .\n or- 
 der was .ifterwards tn;ide by tlie court of 
 lankiiiptcy restrainin;;' the iiroeeediims 
 miller the execution, ami the shi'riff with- 
 drew. The first meeting of the creditors 
 was held on the .'ilh of .lanuary. IsTT. when 
 Drake tendered a proof. Ills iillidavit 
 stated the veidict in the action, the sij^n- 
 iuK of j;iiluinent, the t;ixntion of theeosts, 
 and that the mare had not been delivered 
 tu him, nor the £S.">, or the amount of the 
 taxed costs paid to him. The atlidavit 
 went on to state that Ware was i\lso, at 
 the date of the institution of the liipiida- 
 tion iiroiMedin^-s. and still was. indebted 
 to him in the sum of 'J Jii4 for hire of the 
 mare from the li.'.th of March, ls:."i, to the 
 2nd of December, 1S7(;, for which sum he 
 had not received any satisfaction or se- 
 curity Me further said that he luid not 
 received any satisfaction or security for 
 the amount recovered liy liim under the 
 judgment, except so far as the same was 
 secured by the goods levied upon by the 
 sheriff. This proof was objected to by 
 the debtor, on the uround, as to the i;L'ri4, 
 that an action was pending in the com- 
 mon ideis division by the debtor agjiinst 
 Drake, in which Drake had set up a coun- 
 ter-claim for tldO for hire of the mare, 
 upon which issue had been joined, and as 
 to the costs claimed, oil the ground that 
 the judgment was not iirodiiced. This ob- 
 jection was marked on the proof and 
 Rigiicd by the chairman at the meeting. 
 Drake voted at the meeting. Tlie firoof 
 was afterwards idijeeteil to by the trus- 
 tee in the lii|uiilatioii, as to the Cl'i'.l. on 
 the ground that no contract for hire was 
 
 ever entered into by the debtor. On the 
 lOlh of .lanuary. IsTT, Drake applied ti> 
 the court in the lli|niilation for an order 
 that the trustee should deliver to lilm the 
 goods which had been seized by the sher- 
 iff, or that he should, out of tiie lirHt aH- 
 setH belonging to the estate of Ware 
 u liieh should come to liiit liandH, pav to 
 Drake the tl.'..'. 10m. 2d. due lo liim under 
 the judgment, with interest until pay- 
 ment. This motion was by con.-ient turned 
 into a special case. I'pon the hearing of 
 the case on the l:ith of Kebruary. the reg- 
 i.-trar decided that Draktf was'not ent'- 
 tled to any relief. .\t this time Drake did 
 not know where the mare was. Itut oit 
 the ]:'.tli of .March he accidentally iliHC'iv- 
 ered her in the po.ssession of the debtor, 
 whose servant was driving her. The 
 debtor was, with the periiilssion of the 
 trustee, using her in his busiiiesi4. Drake- 
 thereupon Instructed the sheriff to seize 
 the mare under the writ of II. fa., and the' 
 sheriff on the same day forcibly removed 
 her from the ilebtor's possession. On the 
 14tli of .March the trustee iditaiiied in the 
 court of liaakriiptcy an interim injunction 
 restr.'iiiiing theshcriff and Drake from sell- 
 ing the mare, and on the 27thof .March the 
 registrar made this injunction pirin-tual. 
 ami ordered that the iiiiire should he 
 forthwith delivered up to the trustee. 
 Drake appealed. 
 
 D. Ivingsford. for appellant. K. C. Wil- 
 lis, for trustee. 
 
 .IKS.SEL. M. It.:— The lirst ipn-sthiii 
 which we have to decide is one which Ik 
 simple enough to state— i.i whom was the 
 property in this grey mare at the time 
 when she was taken possession of by tht- 
 sheriff.' The property was originally in 
 Drake. She had been hired fiom him by 
 Ware, the liiiuidatiiig debtor. The hiring 
 was put an end to: the delitor was re- 
 (juested by Drake to return her. and he 
 failed to do so. The action of detinue 
 was brought by Drake, and he reeovereil 
 jiKlgmeut in the ordinary lorin. .\fter 
 that the idaintiff issued execution on bin 
 judgment, but the execution was defeated 
 by the prior act of bankruptcy wiilcli 
 overrode it. so that the plalnliff got nuth- 
 iiig by his execulii>n. .\fter the liling of 
 the liiiuidation petition he took in what 
 has been called a proof for the judgment 
 debt and the costs of the action. Some 
 time after this he accidentally saw the 
 mare in the possession of the debtor'H 
 servant, and he directed thesherift's olllrer 
 to seize her under tlie old writ. Thli» 
 was not a prope;- mode of proceeding. 
 The trustee then obtained from the regis- 
 trar the order for an injunction, and for 
 the delivery of the mare to him : ami from 
 thiit order the appeal is brouu'hl. Tlie 
 first iiiiestion is. ill whom was the prop- 
 erty in the iiiare when she was seiieil by 
 the sheriff's oltlcer .' 1 am of opinion ihnt. 
 after the decision in Driiisiuead v. Harri- 
 son", we are luiund to hold that the pro|>- 
 erty was never divested from Drake, lie 
 had the property unless something which 
 he did under thejudgm,?nt divested it Iron* 
 
 ' Law Kep. 7 C. V. 547.
 
 264 
 
 DRAKE, EX PARTE. 
 
 liira. It is clear tliat tlio iuclfrmenl itself 
 (11(1 not divest the property. Did the ex- 
 ♦'ciition divest it? I'pon that (jnestion 
 tlie authority of Briiisuiead v. Harrison 
 is distinctly in point. It shews that the 
 <>xecntlon does not divest the ))ro])erty 
 unless there is satisfaction of the jndf;;- 
 nient. There are several ways in v\ liich 
 an e.xecution miK'ht produce nothiuK. One 
 way would be if the amount produced hy 
 the sale of the ^oods seized did not cover 
 tlie expenses of the sale. Another way 
 would he if, as li;ippened in the present 
 case, there was a prior act of bankruptcy 
 which nullified the execution. The judg- 
 ments in Brinsmecid v. Harrison-, and 
 especially that of Mr. Justice Willes, sliew 
 that the theory of the judsment in an ac- 
 tion of detinue is that it is a kind of invol- 
 untary sale of the phiintiff's s;ooiis to the 
 defendant. The plaintiff wants to net his 
 goods back, and the court fiives him the 
 next best thins, that is, the value <jf the 
 Koods. If he does not get that value, then 
 he does not lose his property in the 
 goods. On the appeal to the exchequer 
 cliamber, in Brinsniead v. Harrison, the 
 only two judges who expressed any opin- 
 ion on the point confirmed the view of Mr. 
 .luslice Willis. Mr. .lustice Blackburn 
 said:^ "1 observe that the court of com- 
 mon ideas, in their judgment upon the de- 
 murrer to the new assignment, which is 
 uot now before us, held that by the re- 
 covery in thefirst action without satisfac- 
 tion the property in the chattel did not 
 pass. I should be inclined to agree to 
 this, but it is unnecessary to oxjiress an 
 opinion upon it." And Mr. .lustice Lush 
 said:! "The judges who decided those 
 American cases seem to have thought 
 that, by holding that recovery against 
 one of two wrongdoers was a bar to an 
 action .-igainst the other, they would be 
 deciding that the property in the chattel 
 passed by the recovery; but 1 do not 
 think that by any means follows; and, 
 as at i)resent advised, I am i)repared to 
 adhere to the judgment of the court be- 
 low upon both points." Therefore one 
 judge entirely agreed w'ith Mr. .Justice 
 Willes, and the other was inclined to agree 
 with him. Under these circumstances 
 we must consider it established that the 
 pr(jperty in the mare remained in the 
 plaintiff Drake. That being so, he had a 
 right to obtain possession of his pro|ierty 
 either by taking it peaceably or b.v means 
 of proper legal process. As I understand 
 the provisions of sect. 78 of the common 
 law procedure act, 18.i4, the i>laiutiff (as- 
 suming that there had been no liciuidntion 
 petition), if the value of the mare had not 
 t)een paid to him under the judgment, and 
 if he could have found out where the mare 
 was, might have applied to a judge at 
 chambers for an order that the defendant 
 should deliver her to him. The liquida- 
 tion petition prevented him from doing 
 that, but the pf>wer of the judge at cbam- 
 bors became then vested in the court of 
 bankruptcy, which could do complete 
 
 ' L,.Tsv Kep. 6 C. P. .584. 
 ' Law Rep. 7 C. P. 554. 
 'Law Rep. 7 C. P. 555. 
 
 justice in the matter. The plaintiff Drake, 
 therefore, if he had applir'il to the court 
 of bankruptcy, miglit have obtained an 
 order for the delivery of the mare to him. 
 But it is said that he cannot do this now, 
 because he is bound by the proof whicn 
 he miidc in the liquidation. If that means 
 an_vthmg it means this, that the plaintiff 
 has deliberately elected to take his chance 
 of a dividend in the liquidation in substi- 
 tution for his right to recover possession 
 of his mare. It would be very extraor- 
 dinary if he had done this, but of course it 
 is possible that he may have done it, and 
 we must examine what he actually did in 
 order to see whether he has really made 
 this election. He has done nothing be- 
 yond bringing in a in-oof. The proof has 
 not been fornially admitted by the trus- 
 tee, though, on the other hand, it has not 
 been rejected. But, before a reasonable 
 time had elapsed after the proof was 
 taken in, the plaintiff made a claim to be 
 paid in full the whole amount of his juilg- 
 ment. that is, he made a tlaim for the full 
 value of the chattel. This was a proceed- 
 ing wholly inconsistent with the notion 
 that he had finally elected to take the 
 dividend instead of the mare, and I am of 
 opinion that he had made no such elec- 
 tion. The result is that the order of the 
 I'egistrar must be discliarged, and we 
 must now make the order which he ought 
 to have made, that is, that the mare be 
 delivered to or retained by the ai)[)ollant. 
 But, inasmuch as his proceedings in di- 
 recting the sheriff to seize the mare were 
 not such as can be viewed with approba- 
 tion by the court, the proper order as to 
 costs will be that there be no costs on 
 either side, either of the hearing before the 
 registrar or of the appeal. 
 
 .TAMES, L. .1. : — lam of the same opin- 
 ion. I think it is not the business of any 
 court of justice to find facilities for en- 
 abling one man to steal another man's 
 property. That is really what we are 
 asked to do by the respondent. The ap- 
 pellant desired to get his mare back. He 
 brought his action of detinue, and he ob- 
 tained a judgment, the effect of which was 
 that the defendant was to pay the value 
 of the mare or give her up. The trustee 
 seems to think that because th.e defend- 
 aot has become bankrupt, he can keep 
 the value and not give up the animal. It 
 is impossible to hold that that can be 
 right, and I am very glad to find that we 
 have the authority of the courts of com- 
 mon pleas and exchequer charaberfor say- 
 ing that such is not the state of the la w 
 of England. I agree also with the mas- 
 ter of the rolls that in the present case 
 there has been no election by the appel- 
 lant tu take a dividend in lieu of his judg- 
 ment. A man does not elect himself out 
 of his propeity in this sort of vray. I 
 agree also that the sheriff ought not to 
 have been put in motion to take the mare 
 away from the trustee, who, rightly or 
 wrongly, had got possession of her. But 
 for this imiiroper act the appellant will be 
 sufficiently punished by losing all hiscosts. 
 
 BAGGALLAY, L. J., concurred. 
 
 1
 
 DUUKY V. YOUNG. 207 
 
 DmiHY et al. v. YOUNG. 1 Tlio Htiitiitc wns pasKPfl to prcvrnt 
 
 (58 Mil .540) Ifriiiiil priu-tictMl through tlio liiHtrutiii'ii- 
 
 t'llit.v <if perjury. It wuh pnsHcil to pri-- 
 
 Cxjiirt of Appciils of Maryland- July 12, 1R.S'J. vi-iit tlic ili>reni|nnt tniin HiirU'riiit; Iuhh, 
 
 . ^, , ,„.,,. ,, ,, ,. . ^ "l><"' the piiriil teHtliiionv of cllliiT n iiiT- 
 
 Actionl.yWiII.nm I H. V oung aRa.nHt j„r,.„ „, ,„i',,„;,^„ wltneH«. Hpo,.kin« of a 
 
 iMlwm-.IT. >r.jr.v \\.li..m H. .JameH. .Ir., l,ar^.„i,. ,|iff,,,.nt from the on.. iV, fart 
 
 aii.l .Sa.nn.-I M. Uankta lor l.rrach o con- „„„„, ^ „„„,^. ,i„. .|,.fcnilant onlv hal.l- 
 
 tract to ocliver li«y<}»U, plaint, f. !• ro.n „.l...ii a note or .nei.ioran.lu.u of the l.ar- 
 
 a jiKlKnient for pla.nt.tt, dolendantH ap- „„i„ ^i^,,,^.,, , hi,,,^^,, ^aM pro.luccl ot 
 
 Mr,1"r1,''-^w vVv'- .;Vm."vinv^'*''''''l " l""'""-^'! from tl... .lefen.lanfH own 
 m-vMi'ip Z^^^''^^' "OBINSON, and c.iKto.l.v, It Kuanln a«ain«t the miHchief 
 lU ILIlll-., J.). that the statute waHpahMcd lo prevent. 
 
 Orli-ndo V. Bump, for appellants. 1$. jiiHt as well uh if produced from tliecuM- 
 Iloward Hainan and Kd;;ar H. Ganw, for tody of the plaintiff. The ilaintiff Im tlie 
 appellee. one liUely to Huffer liy leaving the evidence 
 
 of liirt l)ar}{ain in the liandH of the ilefcnd- 
 
 STONK, J. One of the qne.stionH pre- ant— not the >lefendant liiinHelf. 
 Kcnted for uur coiiHidera (ion in this caHc The Hiatiite of fraiidH Ih an KukIIxIi xtat- 
 i8, whether tlie"noteor iiie.i.draiidiiin in ute, and in the aliHence of any exprcHH ad- 
 vvritinu" .•(■(luired by the seventeenth sec- judication of our own court, we naturally 
 tion of the .statute of frauds, must he de- look lo the lOn^ilish courts as the hist ex- 
 livei'ed to the other party thereto. It iH pounilcrs ol their own slatnte, and K"tlier 
 appai'ent from the evidence that the note from them the principlert which Hhuuld 
 or nieinorandum in writing rtlied on in Kuide uh In construing it. 
 this case, was niade by the bookkoepi-r of In the case of (iilison vs. Ilollaml, 1 
 the appellant.^ by the direclion of one (jf I>aw Keports, ('. I'., 1, the only note or 
 them, ami by the bookkeeper placeil in mi'inorandiini of the liaruuiii wan a letter 
 their safe, amon;r other papers, \yhere addressed by the defendant to his own 
 it remained from the 27th of Autcust, aKent; the court decided that to lie HUlfl- 
 ISM, the <lay on which it was written, cient, and ICrle.t". J.,in deliverinu hiH opln- 
 until It was pro.luced in court, at the ion. said: 
 
 trial of the case in February, Iss-.'. There "liiit the obji^-tion relied on is, that the 
 iH no evidence that this note was ever note or nieinorandum of that I'ontract, 
 seen liy the appi'llee, or even its exist- was a note passim; bet wei'ii the defendant, 
 ence known to him until the trial; and the party Hoii;;h; to be rhariied. and hin 
 it certainly neve.' was deliveicd to him, own ajrent, and not bet ween the one Con- 
 or went out of the possession of the ap- tractiiiK party and the other. " 
 
 pellanls, nnlil proiluccil in court. It is "Tl bject of the statute of fraurls, 
 
 stroniily insisted by the appellants that was the p.-eventinn of perjury i.i theset- 
 the statute is not ;;ra " ilied without a ile- tin;; up of coiitraels by parol evidence, 
 live.'y of this note o.- nieinorandum. It which is easily fabricated. With thin 
 must be borne in mind that the statute of view, it reiiuires the contract to be proved, 
 friuKls was nut enacted for cases where by the production of some note or memo- 
 tlie parties have signed a written co-i- randuni in wrilini:. Now.a note or ineiii- 
 tract ; for in these ca.ses, the common law orandum iseipially corroborative, whetlier 
 affords (piite a suUicientKUJiranteeiitjainst it passes lietwcen the parties to the con- 
 frauds ami perjuries, as is provided by the tract themselves, or between one of them 
 statute. The intent of the statute was to and his own a;;eiit. Indeed, one would 
 prevent the enforcement of parol con- incline to think that a statement made liy 
 tracts, unless the defcmlant could be the party to his own a>;ent, w<iuld lie the 
 shown to have executed the alleged con- more satisfactory evidence of the two." 
 tract by partial performance, or unless his In .lohnson vs. DodKHon, U Me<'son & 
 HiKiiati.n" to s<iine writtc.i note or memo- | Welsby, n.'i:!, the defemlant niaile the note 
 randuni of the bargain— not to the bar- I of tlie sale in his own book, and ^ot ihe 
 Kiiiii itself, could be shown. aK'ent of the plaintiff to siun It, and the 
 
 The existence of the note or memiiran- ilefeiidant retained the book in Ills own 
 dum pri'supposes an antecedent contract possession. 
 
 by parol, of which the writinj; is u note It was held by the court, that the note 
 or memorandum. lienjamin on Sales, or memoraiKlum was siilllcient, and the 
 M'c. L'OS. 1 plaintiff recovered. .No notice appears to 
 
 Now the statute itself is entirely silent have been taken by the court Intheiropin- 
 on the (luestion of tlie delivery of the ion. of the fact that theincnioranduni had 
 note or memorandum of the bar:;aln. not been ilclivered. but had In en retainetl 
 and its literal re(|uiremen ta are fullilled p<)ssessloii uf by th- defendant. Itiit in 
 by till' existence of the note or inenionin- the aiKument of I he case, counsel of de- 
 dnm of the bargain, simned by the party fendant said. "Sup|)ose the defendant 
 tobechai-Ked thereby. The statute itself had simply made a nieinorandum in his 
 ileals exclusively witii the existence and own book, that mi such a day the plain- 
 not with the c.islodv of the paper. i tiffsold toliiin; would thai b.-HUllhient . 
 
 If tlie noii-<leliverv of the note, does not To which Parke. .1., replieil. " If he meant 
 violate the letter of the statute, would it it to be a inemoraiidum of a c.intract be- 
 violate its spirit and be liable to any of tweeii the parlies, it would.' 
 the mischiefs whidi the statute was made From these authorities, ami the reasons 
 to prevent? I upon w hicli they w.r- d.ci.bul, we are of
 
 268 
 
 DRURY V. YOUNG. 
 
 opinion, that flelivery is not essential to 
 the vali(Jity of the note or menKJi-andinn 
 of sale. 
 
 The next question which arises is, wheth- 
 er th9 note or inemoranduni in this cose, 
 is signed by th.e defendant? The note is 
 in these words: " Office of Drury, Ijnms & 
 Ksniiin, Wholesale and Retail Grocers, 
 and Dealers in Flour, Feed and Fertilizers, 
 Cor. Gay and High streets. E. T. Drury, 
 \V. H. Ijams, Jr., S. M. Ranlun, .Ir. Bal- 
 timore, Aug. 2rtli, ISSI. Sold W. H. H. 
 Young & Co., L',.5()0 cans, say ■'■),01)0 doz. C. 
 C. C. tomatoes, (a) SI. 10 p'r do^.c^sh; cars 
 at Phila. Depot, Balto., Md. .5,000 dozen, 
 @S1.10c., $."5,500.00." It ap|)ears that all 
 the words, precedinK the words, " Haiti- 
 moi'e, .August L'7th, 1S81," were jirlnted, 
 and that the printed part, was a letter 
 head, and the written portion under the 
 heailing. The names of the defendants 
 being in print, and at the beginning of tlie 
 note, the question is, whether it is a suffi- 
 cient signing? 
 
 It is entirely immaterial in what part 
 of the instrument the name of tlie party 
 to be charged appears, it it is put tl)ere 
 by him, or by his authorit.y. Higdon vs. 
 Thomas, 1 H. & G., l.")2. 
 
 This decision of our court settles the 
 question that the place of the signa- 
 ture in the raenioranduni is immaterial, 
 and the English cases are equallj' em- 
 phatic, that the name may as wtll be 
 printed as written, if tlie printed name is 
 adopted by the party to be charged. 
 
 In Schneider vs. Norris, 2 Maule & Sel- 
 wyn, 2S(i, Lord Ellenborough de-ided, that 
 the appropriation and recognition of a 
 printed name was sufficient. 
 
 It is therefore a sufficient signing, if the 
 name he in print, and in any part of the 
 instrument, provided that tlie name is 
 recogiiized and appropriated by the party 
 to be his. The note or memorandum in 
 this case upon its face, contains all the 
 necessary terms of a complete bargain. 
 
 The names of the vendors and pur- 
 chasers, the quantity and quality of the 
 goods contracted for, the price at wliiih 
 they were sold, and the terms of sale, and 
 the place of delivery, are all clearly ex- 
 pres-ed therein, and make a sufficiently 
 good memorandum required by the stat- 
 ute. 
 
 If the above mentioned memorandum 
 was insufficient of itself, the following 
 letter addressed by defendants to plaintiff, 
 and which sufficiently refers in its terms 
 to the former note or memorandum, 
 would certainly he sufficient when taken 
 in connection with it, to take this case 
 out of the statute: "Office of Drury, Ijanis 
 & Rankin, Wholesale and Retail (Grocers, 
 and Dealers in Flour, Feed and Fertilizers, 
 Cor. Gav and High Streets. F. T. Drurv. 
 W. H. Ijams, Jr., S. M. Rankin, Jr. Ba'l- 
 timore, Aug. 20th, ISSl. Mess. W. H. H. 
 Young & Co.: (Jents: — We regret to say, 
 it is impossible for the Chase's Canning 
 Co. to furnish tlie 2500 eases, 3 C tomatoes 
 purchased of u.-? on 27tli inst., (n) 1.10 per 
 dozen. Nor do we think it possible to fill 
 order this season, as tlie fruit cannot be 
 procured. Hoping this ma.v be entirely 
 satisfactory. We are very respectfully, 
 
 Drury. Ijams & Rankin." There Is no 
 dispute as to the signature of the defend- 
 ants to this letter, or that it was ad- 
 dressed to tlie plaintiff, and without the aid 
 of any parol evidence it can easily be con- 
 nected with the memorandum of 27th Au- 
 gust, 1S81. 
 
 That the letter refers to the same bar- 
 gain or sale that the niemorandum does, 
 is sufficiently shown upon the fi:ce of it, as 
 it mentions the same sort of goods, the 
 same quantity and price, and refers to 
 the same date. 
 
 The two iiapers can then be connected 
 with sufficient certainty, without the aid 
 of any extrinsic evidence, and together 
 make a, niemorandum, meeting the re- 
 quirements of the statute, even if themem- 
 orandum of sale itself were insufficient. 
 
 We have then a sufficient note or mem- 
 orandum of a bargain, provided the jury 
 were satisfied that an antecedent parol 
 bargain, substantially agreeing with the 
 said note or meniorandum, had been made 
 between [ilaintiff and defendants. 
 
 Whether such antecedent parol bargain 
 had been made or not, was for the jury to 
 decide, and it was also for the jury to de- 
 termine the question, whether the printed 
 names were adopted and appropriated by 
 the defendants as theirs, as well as the 
 fact of the memorandum being the act of 
 their authorized agent. 
 
 There are eighteen prayers in the rec- 
 ord, many of them with shades of differ- 
 ence, so nice, tliat it is difficult for any 
 one, except the drawer, to see in what 
 the difference consists. The first, sixth, 
 seventh, twelfth, thirteenth and fourteenth 
 prayers of the defendiints relate to 
 the insufficiency of the niemorandum, 
 considered in itself, and from what we 
 have already said, were properly rejected. 
 The fifteenth prayer of the defendants as 
 to a variance between the oral bargain 
 and the memorandum was substantially 
 covered by the eighteenth and nineteenth 
 prayers, which were granted, and its re- 
 fusal is therefore no ground of reversal. 
 The second prayer of the defendants was 
 properl.v refused. The issue in this case 
 was whether there was a contract upon 
 which the plaintiff and defendants had 
 agreed, but there is no issue involving the 
 fact of negotiations only, and the with- 
 drawal of the defendants from such nego- 
 tiations, and the terms of the prayer were 
 calculated to mislead the jury. 
 
 The ob-ections of the defendants to the 
 testimony offered in the second bill of ex- 
 ceptions ought to have been sustained; 
 but as it does not appear what evidence 
 the parties asked gave, if any, the error 
 does not furnish sufficient ground for re- 
 versal. 
 
 The ev'ilence objected to in the defend- 
 ants' third bill of exceptions, was admis- 
 sible. 
 
 In a mercantile transaction, where the 
 terms of a written iuHtrument are tech- 
 nical or equivocal on its face, oral evi- 
 dence is admissible to explain the cora- 
 morcial usage. Williams vs. Woods & 
 Bridges, 16 Md., 220. 
 
 The question presented by the defend- 
 ants' first bill of exceptions has been ar- 
 
 1
 
 DRURY V. YOUXG. 
 
 269- 
 
 Kii?(l by his counsel with great force niid 
 iiliility, l)i>tli iipon THfiHon iiiiil iiutliority. 
 W'l' imist, however, ilorline to express an 
 ophiioD upon the Hiiljject-niattor (»f that 
 exce|)tioii, for the very olivioiis roiiscjii 
 that no decision that we conld now niaUc, 
 ujion the (luestion presented in the excep- 
 tion, could have any effect upon this case. 
 
 Tlie ()\iestion presented by tlie first ex- 
 ception was whetlier theconrt below were 
 wairanted in orderini; the production of 
 tlie paper mentioned therein, against tlie 
 protest anil objection of the ilcfendants. 
 But tiiey did produce tlie paper. 
 
 It may tie that the defendants are 
 rii^lit in tlieir hypothesis, and that the 
 court below were in error in cirderini; its 
 production, and that it lias properly n<i 
 place in tliis record. But it is in this rec- 
 ord, and we liave no power to eliminate 
 It therefrom. 
 
 'J'lie plaintiff has already received the 
 benefit from the production of the paper, ' 
 
 and we know of no way in which we can 
 
 now deprive liim of that benefit. 
 
 We would be nnulde, by u reverHal of 
 this judgment and sending the case back 
 for trial, to place the defendants in (ho 
 same situation that they were liefore they 
 pro<liiced the paper. Ity their own act 
 they have rendered that iniposHilile. For 
 the puriiose of this case, the paper Is no 
 loiiKer a private [laper, liut is in the pos- 
 session of the court and jury, and haH 
 been duly delivi-red to tlieiii liy the defeml- 
 ants, and in their possesHion. for all the 
 purposes of this suit, it must now remain. 
 It was at the option of the defendants to 
 have refui-ed to produce the paper at the 
 trial, and tal\e the risk of a juiltinient by 
 default, if the court below slioulil have de- 
 termined to render one ai;aii!Ht them, and 
 upon an appeal from such judgment the 
 (luestion would have been properly be- 
 fore UH. 
 
 Judgment allirmed.
 
 DUSTAN V. McAXDHEW. 
 
 271 
 
 DUSTAN V. M.ANDRKW. 
 
 C'diiimission of Appuuls of New York. Dec. 28, 
 1870. 
 
 Action for breach of c(<iitrarl. On Auk. 
 :.M, lNG(t, J. S. & W. Urown, of the city of 
 New Yorl<. executed on a^reenieiit witli 
 tlie phiiiitlff aH followH: "In conHidern- 
 tioii of tlie sum of one dollar, the receipt 
 of wliich is hei'chy acknowledged, we have 
 Kold thin ilay to Mr. Jolin K. UuHtan, of 
 tlii.s city, 101), 000 pounds of first sort west- 
 ern or eastern hops as we may select; 
 growth of ls()0; deliverable in tlie city of 
 .New York, at our tjption, durliiji the 
 months of t)ctoljer or November, l^'io. at 
 seventeen cents per pound, subject to Mr. 
 J. S. Brown's Inspection, or other mu- 
 tually satisfactory. Terms, cash on ilellv- 
 ery. Mr. Dustan's name to be made satis- 
 factory either by indorsement or l)y Ji ile- 
 posit of *2,r)00 by bolh [larties. J. .S. & \V. 
 lirown. " 
 
 (^n Sept. 7, the plaintiff sold this con- 
 tract to the defendants, by an instrument 
 as follows: "In consideration of the sum 
 of one dollar, the receipt of which is here- 
 by acknowled^red, I have this day sold to 
 .\lc.\ndrew & Wnnn the contract of .1. .S. & 
 W. lirown.datedLMth AuKUst, IMIo.for loo.- 
 000 pounds first sort hops, western or 
 eastern, grow th of Im;o; upon condition 
 that the said Mc.\ndrew i: Warm fullill 
 the conditions of said contract to the said 
 .). S. i*i W. Brown, and i>ay to me, in ad- 
 <lition, on delivery of the hops, ten and 
 one-hnir cents per pound. .lolin K. Dus- 
 tnn. New York, September?, Is(i0." 
 
 On Nov. 2s. J. S. & W.Itrown notiliedthe 
 plainlirr by letter, that they would de- 
 liver the hops pursuant to contract on 
 tlie :iOth of that month : and plaintiff im- 
 mediately, on the same day. notllied the 
 defendants of that fact, inclo.-iinj^ to them 
 the letter of .1. .S. & W. Brown; ;ind on 
 the same day the said J. .s. & W.Brown 
 wrote a similar letter to the defendants. 
 These notices actually came to the hands 
 of the defendants on the morninfx of the 
 liOth. 
 
 Prior to Nov. ;!0, .John S. Brown had 
 inspected the liops and put his braml 
 upon them, and certihed that they were 
 Hucli hops us the contract called for. On 
 Nov. :il) .1. .S vV: W. Brown were ready and 
 willinf; to deliver the hoiis, and the defenil- 
 ants were reiiuested to take them, anil 
 they declined on the sole ground as they 
 claimed, that they had not had an oppor- 
 tunity to examine them and inspect their 
 (piality, and because Messrs. Brown had 
 refused to let an inspector whom they 
 sent, inspect the hops. 
 
 On Dec. L'4 the plaintiff took the hops 
 from Messrs. Brown and paid for tliem, 
 and on the same ilny wrote the followins 
 letter to defendants: "New York. Decem- 
 ber '.Mth. lsc,((. .Messrs. .McAndrew \- 
 Wanii: (iputlenien.— The mo.iiiio pounds 
 iKips mentioned in contract of.). S. \- W. 
 Brown with me, of 24Hi .\ufrust, IstiO. and 
 In contract of yourselves with me of 7th 
 September, ISOO, ni-e now at the store No, 
 4 Bridge street, awaiting the fullillment 
 hy you of the terms of your contract, and 
 
 I hereby teri<hT to you the said hopH, and 
 demand from you the payment of the sum 
 nf $'.'7,500. the amriiint of swi-h contrart 
 price. Unless you comply with I he terms 
 of said contract, on or before the 'JiJth day 
 of December, Instant, I v,i\\ proceed to well 
 the same on your uccou'it and hold you 
 for any deficiency. Your obedient serv- 
 ant. .John F. Dustan. " 
 
 Defendants still declined to take the 
 hops, and then on Dec. Lfi plaintiff placed 
 them in the han<ls of a hop broker, who 
 sold them for twenty cents per pound. 
 
 The plaintiff also gave evidence that on 
 Nov. :!0 anil on Dec. M twenty cents per 
 pound was the fair market value of the 
 hops; and the defendants j;ave evidence 
 that en both of these days the market 
 value wa-! some cents higher. Tlierewas 
 also evidence showini; that hops had a 
 downward tendency in market all through 
 the month of December. It was shown 
 that the ho|is in all respects answered the 
 contract, .lud^ment for plaintiff. 
 
 William A. Bench, for appellants. John 
 N. Whiting, for respondent. 
 
 E.\RL, C. The contract rei)uired that 
 the hops should be in>*pected hy J. S. 
 Brown, or some other inspector satisfuc- 
 toi-y to both parties. In case .J. S. Brown 
 could not or sliould not inspect them for 
 any reason, then they were to be inspect- 
 ed by some other person mutually satis- 
 factory. Neither party had the right to 
 demand any other inspector, unless 
 Brown neglected or refused to Inspect. It 
 is doubtless unusiiul to insert a stipula- 
 tion in contracts that the vendor shall 
 inspect the goods sold. But where par- 
 ties agree to this they must he bound by 
 their contract, and it must he construed 
 the same as if some other (lerson hod been 
 chosen inspector. 
 
 It is claimed <m the part of the respond- 
 ent, and was held l>y the court below. 
 that the inspection provided for was In- 
 tended simply lor the convenience of the 
 vendors, to enable them to perform their 
 contract, and that It merely furnished 
 prima facie evidence that the hops an- 
 swered the contract, and that the inspec- 
 tion was not conclusive upon the parties. 
 I cannot assent to this. The contract 
 was for the sale and purcnase ot hops of n 
 certain description, and the objin-t of the 
 inspection was to determine for the hen- 
 etit of both parties whether they answered 
 that description. Tntil the vendors de- 
 livered the hops with the inspection, the 
 vendee was not obliged to pay. and when 
 so delivered, the venilors were entitled to 
 the purchase-price. The inspiH-tion wan 
 thus as much foi- the convenience and ben- 
 efit of one party as the other. Its pur- 
 pose, like simllai provisions in a variety 
 of contracts, was to prevent dispute and 
 litiLMition at and after performance. Hut 
 if the inspection was merely for tlie con- 
 venience of the veiiilurs. then they could 
 dispensewith it, and compel thevendeesto 
 take the hops without any Inspection 
 whatever. And if It was merely priinn 
 facie evidence of the i|uallty of the hops, 
 then it was an Idle ceremony, because not 
 being binding, the vendee could still dis-
 
 272 
 
 DUSTAN V. McANDREW. 
 
 I)ute the quality of the hops, refuse to take 
 them, and show, if he could, when sued 
 for not tukuiff them, that tliey did not 
 answer vhe requirements of tlie contract ; 
 and thus the plain iiurpose for wliich the 
 provision was inserted in the contract 
 would 1)6 entirely defeated. 
 
 The inspection could l)e assailed for 
 fraud, or bad faitli in making; it, and per- 
 haps witliin tlie case of McMahon v. New 
 York & Erie H. Co., 20 N. Y. 4()3, l)ecau.se 
 made without notice to the vendee. The 
 inspection here was made without notice; 
 but it is not necessary to determine 
 whether this renders it invalid, as no such 
 defense was intimated in the answer or 
 upon the trial. 
 
 By the purchase of the contract the de- 
 fendants were substituted, as to its per- 
 formance, in the jjlace of the vendee there- 
 in named, and were bound to do all that 
 he had atcreed to do or was bound in law 
 to do. When notified that the hops were 
 ready for delivery they declined to take 
 them, upon the sole ground that they had 
 not had an opportunity to examine or in- 
 spect them ; and tliey claimed that tliey 
 had sent one Smith to inspect them, and 
 that he had been declined p(!rmission to 
 inspect them. Thare was no proof how- 
 ever that they ever tried to examine or in- 
 spect the hoi)s, or that the vendors ever 
 refused to permit them to examine or in- 
 spect them. They sent Sinitli to inspect 
 tliem, and he went to one of the several 
 storehouses where some of the hops were 
 stored, and he says he was there refused 
 an opportunity to inspect them by Mr. A. 
 A. Brown. But there is no proof that he 
 was in any way connected with the 
 vendor, or that he had any agency or au- 
 thority whatever from tiiem. There was 
 no proof that defendants ever tried with 
 the vendors to at;ree upon any otiier in- 
 spector, or tliat they ever asked the ven- 
 dors to have the liops inspected by any 
 other inspector, and they made no com- 
 plaint at any time that they were in- 
 spected without notice to them. The 
 point thiit they should have had notice 
 of the inspection was not taken in the 
 niotion for a nonsuit, nor in any of the re- 
 quests to the court to charge tlie jury. If 
 tlie point liad been taken in the answer 
 or on the trial, the plaintiff might perhaps 
 liave shown tliat notice was given by the 
 vendors, or thit it was waived. 
 
 Hence we must hold, upon the case as 
 ])resented to us, that there was no default 
 on the part of the plaintiff or the vendors, 
 
 and tliat the defendants were in default 
 in not taking and paying for tiie liops. 
 Tlie only other (juestion to be considered 
 is, whether the court erred in the rule of 
 damages adopted in ordering the verdict. 
 
 The court decided tliat the plaintiff was 
 entitled to recover the difference between 
 the contract price and the price obtained 
 by tlie plaintiff upon tlie resale of tlie 
 hops, and refused, upon the request of the 
 defendants, to sulimit to the jury tliecjues- 
 tion as to tlie market value of the hops 
 on or about the 30th day of November. 
 
 The vendor of personal property in a 
 suit against the vendee for not taking 
 and paying for the property, has the 
 choice ordinarily of either one of three 
 methodsto indemnify himself. (1) Heinay 
 store or retain the property for the ven- 
 dee, and sue him for the entire purchase- 
 price; (2) He may sell the property, act- 
 ing as tlie agent for this purpose of the 
 vendee, and recover the difference between 
 the contract price and the price obtained 
 on such resale; or (3) He may keep the 
 property as his own, and recover the 
 difference between the market price at 
 the time and place of delivery and the con- 
 tract price. 2 Para. Cont. 484; Sedgw. 
 Dam. 282; Lewis v. Greider, -JO Barb. «06: 
 Pollen V. Le Roy, 30 N. Y. .549. In this 
 case the plaintiff chose and the court ap- 
 plied the second ruleabove mentioned. In 
 such case the vendor is treated as the 
 agent of the vendee to make the sale, and 
 all that is required of him is that lie should 
 act with reasonable cure and diligence, 
 and in good faith. He should make the 
 sale without unnecessary delay, but he 
 must be the judge as to the time and place 
 of sale, provided he act in good faith and 
 with reasonable care and diligence. Here 
 it is conceded that the sale was fairly 
 made; it was made in the city of New- 
 York, in less than one month from the 
 time the defendants refused to take the 
 hops. It was not claimed on the trial 
 that the delay was unreasonable, and we 
 can find nothing in the case to authorize 
 us to hold that it was unjustifiable. We 
 are therefore of the opinion that the court 
 did not err as to the rule of damages. 
 
 The judgment should therefore be af- 
 firmed, with costs. 
 
 For attirmance: LOTT, C. C. ; EARL 
 and HUNT, CC. (jR.\Y, C, dissented on 
 the ground that the delay in selling was 
 too great. LEONARD, C.,did not vote. 
 
 Judgment affirmed, with costs. 
 
 1
 
 EASTER V. ALLEN. 
 
 275 
 
 EASTER et al. v. ALLEN. 
 
 (8 Allen, 7.) 
 
 Supreme Judicial Court of Massaohnsotts. 
 Essex. Jan., 1804. 
 
 Replevin. At the trial the plnintiffH in- 
 troiluct'd evidence tlint the goods were ob- 
 tained from them by N. Allen without 
 payment, and by fraud and fuUe prcteiiKeB. 
 For the jiurpose of Khowlng fraud, they 
 offered ovideiiee to hIiow that two days 
 after the transaction AWcu went into a 
 store in I'.oston to purchase goods, and 
 informed the salesman that he liacl taken 
 n lease of a store, and was goi'iK into bus- 
 iness, and nave the name of I). F. Dodsxe, 
 as a reference; and they offered to show 
 what DodHO said in reply to incjuiries 
 made of hiui by tlie salesman. It was not 
 contended that the answers of Dodjrewere 
 a i>art of the pretenses under which the 
 plaintiff's {::oods were obtained, or that 
 they were false; and the judRO rejected 
 the evidence. The i)laintiffs also offeicd 
 to sliow that, in a subseiiuent interview 
 with the same salesman, .Mien introduced 
 to him one .J. T. Dodue, as a dealer in tluiil 
 lamps on Tremont Row, in Boston; and 
 that the salesman inquired at Tremont 
 Row, an<l founil that said Dodge was not 
 u dealer in fluid lamps there. This evi- 
 dence was rejected. 
 
 One of the plaintiffs testified as a wit- 
 nes.s, and the defendant offered to show, 
 by cross-examination of him, that five 
 days liefore the trial he made a com|)lajnt 
 against N. Allen for obtaining the goods 
 by false pretenses, and that the warrant 
 which issued thereon was served on the 
 morning of the trial, l)y arresting Allen. 
 This evidence wa.s objected to, but tl;e 
 judge admitted it to show bias or inter- 
 est, thereby affecting the credibility of the 
 witness. 
 
 The judge instructed the jury that, it be- 
 ing agieed that the goods came into the 
 possession of the defenilant by a transac- 
 tion wliich had the form of a sale, the 
 burden was on the idaintiffs to show, by 
 ii |)reponderanco of testimony, not only 
 that the goods were obtained by said N. 
 Allen by false pretenses, but that the de- 
 fenilant was not an innocent |)urchaser. 
 
 The jury returned a verdict for tlie de- 
 fendant, and the plaintiffs alleged excep- 
 tions. 
 
 G. E. Betton, for plaintiffs. S. B.Ives, 
 Jr., (H. G. Johnson with hiin.) for defend- 
 ant. 
 
 .MKRRICK, J. It appears from the bill 
 of exceptions to have been satlnfactorily 
 proved or admitted tliat the goods re- 
 plevied were formerly own<;d by the plain- 
 tiffs, and were sold liy them to N. .Vllen. 
 lie afterwards sold and delivered them to 
 defendant, who claims title tliereto only 
 under and by force of that sale to him. 
 The plaintiffs alleged that the saleby them 
 to N.Allen was induced, and that he ob- 
 tained possession of the goods, by fraud 
 and by false and fraudulent pretenses. It 
 such was the fact, they may nndoul)tedly 
 rescind and avoid their contract of sale, 
 and may maintain this action against the 
 defendant, unless he was n purchaser iu 
 
 good faith, for value paid and without 
 notice of fraud. Iloffnian v. .Noble, (i Met. 
 G8. Rowley v. BIgelow, IL' I'ick. :JU7. 
 
 The plaintiffs, haviiii; produced evidence 
 upon the trial tending to show the alleged 
 fraud, jtskeil the court to instruct the jury 
 that if .\. Allen obtained the goods from 
 them liy fraud and false pretenseB. the 
 burden of proof was upon the defendant 
 to show th;it tie bought tlicra in eood 
 faith and for value paid. 
 
 But the court declined to accede to this 
 reiiuest.and rules that thelinnlen of i)roof 
 was on the plaintiff to show by a prepon- 
 derance of evidence, not only that the 
 goods were obtained by N. .Mien by false 
 pretenses, l)ut also that the (Kfendant was 
 not an innocent purchaser; and the jury 
 were accordingly instructed to that effect. 
 
 This ruliuir was erroneous. It was sulli- 
 cient in the first instance for the plaintiffs 
 to i)rove that they were the owners of 
 the goods, and that their title thereto 
 was never divested by any lawful con- 
 tract liiniling up<»n tliem. They had, 
 therefore, if such were the fact, an un- 
 doubted right to reclaiui and recover the 
 goods from any [)erson who •hail not pur- 
 chased them in good faith and for value 
 paid. This is an exception of which the 
 defendant might avail himself. But, to 
 establish the validity of his title aci|uircd 
 under the sale tn .N. .Mien, it is incumbent 
 on him to show that he was a purchaser 
 in fact, and i)aid value for the goods. 
 I'roof to this effect will establish his right, 
 unless it be further siinwn by the plain- 
 tiffs that, at the time of his purchase, he 
 hail kiiow'ledge of the fraud. 
 
 In resjiect to proujissnry notes, it has 
 bien repeatedly determined that if they 
 have been fraudidently obtained from tne 
 maker, or fraudulently put into circula- 
 tion, in un action thereon by an indorsee, 
 the burden of |)roof, after such fraud has 
 been established, is on him to show that 
 he became possessed of them in good faith, 
 liy a purchase and payment of value. .Sis- 
 termans v. Field, !) (irav, :!."!1. Kstalirook 
 V. Boyle. 1 Allen, 41-'. Tucker v. Morrill, 
 lb. n-2s. Smith v. lOdgeworth, :{ Allen. 'SXi. 
 The reason of the rule is apiilical>le with 
 greater force to the case of chattels ob- 
 tained by fraud; and thereforea purchaser 
 from a "fraudulent grantee, who had no 
 just title, ought to be reiiuired to prove a 
 fact necessarily in his own knowledge. If 
 such fact occiirred, that lie paid value for 
 the goods which he purchased. Tliis rule, 
 in its application to chattels, was dis- 
 tinctly recognized and alllrnied in thecnso 
 of I'ringlo V. I'hillips, .'> Sandf. l.">7. And 
 so in the cases of Hoffman v. .N"ol)le and 
 Rowley v. Bigelow, ubi sur>ra, the subse- 
 (|neni "purchaser was allowed to maintain 
 his title upon showing alllrmatlvely on 
 his part that lie paid value for the chat- 
 tels transferred to him by a fraudulent 
 vendee. The same rule has been observed 
 and practically enforced in reference to 
 real estate. Somes v. Brewer, - i'it*. 1S4. 
 Green v. Tanner, s Met. 411. 
 
 The further rulings of the court, to 
 whicli exception was taken by tlie plain- 
 tiffs, were unobjei-tionalile. The testi- 
 mony offered as to what was s.il.l by D. 
 P. Uodge, und what answers, were rt-
 
 27f. 
 
 EASTER 0. ALLEN. 
 
 turned to the plaintiffs to their inquiries 
 niiide in Tremont Row, was, iniiicr the 
 circiiiiistanccs stntecl, inatlinissilile. It 
 was an offer of proof, not of vvhat was 
 said by any party to tlio suit, as to any 
 of the matters involved in its issue, but by 
 strangers wlio had uo connection witli or 
 interest in it, and therefore was obviously 
 incompetent. The evidence which \Nas 
 admitted in relation to tlie conduct of the 
 plaintiffs in reference to the attendance 
 cf N. Allen as a witness on tlie trial was 
 competent, as having some tendency to 
 
 show an effort on their part to suppress 
 tlie introduction of material evidence in 
 the case, and thus to obtain an unfair and 
 unjust advantage. Such conduct might 
 well create a doubt whether their allega- 
 tion as to any fraud committed by Allen' 
 was well founded. 
 
 The exceptions, therefore, as to the re- 
 jection and admissibility of evidence must 
 be overruled; but they are sustained as 
 to '.he ruling of the court upon the subject 
 of the burden oi i)roof. 
 
 Exceptions sustained. 
 
 I
 
 4
 
 EDGERTON v. HODGE. 279 
 
 KDGRRTON T. IIODGIO. ' ducting freiiilit nnil comnilHsion, then I 
 
 (41 Vt CTi!) linil <liie (lip pliiinfiff $411.1)1. If the cnr- 
 
 rt'iit price in llii- country, jiiiid by pur- 
 Suijrcmo Courl of VcriiKmi. Kiillaiid. Jan. I t'li'iHccH and Hcnt by tlicmto market, 1h to 
 Tcnii, 18U'J. '"^ t'"? '•"''••. tlicn 1 lind due the plaiiitlH the 
 
 Kuni of if:w,.:\2. " 
 AHSunipsit, whicli was referred to a ref- " Doisef. .hily IhI. lsr>4. Mr. EilRcrton • 
 eree, who reported: "That on the 30th .Sir:— According to our talk vcMterdiiy voii 
 day of .liine, lst)4, tlie parties made an bou«lit my checHe for the hcason. I Khali 
 aKiecment liy parol, by wliich the defend- Htand to it, Imt Hhall want von to pay ine 
 ant agreed to well t(j tlio plaintiff what ] fifty dollai-H to bind it. I Hpone there Ih 
 new milk cheewe he then had on hand, and notliin^ holding unUss there Ih money 
 iinKold.amountiii}; to il7.')lbH..and the now i)aid. I do not wiMJi von to think 1 w l«h 
 milk cheese ho Khould make thereafter to lly from Icttiri},' you liavc it ho that it is 
 duriiiK llie sca.son, and the plaintiff agreed sure. I will pav you Interest on the 
 to |)ay thedelendant thereforat the rateof nioney until the fact cheese Ik ilellvered. 
 fifteen and a half cents per pound, and Yours in haste. J. U. C Hodge, per A. II." 
 ei'ery twenty days thereafter agreed to "I'awlet, Jidy 2, Im;4. Mr. lloilge: 
 call at the defendant's house in Dorset, Dear Sir:— I enclose von fifty dollars to 
 select such cheese as would be fit for apply on your dairy o"f cheese "as you pro- 
 market, attend its weight there, and pay |)osed. Yours, truly, S. Kdgerton." 
 the defendant for the cheese so selected! The court at the March term, IM'.S, Pier, 
 and weighed, anil then the defendant was point, (". .]., presiding, rendereil judgment 
 to (ieliver the same to the plaiiiliff a t the on tlic leport that tlie plaintiff recover of 
 railroad depot in Manchester. The day the defendant the smaller sum reported 
 after the al)ove agreement was made, tlie by the referee, and for his costs, to which 
 defendant, by his son, Albert Hodge, wrote the defendant excepted, 
 and sent by mail a letter to th" plaintiff 
 
 (a copy of which is annexed, dated Jnlv 1, ^ I''iy<'tte Potter, for plaintirf. Edgerton 
 IWM.) depositing the same at the post « iNieholson and J. B. Bromley, for do- 
 oflice in lOast Rupert, and directed to the ''^"''""'• 
 plaintiff at I'awlet, and received by him | 
 
 by mail on the same day. The ne.\i day, WILSON, J. The parol agreement, en- 
 after the return mail from I'av. let to 1 tered into by the parties, J une ;!Otli, being 
 East IJiipert had gone out, it being on for the sale of goods, wares ai.d mer- 
 Satiirday, tlie plaintiff enclosed in a letter, chandise for the price of forty dollars and 
 directed t<» the defeiulant, at Kast Rupert, more, is within the statute of fraii.ls. nod 
 and left it in the jiost oflice at I'awlet, to inoperative, unless taken out of the stat- 
 bo carriecl by mail to the defendant, the iite by the suiiseijuent acts of the parties, 
 sum of lifty dollars. (A copy of plaintiff's It is claimeil by the iilaiiitiff that the de- 
 letter is hereunto annexed, and the envel- feiidanfs letter under date of .Inly 1st, 
 ojie enclosing the lifty dollars Is post- : an<l the depositing of tli.^ plaintiff's lei- 
 niarUed ' I'awlet. .Inly 1.') This letter of ter with the lifty dollars In the postollice 
 the plaintiff was, on the sth day of .lul.v, on the L'd of that month, constitute a pay- 
 INCil, handed to th" said .Mbert Hodge, by meat of part of the purchase money wlth- 
 tlie postmaster of Kast Rupert, anil it in the miaiiing of the statute. It will be 
 was on the same day carried by him to nbserved that when those letters were 
 the ilefi'iidant, opened by the said Albert, , written, no binding agreement had been 
 tlie til ty dollars refused to be received by concluded. The defenilant, in his letter of 
 the defendant, and the letter of the plain- .lul.v 1st, says: "Accoriliiig to our talk 
 tiff, with the lifty dollars, and tiie envelope yestei'd'iy, ;. on bought my cheese tor the 
 enclosing them, were, by mail, returned to season. I shall stand to it, but shall want 
 the plaintiff, with no comniunicalioii ac- lifly dollars to bind it." By that letter 
 conipanying tliem from the defenilant. the plaintiff was notitied that he could 
 The [ilaintiff received the so enclosed make tlie Ijargain binding upon himself 
 wiapper, money and letter, on the'.tlhof as well as the defendant, by paying to 
 .luly, IS(;4, and kept the same lifty dollars the defendant the sum demanded lor tliat 
 for six months thereafter. A daily mail purpose. Tlie plaintiff on li.e ".'il do.v of 
 is carried bet ween the postollices of Paw- July enclosed lifty dollars in a letter, di- 
 let and Kast Rupert, a distance of six reeled to the defendant and deposited it 
 miles. On the L'Oth day of July, lS(i4, the in the postotlice. whicli letti-r was dellv- 
 plaintiff sent word to the defenilant to ered to the defendant on the Siii of that 
 deliver what cheese he had lit lor market , miinth. lie did not accept the money, 
 to the depot in .Manchester. The defend- but rcturni-d it to the plaintiff. It Is 
 ant replied to the messenger that lie !iad clear that the act of depositing the letter 
 no cheese for the plaintiff. Xo other com- and the money in the postotlice was not 
 niuni:'atioii ever tO()k place between the a payment to the defendant. His letter 
 parties in regard to the cheese after the did not direct the money to be sent by 
 return of the money as .'ibove stated until mail: it contains nolhiiig that would In- 
 tliis suit was brought. The defendant dicate that the defenilant expected the 
 sold all his cheese to other parties, mak- plaintiff would reply liy letter, or ncci-pt 
 ing his Hrst sale on the L'Cth dav of Jnlv, the proposition by de|iositing the money 
 iMiJ. If the court shall be of opinion that In the postolMce: and the fact that the 
 from the foregoing facts the iilaintiff is en- I defendant by letter offered to allow the 
 titled to recover, and that the rule of plaintiff to perfci t the agreement, by pay- 
 rlamages should be the .New York market lug part of the purchase money, diil not 
 price for cheese for the season of 1>>(U, de- 1 authorize or invite the plaintiff to send
 
 280 
 
 EDGERTON v. HODGE. 
 
 the ninnpy by ninil, or make the mail the 
 defendant's carrier of the money. The lan- 
 Suuge of the defendant's letter iti: "I shall 
 want you to pay me tifty dollars to l)ind 
 it," that is, to make it a valid contract. 
 
 The money, when deposited in the post- 
 office, belonsred to the plaintiff; It bo- 
 longed to the plaintiff while being car- 
 ried by mail to the defendant, and it 
 would continue the property of the plain- 
 tiff unless aecei)ted by the defendant. The 
 plaintiff took the ri.sk not only of the safe 
 conveyance of the money to the defend- 
 ant, but also as to the willingness of the 
 defendant to accept it. The defendant's 
 letter, not constituting snch a note or 
 memorandum of the agreement as the 
 statute required, left it optional with the 
 defendant to accept or refuse part pay- 
 ment when offerei] to him, the same as if 
 the defendant had sent to the plaintiff a 
 verbal communication of the same import 
 as the defendant's letter. A point is made 
 by counsel as to whether the money vi-as 
 conveyed and delivered or offered to the 
 defendant, within a rensonaltle time after 
 his letter was received by the plaintiff, 
 but it seems to us that the time the money 
 was offered is not material. We think, 
 even if the plaintiff had gone immediately 
 after receiving tlie de[?ndant'8 letter, and 
 offered and tendered to him the fifty dol- 
 lars, the defendant would have been un- 
 <ler no legal oliligation to accept it. The 
 mere offer of the defendant to receive the 
 money would not estop him from refusing 
 to accept it ; but in order to take the case 
 out of the operation of the statute, it re- 
 quired the agreement or consent of both 
 parries, as to payment by the plaintiff 
 and acceptance of it by thedefendant. Up- 
 on the facts of this case, we think the 
 rights of the parties rest upon and are to 
 be determined by the verbal agreement en- 
 tered into by them on the :iOthofJune, 
 and that their subsequent attempts to 
 make that agreement a valid contract 
 can not aid the plaintiff. The statute 
 provides that "no contract for the sale of 
 any goods, wares or merchandise, for the 
 price of forty dollars or more, snail be val- 
 id, unless the purchaser shall accept and 
 receive part of the goods so sold, or shall 
 give something in earnest to bind the 
 bargaiti, or in part payment, or unless 
 some note ormemorandum of the bargain 
 be made in writing, and signed by the 
 party to be charged thereby, or by some 
 person thereunto by him lawfully author- 
 ized." 
 
 The very language of the statute above 
 quoted implies that in whichever way 
 the parties verbally agree or propose that 
 contract for the sale of goods, wares or 
 merchandise, for the price of 5^40 or more, 
 shall be made exempt from the statute of 
 
 frauds, whether it be by the purchaser ac- 
 cepting and receiving part of the goods so 
 sold, bj' giving something in earnest to 
 bind the bargain, or in part payment, or 
 by making a note or memorandum of the 
 bargain, it must be done, if done at all, by 
 the consent of both parties. It is obvious 
 that it would require the consent of the 
 purchaser to accept and receive part of 
 the goods, and he could not receive them 
 unless by consent of the seller; the pur- 
 chaser could not give something in earnest 
 to bind the bargain, or in part payment, 
 unless the seller accept and receive it; nor 
 could a note or memorandum of the bar- 
 gain be made and signed unless by the 
 consent of the party to be charged there- 
 by. A valid contract is an agreement or 
 covenant between two or more persons, 
 in which each party binds himself to do 
 or forbear some act ; and each acquires a 
 right to what the other promises; but if 
 the parties, in making a contract like the 
 pi'esent one. oujit to do what the statute 
 requires to be done to niaUe a valid con- 
 tract, it would require the consent of both 
 parties to supply the thing omitted. Sup- 
 pose it had been one stipulation of the 
 verbal agreement on the 3Uth of .June that 
 the plaintiff should give and the defend- 
 ant receive something in earnest to bind 
 the bargain, and in pursuanceof such stip- 
 ulation the plaintiff had then offered to 
 give or pay the amount so stipulated, 
 and the defendant had refused to receive 
 it, saying that he preferred not to receive 
 any money until lie had delivered the 
 whole or part of the pi'operty, or had re- 
 fused to accept the money so offered, or do 
 any other act to bind the bargain, with- 
 out giving any reason for such refusal, it 
 would be evident that he did not intend 
 to make a binding contract. But the fact 
 that he had made such verbal agreement 
 to receive something or to do some other 
 act to bind the bargain, and that the 
 plaintiff was ready and offered to comply 
 on his part, would not take the agreement 
 out of the statute. A verbal stipulation 
 to give and to receive something In ear- 
 nest to bind the bargain or in part pay- 
 ment, or a verbal promise to make a note 
 or memorandum In writing necessary to 
 exempt the agreement from the operation 
 of the statute, is as much within the stat- 
 ute of frauds as is the agreement or con- 
 tract taken as a whole; and a note or 
 memorandum in relation to giving some- 
 thing in earnest to bind the l)argain, or in 
 part payment, which is insufficient of itself 
 to take the contract out of the statute, is 
 alsoinsuflicieot to make thecontract bind- 
 ing upon either party. 
 
 The judgment of the county court is re- 
 versed and judgment for the defendant for 
 his costs.
 
 mJ
 
 EICHHOLZ V. BAlJINISTER. 
 
 28:$ 
 
 KTfllllOLZ V. BANNISTKR. 
 
 117 C. B. [N. S.] 70S.) 
 
 Common Tlias, Micliaolmas Term, 28 Victoria. 
 
 Nov. 17, ISUl. 
 
 This w;iH an action for inonc.v pn.vnble 
 l)y tluMleffiiilniil to the pliiitiliff forinonc.v 
 received l)V the (lefciiiluiit fur the use of 
 the plaintiff, for money paid by the plain- 
 tiff for tlie (lefeiidant at hlH reciiiOHt, and 
 foi' money found to lie due from thedefetid- 
 anl to tile plaintiff on uccountH staled : 
 Claim, »:i'.l. I'lea, never inilebted, where- 
 upon iHKue was joined. 
 
 The cjinse waH tried in the court of rec- 
 (11 cl (or the trial of civil actions within the 
 citv of Manchester, hefore the deputy re- 
 corder, when the fads which appeared in 
 eviilence were as follows:— The plaintiff 
 WHS a coniiniHsioii-anent at Manchester. 
 Thedefendant wnsa job-warehouseman in 
 the same place. On the isth of Ai>ril last, 
 the iilainliff went to the defendanfs ware- 
 house, and there saw, amon};st other 
 goods which the defendant had just iinr- 
 chased, 17 pieces of prints, which heoffered 
 to buv of him at .">y,d. a yard. After some 
 discussion, the defendant nKreed to sell 
 them, and u'ave the plaintiff an invoice in 
 thefollowinn form, the wlioleof whichwas 
 printed, with the exception of the luirls in 
 italics: — 
 
 "21, Chorlton Street, Portland Street, 
 "Manchentor. April 18th, lS(i4. 
 
 " Mr. I-Jichholz 
 
 '• Itought of R. Bannister, Job-Ware- 
 hoiiseniaii. 
 
 • Prints, Kents, Grey FnBtians.etc. Job 
 and Perfect Yarns in IlanUs, Cops, and 
 Bundles. 
 
 "17 pieces o/prfa(s, 52 yds at 5J^ d. 19 
 " IK per cent, for cash 
 
 "£1S U 0" 
 The plaintiff paid for the soods before 
 he left the warehouse, ami the defendant 
 sent them by a porter to the plaintilf's 
 place of business. The plaintiff sold the 
 lot a few days afterwards for Xl'.l l">s. net. 
 The gooils were snbseiiuently returned to 
 the plaintiff, they havinR been reco^ruizetl 
 as K'>"<ls which had been stolen from the 
 premises of one Krauss. The j^oods were 
 taken possession of by the police, and the 
 thief, one Asiiinall, was tried at the gen- 
 eral (luarter sessions of I he peace holden 
 in and for the city of Manehister on the 
 '.)tli of Mav last, and convicted, and sen- 
 tenceil to pen.il servitude for four years. 
 
 On the part of the defendant, it was ob- 
 jecleil that there was no case to fi<> to 
 the jury, inasmuch as there is no implieil 
 warranlv of title on the sale of (roods. 
 
 Kor thi' plaintiff it was insisted that he 
 was entitled to recover, the money hiivins; 
 been (laid upon a consideration which had 
 wholly failed. 
 
 The learned judge directed a verdict to 
 be entered for the plaintiff for the amount 
 c;aiined, reserving leave to the defendant 
 to move to set aside the yer<lict and en 
 ter a nonsuit or a verdict for the defend- 
 ant, if the court should be of opinion that 
 the plaintiff w;is not entitled to recover. 
 Holker. on a former day in this term, ob- 
 tained a rule nisi acconlingly. C. rollock 
 now shewed cause. 
 
 ERLi:, C. .1. I am of opinion that this 
 rule should be ilischarged. 'I'lie plaintiff 
 brintis his action to recover l>ack m<<ney 
 
 which he paid (or g Is bought by liliu 
 
 intheshop.of the ilefeinlant. which were 
 afterwards liiwinlly claimed from him by 
 a third person, the true owner, from whom 
 they had been stolen. The plaintiff now 
 claims to recover back the money as hav- 
 ing been paiil by him uiion a c<insidera- 
 tion which has failed. Tin- jury at the 
 trial friund a verdict for the plaintiff, under 
 the ilirection of the learned judge who 
 presided: and a rule has been obtained 
 on behalf of the defendant to set aside 
 that verdict and to enter a nonsuit, on 
 the ground tliat it is part of the common 
 law of Kngland that the vendor of goods 
 by the ini-re contract of sale does not war- 
 rant his title to the goods he sells, that 
 thebuyer takes them at his peril, and that 
 the rule caveat emptfjr applies. The case 
 has been remarkably well argued i-n both 
 sides; and the court are much indebteil to 
 the learned counsel for the able assistance 
 they liave rendered to them. The result I 
 have arrived at, is, that the plaintiff Is 
 entitled to retain his verdiit. I consliler 
 it to be clear upon the ancient authorities, 
 tiiiit, if tlie vendor of a chattel by word 
 or conduct gives the iiurchaser to under- 
 stand that he is the owner, that tacit 
 representation forms part of the contract, 
 and tliat, if he is not the owner, his con- 
 tract is broken. So is the law lalil down 
 in the veiy elaborate judgment of I'arke, 
 B., in Morley v. Attenborongh, a Kxch. 
 500, .'il:!, where that learned judge puts the 
 ease upon which I ground my judgment. 
 A difference is taken in some of the cases 
 tietwecn a warranty and a condition:' 
 but that is foreign to the present Inrpiiry. 
 In iMorlev v. Attenborongh, :! Kxch. .'d:!, 
 I'arke, B.. says: "We ilo not sn|i|>o=«e 
 that there wouUl be any doubt, if the arti- 
 cles are bought in a shop professedly cnr- 
 rieil on for the sale of u<iods. that the 
 shopkeeper must be considered as war- 
 ranting that those who purchase will have 
 'I good title to keeii the goods purchased. 
 In such a case the vendor sells "as his 
 own,' and that is what is ecpiivalent to n 
 warranty of title." No doubt, if a shi^p- 
 keeper in words or by his comhict alhrms 
 at thetimeof the sale that he is tiieotvner 
 of the -oods, sue!) allirmatiou becomes 
 part of the contract, and. if it turns out 
 that he is not the owner, so that the 
 goods are lost to the l>nver. the price 
 wliicli he has received may be recovered 
 back i ventured to throw out some re- 
 marks in the course of the argument upon 
 the doctrine relied on by Mr. Holker, wlilch 
 ! he answered by ass.'rfion alter assertion 
 1 ciimiug no doubt from judges of great au- 
 i thorltv in the law, to the effect that upon 
 la sale"<if goods there is no inipbed war- 
 ranty of title. The passage citc.l fr.iin 
 N()y"certainly puts the proposition in a 
 manner that must shock the nnderstaiid- 
 ingotanv ordinary person, lint I takcthe 
 : nrincipleintended to be illustrated t.i bo 
 this— 1 am in possession ol a horse or 
 other chattel: I neither Blllrm or deii.v 
 that I am the owner: It you choose to 
 
 S«. 
 
 ' S.H- Baniiermiiu v. White. 10 C. B. (N. S.)
 
 284 
 
 EICHHOLZ V. BANNISTER. 
 
 take it aw it is, withodt more, cavent 
 emptor: you liave no ruiiircly, tlioutrli it 
 Mliould turn out tliat I liave no title. 
 Wlierc tliat is the wliole of tlio transae- 
 tiou, it may he Tliat there is no warranty 
 of mle. Sucii seems to have been the 
 principle on whii'li Morley v. Attenhor- 
 oush was (leciilecl. The i)a wnhrol^er, 
 when he sells an unredeemed pled>;e, vir- 
 tually says, — I have under the [irovisions 
 of the statute- a right to sell. If you 
 choose to buy the article, it is at your 
 own peril. So, in the case of the sale liy 
 the sheriff of Koods seized under a fi. fa.. — 
 Chapman v. Speller, 14 Q. B. 621. The fact 
 of the sale taking place under such circum- 
 stances is notice to buyers that the sheriff 
 has no knowledge (.f the title to thegoods; 
 and the buyers consequently buy at their 
 own peril. Many contracts of sale tacitly 
 express thesame sort of disclaimerol war- 
 ranty. In this sense It is that I under- 
 stand the decision of this court in Hall v. 
 Conder, 2 C. B. (N S.) 22. There, the 
 plaintiff merely professed to sell the pat- 
 ent-right such as be had it, and the court 
 held that the contract might still be en- 
 forced, though the patent was ultimately 
 defeated on the ground of want of nov- 
 elty. The thing which was the subject of 
 the contract there was not matter, it was 
 rather in the nature of nrnd. These are 
 some of the cases where the conduct of the 
 seller expresses at the time of the contract 
 that he merely contracts to sell sucna title 
 as he himself has in the thing. But, in al- 
 most ail the transactions of sale in com- 
 mon life, the seller by the very airt of selling 
 holds out to thebuyerthat he is theowner 
 of the article he offers for sale. The sale 
 of a chattel is the sti'iingest act of domin- 
 ion that is incidental to ownership. A 
 purchaser under ordinar.v circumstances 
 would naturally be led to the conclusion, 
 that, b.v offering an article for sale, the 
 seller alfirms that he has title to sell, and 
 that the buyer may enjoy that for wliich 
 he parts with his money Such a case 
 falls within the doctrine stated bj' Black- 
 stone, and is so recognised by Littlertale, 
 J., in Early v. Garrett,!) B. & t'. 9iS,4 M. & 
 R. 687, and by Parke, B., in Morley v. At- 
 tenborough, 3 Exch. .518. I think justice 
 and sound sense require us to limit the 
 doctrine so often repeated, that there is 
 no implied warranty of title on the sale of 
 a ciiattel. I cannot but take notice, that, 
 after all the research of two very learned 
 counsel, the only semblance of authority 
 for this doctrine from the time of Noy anci 
 Lord Coke consists of mere dicta. These 
 dicta, it is true, appear to have been 
 adopted by several learned judges, 
 amongst others by my excellent Brotlier 
 Williams, whose words are almost obliga- 
 tory on me. But I cannot find a single in- 
 stance in which it has been more than a 
 repetition of barren sounds, never result- 
 ing in the fruit of a judgment. This very 
 much tends tu show the wisdom of Lord 
 Campbell's remark in Sinis v. Marryat, 17 
 Q. B. 291. thai the rule is beset with so 
 many exceptions that they well nigh eat 
 it up. It is to be hoped that the notion 
 
 39 & 40 Geo. III. c. 99, § 17. 
 
 whicli has so long prevailed will now pass 
 away, and that no further impediment 
 will be placed in the way of a buyer re- 
 covering back money which he has parted 
 with ui)on a consideration which has 
 failed. 
 
 BYI ES, J. I also am of opinion that 
 this rule should be discharged. It has 
 been said over and over again that there 
 is no implied warranty of title on the mere 
 sale of a chattel. But it is certainly, as 
 my Lord has observed, barren ground; 
 not a single judgment has been given up- 
 on it. In every cause, there has been, 
 subject to one single exception, either <lec- 
 laration or conduct. Chancellor Kent, 2 
 ('om. 47H, says: "In every sale of a chat- 
 tel, if the possession be at the time in an- 
 other, and there be no covenant or war- 
 ranty of title, the rule of caveat emptor 
 applies, and the party buys at his peril;" 
 for which he cites the dicta of Lord Holt 
 in Medina v. Stoughton, 1 Salk. 210, 1 Ld. 
 Kavm. .59;^, and of Buller, J., in Paslev v 
 Freeman, 3 T. R. 57,58. "But," he goes 
 on, "if the seller has possession of the arti- 
 cle, and he sells it as his own, and not as 
 agent for another, and for a fair price, he 
 is understood tn warrant the title." Thus 
 the law stands that, if there be declara- 
 tion or conduct or warranty whereby the 
 buyer is induced to believe tnat the seller 
 has title to the goods he professes to sell, 
 an action lies for a breach. There can sel- 
 dom be a sale of goods where one of these 
 circumstances is not present. I think 
 Lord Campbell was right when lie ob- 
 served that the exceptitjns ha I well nigh 
 eaten up the rule. 
 
 KEATING,.!. I am of the same opin- 
 ion. Whether it be an exception to the 
 rule or a part of the general rule, 1 think 
 we do not controvert any decided case or 
 dictum when we assert, that, under cir- 
 cumstances like those of the present cose, 
 the seller of goods warrants that he has 
 title. These goods were bought in the 
 (Jefendant's shop in the ordinary course 
 of business. He gives an invoice with 
 them, which represents that he is selling 
 them as vendor in the ordinary course. 1 
 think the case falls within that put by 
 Parke, B., in Morley v. Attenborough, 3 
 Esoh. .">13, of a sale in a shop, which he 
 treats as a circumstance which beyond all 
 doubt gives rise to a warranty of owner- 
 ship. I was somewhat pressed by Mr. 
 Holker's question whether there is more 
 j>ffirmance of title in the case of a sale in 
 a sho]) than in a sale elsewhere. It may 
 be that the distinction is very fine in cer- 
 tfiin cases. If a man professes to sell 
 without any qualification out of a sho|), 
 it is not easy to see why that should not 
 have the same operation as a sale in the 
 shop. It is not necessary, however, to de- 
 cide that question now. Here, the sale 
 took place in a t)ublic shop, in the ordi- 
 nary way of business, and ever.v circum- 
 stance concurs to bring the case is'ithin 
 the distinction put by Parke, B.,iu Morley 
 v. Attenborough. 
 
 Rule discharged. 
 
 f1
 
 it 

 
 El.LIS V. ANDREWS. 
 
 287 
 
 Bfll^LIS T. ANDREWS. 
 
 (56 N. Y. 83.) 
 
 Conrt of Appeals of New York. Feb. 21, 1S74. 
 
 Action for franfl. The complaint al- 
 leged that "snid (lefendantH fraudulently 
 stated in 8ul)8tanco to said plaintiff 
 that the stock of the C<jnKresH and ICiii- 
 pire Si)rinK Company was worth at K-ust 
 eigtity percent ui)on the par value there- 
 oi, which Htutenietit sahl plaintiff then 
 and there lii'licved to he true; and rely- 
 ing tluTi'iipon yjiirchawed from the Haid de- 
 fendants f J.'i.ddO (jf said stock, and palil 
 tlierefiir f JO.OOli in cash, or its equivalent ; 
 whereas, in truth and In fact, the said 
 stock was not then worth over forty per 
 cent, and which fact was then well known 
 to said defendants, whereby the said plain- 
 tiff sustained damafieH," etc. Judgment 
 for defendant. 
 
 Vj. F. Bullard, for appellant. Esck 
 Cowcn, for respondents. 
 
 GROVEU, .7. The Code, section 148, in 
 effect provides, that the objections to the 
 jurisdiction of the court, and that the 
 complaint does not state facts su<Iicient 
 to constitute a cause of action, are not 
 waived by a failure to interpose them 
 by demurrer or answer. The latter objec- 
 tion therefore was properly raised by the 
 respondents upon the trial. lu an acticjn 
 to recover damages claimed to have lieen 
 sustained by the fraudulent representa- 
 tions of the defendants the complaint 
 must set out the representations relied 
 upon. (Jray v. Palmer, 2 Uobt. 5(J0. This 
 case was allirmed by this court, as a|>- 
 pear.-< from the indcK in 41 New York, (!:i(>, 
 where it is erroneously said to have been 
 reported in 2 Barbour. The court having 
 dismissed the coraiilaint upon the groutid 
 that It did not contain facts sufficient to 
 constitute a cause of action, the only 
 iinestlon is, whether it did contain such 
 facts. The complaint is very brief, and in 
 substance avers (hat thedefcndants fraud- 
 ulently stated to the plaintiff that the 
 stock of the Congress and Kmpire .Spring 
 ('ompuny was worth at least eighty per 
 cent upon the par value thereof; which 
 statement the iilnlntiff btdieved to be true, 
 and relying thereupon, puichased from 
 the defendants $L'."),iiOO of said stock, and 
 paid therefor :fiM),n()0 in cash; whereas the 
 stock was not then, in fact, worth over 
 forty per cent,' which fact was then well 
 known to the defendants; whereby the 
 plaintiff sustained damage, etc. The as- 
 sert ion by the defendants that the stock 
 was worth eighty percent of Its par value 
 cannot I think be regarded as the expres- 
 sion of an opinion as to its value, for the 
 reason that It is averreil that it was 
 frauilnlently made, and that they then 
 knew that it was not worth more than 
 forty i)cr cent. I think it mirst be re- 
 garded as a false statement of the value, 
 maile for thei)nrpose of olitaliiinga higher 
 prlei> for the stock than ihey knew it was 
 worth. The question then Is. whether 
 such n statement so mndi- by the vendor 
 of property, while negotiating the sale, 
 gives the purchaser who has contracted, 
 
 relying thereon, a cause of action for the 
 deceit. This precise (juestion arose in 
 Murvey v. Young, Yolvurton, 21. In the 
 time of Qneen Elizabeth. In that cose 
 the plaintiff alleged that the defendant OH- 
 sured him that a certain term of years 
 which he proposed to sell to him was worth 
 CI.'JO. when in fact it was worth but tHH); 
 and after verdict for the plaintiff in an ac- 
 tion for the deceit, the judgment was ar- 
 rested upon the ground that It was the 
 lilaintiff's folly to give credit to such bh- 
 sertion. This case was recognized uh 
 soutid law in Ekins v. Tresham. 1 I.ev. 
 102; although it was held in the latter 
 case that an action would lie for a fraud- 
 ulent representatjon by the vendor that 
 the premises were leased at a greater 
 than the actual rent. The distinction Is 
 obvious. Upon the (|uestion of value the 
 purchaser must rely u()on his own judg- 
 ment ; and it is his folly to rely upon the 
 representation of the vetnlor in that re- 
 spect; but in ri'gard to any extrinsic fact 
 affecting the quality or vjilne of the sub- 
 ject xf the contract, he may rely u|'on the 
 asBurnnces of the vendor, and if he does 
 so rely and the assurances are fraudu- 
 lently maile to induce him to make the 
 contract, he may have an action for the 
 injury sustained. The doctrine thus net- 
 tled has rarely since been (|uestioned : 
 which accounts for the very few cases 
 found in the books discussing the point. 
 In Van Epps v. Harrison, ."> Hill. (>:i; 40 
 .\m. Dec. :!14, It is statecl as umlouhted 
 law that an action will not lie by a pur- 
 chaser against a venilor upon false and 
 fraudulent statements (tf the value of the 
 property sobi, made while negotiating 
 tlie sale. This was concurred in by the 
 entire court. I'.ronson, .1., was of opin- 
 ion that the action would not lie upon a 
 false and fraudulent statement so made, 
 as to the prlc which the ven<lor had paid 
 for the properly, but the majurily of the 
 court held that an action would lie lor the 
 latter. The eases bearing upon the ques- 
 tion were cited anil commented upon by 
 Bronson, .1., .Mnd a repetition is unneces- 
 sary. Had the complaint stated that de- 
 feuilants. upon the sale, made false and 
 fraudulent stat<>mentH tii the plaintiff In 
 relation to the property owned hy the 
 corporation, its business, pecuniary con- 
 dition, the price at which its stock was 
 selling In the market, or any other fact 
 affecting its value, with intent to deceive 
 an<l defraud her, that she in reliance there- 
 on had tnaile the purchase and been there- 
 by injured, It woidd have shown a good 
 cause of action. Hubbell v. .Meigs, M S. 
 Y. 4SII. .\s to such matters a purchaser 
 has a right to rely upon the statements 
 of the vendor but not upon his mere 
 statements of the value. .Vs to the lat- 
 ter he must rely upon his own judgment, 
 and if not suHiciently informed, must seek 
 further Information. 
 
 The complaint in this case falls to show 
 a cause of action, and was therefore right- 
 ly dismissed. The judgment must be af- 
 firmed, with costs. 
 
 RAPAELO, .lOlI.NSON and FOEGER. 
 .1.1. , concur; (TirUCH. C .?., atid AN- 
 DREWS, J., dissent ; AlvLKN, .r., absent.
 
 ELLI.s V. HUNT. 289 
 
 KI.I.IS (t nl, V. HUNT et al. I cnHCH aro foiindcil. There have iii<Ui"(| 
 
 I-: T.-rin It 404* I '""'" cfiHCH, wli^ri- nlcc (lUtinctionH liuve 
 
 lipcii t.ikfii on tlif fnct. wliclher thc'KooijH 
 
 Court of King's Bt-nch. Micluiclinas Ti-riii. , '"•'i'' "i" I'-'i'' "ol H'>1 into the iiimeHHinn o( 
 
 ITS!). till; venilce; lint llic.v till [irofeHH to >;•> ou 
 
 the ^rmiiid or the ^tooiIm lieiiiK in fninMitu, 
 
 Trover for a quantity of flk-H. At the vv hen they were Ktopi.eil. Ah to the iiecoH- 
 triul I'.efore Lord Ken.voti, at WeHtiiiinKter, sity of llie kooiIh eoniin^ t(» tlie "coriio- 
 a verillet was tal<eii for the [ilalntirfs, siih- ral toueh" of the liiiiil<rn|it ; ttiat Im niere- 
 ji'Ct to tlie opinion of the court on tlie fol- l.v a fi;^ni ative e.\|ireHHion, and hnH never 
 lowing ease. On the Illst of Octotier, liss, heen literally adhered to. Tor there may 
 Moore, tlic liMntirii|)t. onlered the Kood.s lie an actual delivery (jf tlie ({oodH, with- 
 in (luestion from tlie iilaiiitiffs, who are out the bankrupt's neelnK them ; an a de- 
 nianufMCliirerH at Shellield ; and on the livery of the key of the venrlor's ware- 
 14 til of .\'o vein her folio w in j; they were sent house to the iiu re ha Her. In order to decide 
 liy Itoyle's vva}j:Kon, directed to the hank- this ciiHe, it is inaterial to attend to the 
 rupt in KniiLind; the wa^Koii lieiiiK over- dales ; on the L'4I h of Xovemlier the pro- 
 loiKled, the cask was taken (Hit at Stam- visional assignment was made to \Velln, 
 ford, in itK w:iy to town, and |iut into the who on the same day demanded the ;;oui]h 
 defciidant Hunt's wafi;;dn, which liiduuht in (juestion of the defendant Hunt, and 
 it to the Castle and I'alcon inn, in l^on- put Imk mark on the cask. Now it is said 
 don, on the L'-d of .Vovetnlier 17ns. The that this sliouM have been d<ine hy the 
 Iilaintiff's drew a bill on the bankrupt for bankrupt himself: but by the assiKn'ment 
 part of the value of the uoods, \iliich bill he was strippeil of ail his property, which 
 was never paid. The cask and files were, was then vested in tlie provisional as- 
 on their arrival in town, immediately at- si^nee. Therefore, if a corporal touch 
 taclied li.v -Messrs. Kenton and Company, were necessary to defeat the ri;;lit of the 
 creditors of the bankrupt, by iirocess of vend<irs, It took place here. It is true 
 foreiun attachment issued out of the may- that the provisional assicneedid not alter 
 or's court of London ; the cask remained the situation of the j;oods ; lint they were 
 at the inn, charj^cd with such attachment, then arrived at the end of their dcRtined 
 HO far as the same could cliar;;e il. On journe.v, and deposited in a place where 
 the l.'itli of November a doc()uot was they would have remained till tlie bank- 
 struck ay:ainst .Moore; and on the IStli a rupt could have carrieil tlieiii to a ware- 
 coniiiiission of bankrupt issued utcainst house of his own. All this happened on 
 liiiii, on which he was declared a bank- the -4th of November ; and it was not un- 
 rupt, and the other defendants were til the :.NIli of that month ilia t the vendor 
 chosen his nssijiiiees. On the -4th of No- W! ote to countermand the delivery of the 
 vember a provisional assitrninent was e.\- jioodH; but that was too late; for the 
 ecuted by the commissioners to .John Koods were no longer In transitu, they 
 Wells, a inessenner under the coiiiir.isKion, were then in the possession of the pnrt.v 
 who on the suiiie day demanded the yooils to whom they were coasifcned, or of those 
 in iiiicstion Iniiii the delendant Hunt the who represented him. In rases of this 
 earlier, and iiiit his mark upon the cask, sort we cannot but feel for the situation 
 but (lid not take the Roods away. On of the mamifacturer : but it issuch as they 
 the I'stli of November tlie plain tiffsWroto are necessarily subject to from their mode 
 a letter to the aiieiit of Itoyle's wajjfjon, of dealinfj: however the severity of the 
 directiiiK him. in case the Roods were not case cannot induce us to break thruURh 
 delivereil, t<i keep them in his warehouse, the rule of la w. 
 as they had heard that Moore was be- 
 come a bankrupt. Onthel.lth of Decern- ASHIirF^ST, .1.— TheleaniuK of my mind 
 her the pliiintilfs demanded the cask and would be in favour of the plaintiff; but 
 files of Molt, the master of the Castle the la w will not allow him to tie in a het- 
 aiid Falcon, and offered to pay the car- ter situation than the rest of the bank- 
 riajie and to indeiiiiiify him. wliich .\Iott rupt's creditors. The general rule is that 
 refused; and upon the attachnieiU beiiiR the consignor has a riuht to stop the 
 withdrawn, he delivered up the k<. oils to jjoods, if he can, before they Ret Into the 
 the defendants, the assiRnecH, of whom actual possession of thebankiupt. Hut 
 they have since been demanded: but they here, before the plaintiffs thouRht ofcoun- 
 have refused to deliver them up. " teriiiandiiiR the Roods in (iiiestion, the 
 
 ... , , , . ..„ ,, , , . , , provisional nssiRiiee, who th<u stood In 
 
 Wood, for plaintiffs, llaldwin, for de- the place of the bankrupt, had actually 
 
 icnilanttj. taken possession of them, and put his 
 
 mark on tlioni. 
 
 Lord KENYON, C. .1. — If any case had 
 
 been decided to the extent of the plaintiffs UrLLKlL— I am not ilisposed to dlH- 
 
 BrRument, niiinely, that bankruptcy is of turh or to lessen the authority of any of 
 
 itself a couiiteriiiand, the plaintiffs here the cases tluit have lieeii decidrd on this 
 
 would be entitled to recover: but that subject: but no' f them could justify the 
 
 has never yet beer, decided. The doctrine vendor in this case in taking back the 
 
 of stopping Rooils in transitu is bottomed Roods. In the former ca.ses th-' line has 
 
 on the case of .Snee v. I'rescot, 1 .\ tk. l'4s, been precisely drawn: ami they nil turn 
 
 where Lord Hardwicke estiilillshed a very on the ((uestion, whether or not there had 
 
 wise rule, that the vendor iiiiRht resume been an actual delivery to the bankrupt, 
 
 the possession of Roods consiRiied to the It is of the utmost iui|;ortaiice to adhere 
 
 vendee before delivery, in case of the bank- to that line; for If we break throuRh It, 
 
 ruptcy of the vendee: on this all the other j we shall endauRer the autbuiUy ol the 
 
 L.\W SALl-i5 — 19
 
 290 
 
 ELLIS V. HUNT. 
 
 cases that have lieen already decided, and 
 shall fritter away the rule entirely. Jn 
 one of the cases cited Lord Manslield took 
 the distinction between an actual, and 
 a constructive, delivery to the vendee. 
 There may be cases where, as between the 
 buyer and seller, if no bankruptcy or in- 
 solvency haiipen.the jiouds are considered 
 in the poKsfssion of the buyer, the instant 
 they Ro out of the possession of tlin ven- 
 dor; as if A. order Roods from B. to be 
 sent by a particular carrier at his own 
 risk, the delivery to the carrier is a deliv- 
 ery to the vendee to every other purpose, 
 but still, if he beconie a bankrupt before 
 the carrier actually deliver them to him, 
 I should hold that the vendor rui«:lit seize 
 them; because that is only a constructive 
 delivery to the vendee: but an actual de- 
 livep.v is necessary to devest the venilor'.s 
 right to sto])pinR the Roods in transitu. 
 It is fdear that bankruptcy itself does not 
 fjut an end to the contract; and if not, 
 the rijrlit of the vendor to seize goods in 
 transitu is founded only on equitable 
 principles. It is a riRht, with which he is 
 indulRed on principles of justice, originally 
 established in courts of e(juity, and since 
 adopted in L'ourts of law. But in order to 
 avail himself of it he must stop the ^oods 
 before they get into the actual possession 
 of the vendee. But in this case there is 
 the strongest evidence of the consignee's 
 taking actual possession of the goods of 
 his assignee putting his mark on them. 
 
 It was said by the plaintiff's counsel that 
 the carrier would have been liable in an 
 action by the vendor: but he would not 
 have been liable in thecharacterof carrier, 
 for the goods had got to the enil of tbeir 
 destined journey; but he would have been 
 liable only as a warehouse-keeper, in re- 
 spect of tne recoiupence wnich he was to 
 receive for warehouse-room. But the in- 
 stant the provisional assignee put his mark 
 on the goods, the warehouse-man became 
 the agent or servant to the bankrupt. 
 
 GROSE, J.— The general rule is perfectly 
 clear that the consignor may seize the 
 goods in transitu, in case of the insol- 
 vency of the consignee, before they actually 
 reach him. Tlie question tliei-efore here is 
 whether, on the facts of this case, the 
 goods were or were not in transitu when 
 the plaintiffs wrote to countermand the 
 delivery of them. Now it is s'tateil as a 
 fact that before this letter arrived the pro- 
 visional assignee had put his mark upon 
 the cask ; and this distinguishes it from 
 the cases cited. When the goods were 
 marked, they were delivered to the con- 
 signee as far as the circumstances of the 
 case would permit; the assignee could not 
 then take them away, because they were 
 at this time under an attachment. After 
 the mark was put on them, they were no 
 longer in transitu; and consequently the 
 plaintiff's rightto seize them wasdevested. 
 
 Postea to the defendants.
 
 EMPIRE STATE TYPE FOUNDING CO. v. GKANT. 
 
 293 
 
 IMIPIRK STATK TYPE FOUNDING CO. v. 
 GKANT, Sheriff. 
 
 (21 N. E. Rep. 49, 114 N. Y. 40.) 
 
 (^ourt of Appeals of New York, Second Divi- 
 sion. March 26, 1889. 
 
 Appeal from supreme court, general term, 
 Fir.st department. 
 
 Action by the Empire State Type Foundry 
 Company against Ilugli J. Grant, slierirt of 
 the city and county of New York. Judg- 
 ment was given for defendant, and plaintiff 
 appeals. 
 
 Qeorye W. Ulephens, for appellant. Cuck- 
 ran &• Clark, for respondent. 
 
 Pai:ki;k,J. In March, 188G, the plnintiff, 
 by its president, agreed to sell to one (iuy 
 Trenielling two printing-presses, with the 
 necessary shafting, together with a quantity 
 of tyjjo and other printers' supplies, for the 
 sum of .SI, 100. 'J.J, payment to be made as fol- 
 lows: .5500 to be paid in cash, and a chattel 
 moilgage, embracing all the property sold, to 
 be given by Trenielling forthe balance. The 
 plaiiitilT at once commenced to put up the 
 shafting, set the presses, and deliver the type 
 and other materials. When the work was 
 about half done the clerk of the plainlilf was 
 sent to Trenielling to collect the cash agreed 
 to be paid. Trenielling paid S2.W, and the 
 plaintilf went on with the work of putting 
 the presses in working order, transferring the 
 type and other materials, in which work the 
 plaiutilT waseugai^ed between 1.5 and 10 days. 
 Iiiimrdiately aftei- the materials had been put 
 in and work coini)leted, the president of tho 
 lilaintiff went to the oflice of Trenielling to 
 receive the jiayment agreed upon, and there 
 learned that Trenielling had absconded. On 
 the same day, or the day following, tho de- 
 fendant, as slierilT of the city and county of 
 New York, under and by virtue of a warrant 
 of attachment regularly issued against tho 
 piO|)erty of Tieinelling, levied upon the ef- 
 fects in question. Tlie plaiiitill thereupon 
 commenced this action to recover possession 
 of the property. At the close of the plain- 
 tiff's case, the defendant moved the court to 
 direct a verdict for the defendant. The plaiu- 
 tilT asked that the case be submitted to the 
 jury. The court denied the plaintiff's re- 
 quest, and directed a verdict for the defend- 
 ant, the plaintiff duly excepting. We think 
 that the facts jiroven did not warrant tho 
 trial court in holding as a matter of law that 
 the title to the property had passed from plain- 
 tiff to Tremelling, and therefore the disposi- 
 tion made of tho case was error. It is too 
 well settled to require the citation of author- 
 ity, that, where a sale of personal property is 
 made upon condition that the stipulated price 
 shall be paid upon ilelivery, title does not pass 
 until payment made, unless tho vendor waive 
 the condition. Under such a contract, deliv- 
 ery and payment are simultaneous or concur- 
 rent acts by the seller and buyer, and although 
 the articles may have been actually delivered 
 into the possession of the vendee, the delivery 
 
 is held to bo conditional, and not absolute, 
 provided the vendor has not, by subse<|uent 
 act, waived the condition of payment. If, 
 then, the agreement between tho plaintiff and 
 Trenielling had jirovided in express terms 
 that payment be made on delivery, (no proof 
 liaving been offered tending to show u sub- 
 sequent waiver of such condition,) it would 
 have been the duty of the court to hold as a 
 matter of law that the title to the chattels still 
 remained in the plaintiff. 
 
 The agreement, however, did not provide 
 in express terms that payment should be 
 madeon delivery. Neitherdid it provide that 
 payment and delivery should not be concur- 
 rent. The rule in such case is that the in- 
 tent of the parties must control. If it can 
 be inferred from the acts of the parties and 
 the circumstances surrounding the transac- 
 tion that it was the intent that delivery and 
 payment should be concurrent acts, the title 
 will be deemed to have remained in the vendor 
 until the condition of payment is complied 
 with. 1 lienj. S:iles. (Amer. Kd.) g :{:50, and 
 notes; Leven v. Smith, 1 Denio, 571; Ham- 
 mett V. Einneman, 48 N. Y. SKU; Smith v. 
 Lvnes, 5 N. Y. 41; Parker v. Baxter, 80 N. 
 Y". 580: Russell v. .Minor, 22 Wend. O.V.t. 
 The question of intent is one of fact, not of 
 law. It is for the jury, not the court, to pa.ss 
 upon. Hall V. Stevens, 40 Ilun, 578; Ilam- 
 luett V. Einneman, 48 N. Y. -i'M. It appears 
 that the defendant stipulated to pay for the 
 materials sold, .?500 in cash, and give a chat- 
 tel mortgage on all of the projieity for the 
 balance; that while the materials were being 
 delivered the plaintilf demanded and received 
 ,$250 on account of the cash payment; th,at, 
 immediately after the plaintilf had performed 
 Ills part of the contract, its president went 
 toTreiiielling's ollicelo receive payment, and 
 found that he had absconded, and that the 
 next day the plaintiff's president asserted to 
 the attaching creditor that he had not parted 
 with the possession of the goods. These 
 facts, together with all the circumstances 
 surrounding the transaction, under the au- 
 thorities cited, should have been submitted 
 to the jury under proper instruetions, to en- 
 able them to determine whether the title 
 jiassed to Tremelling or remained in the plain- 
 tiff. 
 
 It is suggested in one of the opinions of 
 the court below that Tremelling had acquired 
 an interest to the extent of .•?250 in the prop- 
 erty which wiis subject to sale untler the at- 
 tachment. We do not concur in that view. 
 If it be determined that the title to the prop- 
 erty remains in the plaintiff, the case falls 
 within the established rule that where a 
 vendor of chattels, when the period of per- 
 formance arrives, is ready and oiTers to [ht- 
 foriu on his part, and the purchaser neglects 
 and refuses to perform for any rejison, he 
 cannot recover back the partial payuienU he 
 hiis made. Monroe v. Reynolds, 47 liarb. 
 574; Ilumeston v. Cherry, 2'3IIun, 141. The 
 judgment of the general term and of the cir- 
 cuit should be reversed, and a new trial or- 
 dered: nosts to abide the event. All concur.
 
 f
 
 FAIUBAXK CA\XIN(; CO. p. METZGEIi. 
 
 •-•95 
 
 FAIIIHANK CANNING CO. v. METZGER et al. 
 
 (M N. E. Rep. .372, lis N. Y. 260.) 
 
 Court of Appeals of New York, Second Division. 
 Jan. 14, 1800. 
 
 AtM'*""' from juflfcnicnt of tlie Rcnpral 
 torin n( Hie Hii|ireiiie court in the foiirtli 
 jiiiliciiil (Icpiirlii^i'iit.entercil ii|ion an order 
 iiiiKle .laniiiir.v 11, )s.s7. wliioli olfirnicd a 
 jiiil^iiient in favor of plaintiff enternil upon 
 tti" report of n referee. 
 
 Tills action waw brought to recover the 
 eoiiirael price oi a car-l.oad of dressed hecf. 
 The answer averred, hy way of counter- 
 claiiii, .-i w;irr;nit.v thai tlie iite;il y'Miiild lie 
 clean, well dreHsoil, nnd in first-class con- 
 dition, not heatcil liciore liciiiK killed, and 
 .•I lire.-icli tlierc'of liy nason of which de- 
 fendant sustained damase. 
 
 The following: facts appeared : The plain- 
 tiff is ucorporationenjiagcd in buying and 
 slaunliteriiij;- cattle, and selling fresh 
 dressed beef, in (.'hicaso. The defendants 
 are copirlners, enfj;aited in wholesaling; 
 and relailiiiK meat. In Fel)ruiiry.lNs:i,lhe 
 I)l,iintiff, by letter, solicited thedcfendants 
 to purchase from it what dressed beef they 
 re(iuired. It resulted in a contract, made 
 entirely b.v corresiiondence, for meat to be 
 wholesaled from the car hy defendants' 
 a}jent,from Dunkirk toEluiiia. theportion 
 remaining unsold when the car should 
 reach Eliiiira to lie retailed liy the defend- 
 ants. The defendants ordered, at different 
 times, four car-loads of fresh beef, and pur- 
 s:i;int to their af^reement, on rceeiiit of the 
 bill for the second and third car-lojids, and 
 before the arrival of the goods, paid the 
 pl.ninliff therefor l)y a draft on New York. 
 The referee found as facts That the iil:iiii- 
 tiff was to deliver the beef on board the 
 cars at Cliici^'o, which was a delivery to 
 the defendanls. ;ind the same then an<l 
 there became the property of the defend- 
 ants; that liy theay,reement made between 
 the pjirties the plaintiff represented and 
 aj^reed lo furnish the defendants lieef that 
 had not been heated before beina: killed; 
 that should be thoroushly chilled before 
 beiii}? loaded on the cars; that it should 
 be in first-class condition in every respect, 
 mill merchantable: that a portion of the 
 meat furnished, iiichulinu- all of the fourth 
 car-load, had been heated before beinu; 
 killed, and w-as not in first-class condiHon 
 ormerchaut.'iblewhen shipped at Chicaiio; 
 that as to the fourth car-load the "defend- 
 ants did all the.v could todispose of it, nnd 
 save what the.v could from it. after the 
 car had beenoiiened several times on differ- 
 ent ila.vs between Dunkirk and Elniira; 
 and, liiiilin^c they could not use it, they 
 shipped liacU to tlieplaintiff iL'.'.l'.H pounds, 
 and nolilied plainliif by wire of the same, 
 and i)l;iiiitiff immediatel.v wired back that 
 they would not receive it. whereupon the 
 defendants ordered the same back to El- 
 niira." The referee found, as a matti-rof 
 law, that there was no warranty, and di- 
 rected !\ jiHliriiient to be entered in favorof 
 tlieplaintiff for thscontroct price. Further 
 fnrls appear in the opinion. 
 
 (I'libricI L. Smith, for appellant. Ilonry 
 a. liviliiflil. for respoinl. 111. 
 
 PARKKn, J., (after Nt.-itlirj: the fncts aa 
 tihnvo.) In the abseac" of a warranty as 
 to quality anil a breach, the di'feiidant'B 
 claim for damafreH could not have sur- 
 vived the use of the property : for in siich 
 case vendees are bound to rescind the con- 
 tract, and return, or offer to return, the 
 goods. If they omit to do so. they will lie 
 ci,nelusively presumed to have aeijuiesced 
 in llieir (piality. Iron Co. v. I'ope, Ids N. 
 Y. T.-2, V, N. E. Hep. X',:,. Then'fore, if the 
 referee was right in hidding that there was 
 no warranty as to <iuality. eollaterid to 
 the contract of sale, we nerd not inipiire 
 further, as the judgment must be aflinned. 
 The referee has fotind the fai-ts. and this 
 court may properly review his legal con- 
 clusion as to whether they amiiiinted to a 
 warranty. ".\ warranty is an express or 
 implied statement of something which 
 a pai-ty undertakes shall be a jijirt of a 
 contract, and, though part of the con- 
 tract, collateral to the expressed objert 
 of it." 2.Sehouler, Pers. Prop. CJd Ed.) § 
 >^21. All contracts of sale with warranty, 
 therefore, must cont:iin two independent 
 stipulations: /'7r.vf, an agreeim-nt ft>r the 
 tr.iiisfcr of title and possession from the 
 vendor to the vendee; secornJ. a further 
 agreement that the suliject of the sale has 
 certaiiKiualilies nnd conditions. It is not 
 necessary that in the collateral agre<'ment 
 theword " w;irranty " shotdd beused. No 
 particular phra.seology is reipiisite to con- 
 stitute a warranty. " It must be n re|irc- 
 sentation which the vendi-e relies on. and 
 which is understood by the parties as an 
 absolute assertion, and not the expression 
 of an oiiinion." Society v. Lawrence, 4 
 Cow. 440. It is noc necessary that the 
 vendor should have intended the represen- 
 tation to constitute a warranty. If the 
 wilting cont.'iins that which amounts to a 
 warranty, the vendor will not be permit- 
 ted to say that he did not inteiul what liis 
 language clearly and explicitly di-elart>s. 
 Hawkins v. Peinberton, rd N. Y. l!»s. In 
 that casethedefend.-ints purchased at auc- 
 tion an article, relying upon the repn-sen- 
 tation of the auctioneer that it Wiis " blue 
 vitriol." It was in fact "Salzburger vit- 
 riol," an article much less valuable. In an 
 action brought against the pundiaser. the 
 trial court directed a verdict for the plain- 
 tiff. This was held to beerror. becaii.se the 
 representation at the sale aiiiouiited to a 
 warranty. .Judge E.Mti.. in di'livering the 
 opinion of the court, after colljiting and 
 di.scussing the authorities upon the sub- 
 ject of warranty, said : "The mon- rtrcnt 
 cases hold that a positive atlirmatlon, un- 
 derstood and relied upon us such by the 
 vendee, is an express warranty." In Keiii 
 V. Friedman. 17 Wkly. Dig. 4sl. .ludge 
 LK.\it.\i;ii in his opinion says: "Tlu>ivcan 
 he no diff -rence between an executory con- 
 tract to .sell and deliver goods of such nnd 
 such a (piality and an executory contract 
 to sell and deliver goods which the vetulor 
 warrants to be of such and such a quality. 
 The former is as much a warr.'inty Jisllu" lat- 
 ter." The court of appeals subsequently 
 allirmed the judgment of thegeiu-nil term, 
 (lul N. Y. (llti, 3 N. E. Kep. IKLV l In White 
 v. Miller. 71 N. Y. Us. frequently r(>fern«d 
 to as the" llristol Cabbage Seed Case," the
 
 296 
 
 FAIKBANK CANNING CO. v. METZGER. 
 
 court say : " Tbo case of Hawkins v. Pem- 
 bevton, 51 N. Y. lO.S, adopts, as the law in 
 this state, the doctrine upon tliis subject 
 now prevailing elsewliere, tliat <i sale of 
 a chattel by a. particular description is a 
 ^varranty that the article sold is of a kin<l 
 specified." .So, too, a sale liy sample im- 
 ports a warranty that the (lualit.v of the 
 goods shall beequal in every res])ecjt to the 
 sample. Brigg v. Hilton, 99 N. Y. 517, 3 
 N. E. Kep. 51, and cases cited. 
 
 No w, in the case before us, the defendants 
 undertook to purchaseof the plaintiff fi-esh 
 dressed beef, to be wholesaled in part, and 
 the T'esidue retailed to their customers. 
 The}' endeavored to procure good beef. 
 Not only did they contract for beef that 
 was clean, well cIicsm'iI. in first-class con- 
 dition in every respect, and merchantable, 
 and that was thoroughly chilled before be- 
 ing loaded on the cars, but, further, that 
 they should not be given beef that had 
 been heated before being killed. When, 
 therefore, the ])laintilf idaced in a suitable 
 car beet well drcs.sed au<l clean, and of the 
 general descrijition given in defendants' 
 order, it had made a delivery of the mer- 
 chandise sold, and. by the terms of the ccjn- 
 traet, was entitled to be paid as soon as 
 the bill should reach defendants, and be- 
 fore the arrival of the beef made an exam- 
 ination by defendants possible. But there 
 was another collateral engagement, and 
 yet forming a part of the contract, which 
 the plaintiff had not performed, — an en- 
 gagement of much consequence to the de- 
 fendants and their customers, because it 
 affected the quality of the meat. Upon its 
 performance or non-performance depended 
 whether it should be wholesome as an ar- 
 ticle of food. It was of such a character 
 that defendants were obliged to rely solely 
 upon the representation of the plaintiff in 
 resi)ect thereto. The plaintiff orits agents 
 selected from their stock the cattle to be 
 .slaughtered. No one else knew, or could 
 know, whether they were heated and fever- 
 ish. In.ipection immediately after placing 
 the beef in the car would not determine it. 
 That collateral engagement consisted of a 
 representation and ay,i-ccmi'iittliat plaintiff 
 would deliver to the dcfend.-uits beef from 
 cattle that had not been heated before be- 
 ing slaughtered. Such representation and 
 agreement amounted to an express war- 
 ranty. The referee found, as a fact, " that 
 the meat had been heated before being 
 killed;" therefore therewasa breach of the 
 warranty, and the defendants are entitled 
 to recover their damages by way of coun- 
 ter-claim, unless such right n)ust Ijedeemed 
 to have been subsequently waived. 
 
 It is not necessary for the dis[)osition of 
 this case to decide, and therefore it is not 
 decided, whether a warranty is implied, 
 in all cases of a sale of fresh dressed meat, 
 by the party slaughtering the animals, 
 that they were not heated before being 
 killed; and, as some of my associates are 
 averse to any expression whatever upon 
 that question at this time, what is said 
 must be regarded as an individual view, 
 rather than that of the court. My atten- 
 tion has not been called to a decision in 
 this state covering that iirecise question. 
 It was determined in Divine v. McCormick, 
 
 .50 Barb. 116, that, in the sale of a heifer for 
 immediate coiisiiiiiiition, a warranty that 
 she is not dise.iseil ,ind unfit for food is 
 implied. That decision is well founded in 
 principle, and is in accordance with a sound 
 public polic.y, which demands that the 
 doctrine of caveat emptor shall be still 
 further encroached upon, rather than that 
 the public health shall be endangered. I 
 see no reason for applying the rule to one 
 who slaughters and sells to his customers 
 for immediate consumption, and deny- 
 ing its ai)plication to one who slaughters 
 and sells to another to be retailed by him. 
 In each case, it is "fresh meat intended for 
 immediate consumption. 
 
 The rule is well settled, by the courts of 
 last resort in many of the states, that a 
 vendor of an article, manufactured by him 
 for a jiarticular purpose. imiiliedly warrants 
 it jigainst all such defects as arise from his 
 unskilUulness eitlu-r in selecting the mate- 
 rials, or in putting them together and 
 adapting them to the required purpose. 
 See cases cited in IS .\1I). Law J. 3l'4. One 
 who prepares meat for the wholesale 
 market may be said to come within that 
 rule; because he purchases the cattle, de- 
 termines whether they are healthy and in 
 proper condition for food, and upon his 
 skill in dressing and preparing the meat for 
 transportation a long distance its quality 
 and condition, as an article of diet for the 
 consumer, largelj' depends. In two of the 
 states at least, it is held that, where per- 
 ishable goods are sold to be shipped to 
 a distant market, a warranty is implied 
 that they are properly i)acked and fit for 
 shipment, but not that they will continue 
 sound for any particularor delinite i)eriod. 
 Mann v. Everston, 'A'l Ind. 355; Leoi^old v. 
 Van Kirk, 27 Wis. 152. 
 
 The respondent insists that the act of de- 
 fendants' agent in selling some 00 quarters 
 of beef, before thecar reached IClmira, when 
 the defendants, aftei- making a personal 
 examination, imuicdiately shi])ped that 
 which remained unsold to the plaintiff, con- 
 stituted a waiver of their claim for dam- 
 ages. It is undoubtedly the rule that in 
 cases of executoi-y contracts, for the sale 
 and delivery of pc;i-sonal property, if thear- 
 ticle furnished fails to conform to the agree- 
 ment, the vendee's right to recover dam- 
 ages does not survive an acceptance of the 
 property, after opportunity to ascertain 
 the defect, unless notice has been given to 
 the vendor, or the vendee offers to return 
 the property. Reed v. Randall, 29 N. Y. 
 3.58; Beck v. Sheldon, 48 N. Y.3(i5; Iron Co. 
 V. Pope, IDS N. Y. 232, 15 N. E. Rep. 3.35. 
 But, when there is an express warranty, it 
 is unimportant whether thesale be regard- 
 ed as executory or in prwseu ti, for it is no \v 
 well settled that the same rights and rem- 
 edies attach to an express warranty in an 
 executory as in a present sale. Day v. 
 Pool, 52 N. Y. 41(5; Parks v. Axe Co., ,54 N. 
 Y. rm-. Dounce v. Dow, 57 N. Y. 16; Brigg 
 V. Hilton, 99 N. Y. 517, 3 N. E. Rep. .51. In 
 such cases, the right to recover damages 
 for the breach of the warranty survives an 
 acceptance, the vendee beingunder no obli- 
 gation to return the goods. Indeed, his 
 right to return them, upon discovery of the 
 •x-cach. is questioned in Day v. Pool, su-
 
 FAIRBANK CANNING CO. v. METZOER. 
 
 297 
 
 pra. And Judge Dam-oktm in Hrigg v. 
 Hilton, supra, after a careful review of the 
 leading autlioritieH upon the (juention, 
 Htalos the rule aw follows: " Where there is 
 an express warranty, it is, If untrue, at 
 once broken, and the vendor becomes lia- 
 
 ble in damages, but tlie purchaser cannot, 
 for that reason, either refuse to accept the 
 goods or return them." It follows, from 
 the views expressed, that the judgment 
 should be reversed. All concur, except 
 I'OLLKTT, C. J., not sitting.
 
 
 ll
 
 FARLEY c. LINCOLN. 
 
 290 
 
 FARLEY et al. v. LINC(JLN. 
 
 (51 N. H. 577.) 
 
 Supreme Judicial Court of New Hampshire. 
 Merrimacli. June, 1872. I 
 
 Replevin l)y Farley, AiiiHdcn & Co.. iiier- ! 
 chnntH of BoHton, tt) rec()vercertuiiij;oo(lH [ 
 ill the poMschKloii of Joliii U. Liiieoln. i 
 PlaintiffK cluimrd thai the fjooilH were 
 friiutlulciitly purchaKed of them im April 
 is, ISTO, liy one A. 15. Suiiliorii, a mer- 
 chant ill Siincook, N. 11., on a credit of ;ii) 
 days, and that on account of hucIi fraud 
 they were entitled to leclaim the ^oodH 
 an<i declare the ti-anwaction void. On ' 
 Aprd 1'7, 1^7(1, Sanborn nwide an anKi^'i- 
 nient uniler the innolvent act to defend- 
 ant, wlio, tof;ether with Sanhorn, on de- 1 
 inand, refused to deliver the j^oodw. 
 
 Tappan & Mu}<ridj;e, for plaintiffs. 
 MarHhall & Chase, for defendant. 
 
 LAOD, J. SupixJiiinjj tlie fuctH to he as i 
 claimed by the plaintiffs, we think they j 
 mi^ht maintain trespass or replevin 
 against Sanborn for the floods, notwith- 1 
 standiii)? he came to the possession of 
 them in the first place bj' means of a fruud- 
 iilenthale. And this stands well enough, 
 upon tlie (ground lliat there ne\erwasany 
 real contract of sale bet ween the jjarties 
 by which the plaintiffs were bound. San- 
 born acquiied no rights in the property 
 Ijy the form of a sale which was }i;one 
 thriMmh with, and hence Ins first as well 
 as every sulisequent net of dominion over 
 it amounted ton trespass, if the defendant 
 elected so to treat it. 
 
 .\(i serious question is made by the de- 
 feiulanl's counsel but this would be so; 
 and it is admitted furtlier, that, upon a 
 demand and refusal, the plaintiffs nii^ht 
 maintain trover or detinue for tlic Koods 
 anainst this defendant. lint it Is insisted I 
 tiiat.inasimicli as it does not api)ear that! 
 the defendant was a party to Sanliorn'sj 
 fraud, or had knowledjie of it, his taking 
 by assi(<:nnien t from Sanliorn cannot be 
 rcKai'ded as wronnful, althontth .Sanliorn 
 had no title, and therefore that the pres- 1 
 ent action will not lie aj^ainst him. 'I'liis 
 is the importatit ((uestion in the case, anil 
 if it were to be decided upon authority [ 
 alone, it woulil undoubtedly present con- 1 
 sider.ible didiculties. See Barrett v. War- 1 
 ren. 'i Mill, :riil. and Stanley v. (jaylord. 1 
 Cusli. .'):!(■>. In these two cases the author- 
 ilii's on l)oth sides of the question are col- 
 lected, and the whole subject very ably 
 discussed. The New York court came out 
 one way, holding that tri'spass would not 
 lie ajjainst a person who comes to the 
 possession of Koods by delivery, and with 
 out fault on his part, e. fi.. an innocent 
 bailee of the wrongdoer, Cowen, J., ilis- 
 EtentiiiK: while the Massachusetts court 
 held exactly the contrary, Wilde, J., dis- 
 BenliiiK. 
 
 To maintain trespass or replevin, there 
 must be a wrongful taking; and the ques- 
 tion is, whether tlie taking by the defend- 
 ant here was wroiiRful in a legal sense, 
 as ngaiiiKt the plaintiffs. At the time of 
 the assignment the plaintiffs were the ab- 
 solute general owners, nn<l were entitled 
 
 to the Immediate possession of thegoodn. 
 The assignment passed no title, and con- 
 ferred no riilit Ufion the defendiint In re- 
 spect to the goods as ngaiiiHt the plain- 
 tiffs, for the obvious reason tliiit S'inliorn 
 had no riglit <ir title in them as against 
 the plaintiffs which he could confir upon 
 any liody. This being so. the lirst act of 
 possession e.\ercised liy theili'fendant over 
 them was inconsistent with an<l in deroga- 
 tion of the iilainliff'sright. .Misolu'eown- 
 I'l-ship draws possession after it. If, then, 
 the defeiidiint's act in taking thi- (losses- 
 sion was an interference with the pl:iln- 
 tiffs' right of actual possession growing 
 out of theirownership. It was in legaleffect 
 a ilisturbance of their constructive posses- 
 sion. 
 
 The defendant's act in assuming domin- 
 ion over the property was none the loss 
 an invasion of the plaintiffs' right, and 
 none the less a trespass, bernusehedid not 
 intend a wrong, or know that he was 
 committing one. An encroachment ti|ion 
 a legal right must constitute u legal 
 wrong; and it is familiar law, tli:it inten- 
 tion is of no account In a civil action 
 brought by one man to recover damage 
 for a wrongful inteiference with his pr<q)- 
 erty liy another. The lawgivis the plain- 
 tiff compensation for the injury he hassus- 
 tained. whether the defendant intended 
 such injury or not. Lideed. a large pro- 
 portion of trespasses, especially to land, 
 are doulitless conimitted tlirough inad- 
 vertence or mistake, without wrongful In- 
 tent, and without knowledge on the part 
 of tile wrong doer that he has over- 
 stepped his right. 
 
 How does this case differ in princifde 
 from that of a person who, under a mis- 
 take as to the location of the lioundaries 
 of his land, encloses a piece of adjoini.ig 
 land of which the real owner has never 
 hud actual possession, and cultivates it in 
 the mistaken belief that it Is his own? 
 One act is undoubtedly as free from the 
 taint of moral wrong as tlie otiier. In 
 both alike there is only a disturbance of 
 a possessiiui iiurely constructive. The on- 
 ly distinction is, that in one case the sul>- 
 ject is land while in the other it is a chat- 
 tel ; ami I do not si-e that this makes any 
 more differenie tli<iii if the properly inter- 
 fered with wi-re in one ca.se a cow, while 
 in the other it was a horse. 
 
 In Stanlev v. Cavlonl. bef<ire cited, the 
 case of Hyde v. .Noble, i:! N. H. -I'.M, isquot- 
 ed as an authority fully sustaining the 
 doctrine there laid down, llyile v. .N'olde 
 was trover by the owner of a cargo of 
 lumber against Nolile and another, who 
 had bought and taken the delivery <if n 
 portion of it from the plaintiffs l)ailr«> 
 while tr:ms|iorting it under a contract 
 from Ilallowell and (Jardiner in Maine to 
 Wevmoutli in Massachusetts. In deliver- 
 iiig the opinion of the court, Parker, ('. J.. 
 K„yK._"The purchase by the defenilants, 
 taking possession as they appear to h'lve 
 done, and holding it as their own proper- 
 ty, was a conversion. They received the 
 p'ossession from one who had no nuthor- 
 itv to deliver it to them, under a sale 
 which purported to vest the j.ropcrty In 
 them: and thev. bv the purchase, under- 
 took to control it as their own property.
 
 300 
 
 FARLEY V. LINCOLN. 
 
 This was an assumption of power over it, 
 infonsistent with the rights of the plain- 
 tiff. Purchasing the property from one 
 who had no right to sell, and holding it 
 to their own use, is a direct act of conver- 
 sion, without an.v demand an<l refusal: 
 their posses.sion was unlawful in its incep- 
 tion, by reason of the want of authority 
 in Keiiniston to make the transfer. It 
 is only where a party obtains the posse.s- 
 Bion lawfully, that it is neee.ssary to show 
 a demand and refusal." The same thing 
 in substance lias been said in several other 
 cases in this state. Doty v. Hawl<ins, (5 
 -N. H.247; Lovejoy v. Jones, 30 N. H., at 
 p. ]()9; Cooper V. Newman, 4o N. H. 33!*, and 
 authorities cited. 
 
 The facts stated in Hyde v. Noble show 
 thatthere was a demand and refusal before 
 tlie commencement of the suit; but tliat 
 case has been constantly referred to, as well 
 in this state as in other jurisdictions, to the 
 point broadly laid down in the opinion of 
 Chief Justice Parker, that trover without a 
 demand liesin favorof theownerof achat- 
 tel against one who has come to the i>os- 
 session of it by purchase from one having 
 no right to sell; and it would doubtless 
 be a surprise to the profession to learn 
 that such is not the law here. We think 
 it is the law, and that it rests upon rea- 
 sons quite satisfactory and sound. Par- 
 sons V. Webb, S Greenl. 38; Galvin v. 
 Bacon, 2 Fairf. 30; Stanley v. Gaylord, 1 
 Cusb. 536; — and see the able and instruct- 
 ive dissenting opinion of (owen, J., in 
 Harrett V. Warren, 3 Hill, at p. 3.".1. But 
 it is very obvious that there was no con- 
 version in the case of Hyde v. Noble, un- 
 less the original taking was a conversion ;. 
 and that taking was not a conversion un- 
 less it was wrongful. If, therefore, it was 
 not wrongful, a demand and refusal would 
 have been necessary before trover could 
 be maintained. But " whenever the tak- 
 ing of goods is wrongful, trespass, replev- 
 in, and trover without a demand are con- 
 current lemedies for the owner, if he has 
 the right of immediate possession." Met- 
 calf, J., in Stanley v. (iaylord, at p. ,=)4(!, 
 citing Wilkinson on Replevin, 2; Paugburu 
 V. Patridge, 7 Johns. 143; 1 Chit. PI. 176; 
 
 IWilbraham v. Snow, 2 Wms. Saund. 47k, 
 I note. That being so, the doctrineof Hyde 
 i V. Noble is decisiveof thepresontcase; for, 
 'according to that case, trover without a 
 'demand would lie here, and therefore the 
 'plaintiffs might bring eitherof the concur- 
 j rent I'emedies, trespass or replevin, at 
 I their election. 
 
 ! It is undoubtedly settled that, inasmuch 
 I as a fraudulent sale is voidable only, the 
 vendor cannot set it aside to the injury of 
 third persons whoha venindeexpeuditures 
 under it, on the supposition that it is 
 I binding. And so a purchaser for value, 
 ! without notice from the fraudulent ven 
 I dee, will acquire a got»d title. Grout v. 
 Hill, 4 Gray, 369; Trull v. Bigelow, 16 
 Mass. 406; Bufflngton v. Gerrish, 15 Mass. 
 I.i6; Wliite V. Garden. 10 C. B. 91"): Root 
 I V. French, 13 Wend. 570; Mowrey v. Walsh, 
 |8Cow. 2:3S. But no such question arises 
 I here. The defendant was not a purchaser, 
 1 and hud made no expenditures under the 
 fraudulent sale. At the utmost, his rights 
 in respect to the property could not be 
 larger than those of an attaching or judg- 
 ment creditor. And the cases allare, that 
 such creditor acquires no title that will 
 hold against the true owner, the vendor. 
 Load v. Green, 15 M. & W. 216; Bristol v. 
 Wilsmore,! B.& C. 514; Van Cleef v. Fleet, 
 15 Johns. 147; Alowrev v. Walsh, S Cow. 
 23S; Root V. French, 13 Wend. 575; Buf- 
 flngton v. Gerrish, 15 Mass. 156. "An as- 
 signee takes the thing assigned, subject 
 to all the equity to which theoriginal par- 
 ty was subject.'' Ld. Manf field, in Pea- 
 cock V. Rhodes, 2 Dougl. ()36. 
 
 We have not thought it necessary to go 
 into a minute and extended discussion of 
 the question raised in this case. The au- 
 thorities to which reference has been made 
 furnish an ample and exhaustive review 
 of the whole subject, and all the authori- 
 ties. From a careful examination, we are 
 brought to the conclusion that the taking 
 by the defendant was in the eye of the law 
 wrongful, and a disturbance of the plain- 
 tiffs' constructive possession; and, there- 
 fore, that, upon the facts claimed, the ac- 
 tion may be tuaintained. 
 Case discharged.
 
 FARMERS' PHOSPHATE CO. v. GILL. 
 
 803 
 
 FARMERS' PnOSPHATE CO. v. GILL. 
 
 (10 Atl. Rep. 214, 09 Md. r..37.) 
 
 Court of Appcal-s of .Maryland. Dec. 14, 1SS8. 
 
 Afipoal from superior court of Balti- 
 moip city. 
 
 Action of trover by the Formers' PIioh- 
 phate C'cjnipuny oRuinst John Gill, iih- 
 Hifinee of SymiMKton Bros. & Co. .Iiiili>- 
 ment for defendant, unil plaintiff appeals. 
 
 liefore MILLKK, IRVING, BltYAN, and 
 MeSUKRRY, .IJ. 
 
 Fielder C. Slinglutf, for appellant. Wm. 
 A. I'isher and D. K. Este Fisher, for ap- 
 pellee. 
 
 MILLKU, J. On the 4th of June, 18S7, 
 the Hrni of Symington IJroH. & Co., of 
 15altimore, manufuctiirern of fertilizeris, 
 made an assignment of all their property | 
 to .Mr. John Gill for the lieiielit of then- 
 oreditors; and the (iiiestion in this case is 
 whether a cargo of South Carolina river 
 Htock phosiihate passed to the assignee, 
 under this aHsiirnmeiit. The (inestion is j 
 raised l)y an action of trover brought by , 
 the Farmers' Phosphate Company, the j 
 vendor of the Symingtons, against Mr. ; 
 Gill, their assignee, for the conversion of i 
 this property. The facts essential to be | 
 stated, and about which there seems to I 
 be no dispute, are as follows: TIk- con-; 
 tract of sale, made in Baltimore on the! 
 l.")tli of February, lss7, by Mr. Cottninn, 
 who was the broker for l)oth vendor and 
 vendees, is in these terms: "Sold to Mess. 
 Symington Bros. & Co., for account of 
 Farmers' Phosphate Co., a cargo of about 
 live (500) hundred tons undried river rock 
 phosphate, delivered along-side buyer's 
 vessel at Dale's creek at $i.')() i)er ton 
 1!,L'40 Ins.; for delivery latter part this 
 month or 1st t)f March, ISs". Hock guar- 
 antied (U) per cent, bone phos. of lime on 
 dry basis. Should rock run below (10 i)er 
 cent., proiinrtionate allowance to be 
 made. Hock to lie weighed here as landeil, 
 by sworn weigher, at seller's- expense. 
 Payal)Ie by note to buyer's order at four 
 (4) months from date of bill of lading, 
 adding interest, or cash on arrival here. 
 .L II. Cottman." The Symingtons then, 
 on the 12th of March. ISsT, chartered a 
 vessel to bring this cirgo from Dale's 
 creek, Coosaw river, S. C, to Baltimore, 
 the charterers paying freight, etc. The 
 vessel arrived at Dale's creek the latter 
 part of April, and completed the lading of 
 lier cargo on or l)cf<>re the 7th of May. 
 On this last-mentioned day the master 
 made out a bill of lading, whereby he ac- 
 knowledged the receipt of the cargo from 
 the Farmers' Phosphate Company, to be 
 ilelivered at Baltimore " unto Symington 
 Brothers and Co., or to their assigns." 
 This the master delivered to the phos- 
 phate company, who indorsed it, " De- 
 liver to the order of J. 11. Cottman," (the 
 broker who effected the sale.) and he in- 
 dorsed it "Deliver to the ordM- of .Syming- 
 ton Brothers and Co.." and deH-'cred it to 
 them on the 14th of May, one wtxk after 
 it« date. It also ajtpears that the Sym- 
 ingtons insured the cargo for their own 
 henetit. The vessel arrived at Baltimore 
 on the 24th of May, and immediately 
 
 commenceil discharging her cargo at the 
 wharf of the Symingtons, they having 
 paid the freigiit thereon. As tlie dis- 
 charge |)roceedeil the rock was wiiglied, 
 and there was also an analysis of it made 
 by a chemist, which showed that it was 
 above the standard (i.xed by the contract. 
 The discharge was comi)leted on the 'Mnt 
 of .May, and on tlie sai!ie day Cottman 
 made and sent to the Symingtons a bill 
 for the phosphate. >iot receiving any re- 
 plj' for several days, he telephoned there 
 on the morning of the day on which they 
 had executed their assignment, to know 
 whether they were going to pay for the 
 cargo in cash or by note, and received a 
 reply that they liad sometiiing to say to 
 him on the subject. lie immediately 
 w-ent to their ollici-. ami was surprised to 
 learn the}' had made an assignment. He 
 then asked them to give him their note 
 for the cargo, l.'ut they declined to do this, 
 as they did not thiidi it \V()uld be right 
 for thi-m to do so alter they had asr>igned 
 their property for the benelit of all their 
 creditors. Subseiiuently, on the Dtli of 
 June, the [)hosphate company, by their 
 counsel, made demand on .Mr. Gill, the 
 assignee, for the iiroperty, and on the fol- 
 lowing day the .Symingtons wrote an<l 
 mailed a letter to the con:pany, inclosing 
 their note for the cargo, made out in ac- 
 cordance with the terms of the contract 
 of sale; but the company, declining to re- 
 ceive this note, returned it to the assignee, 
 and l)rought this action of trover. 
 
 Upon thcs(- facts the i|ucBtion is, was 
 the title to this propei-ty vested in the 
 Symingtons when they executed tlieir 
 ussignnicnt.or wasit still in the phosphate 
 company, the vendor? The (picstion is 
 an interesting one, and has been exceed- 
 ingly well argued. On the part of the ap- 
 pellant company it is contended that by 
 the terms of the contract the sale is con- 
 ditional, anil that no title vested in the 
 liuyers Ijecause the condition of paying by 
 note or in cash hail not been complied 
 with or waived. On the other hand, coun- 
 sel for the appellee deny that such is the 
 proper construction or effect of the con- 
 tract, and contend thot the title passed 
 by delivery of the cargo on board the buy- 
 ers' vesselnt Dale's creek, and. if not by 
 such delivery alone, it clearly did wlien 
 accompanied or followed by insurance for 
 the liuvers' lienefit. and transmission to 
 them of the bill of lading. We think the 
 law is well settled that where a l)uycr 
 purchases or orlers a specllic (|uantlty of 
 goods to be shipped to him from a distant 
 place, and the seller segregates and ap- 
 propriates to the contract the specilied 
 quantity bv delivering them ti. a vessel 
 designated by the buyer, or, in the ab- 
 sence of such designation, to a common 
 earlier, the mere fact that the conlroct 
 contains a stipulation that they arc to bo 
 paid for liv note or in cash on arrival, 
 does not iireveat the title from passing, 
 or nake either payment or arrival a con- 
 dition iirecedent thereto. In such case tho 
 goods become the property of the vendtv, 
 and are at his risk from the time they are 
 put on board the vessel. .Magruder v. 
 Gage, :i:! Md. :144 ; .-\ppleman v. Michael. 43 
 Md. 2sl ; Dultou V. Solomonsou, 3 Uos. ik
 
 304 
 
 FARMERS' PHOSPHATE CO. v. GILL. 
 
 V. 584; Fragano v.LonK,4 Barn. & C. 219; [ 
 Alexander v. Garriner. 1 Bins- N. C. 671. 
 In the case last cited tliorc was a stipu- 
 lation in the contract tliut the goods were 
 to be paid lor "by a l)ill at two months 
 I'/oni the date of landing." The goods' 
 were shipped from Sliyo, in Ireland, to | 
 London, and while in transit were lost 
 or damaged by aliipwreck. In an action 
 by the vendor against the vendee for 
 goods bargained and sold, this term of 
 the contract was relied on by the defend- 
 ant ; but Tindal, C. J., said " the object of 
 thatstipulation was merely to fix the time ; 
 of payment, and not to make tlie landing. 
 a condition precedent," and added that 
 for that point it is enough to refer to the 
 decision in Fragano v. Long. In this 
 view all the other judges concurred. 
 
 If, therefore, there was no other stipu-j 
 lation in the contract, the case would be! 
 free from difficulty. But tliere are two 
 other clauses introduced for the purpose 
 of ascertaining the exact amount to be 
 l)aid by the vendees. The first stipulates 
 that the cargo shall be weighed in order 
 to find out tlie number of tons to be paid 
 for at the stipulated price, and the sec- 
 ond requires its quality to lie ascertained. 
 As to the latter provision it must be no- 
 ticed that it gives the vendees no right to 
 reject the rock if it did not come up to the 
 prescribed standard, but simply secures 
 to them a proportionate abatement in 
 the price if it fell below it. What, then, 
 is the effect of these stipulations on the 
 transfer i>l title? This presents the only 
 real difficulty in the case. Where the 
 agieenient is for the sale of goods, and 
 also for the performance of other things, 
 it becomes important to ascertain wheth- 
 er the performance of any of these things 
 is meaiit to precede the vesting of title or 
 not. This is a question of the construc- 
 tion of the agreement, and it may often 
 happen that the parties have expressed 
 their intention in a manner tliat leaves no 
 room for doubt. When, ht)wever, they 
 have not done so in express terms, the in- 
 tention must be collected from the whole 
 agreement, and for this purpose (asstated 
 liy Lord Blackburn in the recent edition 
 of his book on Sales) the English courts 
 have, since the beginning of the present 
 centuri', adopted two rules of construc- 
 tion, both derived from the civil law. The 
 first is that, where by the agreement the 
 vendor is to do anything to the goods for 
 the purpose of imtting them into that 
 state in which the purchaser is to be 
 bound to accept them, or, as it is some- 
 times worded, into a "deliverable" state, 
 the performance of those things shall (in 
 the absence of circumstances indicating a 
 contrary intention) be taken to be a con- 
 dition precedent to the vesting of the prop- 
 erty. The second is that where any thing 
 remains to be done to the gcods for tlie 
 purpose of ascertaining the price, as by 
 weighing, mensuring, or testing the goods 
 where the price is to deiiend on the quan- 
 tity or quality of the goods, the perform- 
 ance of these things also shall bo a condi- 
 tion precedent to the transfer of the prop- 
 erty, although the individual goods be as- 
 certained, and they are in a state in which 
 they ought to be accepted. The learned 
 
 author approves the first rule, but sug- 
 gests that the second was hastily adopted 
 from the civil la «, without adverting to 
 the great distinction made by the civil- 
 ians iietween a sale for a certain price in 
 money and an exchange foranything else; 
 a distinction which is not recognized by 
 the English law. He remarks that in gen- 
 eral, weighing, etc., must, from the nature 
 of things, be intended to he done before 
 the buyer takes possession of the goods, 
 but that is (juite a different thing from in- 
 tending it to be done before the vesting 
 of the property; and he intimates very 
 strongly that in his judgment this second 
 rule has no foundation in reason. 2 
 Blackb. Sales, (2d Eng. Ed.) 127, 12S. The 
 view thus taken by Lord Blackburn is 
 supported by the very vigorous opinion 
 of Cockbnrn, C. J., in Martineau v. Kiteh- 
 ing, L. R. 7 Q. B. 449, in which he declared 
 he would not give way to a rule which 
 appeared to him to militate against prin- 
 ciple and to be inconsistent with common 
 sense and convenience; and he insisted 
 that if you can gather from the whole cir- 
 cumstances of the transaction that the 
 buyer and seller intended that the prop- 
 erty should i)a.ss and the price should be 
 afterwards ascertained by measuring or 
 weighing, there was nothing in principle, 
 in common sense, or practical conveni- 
 ence to prevent that intention from hav- 
 ing effect. The other judges did not dis- 
 sent, l)ut thought the case before them 
 could he decided on other terms of the con- 
 tract, without determining whether there 
 was any inexorable rule of law that the 
 property will not pass where the price or 
 amount to be paid remains to be ascer- 
 tained by weight or measurement. 
 
 In this country Mr. Newmark, in his 
 recent work (;n Sales of Personal Prop- 
 erty, after stating the English rule, sub- 
 jects it to the qualification th;\t it applies 
 incases where there is no evidence tending 
 to show the intention of the parties to 
 make an absolute and com[)lete sale with- 
 out perform.ance of the acts of weighitig 
 or 7neasuriag. Newm. Sales, § 74. We 
 have also American decisions, by courts 
 of the highest authority, which h<jld 
 broadly that the performance of these 
 acts, where provided for in the contract, 
 is not essential to the transfer of title. 
 Such, as we understand it, is thedecisicm 
 of the supreme court in Leonard v. Davis, 
 1 Black, 47(i. In that case there was a 
 sale l)y written contract of a large quan- 
 tity of pine logs lying in and near a boom, 
 which it was supposed would makeabout 
 1,444,000 feet of luml)or in board measure. 
 The contract specified one price per thou- 
 sand for those logs that wereafloat in the 
 boom, and another for those on the bank 
 and in the marsh near the boom. It was 
 also a part of the contract that the logs 
 should be counted, measured, and scaled 
 bj' the boom master. The suit was by 
 the vendors against the vendees upon this 
 contract for the purchase money of all the 
 logs. The court below instructed the 
 jury that the contract was executory, and 
 that the title did not pass until the logs 
 had been measured; but the supreme 
 court reversed this ruling, and held that 
 it was a sale without condition, that the
 
 FARMEUS' PHOSPUATE CO. v. GILL. 
 
 SOS 
 
 inensurement was simply to ascertaiu the 
 jimomit to l)e i)Oi(l by the vendeeB, and 
 that llie tiUc to tlic Iorh pastiPd to tlicm 
 aH HOOK HH the foil trni't was HiKiied and 
 there had been a Hyniboliial delivery there- 
 iiiidiT. Af-ain, in Hatch v. Oil Co., 100 t;. 
 S. II!.'), the same court reiterated tlie doc- 
 trine that, where it appears that there 
 haH been a complete delivery of the prop- 
 erty in accordance with the terniH of Male, 
 the title pawHCH, althouuih there remains 
 .something to be done in order to ascer- 
 taiii the total value of the i;o(jdH at the 
 ratospecitied in the contract. To the same 
 effect are the New York cases of Crofoot v. 
 liennett, 2 N. Y. 2.'>.S, and liurrows v.Whit- 
 aUer, 71 N. Y. I'D'.t. But takint? the rule 
 with 4he <iualilicationK stated in New- 
 mark on Sales, we lind in this case abun- 
 dant evidence to show that it was the in- 
 tention of the parties that the title should 
 pass before the Kf'ods had been weighed 
 and tested in ISaltimore. The buyers 
 chartered a vessel to hrinj; the cargo from 
 South Carolina to Baltimore, insured it 
 for their own benefit, and became re- 
 sponsible for the freight. But, what is 
 tnore important, and more significant, as 
 indicating the intention of the vendor 
 compan.v, they had a bill of lading made 
 out l)y the master as soon as the vessel 
 was loaded at Dale's creek, stating on its 
 face that the cargo was to be delivered 
 to the vendees or to their assigns, and 
 procured the same to be delivered to the 
 Symingtons within a week from its date. 
 .Now, it may be true that the transmis- 
 sion of a bill of lading maj' not in all cases 
 be absolutely conclusive of title jis be- 
 tween vendor and vendee, or consignor 
 and consignee, yet the implication is al- 
 most irresistible that the motive of tlic 
 vendor, when the bill is taken in tlie name 
 of the vendee, is to vest title in the latter, 
 free from all conditions. Key v. Cotes- 
 worth, 7 Kxch. ."ill.'), and note. Ab a gen- 
 eral rule a bill of ladingupcratesa transfer 
 LAW SALPS — 20 
 
 of the property to the party In wliose 
 favor It is drawn, and to whom It Is de- 
 livered. Citation of authority on this 
 point is unnecessary. It the vemlors In 
 this case had wisheil to prevent the prop- 
 erty from passing, and to retain the right 
 to deal with It after shipment and while 
 in transitu, they should by the liill of lad- 
 ing have made the cargo deliverable to 
 their own order, and have forwarded the 
 same to an agent of their own. with di- 
 rections to retain it until the cargo had 
 l)een finally delivered, weighed, tested, 
 and paid for in Baltimore. Kx parte 
 Banner, 2 Ch. Div. 2hh. But this they did 
 not do, and all the circumstances of the 
 transaction show it was the Intention of 
 both parties to have the cargo become 
 the property and be at the risk of the 
 vendees from the moment it was put on 
 board the carrying vessel. In fact it was 
 for the manifest interest of the vendors 
 that this should be the case, for If the 
 cargo had been lost by shi|)wreck of the 
 vessel they could have made the vendees 
 responsible therefor In an action for goods 
 bargained and sold, and there would have 
 been no insuperable dilficulty In the way 
 of their recovery. Upon the whole case, 
 therefore, our opinion is that this cargo 
 became the property of the Symingtons 
 from the time it was delivered on board 
 their vessel at Dale's creek, and conse- 
 quently iiassed under their deed of assign- 
 ment. The case is unlike that of a sale 
 "for cash on deliverv," considered in Pow- 
 ell V. Bradlce, '.) Gill & .1. 220, and we think 
 it is also distinguishable in material facts 
 and circumstances from that of Whitney 
 V. Eaton, I.") (irny, 225, so much relied on 
 by counsel for the appellant. It follows, 
 therefore, from the undisputed facts of the 
 case that this action cannot be main- 
 tained, and consequently there has been 
 no ruling prejudicial totheappellant made 
 by the court below in its action upon the 
 prayers. .Judgment afFirmed.
 
 FIELDER V. ST.VHKIX. 
 
 807 
 
 FIELDER T. STAUKIN. 
 
 (1 n. Bl. 17.) 
 
 (Court of Common Pleas, Trinity Term, 17S8.) 
 
 This WHS an aotion on the warranty of 
 a niare, " tliiit mIir wbh huuhcJ, guiet, and 
 free from vice and bleinisli." 
 
 I'lea, nDii-UKouuip^it, on wliicb isHue 
 wnH joined. — 
 
 TliecanHe enme on to be tried at the 
 last asslzeH at Tlictford, before Mr. Justiee 
 .'\HhluirHr, and a verdict found for the plain- 
 tiff. It appeared on the tiial, from the 
 learned juil^e's report, that the plaintiff 
 had bouHfht the mare in qucHtion of the 
 ilcfendant at Winnel fair, in the month of 
 .\Lircli, 17S7, for :io f>uinoaN, and that the 
 defendant warranted her sound, and free 
 irom vice and blen)i8h. — Soon after the 
 wale, the plnlntiff discovered that she waH 
 unsound and vicious (a), but i;ept her 
 three months alter this discovery, duriii}; 
 wliich time he nave her physic and used 
 other means to cure her. At the end of 
 the tliree months he sold her, but she was 
 soon returned to him as unsound. .Mter 
 she was so returned, the plaintiff kept her 
 till the month of October 17n7, and tlien 
 sent her back to thedefenilant asunsound, 
 wlio refuseil to receive lier. On her way 
 back to the plaintiff's stable, the mare 
 died, and i,n her beinj; opened, it was the 
 opinion of the farriers who examined her, 
 that she had l)een unsound a full twelve- 
 month before her death. It also appeared 
 that the plaintiff and defendant had been 
 often in company to<;ether durinK the in- 
 terval between the month of March, when 
 the mare was sold to the plaintiff, ami 
 October, when he sent her liack to the 
 defendant; but it did not appear that the 
 plaintiff had ever in that time accjuainted 
 the defendant with the circumstances of 
 her bejnir unsound. The jury found a ver- 
 dict for the plaintiff with 30 guineas duni- 
 ages. 
 
 .\dair, Serjt. shewed cause. Le Blanc, 
 Serjt., in support of the rule. 
 
 Lord LOUUIIBOIiOUOH— Where there 
 is an express warranty, the warrantor un- 
 ilertakes that It is truc.-tt the tinieof mak- 
 ing it. If a horse which is warranted 
 sound at the time of sale, be proved to 
 have been at that time unsound, it is not 
 
 necessary that he should lie returned to 
 Hie seller. No length of time elapsed after 
 the sale, will alter the natiin- of a ron- 
 tract originally false. Neither Is notice 
 nw-essary to be given. Though the not 
 giving notice will be a strorg presump- 
 tion against the buyer, that the liorse at 
 the time of the sale had not the ficfect 
 complained of, and will make the proof on 
 his part much more dlltlcult. The l)nr- 
 galn is complete, and if it be fraudulent 
 on the part of the seller, he will l>e liable 
 to the buyer ia damages, without either a 
 return or notice. If on account of a horse 
 warranted sounil, the buyer should sell 
 him again at a loss, an action might per- 
 ha|)s be maintained against tlie original 
 seller, to recover thedlfference of the price. 
 In the |)resent case it afipears from the 
 evidence of the farriers whr) saw the more 
 opened, that she must have been unsound 
 at the time of the sale to the plaintiff. 
 
 fiOI'LI), J.— of the same opinion, re- 
 membered many cases of express war- 
 ranty, where a return was not held to be 
 necessary. 
 
 HEATH, .1.— If this bad been an Bction 
 for money had and received to the plain- 
 tiff's u.-ie. an Immediate return of the mare 
 would have lieen necessary; but as it is 
 brought on the express warranty, there 
 was no necessity for a return to make the 
 defendant liable. 
 
 WIL.so.X, ,1. — of the same opinion, rec- 
 ollected a cause tried before .Mr. .lustlce 
 liuller at nisi prius. where the defendant 
 had sold the plaintiff a pair of coach 
 horses and warranted them to be six 
 years old. which were In reality only lour 
 years old. It was cuntendeil that the 
 plaintirr ought to have returned the 
 horses; but .\Ir. J ustice I'.nller held that 
 the action on the warranty might be sup- 
 |)orted without a return.' .As to part of 
 the evideiice being contrary to the verdict, 
 the jnr.v have a right to use their discre- 
 tion either in believing or disbelieving any 
 part of the testimony of witnesses. 
 
 Uule discharged. 
 
 ' See Towers v. Barrett, Term Rep. B. R. 
 vol. i. p. i:{(>. [and Bucbanau t. I'ornsbaw, 
 vol. 2, p. 745.1
 
 i
 
 FIRST XAT. HANK v. CKOCKER. 
 
 :m 
 
 FIRST NAT. BANK OF CAIUO v. CROCKER 
 et al. 
 
 (Ill Mass. 1G3.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. Nov. I«7:i. 
 
 Tort {iKiiiiiKt ('r<)ci<L'r, Smith & Co. for 
 the convt'i'rtioii of 100 harrolH of (lour. It 
 Jicpi''""'"!' <'" tlio trial tlint .A y era & Co., 
 i)f Cairo, llliiioiH, had dealt with defetid- 
 aiit coiiiiiiiriHicjii iiiercliaiits in HoKtoD for 
 Home .M'arn, Hhipiiiiij; tliciii fl(/iir on coti- 
 KiKiiment, for Halo in l'<jHtoii. and liavint; 
 fitiopen Kt'iii'ralconHijinincnt a'count with 
 tht'iii. Avers iV: Co., on .VuKii-it L':!, !.S70, 1 
 (•onsl>;n((l to them Home Hour, and drew on j 
 tlieni forinorethan itH value, writing them 
 that they woulil make it all ritcht in the 
 tie.xt Hhipment. The defeTidantH paid the 
 draft, which left Ayers \- Co. iiidelited to 
 defendants for about f l,.')ll(). On August 
 LM, 1S70, AyerM& Co. shipped the 100 barrels 
 of (lour in diKputc to Boston, taking a hill 
 of lading "consigned to Hhii)per'H order 
 liostou, Mass.." but on which wuh writ- i 
 ten "St. Louis Mills and Blackburn. For! 
 < rocker, .Smith ifc Co., Boston, MaHs."j 
 They then drew on defendants with bill of I 
 lading attaclied, and discounted the draft, j 
 which defendants refused to accept, and I 
 it was returned to defendantH with thej 
 bill of lading. When the Hour arrived in i 
 Boston, September \2, ISTO, it was ac- 
 companied liy a way t)ill, on which, under 
 "Consignees," was written "(Jrocker, 
 Smith & Co., Boston;" and tlie Hour was 
 received b.v them and sold, and applied 
 to the account of Ayers & Co. Septeml)er 
 14, 1S70, Ayers & Co. drew a draft on account 
 of tlie 100 barrels of Hour on (Joodwin, 
 Locke & Co. of Boston, in favour of plain- 
 tiffs, and attached to it the lull of lading. 
 Thedraft was accepted an<l paid when due. 
 The bill of lading was endorsed iu blank 
 when delivered by Ayers •& Co., lint when 
 forwarded b.v plaintiffs the words "Deliver 
 within-nanied Hour to (Jood win, I..orke & 
 Company, or oi'der," were written over 
 the endorsement of Ayers & Co. 
 
 .A.Churchill & J.E.Hudson, for plain- 
 tiffs. A. A. Ilanney, for defendantH. 
 
 AMICS, J, It is manifest that the flour 
 was not i)laced in the hands of these de- 
 fendants (or the purpose of securing an 
 existing debt, or inilenmifying them for 
 any advances that they had made. It 
 was not consigned to them in order that 
 it might be sold, and the proteeds curried 
 to the credit of Ayers & Company in gen- 
 eral a<'':ount current. It is true that the 
 consignors knew that they had over- 
 ilrawn their accniinr, and that tliey had 
 expressly promJKed to "make it all right" 
 at the next Hhijiment. I'.ul that was an 
 executory contract. The proposed cor- 
 rection stoi>d wholl.v in agreement. A 
 general promise to make the matter right 
 was not of itself sullicient to vest in tlie 
 defendants a title as absolute owners, 
 even of the goods forwarded at the next 
 shipment, unless the circumstances in- 
 dicated, or at least wert> consiscenf with, 
 Huch an intention on the part of the ship- 
 pers. But in this case, tlie consignment 
 and the draft constituted one transac- 
 
 tion. The bill of lading and the draft 
 came together; a]id the flefcndnntH under- 
 stood that the Hour was si-nt tu them, 
 subject to a claim of f.jOO io fa vor uf the 
 holder of the draft. They were to receive 
 it ui)on the trust that tliey wore to pay 
 that amount out of the proi-eeds. The 
 meaning of the transaction on the part of 
 the shippers was that the defendants 
 were to receive it for that purpt.se and 
 upon that underHtanding oidy. It was 
 as if they had said, " You may take this 
 flour and sell it on our account, (irovliled 
 you will accept this draft." A 1)111 of lad- 
 ing indorsed Is only prima facie evidence 
 I f ownership, and is open to explanation 
 I'ratt V. Parkman, iM Pick. 4'.'. This hill 
 of lading was provisional, and was not 
 Intended to vest the property in the de- 
 fendants, or to authorize their takini; 
 possession of it, except upon the condi- 
 tion of their acceptani-e of thedraft. Al- 
 ItTi v. Williams, li* I'ick. -".I7. 
 
 The act of the defendants, therefore. In 
 taking |)OsseHHion of the Hour was whtdly 
 unauthorized, and gave them neither 
 valid title nor la wful possession. .Mien v. 
 Williams, ubi supra. In proceeding aft- 
 erwards tc sell it as if it were their own. 
 and appropriating the proceeds, they 
 were guilty of a wrongfid ((inversion. .\ 
 carrier may be a mere bailee for the con- 
 signor; anil where by the terms of the hill 
 of lading the goods are to ho delivered to 
 the consignor's order, the carrier is his 
 agi'iit, and not the consignee's. Moakes 
 V. .Nicolson, l'.» C. B. (N. S.| IttO. Baker v. 
 Fuller, i;l Pick. ;!1S. Merchants' .National 
 Bank v. Bangs, lOl! Mass. 'JOl. On the re- 
 fusal of the consignee to receive the goods 
 upon the terms ami for the purposes for 
 which they were sent, he cantiot take 
 them for anv other purpose. Shepherd v. 
 Harrison, L. K. .1 II. L. IIG. De Wolf v. 
 (iardner, ]2 Cash. I'.l. 2:t. Allen v. Wil 
 linms, 12 Pick. 207. The title to the Hour 
 therefore remained in the shiiiper, whidly 
 I unaffected by the consignment. Kven In 
 I the case of a contract of sale, the fact of 
 ; making the bill of biding <lcliverable to 
 i the order of the vendor, when not rebnt- 
 I ted by evidence to the contrary is decisive 
 , to show his intention to preserve the jus- 
 (lisponenili, and to prevent tlie property 
 from passing to the vendee. Wait v. 
 Baker, 2 Kxch. 1. \>\n Casteel v. Booker, 
 Ih.CpOl. The case of a mereconsignment to 
 an agent would he of course still stronger. 
 1 I'pon the refusal of the defendants to 
 ac<ept the C4iiisignmcni upon the terms 
 prop>ised, wliicli refusal was suHlclenlly 
 mnnifesteil by the protest of the drafi and 
 j the return of the bill of lading, the owners 
 I of the Hour, .\yers \ Company, had a riglit 
 i to seek a ni'W consignee, and to make 
 I another attempt to obtain an advance 
 ' by n draft t<i be chargeil against theprop- 
 erty. .\u arrangement was accordingly 
 made with thi- plaintiffs, who discounted 
 tlieirdiiift of ?lail u|iou the security of 
 the same bill of hiding that had been sent 
 to the deleiulanis and returneil liy them. 
 If this bill of lading was delivered to the 
 I pl'iintiffs. indorsed in Idank by Ayers & 
 [Company, (and there Is testimony to that 
 I effect,) tiie transactiiin wouhl operate as 
 i u transfer of their title in the flour to the
 
 310 
 
 FIRST NAT. BANK v. CROCKER. 
 
 plaintiffs, if suoh were the intention of the 
 parties. Ah the property was at that time 
 in Boston, it was of course incapable of 
 aetiial ilclivery at (.'airo, and tlie delivery 
 of tlie evidence of title, with the Indorse- 
 ment upon tlie hill of lading, was all that 
 could be done for the transfer of the prop- 
 erty from tlie general owner to the new 
 purchaser; but it would be effectual for 
 that purpose. Conard v. Atlantic Ins. 
 Co., 1 Pet. :W(i, 44.'). Gibson v. .Steven.«, 8 
 How. :1S4. Brvans v. Nix. 4 M. & W. 775, 
 791. Low V. i)e Wolf, S Pick. 101. (Jord- 
 ner V. Howland, 2 Pick. .')!)!). Stanton v. 
 .Small, ;> Sandf. 2.30. Pratt v. Parkman, 
 24 I'ick. 42. In Gibson v. Stevens, the 
 court say, per Taney, C. .!.: "This rule 
 applies to every case where the thing sold 
 is, froni its character or situation at 
 the time, ;n(!apal)le of actual delivery." 
 To the extent of their advance of money 
 upon the draft, therefore, the fjlaintiffs 
 would be ciwisidered as purchasers, and 
 they would acquire a special jiroperty in 
 the flour for tlie purpose of pr(jtecting the 
 draft. At the time of this transaction, 
 the flour remained in the possession of the 
 (lefen<lants, and, with the exception of 
 taking pi^ssession, nothing had been done 
 on thi'ir part amounting to a wrongful 
 conversion of it to their own use. They 
 had not [uit it out of their power to re- 
 place the shippers in the enjoyment of 
 their rights. 
 
 It ai)pears from the report, that, when 
 the bill of lading was forwarded the sec- 
 ond time, the name of the firm of Good- 
 win, Locke & Company was written over 
 the indorsement of Ayers & Company. 
 l?ut we do not tliink that this fact, 
 whether the blank indorsement were tilled 
 up after or before the discount of the 
 draft, would materially affect the plain- 
 tiffs' rights. The bill of lading was at- 
 tached to the draft, and the substance of 
 the transaction was that thedi'aftwas 
 discounted upon the security of the mer- 
 chandise itself. It purports to he on ac- 
 count of the liarrels of Hour described in 
 the bill of lading. The tlour, alihough in- 
 trusted to Goodwin, Locke i.^ Company to 
 sell, was appropriated to the specific pur 
 pose of the payment of this draft. The 
 bill of lading was put in the plaintiffs' 
 hands to enable them to hidd the mer- 
 chandise as their security, and the dis- 
 counting of the draft was the co7isidera- 
 tion for the transfer of the property to 
 them. It was convenient so to indorse 
 the bill of failing, as to make it manifest 
 that Goodwin, Locke & Companj' were tc» 
 receive and dispose of thegoods; but they 
 were to do so as trustees and agents of 
 tlie plaintiffs, and not as proprietors in 
 their own right. Tliey certainly acijuired 
 no title in the property until they had 
 accepted the draft, and when that event 
 hap))ened the goods had been disposed of 
 by the defendants, and had gone into the 
 hands of bona fide holders without notice, 
 so as to be be.vond recall. The effect of 
 this transaction bcttveen the plaintiffs 
 and Ayers & Company was that the Hour 
 was designated to st;ind as collateral se- 
 curity for the draft. If the draft had not 
 been accepted, the plaintiffs clearly would 
 not have lost their title to the flour. It 
 
 is not necessary to hold that the plain- 
 tiffs became absolute owners of the prop- 
 erty ; it is enough that they had a riglitof 
 property and possession to secure the 
 payment of the draft, and the right of 
 Ayers & Company as former owners of the 
 specific property had become divested, 
 leaving them only a right in the surplus 
 money which might remain after a sjile 
 of the flour and a payment of the draft 
 from the proceeds. lie Wolf v. Gardner, 
 12Cush. 1!). has in many respects a close 
 analogy with this case. 'J'here the gen- 
 eral owner of the flour was the plaintiff, 
 and the defendant was a party claiming 
 under the new consignee, and the court 
 held that the plaintiff had parted with the 
 right of property, and could not maintain 
 his action. In Bank of Rochester v. 
 Jones, 4 Coinst. 407, as in the case at bar, 
 the plaintiffs had di.'-counted a draft 
 drawn by the owner of a quantity of flour 
 upon the defendant, who, as in the case 
 at liar, refused to accept the draft, and 
 claimed to hold the flour and sold it for 
 the payment of a balance <lue from the 
 drawer. Instead of a bill of lading, there 
 had been a carrier's receipt, which the 
 drawer delivered, unindorsed, to the 
 plaintiff bank. The agreement was that 
 the bank should hold the flour as security 
 that the diaft should be accepted, but 
 with ijower to sell it if the draft should 
 not be accejited. The court of appeals 
 held that the defendant could not acquire 
 any propert.v in the flour, except by per- 
 formance of the condition imposed, name- 
 ly, the acceptance of the draft; that the 
 transaction between the consignor and 
 the plaintiff bank gave to the latter a gen- 
 eral or special property in the Hour; that 
 the transaction constituted a sale to the 
 bank in trust for the fulfillment of the 
 agreement; that the carrier's receipt, 
 though not indorsed, was sufficient evi- 
 dence of the plaintiff's right of possession; 
 and that the statute of frauds was not 
 applicable, as the deliver.v of the receipt, 
 in consideration of the discount of the 
 draft, was surticient to transfer the title. 
 In legal effect, and for the purpose of ex- 
 plaining what is to be done with the 
 merchandise, there can he no substantial 
 difference between a bill of lading and a 
 cari-ier's receipt. 
 
 We have then in this case an intent of 
 the general owners of the flour to make 
 use of it as a securit.v for an advance of 
 money from the plaintiffs; a delivery of 
 the bill of lading in pursuance of that in- 
 tent; and a valuable and executed con- 
 sideration in the discounting of the draft. 
 The fact that the goods were in the cus- 
 tody of the defendants would not prevent 
 this arrangement from having the effect 
 to transfer the title of Ayers & Company 
 to ilie plaintiffs. Whipple v. Tha.ver, 16 
 Pick. 25. McKee v. Judd, 2 Kern. 622. 
 Whether it should be regarded as a sale, 
 a pledge or a mortgage, there was a suffi- 
 cient (lelivery to give to the plaintiffs a 
 special property, which they could enforce 
 1..V suit against any wrongdoer. They 
 had a i-ight to transfer the property, sub- 
 ject to the same trusts upon which they 
 held it themselves, to their eorrespond- 
 eut or agent in Boston, and it may well
 
 FIRST NAT. BANK v. CROCKER. 
 
 311 
 
 tip tlint, if the drnft liiiil been uccented by 
 Goodwin, l^ocke <fe roinpnny liefore the 
 flour hml been Hold iiiid placeil out of their 
 reach, tliei' would luive been the proper 
 parties to have brou^lit tlilH netloii. Hut 
 the transfer to them (or that reason 
 wholly failed to take effect, and tliey ac- 
 (]uire(l no title t<i the (lour K|)ecHieally If 
 they had nccciiled the draft before the 
 flour had been sold to a boim firU; pur- 
 chaser, the case would have been almost 
 exactly like Allen v. Williams, above cited. 
 That was a case in which the conHiy;nce of 
 merchandise refused to accept the dralt 
 which accompanied the bill of ladiii)^, and 
 took possession of the merchandise, claim- 
 in(r as in this case the riKlit to do so in 
 order to secure a balance due to l.im from 
 the consignor. The court hold that a 
 
 new consignee could mnintain trover 
 
 a;;ainNt him. 
 
 Our conclusion then Is. that at the 
 time of (he sale of the flour by the defend- 
 ants, the plalntiffH hail a ri);lit and prop- 
 erty in it, which, whether Rcneral or Hpe- 
 cial. and whethi-r as purchasers, truHtees. 
 pled^eeH or mortKaKees. i;ave theiu u 
 right of possession as against all wrong- 
 doers; and that the defendants had no 
 title whatever and w ere mere wninnflocrH. 
 The fa(!t that the draft has been |iaid by 
 the new consicnees does not (irevent the 
 plaintiffs from niaintninlUK the action fur 
 the beni'lit and (jrotection of the a<-cept- 
 ors of the draft, who without fault o( 
 their own have been de()rived of the Hecur- 
 ity upon whi(di it was discounted. 
 
 Judgment for the plaintiffu.
 
 FIRST NAT. BANK v. DEARBOKN. 
 
 313 
 
 FIRST NAT. B.\NK OF GRKEN BAY v. 
 DEARBORN. 
 
 (11.5 Mass. 219.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. June 18, 1874. 
 
 Ufplcvin of 100 liarrcU of flour. CoKe 
 witliilruwii from tliL' jury, nnd I'eporti'd i 
 to the Kii|)r('ine court. The followliif^ i« 
 the siil>htiince of the report : 
 
 !{.(). I'orks.of (ireen May, Wis., was innn- 
 i)f!icturiiit> Hour at Necnali, Wis., at wliicli 
 place the plaintiff hank wa.s established. 
 I'nrkf had Hliipped Hour to Harvey, .Scud- 
 der i!ic ("o , of lioston. His drafts on them 
 had beoii accepted, and paid in part. The 
 hank adv.inced to I'arks :5400 on the Hour 
 in controversy. I'arks left with it the fol- 
 lowiuK ilraft "on Harvej , Scudder &Co.: 
 ••$400. Ollice of R. t;. Parks & Co., (ireen 
 l!ay, Wisconsin. October 17, 1^70, At si^ht. 
 pay to the order of .M. I). Teak, cash, four 
 hundred dollars, value received, and 
 charire the same to the account of R. (i. 
 Parks & Co. " .\cross the face of the draft 
 was written in pencil, ■■ Hold this till to- 
 morrow, vvheri I will jiivc you U. L. " The 
 next day Parks uave the bank the follow- 
 inj; writing: "Chicago & Northwestern 
 Hallway Company, Neenah, October 17, 
 1S70. Received from R. G. Parks and Co. t 
 100 barrels of Hour braniled W.-ftec. in 
 train, consigncil to Harvey. Scudder & 
 Co., Boston, .Mass., via (ireen Bay. To 
 be forwarded to the Ft. Howard Station 
 upon the ferms ami conditions of the pub- 
 lished tariff of this company. A. H. 
 Boardmari. .\Keiit. " The bank then i)laced 
 f 1,400 to the credit of Parks. The defend- 
 ant admitted that the draft and receipt 
 were delivered by Parks to the b.nnk to se- 
 cure the§i400advanccd, and that it was the 
 intention to transfer the flourfor the same 
 purpose. The fl(jur was in Parks' mill at 
 Neenah until its delivery to the railway 
 company, by Parks' agent, befori'the sign- 
 ing of the receipt, but had not been seen 
 by Parks or the bank. The receipt nnd 
 draft were forwarded to Boston by the 
 bjink. Harvey, Scudder & Co. refused to 
 accept the ilraft because no bill of lading 
 accompanied it, and they never made any 
 advance on the Hour or received it. f)ne 
 of the lirm of Harvey, Scudder *c Co. in ■ 
 formed a creditor of Paiks & Co.. in Bos- 
 ton, that the Hour was likely to arrive, 
 and that bis lirm had no claim on it; and 
 defendant, a deputy sheriff, levied an at- 
 tachment -in it on its arrival as the i)rop- 
 erty of I'arks & Co. 
 
 R. .\I. Morse. Jr., and R. Stone, .Ir., for 
 plaintiff. J. W. Hubbard, for defendant. 
 
 .\M1CS, J. It appears that when the 
 draft was discounted and the receipt de- 
 livereil to the i)laintiff, l)oth parties under- 
 stood thai it was an advance by the 
 bank, "on the Hour." I'.oth partfes in- 
 tended that the property should be. and 
 un<lerstooil that it was, by that transac- 
 tion, transferred to the bank, as security 
 for that advance. The discouniing of the 
 draft was a sutticient consideration for 
 such a conveyance. If there was a sulli- 
 cient delivery of the properly to the plain- 
 tiff, there was nothing to hinder the inten- 
 
 I tion of the parties from gidng into full 
 effect. 
 
 The charncterand situation of the prop- 
 erty at the time of this trnnsuctlon were 
 such that an actual delivery was Impos- 
 sible. .\ constructive or symbidical deliv- 
 ery was all that the circumstances al- 
 lowed, but a ileliverj- of that nature, if 
 
 I properly made, woidd have been sulHcieiit 
 to give to the plaintiff cor|)oralion the 
 title to the properly, and an immeillate 
 right of possession, which It could mnln- 
 taiu, nut only against I'arks himself, but 
 also against Ills creditors. Tuxworth v. 
 Moore. !) Pick. .■J47. Fettvplacc v. Dutch, 
 I'J Pick. 3SS. Whipple V. Ihavcr, 10 Pick. 
 ■27,. Carter v. Willard, Ifl Pick. 1. The 
 delivery of the evidences of title, with or- 
 ilers upon them, would be eipiivalent to 
 the delivery of tlie property itself. (JibHon 
 V. Stevens. S How. 3^4. Nathan v. (iiles, 
 ."> Taunt. .').">s. .National Bank r)f Cairo v. 
 Crocki.r. HI Ma.-fs. lt>:!. and cases there 
 citeil. .Ml that would be necessary in such 
 a case woulil be that the thing actually 
 delivered should have been intended as a 
 symbol of the property solJ. 
 
 In this case, the only thing which was 
 delivered to the plaintiff, as the represent- 
 ative or symbol of the property intended 
 
 I to be transferred to the plaintiff, was the 
 
 'written ncknow ledgment of the railroad 
 corporation that thoy liad received the 
 merchandise for transport a tion, consigned 
 to Harvey. Scudder & Co.. of Boston. No 
 order of any kind was Indorsed upon this 
 receipt, anil no attempt was made to 
 transfer it to the plaintiff in any mode, 
 other than by mere manual <lelivery. Rut 
 the receipt was evidence of ownership in 
 Parks, and the only voucher which he 
 had in or<ler to show his right to the 
 goods after parting with their actual pos- 
 session. It " as the meaiis which he had 
 of calling the carrier to account If the 
 goods shouhl be lost or injured, a-id It 
 miuht well be supposed that the carrier 
 would not ordinarily give up the goods 
 except upon the production ami surrender 
 of that receipt. Whatever right Scudder 
 & Co. might have had to take the Hour 
 into their own hands, if they had accept- 
 ed the dr.'ift. it is certain that on their re- 
 fusal to receive the consignment, the prop- 
 ertv remained in the hands of the carrier, 
 as the property of the consignor, <ir any 
 I)ersi'n deriving title trom the consignor; 
 the ctirrier would not be wholly relieved 
 of responsibility by the refusal of Scudder 
 & Co. to receive the property, but would 
 continue to be liable, at least for reason- 
 able care in its custody, to the trueowner. 
 It is true that a receipt of this kind does 
 not purport on Its face to have the <iuasl 
 nogotijible character which Is sometimes 
 said to belong to bills of lading in the or- 
 dinary form: neither does it purport In 
 terms to be good to the bearer. But In- 
 dependent! v of any indorsement, or formal 
 transfer In" writing, the po.ssesslon ami 
 production of it would be evidence Indi- 
 cating to thecarrier that the bank was 
 entitled to dem.ind the property, and 
 that be would bejustilied in deliverinK It 
 to them. There are cases In which the de- 
 livery of a receipt of this nature, though 
 not indorsed or formally transferred, yet
 
 314 
 
 FIRST NAT. BANK v. DEARBORN. 
 
 intendefl as a transfer, has been lieltl to 
 be a sood K.vinbolical delivery of the |)ro|)- 
 erty described in it. In llaille v. Smith, 1 
 B. & F. .")(;:!, Eyre, C. J., uses tliis lanjiuuse: 
 "I see no reason wli.v we shouUl not ex- 
 pound thedoctrineof transterver.vlarjjely, 
 upon the ajireeineiit of tlie parties, and 
 upon tiieir intent, to carry tlie substance 
 of that asreeinent into e.xecution." In 
 Allen V Williams, 12 Pick. 207. :)(J1, Shaw, 
 C .1., in (leliverinK the judgment of the 
 conrt.says: "Even a sale or pledge of the 
 property without a formal bill of ladinjj, 
 by the shipper, would operate as a n'ood 
 assignment of the projierty ; and the de- 
 livery of an informal or unindorsed bill of 
 ladinj;. or other docunientar.y evidence of 
 the slii|)i)er's property, would be a s"'Jd 
 symbolical delivery, so as to ve.st the 
 property in the plaintiffs." It is true that 
 he adds that it was not necessary to place 
 the case upon that grttund. But this 
 dictum was cited withentire a|)probntion, 
 in a case raising that exact point, in the 
 court of appeals of the state of New York. 
 Bank of Rochester v. Jones, 4 Conist. 41)7. 
 In that case, as in this, the plaintiff had 
 discounted a draft drawn against a ([uan- 
 tity of Hour, and its title, as in this case, 
 depended upon a carrier's receipt, deliv- 
 ered to it without any wi'itten imlorse- 
 ment. The court held that the plaintiff 
 thereby ac()uired a sufficient title to the 
 property, and could call the consignee to 
 account for it, he having converted the 
 property to his own use, without accejtt- 
 ing the draft. It is not necessary to hold 
 
 that the plaintiff was absolute owner of 
 the ])roperty ; it is enough that it had a 
 right of proi)erty and of possession to se- 
 cure the payment of the particular rlraft; 
 and the right of the former owner, I'arks, 
 in the specific property, had become di- 
 vested, leaving him onl.v a right in the 
 surplus n)onoy which might remain after 
 a sale of the Hour, and a payment {)f the 
 draft from the proceeds. I)e Wolf v. Gard- 
 ner, 12Cush. 10, 24. 
 
 Some reliance was placed by the defend- 
 ant's counsel upon certain local statutes 
 and judicial derisions of the state of Wis- 
 consin. But, if applicable at all, they do 
 not in our judgment affect the decision of 
 the case. If we are right in holding tliat 
 there was a sufficient delivery to pass the 
 proi)erty to tlie i)laintiff corporation, the 
 carrier must beconsidered, after that time, 
 as its bailee, and as holding the property 
 for it, and not in any adverse relatit)n. 
 Mis possession would be the |)08session of 
 the plaintiff. 
 
 Our conclusion thereforeis that theclear 
 intent of the parties, that the property 
 should stand as security to the plaintiff in 
 discounting the draft, was carried into 
 effect in a mannersanctioned by sound au- 
 thorities, and that there are no special 
 equities in favor of an attaching creditor 
 that make it desirable to defeat that in- 
 tent. 
 
 Judgment for the plaintiff. 
 
 COLT, 
 absent. 
 
 ENDICOTT, and DEVENS, J.I.
 
 FIRST XAT. BANK v. SHAW. 
 
 317 
 
 FlUST NAT. BANK OF TOLHDU y. 
 SHAW. 
 
 (61 N. Y. 283.) 
 
 Commission of Appeals of New Yorlj. Seiit. 
 Term, 1874. 
 
 Eilnard Bissoll, for appellant. Getiri;e 
 W. Parsons, for respondents. 
 
 DWIGHT, C. The plaintiff in this ease, 
 iimler the bill of lailinsie-M'cuti'd at Toledo, 
 had the lenal title to the property. True, 
 it held this not as almolute owner, liut to 
 secure its advances, the ultimate interest 
 appertnininK to Grillin&Co., still the ti- 
 tle was ill the plaintiff. 8o lontr as the 
 advances were not paid there was im the- 
 ory whereby Grilhn & Co. could claim title. 
 It had never been in them. At the mo- 
 ment their interest, whatever it was, ac- 
 crued t(» them, it came to them burdened 
 with the formal ownership of the plaintiff. 
 The bank held the title in trust for (irilHn 
 & Co., after its own claim was satisfied. 
 
 This would be the result of the transac- 
 tion as between the parties, even thout;h 
 no hill of ladinRhad been executed. Bank 
 of Hochester v. Jones, 4 X. Y. 4!)7; o."> Am. 
 Dec. 2'JO. The bill of indinK was merely 
 an instrument to carry out the trueintent 
 of the transaction, as evinced by their 
 dealing's. 
 
 Before entering in detail into the ques- 
 tion of the |ilaintiff's title, it is important 
 to notice whether the bill of ladin;:: was 
 drawn in such a way as to accomplish the 
 parties' intent, or whether it was in any 
 proper sense of the terra anibiuiious. In- 
 struments of this kind are familiar to the 
 le^al profession, and the construction of 
 some of the danses in the one under con- 
 sideration lias tieen settled ever since the 
 case of Dows v. Perrin, K! N. Y. ."!-."). In 
 that case there were bills of ladinji of ct)rn 
 liy t wo caual-boats. to the care of Dows 
 & Carey, for account of one Mack. The 
 court said that this lannunse vested the 
 title in Mack. The regular method of set- 
 ting forth his title, as the consignee or 
 party entitled to control the goods on 
 their arrival, would have been for the 
 owner who shipped it to have indorsed 
 the bill, making the com deliveralile to 
 him or his order. This however was done 
 in substance by stating upon the face of 
 the paper that the shiiimeiit was made 
 on his account. When the document thus 
 prepared was delivered to .Mack, it pur- 
 ported to tie a transfer from Niles& Wheel- 
 er (the consignors) to liini of the corn, 
 and to lie a contract on the part of the 
 proprietors of the transportalinii line to 
 cany it to New York. an<l deliver it there 
 to Dows & Carey, according to his direc- 
 tions, for the price of freight tr.entioned in 
 it. I'age :!:;!l. Dows V. CJreene, 'Jt .\. Y. 
 (his, (i40, reiterates tirs ruling under an in- 
 strument having sulistantially the same 
 teruis as were employed in the case at bur. 
 The effect of these words showing that the 
 title was in the hank, and that Kidd, 
 Pierce & Co., and A. I-. Grillin it Co., were 
 its .agents, was not cliangeil liy the fact 
 that there wereadditional words, " B'k a/c 
 
 to T. W. (Jrillln & Co." There Ir nothlni; 
 in those words on their face to show that 
 the title w as in Gridi'i & Co. Ah far ait 
 they can be interpreted by a mere perusal 
 of them.andconsldering t lieabbrevialions 
 to mean "liank account, " they reter to 
 some relation between the bank and Grif- 
 fin it Co.,Hncl not to anydealings lietwe<-n 
 the owners of the grain and the bank. 
 Kvidence however was given to e.TplaIn 
 the romniercial meaning at 'I'oledo, Ohio, 
 of the words, the result of which was that 
 they wei-e a mere notation to show that 
 the bank held title to secure the payment 
 of a debt due from Gritfin & Co. It was 
 objected liy the defendants that this evi- 
 dence was not legitimate, on the ground 
 that this was not an Ohio but rather a 
 New YorUcontract. The advanccof mon- 
 ey was made in Ohio, the transfer of the 
 grain took place there, ami the bank, as 
 between itself and the persons with whom 
 it dealt, Carrington & Casey, were entitled 
 to repayment there. The drafts onlirillin 
 & Co., and the bills of lailing, were merely 
 a mode of re-imburseinent. The contract 
 Is, in substance, an (Jliio contract. Story 
 Confl. Laws, § L's". It is there laid down 
 that when advances are made in such a 
 case, the undertaking is to replace the 
 money at the same place at which the ad- 
 vances are made, even tlxiugh the mode 
 of re-imburseinent lie by drafts on n for- 
 eign eonntrv. Lannssee v. Barker, .'I 
 AVheat. Kll. iVi; (iriint v. Healey, I! .Sunin. 
 5u'.i, Boyle v. Zacharie. (i Pet. r.:!.".. tu:\. i\U. 
 In the more general case, wlierea contract 
 is made in one country and to be per- 
 f<iriiie(l in another, it is not always easy 
 to determine, according to the authori. 
 ties, whether the interpretation of words 
 is to be governed by the la w of the place 
 where the contract is made, or l>y that 
 where it is to be performed. The general 
 principle is, that the law of the place 
 where the contract is made Is to govern, 
 unless it is positively to lie performed 
 elsewhere. The l.'ict that acts are to be 
 ilone abroad umler a contract does not 
 necessarily mnke it a contract to be per- 
 formed there, in a legal sense. Thus it has 
 been said that !i policy of insurance ex- 
 ecuted in Knglaii'l on a French ship for a 
 French owner, on a voyage from one 
 French port to another, is to be Interpret- 
 ed as an Ivnglish contract. Don v. Liup- 
 inann, .'.Cl.it F 1, li). The true Inquiry 
 is. what was the Intent of the parties. It 
 would seem that in a case like the present, 
 where the contract was made in Ohio, tiy 
 Toledo parties, the money beingadvanced 
 there and the security there, that they 
 had in view, in employing words, their 
 own usages, even though the goods were 
 to lie sent to an.itlier state, and nltimate- 
 Iv sold there if the advances were not re- 
 I'.aid. The result is, that the bill of laillng 
 executed at Toledo was Intended to vest 
 the title in the grain in the plaintiff ; that 
 A. L. tJrillin it Co. were its agents to for- 
 ward the cargo to New York: that Kidd 
 it Pierce were its agents in New York to 
 receive the goods, and that when the ad- 
 vances were repaid the bills of lading were 
 to lie assigned to T. W. Griltln & Co. 
 Tlie authorities clearly sustain these
 
 318 
 
 FIRST NAT. BANK v. SHAW. 
 
 eondueions. Bank of Rochester v. Jones, 
 mipra; Haille v. Smith, 1 Bos. & Pull. 563; 
 Tooke V. Holliuf^worth, .5 T. R. 21.5; Allen 
 V. Williams, 12 Pick. 2!)7; City Bank v. 
 Rome, W. & C). R. Co., 44 N. Y. 13G; RawlR 
 V. Oeshler, 3 Keyes, 572. The subject is set 
 forth in a dear light in the ease of Haille 
 V. .Smith, .supra. In that ease a cai-fj;o 
 was consigned to bankers, to secure them 
 for advances, and a bill of ladin}; indorsed 
 to tlieni. It wasalso understood tliat the 
 itargo was to be sold tor the account of 
 tlie consif;nors, whoreceived theadvanccs. 
 Subseiiuent to (he consisnment the bank- 
 ers applied for directions respecting the 
 dis(;osal of the cargo, and the price to l)e 
 asked. The court held that this arrange- 
 ment did not<'reate the relation of prin- 
 cipal and factor, but that the bankers 
 held the title in trust te effectuate the in- i 
 tent of the parties. The consignors had a j 
 residuary interest so as to gain by a rise j 
 or lose by a fall of the marxet value of the ! 
 goods. This fact however only related to , 
 the mode in which the trust was to be car- ] 
 ried into execution. The title to the car- ; 
 go was in the bankers, who had the evi- 
 dence of it in tlie bill of lading, which was 
 of itself upheld by the valuable considera- 
 tion paid for the transfer. 
 
 Bank of Rochester v. Jones is to the 
 same effect, though the apparent title was 
 not so clear as in Haille v. Smith. Jn • 
 that case one Foster applied to a bank to 
 borrow itfOoO for the purjibse of buying 
 two hundred barrels of tiour, and pro- i 
 j)i>sed to leave a forwarder's "receipt"' 
 for the flour so purchased, as security for 
 the acceptance of a draft to be drawn on 
 tlie defendant Jones. This proposition 
 having been accepted, the "receipt" was 
 delivered, and purported that theforward- 
 er was to forward two hundred barrels of 
 fiour to B. P. Jones, Albany. The prt)- 
 ceeds of the draft as discounted by the 
 bank were paid over to the seller of the 
 flour. It was the understanding that if 
 Jones accepted the draft the "receipt" 
 was to be made over to him. Jones de- 
 clined to accept the draft, but got posses- 
 sion of the flour. In an action of trover 
 brought by the bank against Jones, the 
 question was whether it luid such a prop- 
 erty as to maintain the action. It will be 
 observed that there was no bill of ladinj: 
 in the bank's name. The receipt was 
 drawn in favor of Jones. The title of the 
 bank did not rest upon any form, but on 
 the substance of the transaction. After 
 deciding that Jones had no title under all 
 the circumstances of the case, the court 
 held that the bank had either the special 
 or general property in the flour. It 
 said: "The true ground on which to sus- 
 tain this transfer of property to the bank 
 is by regarding the transaction as a sale 
 to the bank in trust, to deliver the prop- 
 erty to Jones in case heaccepted thedraft, 
 and if he i-efused to accept the draft then 
 to sell the flour and retain out of the 
 proceeds the amount of the draft, and to 
 pay the surplus to Foster." 4 N. Y. 502. 
 The case of City Bank v. Rome, \V. & O. 
 R.Co. follows thecnse justcited, and holds 
 that the delivery of a bill of lading by an 
 owner, with Intent to pass the title, actu- 
 
 ally passes it, whether drawn to "as- 
 sign.-i" or not, and if drawn to "assigns," 
 whether it be indorsed or not. In this 
 case again the substance of the transac- 
 tion is regarded rather than the form. 
 The only material point is, whether there 
 was an intent to pass the title to the 
 goods for a consideration. The intent 
 may be either to pass It absidntely or c<in- 
 ditionally, or in trust. Whatever the 
 intent may be the c(jurt will carry it into 
 effect. Following these authorities, it is 
 necessary to hol<l that when the goods 
 were shipped at Toledo the plaintiff helil 
 the title to the grain included in the bill 
 of lading, charged with a trust in favor 
 of T. W. Gritlin & Co., to whom it was to 
 be made over, if they accepted and paid 
 the drafts drawnag aiust it. 
 
 It is now necessary to examine the acts 
 of A. L. Gritiin & Co., at Buffalo. It is 
 plain that it was the intent of the parties 
 that the grain should be trans-shipped at 
 Buffalcj to New Vork. This is shown by 
 the Toledo bill of lading, as well as by the 
 known course of business. The words 
 "care A. L. Grittin & Co." made those 
 parties consignees at Buffalo only pro- 
 visionally, and as incidental to the main 
 object of the transit, which was to end in 
 New Yoi'k. Their authority was limited 
 by the object sought to be accomplished. 
 It was in writing disclosed on the face of 
 the bill of lading, and according to well- 
 settled principles must be strictly pursued. 
 Their whole power was to forward the 
 goods to the same consignees on the same 
 terms as stated in the Toledo bill of lad- 
 ing. On the face of the cauHl bill of lading 
 it was apparent that the grain had come 
 to Buffalo by way of the bikes; and any 
 one taking that bill would be put upon 
 inciuiry as tu the authority of A. L. (irif- 
 tin & Co. 
 
 But without pursuing this line of inqui- 
 ry it is enough that the canal bill of lading 
 did notdifferin substnnce from theToledo 
 iiill. It mentioned the same consignees, 
 the same owners, the bank, and had the 
 same memorandum as to the interest. of 
 T. W. (Jriffin & Co. The statement that 
 the "freight charges and demurrage were 
 payable to Young Brothers," etc., was of 
 no material sianificance. That only 
 showeil with whom the freight was to 
 be settled on behalf of the carriers. It 
 cannot be considered that any holder of 
 the grain could possibly be misled by an 
 entry, the ohject of wliich was so plain 
 and unequivocal. In the aspect of tin; 
 case most unfavorable for the pliiintiff, 
 there were indications on the canal bill 
 which, under the rulings in Dows v. Per- 
 rin, supra, an<l in Dows v. Greene, were 
 sufficient to lead to the conclusion that 
 the plaintiff had an interest, and to out 
 any person who took the goods upon in- 
 (juiry as to its rights. Gritfin & Co., ac- 
 cordingly, ha<l no right whatever to med- 
 dle with the grain, or to warehouse it. 
 The entire control was vested in Kidd, 
 Pierce & Co., for the use of the plaintiff. 
 The warehousemen, Shaw & Co., were 
 bounil to inquire whether a bill of lading 
 accompanied the shipment. Their cus- 
 tom to make no inquiriea but to ware-
 
 FIRST NAT. BANK v. SIIAW. 
 
 319 
 
 house Kraifi '">■ "uy one wlio liail tlio poH- 
 HPHHion foul<l not, in any respect, preju'lice 
 the riulitH of the plaintiff. Ilaviii;r wnre- 
 lioiised it, Uiey were liounil to liold tlie 
 jrruiu for tl)e ri«litfiil owner, ('ity IJnnlc v. 
 Konie, W. & O. K. Co., 44 N. Y. 141. Their 
 receipt fiiven for the firain waH no protec- 
 tion to the (Guaranty and In<leninity ("o. 
 Shaw & Co. simply trusteil to a person 
 liavint: tlie naked possession, witliotit any 
 title or indicia of it. If on tliat hare pos- 
 session tliey issued evidences of title, tliey 
 wen; mere waste paper, under wliieli the 
 Kuaranty company can mal<o no claim. 
 .\ mere possessor cannot confer owner- 
 sliip hy falsify assertini;. through hills of 
 ladint; or warehouse receipts, that he has 
 .1 title. Saltus v. Everett, L'O Wend. L'G"; 
 :i2 Am. Dec. .-)41. 
 
 It is however claimed on tlie part of the 
 company, that it is protected by the pro- 
 visions of the so-called "Factors .\ct." 
 iJiMore consiilerinjiC the terms of that act it 
 will he proper to notice the rules <if the 
 common law as to the power of factors 
 anil others ha vinj{ possession of the f?(iods 
 of third persons, liavin^ documentary ev- 
 idence of title to such noods, tr) ple(lt;e 
 them. This rule has been tersely stated 
 by Baron Farke (Lord WensleyilaleJ, In 
 Phillips v. Huth, G M. & \V. .")'.)G. He said : 
 "IJclore the passing <jf the factors act it 
 was clearly settled that a factor or afjcnt 
 for sale had no power to i)led}>e whether 
 he was in possession either of the Koods 
 themselves or of the symbol of the rooiIs, 
 and even thouffh the symbol miRlit bear 
 on the face of it sr)nie evidence of the pro|)- 
 erty bcin«- in himself, as in the case of a 
 hill of lailiuK in which he was consignee or 
 indorsee. This was in accordance with 
 the general rule, that he who deals with 
 one ex mandato can obtain fi'om him no 
 l)etter title than his mandate enables him 
 to bestow." 
 
 lloweverloitical thisrule may have been, 
 it was found in practice to bear hard on 
 the iutfrests of commerce. To remedy, 
 some of the inconveniences caused by it. 
 the English Parliament enacted a number 
 of statutes. 4 Geo. IV, chip, fv?; (! (ieo. 
 
 IV, chap. 04 (commonly known as the 
 Factors Act). 5 and (i Vict., chap. :?1). The 
 .Vew York act, with some modifientions, 
 is a reproduction of that of G (Jeorp:e IV. 
 
 In so far as these statutes iiave not 
 changed the law, the former rule of course 
 prevails; ami the holder of the troods of 
 another, with or without documentary 
 evidence of title, has no greater power to 
 pledjje them than they confer. Paterscm 
 
 V. Tash, -'StrauKe. 117S; Daubif^ny v. Du- 
 val, .'. T. H. G04; Lamb v. Attenboroush, 1 
 Best & Smith, s31. 
 
 There are two sections of our"Fa<'tors 
 Act" to he considered in their relations to 
 the present case, the Hrst and the third. 
 The first proviiles that every perst)n in 
 whose name any merchandise shall be 
 Hliippe<l shall be deemed the true owner so 
 far as to cnUtle the con.siRiiee of such luer- 
 diandise. acting in f;r>od faith, to a lien 
 thereon, (1) for any money atlvanced or 
 negotiable security jiiven l>y such con- 
 Bi>;nee for the use of the person in whose 
 name the shipment isiuade: and (!') for 
 
 any money or ncKotiahle paper received by 
 the person in whose name such Hhipnient 
 shall have been madi- for the use of the 
 consignee. It is plain that this section 
 has noapplicntion to the present case, aa 
 it has been shown that the shipment can- 
 not be deemed to be made In the name of 
 (Jrlllin & Co. 
 
 The third section of the net provides 
 that every factor or other n>reiit Intrusted 
 with the possession of any bill of lading, 
 customhouse [lermit or warehouse keep- 
 er's receipt for the delivi-ry of any "such" 
 merchandise (referring to thetirstMi'ction) ; 
 and every such factor or astent not hav- 
 injr the documentary evideiiceof title, who 
 shall be Intrusted with the possessiun of 
 any merclianilise for the purpose of sale, 
 or as security for any advances to be 
 made or ohtaineil thereon, shall be deemed 
 to be the true owner thereof so far as to 
 frive validity to any contract made by 
 such Ufient with any othei person, for the 
 sale or ilisposition of the wh<de or any 
 part of such merchnndiHc, for any money 
 advanced, etc., Iij' such other person oa 
 the faith thereof. Laws ls:!u. chap. I7'J. 
 
 It is urned by the defendants that the 
 fact that the forwardiuK house at Ituffalo 
 sent the canal bill of ladinK lo T. \V. 
 <Jri(fin & Co. brings the case at bar within 
 this section. 
 
 To sustain this view, it is necessary to 
 show that (ii-iffln & Co. were factors or 
 aiients, that they were "intrusted " with 
 the bill of lading for the delivery of such 
 merchandise as was provided for in the 
 first section, and that an advance was 
 made to them on the faith of the docu- 
 ment with whicli they were intrnstcd. 
 
 It needs no argument to show that 
 firiirin i»i Co. were not factors of the pluln- 
 tii'f. The statute i)resui)poses that the re- 
 lation of principal and factor already sub- 
 sists when the trust or conlidence is re- 
 |)oscd in him. In other words, the rela- 
 tion of factor is not created ny the mere 
 possession of the instrument. tln>uy:h that 
 may raise a presumption when in the al- 
 leged factor's name, otherwise the rela- 
 tion is to be proved aliunde. Cook v. lieal, 
 1 lUisw. 4!)7. Nor can (irillln & Co. l:e re- 
 jrarded as agents of theplaintiff. .No pow- 
 er was sriven in the lake bill of ladinR to 
 make them the nucnls of the plaintiff, and 
 if the Buffalo house, without authority, 
 sent the canal bill of ladin;r to them, tliey 
 did not therooy become aKcnts. since that 
 relation could only be created by the act 
 Of the iilaintiff. Lamb v. AttenborouRh, 
 1 Best & Smith, s.11. 
 
 It cannot be claimed that tirirlln & Co. 
 were intrusted with the possession of the 
 merchandise. If "intrusted" with any 
 thin;:, it must have been with the bill of 
 ladinR. It is accordin;:ly nei-essary to 
 Rive a construction to the statutory 
 words "intrusted with tlie possession of 
 a bill of ladin;: of any such merchamllse," 
 etc. The word " intrusted" here implies 
 conHdence reposed. If the bill hail be.Mi 
 stolen, there wotdd have been no Intrust- 
 ing. The consent of the owner la necessa- 
 ry? True, it may be obtaine 1 by fraud. 
 Sheppard v. I'nion Bank of Lomloa, 7 H. 
 & N. GGl ; Uow8 V. tireene, 24 N. Y. oas. But
 
 :i20 
 
 FIRST NAT. BANK » SHAW. 
 
 it must in sonif form be liail. Tliere was 
 Iiere no trust Uy the <»wner; the luke bill 
 of lii(tin(r jjiive no authority to A. L. Grif- 
 lit! & Co. to repose any eonliilence in T. 
 W. Utitlin & Vi>. Af^ain. the sami word 
 "intrusted" refers to a bill of lading in the 
 name of the factor or other agent. This 
 is assumed in all the Knslish eases. It 
 was expressly so defined in the first fac- 
 tors act, 4 (Jeo. IV, § 1. The court, in Phil- 
 lips V. Huth, supra, said: "The first sec- 
 tion of the act shows that the word 'in- 
 trusted,' was uot unimporiJ'.nt, and was 
 advisedly introduced, for it provides that 
 the person in whose name the ^oods shall 
 be shipped shall be deemed to be intrusted 
 therewith for the purposes of the act, un- 
 less the contrary thereof shall appear or 
 be shown in evidence by the person dis- 
 puting the fact." Page ijllG. This con- 
 struction is strengthened by the words 
 "such merchandise." Thelanguaj^e is that 
 evei'v factor, etc., intrusted with the pos- 
 session of any bill of lading, etc., for the 
 delivery of any "such" merchandise (re- 
 ferring to the first section), * * * shall 
 be deemed to be the owner thereof. On 
 examining the first section, it is found to 
 apply only to cases where the merchan- 
 dise is shipped in the name of the person 
 who assumes to control it. (^artwright 
 V. Wilmerding. 24 N. Y. 521. On the other 
 hand, when the case of a factor, etc., not 
 having any documentary evidence of title, 
 but having possession, is provided for in 
 the statute, the word "such" is omitted, 
 and the vvord "any" is substituted in its 
 place. Section ;i thus provides for two 
 entirely distinct classes of cases: one, 
 whore the factor, etc.. has documentary 
 evidence of sui'h merchandise as is i-eferred 
 to in the first section, running to himself; 
 the other, where he is intrusted with the 
 possession of any merchandise whatever, 
 forthe purposeof sale. In the first of these 
 cases the evidence must becomplete, point- 
 ing to liimself as owner, and with no no- 
 tice, l)j' the bill of lading or otherwise, 
 that he is not the actual and bona tide 
 owner. See § 2, and Cartwrlght v. Wil- 
 merding, 24 N. Y.521 ; Bonito v. Mosquera, 
 2 Bosw. 401. 
 
 Moreover, the defendant, the guaranty 
 company, did not advance the money to 
 Griffin & Co. on the faith of the bill of lad- 
 ing, etc. This Is one of the requirements 
 of the factors act. Jennings v. Merrill, 20 
 Wend. 9. It acted on the warehouse re- 
 ceipt of Shaw & Co., which was itself is- 
 sued without any reference to documenta- 
 ry title, and relying only on the manual 
 and unautliorize(l possession of Griffin & 
 Co. Even if the bill of lading had been be- 
 fore the defendant, it could not properly 
 be said to act on the faith of it, as it would 
 have had constructive notice that the 
 goods were not "intrusted " to Griffin & 
 Co., not being in their names. Bonito v. 
 Mosquera, 2 Bosw. 401; Pegram v. Car- 
 son, 10 id. M't; Cartwrlght v. Wilmerding, 
 24 N. Y. ."):B. The only explanation oon- 
 sistent with good faith that can be given 
 of the possession by Griffin & Co. of the 
 canal bill of lading is, that they were mere 
 bailees of it to hand to Ividd, Pierce& Co., 
 or that they receiveJ it by mistake. There 
 
 was no evidence to show fraud or collu- 
 sion on the part of the Buffalo house, and 
 these are not to be presumed. Nothing 
 could be more contrary to established 
 and elementary princijiles than to hold 
 that a mere bailee of a bill of lading, such 
 as a tinder or depositary, having no ap- 
 parent title to it, could make a valid 
 transfer of it or create a lien upon the 
 goods which it reprpsents, in favor of a 
 third person who might make advances 
 to the possessor, with or withoiit knowl- 
 edge of the actual state of tacts. 
 
 The defendants take an additional 
 ground. It was urged that the plaintiff 
 has l(}st his rights under the bill of lading 
 "through his negligence in not observing 
 the arrival of the canal-boat." It Is not 
 perceived how any remissness snbsecjuent 
 to the advances made by the guaranty 
 company would affect the plaintiff's rights. 
 Whatever interest the defendant ac(|uired 
 accrued on the 17th of October, when the 
 advance was iiiade. The boat arrived on 
 the Kith. This theory of negligence must 
 rest on the view that the plaintiff's claim 
 was a mere lien. It has already been 
 shown that this was not the case, but 
 that the plaintiff had the tille. The court 
 below laid some stress on the fact that the 
 plaintiff's cashier stated in Iiis testimony 
 that the transacti4in was a pledge. His 
 version of a transaction entered into by 
 written instruments is not binding on the 
 court. However, even if the transaction 
 constituted a pledge, the rule whicdi holds 
 that a mere lienor may lose his lien by 
 negligence, etc., is not applicable. A 
 pleilgee has something more than a mere 
 lien. He has a property in the goods and 
 not simpl.v a right to hold them as In the 
 case of a lien. The negligence of the plain- 
 tiff, under the circumstances, is wholly im- 
 material. The rights of the defendants 
 depend on the question whether Griflin & 
 Co. were in any form held out by theown- 
 ers as entitled to control the grain. That 
 point can only be determined by the fair 
 construction of the bill of lading. If the 
 guaranty company saw tit to act on theso- 
 called warehouse receipt, which Itself had 
 no solid foundation, it acted at its peril. 
 It should have inquired into the title and 
 have examined the documentary ev'dence 
 accomiianving the shipments of the grain. 
 City Bank v. Home, W. & O. H. (;<)., supra. 
 It cannot shield itself from this obligation 
 by imputing negligence to the plaintiff, 
 which was not bound toward mere 
 strangers to be diligent in looking after 
 its property while in the possession of the 
 carrier. Even if there was some evidence 
 of negligence, it depended so much on a 
 variety of circumstances that it should 
 have been left to the jury to determine 
 whether the plaintiff had been guilty of it. 
 Without dwelling upon this point, it is 
 enough to say that the question of negli- 
 gence does not enter into the case. 
 
 The defendant further claims, that as 
 (jrifRn & Co. had paid for the grain, on 
 account, .^1,945.S0, and as the guaranty 
 company had acquired Griffin's Interest, it 
 was absolutely necessai-y to the mainte- 
 nance of this action that this amount 
 should have been tendered by the plaintiff.
 
 FIRST NAT. BANK r. SHAW. 
 
 821 
 
 TliiH is u inis-ooncpption. If Griffin & Co. 
 Iitid <Jctniii('il the iiroporty, no Hiicli i)!iy- 
 iDfiit woiilil hiivo lieeii nvcissiiry. im the 
 poHHcssiiry rif^lit of tlio piiiiiliff wonlil 
 liuvo foiitiiiueil superior to that of (iriIMn 
 &()(). until till? entire iji'ht wan paiil. The 
 Ku.'iranly eoiiipany, Htaiulinir in Gridin'w 
 position and acquiring lilHritilitM.can have 
 no greater claim. 
 
 TIk," court helow were requested to in- 
 struct tlie jury tliat as far as the defend- 
 ants were concerned, if n verdict was ren- 
 dered ill tlieir iavor, tlie v;ilue of tlie prop- 
 erty should only l)e assessed at file ad- 
 vaiiccM made liy the guaranty company, 
 and intrrrest. This instruction was refused 
 under exreplioii, and an instruction was 
 Kiveii that the entire value of the proper- 
 ty sliould be fouinl. This ruling was erro- 
 neous. In any aspect of the cast , the 
 plaintiff had not lost its lien as liclween 
 it and tirillin & Co. The case is Roverned 
 liy the rule in Townsend v. IJargy, .')" N. 
 Y. (iii.'). This is, that the value to lie as- 
 sesseil as a;;ainst the owner or his repre- 
 sentatives is the creditor's claim, with in- 
 terest. 
 
 The result of the discussion nia.v now lie 
 suninied up. Tlie title to tlicij;rainin con- 
 troversy was held at Toledo by the iilain 
 tff in trust, and after its own advances 
 were paid any residuary interest was to 
 lie made over to T. W. Grillin ..t Co. The 
 can.-sl hill of lading recognized the true re- 
 lation of the iiarties and left the title in 
 the same way. The fact that this hill 
 came into the hands of Griltin & Co., 
 through the act of Voung Brothers, was 
 of no importance, as the hill did not im- 
 port a delivery to the former linn. Shaw 
 & Co. could not safely repose on the mere 
 possession of Grittin & Co., but were 
 bound to look into the shippiiiL.' docu- 
 ments, and are aci-ordingly churgealili- 
 witli constructive notice of their contents. 
 The guaranty company are in the same 
 position with Shaw & Co. The ware- 
 house receipt being mere waste pajier, 
 that company can claim no rights umler 
 It. Such a "warehouse receipt" is not one 
 intended by the factors act. That refers 
 to the receipts given in foreign trade or 
 Importation. Cartwright v. VVilmerding, 
 
 LAW SALES — 21 
 
 24N. Y. iJ2s. Rven if It were within the 
 intent of the act, it wouhl nut help the de- 
 fendants, as It did not rest on any conll- 
 ilence or trust repo.-<ed by Hie owner in 
 them, or ill those from whom they receiveil 
 possession. 
 
 The plaintiff accordlnglycould maintain 
 an action of replevin against these defend- 
 ants based on its (iroperly, whether gen- 
 eral or special, in the goods. 
 
 • 'onsiileiable stress was laid nt the ar- 
 gumr-n I. by counsel on either side of the 
 !euse, ontlie great consequenccM to com- 
 ! merce <if a decision in thin cause udverHn 
 I to their respective views. Finding the 
 principles of law clearly settled, we are 
 bound to administer them as they have 
 ' conx- down to us from our predecesHors. 
 We however believe that n decision can- 
 not, on the wlKjle, lie adverse to eominer- 
 [ cial Interests, which, while It re:-ogni7,en 
 I the convenience of merchants and the 
 I great value and importance of t he factors 
 I act, requires of those who ailvance money 
 I on commercial documents the observance 
 of reasonable diligence and the obligation 
 to make reasonable inquiry, and enables 
 owners of |iro]ierty on the creat trans- 
 portation lines of inland romnierce to se- 
 cure it from the fraud.s and deiiredations 
 of mere custodians and bailees, in wlKjni 
 no special conlidence is reposed. While 
 commercial convenience must be respected, 
 the rights of [iroperty must not be sacrl- 
 liceil. It is not a ca^e for the application 
 of the rule, that where one of two persons 
 must suffer, that one must susliiin theloss 
 who has reposed the conlidence. No 
 confidence has been reposed In the person 
 under whom the defendants claim. On 
 the other hand, great care was taken to 
 keep the title to the property and the Indi- 
 cia of ownership regularly In the plain- 
 tiff. The true interests of commerce de- 
 mand that the claims under bills of lading 
 and other such instruments should t)e 
 scrupulously protected, since commerce 
 will not flourish where the rights of prop- 
 erty are not respected. 
 
 The judgment of the court below should 
 be reversed and a new trial ordered. 
 All concur. 
 Judgment reversed.
 
 I
 
 FOOT V. MARSH. 
 
 S23 
 
 FOOT T. MARSn. 
 
 (51 N. T. 288.) 
 
 Commission of Appeals of New York. Jan. 
 Term, 1873. 
 
 Action by N. 15. I'doI & Co ugainHt 
 Mursli, Deliiye & KoKt'i'n to recover for a 
 hreadi of a contract for tlio Bale of certain 
 oil. DofendniitH had an option to piirchaKC 
 inO bnrrelH of oil of three clifferent jjrailcH. 
 Jind offered 100 harrelH to plaintifffi, siiow- 
 iiiK them a Kani()le taken from the nilddle- 
 ;irade oil. Ah tlie linrrels contained differ- 
 ent ()uantitles, it was agreed that they 
 shoulil contain an averau'e of 40 jiallonn. 
 Tlie evidence waH contlictinK as to wliether 
 the piircliaKerH whould a.ssunie the rmk of 
 leakage, and defendants agreed to set 
 apart 100 barrels, averaKinf? W gallons 
 each. After the aRreement forthe salewa.'; 
 niaile, plaintiffs gave defendants their note 
 for:ff7.")0, and received from them thcfollow- 
 ing receipt; "N. 15. Foot & Co. honght of 
 .Marsh, Delaye & Hojrers 10(1 l)arrelH, at 
 twelve HhillinKS, $ir)0: -1.000 gallons of oil, 
 at eighteen cents, .IfTiiO— .f s70. Received 
 payment by note al three months from 
 .1 line 7, ISO:!. .Marsh, Delayed Rogers. The 
 above oil is to be delivered when calleJ 
 for, Hiibject to twenty shillings per month 
 storage, and the (juality of the oil is to l)e 
 like the sample delivered. Marsh, Delaye 
 & Rogers. " Defendants accepted the option 
 for the l.'iO barrels. Rialntifls paid their 
 note, and weie shown 100 l)arrels, contain- 
 ing about l.*<00 gallons, worth fi-om .'> to M 
 cents a gallon less than the sample by 
 which they bonght. The court charged 
 that if there was an agreement to set aside 
 100 barrels of 40 gallons each, e(iu;il in 
 <iuality to the sample, and defendants did 
 so. the oil was thenceforth at plaintiffs' 
 risk ; but. If there was no such agreement, 
 plaintiffs were bound to deliver 4,000 gal- 
 lons whi'n called for. .ludgmcnt was ren- 
 dered for plaintiffs. 
 
 D. M. K. Johnson, for appellants. J. D. 
 Kernan, for respondents. 
 
 CinAY. C. The principal question pre- 
 sented for our consideration arises u|)on 
 the defendants' exception to that por- 
 tion of the charge given l)y the judge to the 
 jury, in whicli he stated, in substance, 
 that if no agreement was madeor author- 
 ity given to the defendants to sit apart 
 for the plaintiffs the oil described in the 
 contract, then the contract, from its 
 terms, l)ecame a contract to deliver four 
 tlionsand gallons of oil wlien called for, 
 and that the dcfendiints, in order to com- 
 ply with the call, werel)ound tohavethat 
 quantity on haixl whene\er the call 
 should bo marie. This case is by the de- 
 fendants liuened to the case of Kimberlv 
 V. Patchin. l!) N. Y. :i:!0; 7.'> Am. Dec. .•i.i4; 
 and the ground upon which this portion 
 of the charge is claimed to l)e erroneous 
 Is, that the contract, when read by the 
 light of the circumstances surroundlrig it. 
 Is in principle, like the contract In that 
 case for tliesule of six thousand l)ushels of 
 
 wheat, parcel of six thousand two liua- 
 (Ired and forty-nine bushels, ut seventv 
 cents per bushel, of which no separatioD 
 or manual delivery was made, but uh a 
 substitute for a manual cli-livery, and to 
 constitute the contract for its sale an exe- 
 cuted, not an executory contract, the 
 vendor gave to the purchaser Ids receipt 
 for it, agreeing to deliver It to his order, 
 free of all charges, whereupon the vendor 
 was held to ha ve constilnteil JilmKelf th? 
 bailee of the wheat, and to have thence- 
 forth stood in that relation to the |iur- 
 chaser and the property; to render the 
 contract effectual as an executed contract 
 from Ihethneit was nia<le, the purchaser 
 must have been investeil with the right, 
 after demand, to take the property. This 
 was a right the delenitants at the time of 
 making the sale hati no power to confer, 
 they not l)elng at the time the owners of 
 any portion of it; nor <li(l they. In the 
 place of a manual delivery, give to the 
 plaintiffs their receipt for it, and thus at- 
 tempt to constitute themselves the bailees 
 of the plaintiffs and of the r)il, as did the 
 vendor of the wheat in Kiinberly v. 
 Patchin. If tlie one handi'cd and flfty 
 barrels of oil of which the one hundred 
 barrels anci the four thousand gallons 
 were understood to be n part, were, like 
 the wheat, all of the same i|uallty,so that 
 nothing but the (luantity, without refer- 
 ence to quality, was to be taken from the 
 larger amount, the extrliisicfacts that the 
 sale was at a prolit of only two cents per 
 gallon, and the risk of leakage during the 
 summer months so largely exceede(l the 
 ])rolits of the sale. It might be urged, with 
 more plausibility tlinn It now can. that 
 the agreement of the defendants to deliver 
 the barrels and oil when called for wan 
 like the agreement conlnined In the receipt 
 in Kiinberly v. Patchin to ilelivi-r Hie 
 wheat to the order of tin- purchaser, and 
 that the defendants should, under the cir- 
 cumstances, as was the vendor In that 
 case, be regarded as the bailies of the 
 plaintiffs. I'lit in order to substitute an 
 arrangement between the parties for a 
 manual delivery r)f n parcel of property 
 ntixed with an ascertained and dellneiJ 
 larger quaiitity.it must lie so dt arly di»- 
 tined that the piircliaser can take it, or as 
 the assignee of the punhaser tlid In Kiin- 
 berly V. Patchin, ni'iiiiiaiii replevin for It. 
 In this case the larger quantity, parcel of 
 which wa.s under.'»toi'd to be contracted 
 to the plaintiffs, consisted of one hundred 
 and fifty liarrels containing three illfferent 
 qualities of oil, but sixty-eight of which 
 (forty-seven of the Rnffalo and Krie idl 
 and twenty-one liarrels, marked V. U.) 
 corresponded with the sample by which 
 the one hundred barrels were sold. The 
 residue, forty-six barrels of the Murray 
 oil. was superior to the sample; and 
 thirty-six, known as the Lemon oil, wore 
 Inferior to the sample. The plnlntiffs 
 would not have the right to take the .Mur- 
 ray or superior oil. and could not be coni- 
 peiled to t/ike the I.emon or Infetlor oil. 
 And If the sample was. as the witness at 
 one time stated, a poor sani|>le of flie 
 most inferior oil, then but thirty-six bar-
 
 324 
 
 FOOT V. MARSH. 
 
 rele of that description, containiiiK Icsk 
 tlian one thousand five hundred gallons, 
 could have been selected from the whole 
 quantity, and hence tlie plaintiffs were 
 without adequate means of redress, un- 
 less by action for failing to deliver the 
 quantity of oil sold conforniing to tlie 
 sample. The fact that the oil, which was 
 the subject of the sale, was understood by 
 the plaintiffs to be a parcel of a larger 
 quantity, and that the sale was made at 
 a profit of only two cents per sailon, 
 while the risk of loss by leakage and 
 evaporation was very large, are circum- 
 stances that would go far to prove that 
 the defendants did not understand the 
 legal import of the writing drawn and 
 subscribed by them, or that they were 
 overreached by the plaintiffs, wlio sug- 
 gested tlieir terms after, as one of them 
 had testified, they refused to piirclinse, un- 
 less the defendants would guarantee them 
 against leakage, which the defendants re- 
 fused to do. But as no question was 
 raised by the pleadings, or elsewhere, as 
 to a reformation of the contract, we must 
 regard it as expressing the intentions of 
 
 the ijarties and give it the interpretation 
 which, under the circumstances, its lan- 
 guage plainly imports. Tlie charge was 
 more favorable to the defendants than a 
 fair construction of the written contract 
 warranted. The conversations, out of 
 wliich the defendants sought to establish 
 an agreement between the parties that 
 the defendants might set apart the one 
 hundred barrels of oil for the plaintiffs, 
 as well as the conversations as to the guar- 
 anty against loss by leakage, were all 
 prior to the reduction of their agreement 
 to writing and should have been excluded 
 from the consideration of the jury, lea v- 
 ing the writing as the only evidence of \ he 
 agreenient to be interpreted by the aid of 
 extrinsic facts. No error was committed 
 in the instructions to allow interest. The 
 verdict was more favorable to the defend- 
 ants than the charge warranted ; of that 
 however tliey cannot upon this appeal 
 complain. 
 
 The order appealed from should be re- 
 versed. 
 
 All concur. 
 
 Order reversed.
 
 GAXSON V. MA DIG AN. 
 
 327 
 
 GANSON et al. v. MA DIG AN. 
 
 (15 Wis. 144.) 
 
 Supreme Court of Wisconsin. 
 1882. 
 
 January Term, 
 
 Appoal Iruin circuit court, OoiIkp county. 
 
 Action hy (iiuiHon, Huntley & t'o. UK'iiiist 
 one .MiiiliKiin to rocover fur the price of »i 
 reiipin^ inucliiiie allcneil to Iiav3 Iteen de- 
 livered on liJH writli'U order. MadiKun 
 HlKued an order in Keliruary, ls.j.">, reqiiest- 
 iUK (iiinHoii. Huntley & Co. to manufac- 
 ture and deliver to liiiii on or before .luly 
 1, IfS.Vi, at Milwaukee, at UouHcuian <Si 
 ('o.'h, a patent Kelfrakin;; reaper, war- 
 ranted with one man and a nood team to 
 cut and rake from 12 to lid acnw n day, for 
 which he n>;reed to pay on delivery S.'ill, 
 and $110 Deci'nilier l.st folio wiuR. The 
 order provided that, if the reaper at the 
 ne.xt harvest did not perform aR t-pecified, 
 the purchaser "will Htore it Hafely, ami 
 deliver It to (ianson, Huntley \- Co., or 
 their airent.suliject to the rcfuiidinK of the 
 $.■)()." When he ciilled for the reaiier at 
 the time and |)laee specilied.lie waw shown 
 the separate pieces of a nuinher of reaiiers 
 of identical form and size, and was told 
 by DouHenian it Co, that one of them was 
 for him, and they would put one up 
 for him if he would take it, liut he refused. 
 In "{iviiij; instr-uctiuns to the jury, the 
 judsesaid: "After an examination of all 
 its [larts, the cr)ntract between the par- 
 ties in thisactio[i IsauibiKUous ; and your 
 first duty wMl be to ascertain, fi'om the 
 contract and from oral evidence which has 
 been reci ived to explain it, what this eon- 
 tract really means. You are to construe 
 ti.e term ' a irood team,' as used by the 
 parties in this contract, and lind from all 
 the evidence on that subject, whether it 
 means a t;ood two-horse team, or, il not, 
 what kind of team it does mean. If you 
 find that the plaintiffs did deliver a ma- 
 chine acconliiiK to at;reemenl. then they 
 are entitled to recover whatever damayres 
 they have sustained by the defendant's 
 refusal to receive. The rule of damages 
 is the difference between the contract 
 price and the actual value of the reaper 
 on the 1st of .Inly, IS,"!.'), the day «iiec- 
 ilied for the <lelivery, together with any 
 exi)enses iucuried by the i)lainliff. " At 
 the request ol the defendant, the judue 
 bIho instructed the jury " that , if the ma- 
 chine did not answer the terms of the or- 
 der as to capacity and power, the defend- 
 ant was not oliii^jed to take it ; it beinn a 
 condition precedent to the reception of 
 the machine and the i)aynient of the .'S.iO 
 mentioneil in the order th.it the plaintiffs 
 iiliouhl manufaclureund deliver, or offer to 
 deliver, for defendant, a machine of the 
 l)Ower and capacities desiy;nated in the 
 order. If the jury believe fiom the testi- 
 mony tliat the tea in referred to means 
 one Kood i)air of horses, ami that the 
 rea|)erfuinislied at Doiiseman & '/o.'s,.! uly 
 1. I^.'l.">, for the defendant, was a four- 
 liorse machine, and re(|uired four horses 
 to work it up to the wariaaty of twelve 
 to twenty acres a d,iy. the defenilant was 
 iinih-r no obli;;ation to receive it. If the 
 jury believe that the words "jjood team' 
 
 mean two horses, and that It Ih proved 
 tluit these machines could not be opera ted 
 with two horses up to the warranty at 
 nil reasonable times, then theverilict must 
 l)e for the defendant. The fact that said 
 machines were occusionully operated with 
 two horses is not suMiclenl proof loeMtab- 
 lisli tliat the capacity of the michim- was 
 e<|ual to the warranty." The plainlirTrt 
 reipiested the jud^e to uive the following 
 Instructions, all of which were refused: 
 "(1) If the jury believe, from the evidence, 
 that the plaintiffs fullilleil the contract uri 
 their part by the manufacture of a reaper, 
 and tile delivery of the same to Douseman 
 & Co., <m ur before the 1st of Jidy. !>*.">'), 
 as called for hy the contract, the pl.iintlfl.* 
 areentitled to recover in this action the 
 contract price, with interest. ("Ji 'I'hat it 
 was not necessary that the plaintiffs 
 should mark or set apart any [larticidur 
 reaper for the defendant to entitle them 
 to recover the ctmtruct i»rice; that If the 
 jury lieliove, from the evidciice. Hint the 
 Iilaintiffs ;iianufr.ctui-eil and delivered to 
 Douseman ii Co., for the defendant, on or 
 before the 1st ilay of .luly, l"-.'>."i. sm-h a 
 reaperas the contract called for. the plain- 
 tiffs performed the contract on their part, 
 and are entitled to recover the contract 
 price, with interest, thouKh tin- reaper for 
 tlie defendant was not separateil from 
 other reapers sent to Doiisi'iiian & Co. Iiy 
 the plaintiffs, or any partirular reaper 
 tendered to the defendant. (:!i That this 
 action is brought to recover the eontrnct 
 price of tlie reaper; anil, if entitled to r •- 
 cover at all, the plaintiffs are entitled to 
 recover therein tiie contract |)rice, with 
 interest. (4) That if the iilalntiffn. (m or 
 before the 1st day of .July. IH.V.. deliVer.«l 
 to Douseman & Co., for the di-fendant, u 
 reaper of the kind ordered, and such u 
 one as the contract called for. the title to 
 the reaper so delivereil vested In the de- 
 fendant, (.'p) That, whatever may be the 
 verdict of the jury in this action, the de- 
 fendant, uiioii the iileadlnnH, Is entitled to 
 the possession of tiie rea|>er. and may coll 
 at Douseman & Co.'s, and demand and re- 
 <'eivp the same." Verdict and juilKment 
 for the defendant. 
 
 Conger & Hawea. for appellants. >Snilth 
 & Ordway, for respondent. 
 
 DIXON. C. J. In cases like this, we fully 
 concur with Judjre nrouBon in snylng, 
 that "it is un elementary ittinciple that 
 ail erroneous derision is not bad law — it 
 is no law at all :" and coiihl we become 
 satistu<l that our last decision ( 1.! Wis., 07 1 
 was in this unfortunate preilicament, or 
 was an unauthorized dictum, we should 
 hasten with alacrity to retrace our steps. 
 .Sulisei|ueiit lnvesti;rations have only coii- 
 lirnied the views which we there took of 
 the law. 
 
 The rights and liabllllleH of the pnrtiea 
 under the contract were, in sulistnnce. 
 these: The plaintiffs were bound to man- 
 ufacture ami deliver the niachine In the 
 manner specihed, at the city of .Milwau- 
 kee, on or before the llrst itay of July. 
 The tlefendant was bound, on the same 
 day (or before, if notllled of Its earlier do- 
 livorv, uud he chose to do no), to be prcs-
 
 328 
 
 GANSON V. MADIGAN. 
 
 eiit to receive it, and pay the fifty dollars 
 and the storage. The obliiratiou of the 
 plaintiffs to manufacture and deliver, and 
 that of tile defendant to be present and 
 receive and pay, were nuitual and con- 
 current. The presence of Ijoth parties, by 
 tlicniselves or agents, at the time and 
 place desif^nated, was neces.sarily contem- 
 plated, since tlie ol)li(iations restins upon 
 them respectively could not otherwise be 
 discharged. Tlie plaintiffs, if tliey bad 
 manufactured and furnished ready for de- 
 livery by their agents at Milwauljee, sadi 
 a machine as the contract called for, 
 would have so far performed the duty im- 
 posed upon them as to be entitled todam- 
 ages for the defendant's violation of duty 
 in neglecting to be pi-esent, accept and 
 pay the sums stipulated. For this pur- 
 pose it was not necessary for them to set 
 apart the machine so as to vest the title 
 in him subject to their lien for the pur- 
 chase money and charges. Having man- 
 ufactured and forwarded the machine 
 upon the faith of I'is pi-omise to receive 
 and pay for it, it would be most unrea- 
 sonable and unjust to say that tliey 
 should not have compensation for any 
 actual loss or expense which they had 
 thus incurred. The defendant, by his fail- 
 ure toappear and peri<)rm the contracCon 
 his part, would have lieen in no situation 
 to insist upon au actual ilelivery or sepa- 
 ration of the machine, jieliver.v and pay- 
 ment were concurrent acts, the one de- 
 pendent on the performance of the other, 
 and the neglect of the latter effectually ex- 
 cused the former. It would have been 
 enough to have enabled the plaintiffs to 
 recover their actual loss and expenses, if 
 they had shown that they were ready and 
 willing to perform the contract on their 
 part. Chitty on Con., 033. As stated by 
 Mr. Parsons (2 Parsons on (Vm., 4S-I,) 
 they had under the circumstances, three 
 courses open to them; to consider the ma- 
 chineas tlieir own (which they ilid, by not 
 setting it apart, so as to constitute a de- 
 livery ), and sue for the dam ages occasioned 
 by the non-acceptance; or to consider it 
 as the defendant's (which they might have 
 done, by separating it from Iho othei's 
 so ae to be capable of identification), and 
 sell it, with due precaution, to satisfy 
 their lien on it f(U- the piice, and then sue 
 and recover only for the unpaid balance 
 of the price; or in the latter case, also, to 
 hold it subject to defendant's call or or- 
 der, and then recover the wludo i)rice 
 which he agreed to pay. We deim these 
 principles to be sound and well supported 
 by the authorities, and are willing to 
 stand by them. The rule of damages 
 given by the court below was therefore 
 correct, and the judge was right in refus- 
 ing the instruction asked by tne appel- 
 lants on that subject. 
 
 The case is clearly distinguishable from 
 those in which thecounsel suppose adiffer- 
 ent rule was establislied. They will all be 
 found, on examination, to have been cases 
 where the articles purchased or manufac- 
 tured were, from their nature, susceptible 
 of being distinctly known and identified, 
 or where the.v were set apart by the ven- 
 dors, so that tiie vendees, on paying the 
 price, could reciive and dispose of them 
 
 if they desired. Such was the case of the 
 wood work of the wagon, in Crookshank 
 V. Burrell, 18 .Johns., r>S; the carriage, in 
 Mixer V. Howarth,21 Pick.,'20.i; the sulky, 
 in Bement v. Smith, I.'} \A end., 493; and 
 tlie proHiiasory note, in Des Arts v. Leg- 
 gett, 1(> N. Y., 5S2. As was decided in the 
 last case, the vendor, chousing tcj go for 
 the price, becomes, afler a valid tender of 
 the chattel in performance of the con- 
 tract, a baileefor the vendee. But we know 
 of no principle of law which would allow 
 the venflor to keep the goods h& his own, 
 and at the same time come upon the ven- 
 dee for the price— compel the latter to pay 
 for, and yet not get the property ; whicli 
 would be the case were the present plain- 
 tiffs to be permitted to recover the price 
 irresjiective of tlie aniount of datuages 
 whit-h the.y had sustained in consequence 
 of the defendant's nonacceptance. The 
 machine here was brought to .Milwaukee 
 in pieces, its several parts separated and 
 packed with those of a great number of 
 other machines of identical form and pat- 
 tern, so that thesamepart of one machine 
 was equally suited to every other. It re- 
 mained in this condition until after the 
 day t1xe(i for its delivery and acceptance. 
 It is idle, therefore, to talk al>out there 
 having been such a delivery as would have 
 vested the title in the defendant, provided 
 the jury had found that the machine was 
 such as the contract calle<l for. The prop- 
 ei'ty in all the machines remained in the 
 plaintiffs, subject to their absolute domin- 
 ion and right of disposal. NotI ing could 
 have changed it as to the defendant, short 
 of a separation or distinct ascertain- 
 niont, by mark or otherwise, of the ma- 
 chine intended for him, so that he could 
 afterwards, on paying the ()rice, have ob- 
 tained it if he chose. 
 
 If thedefendant's had been the only con- 
 tract for a machine to be delivered in Mil- 
 waukee, and his the only machine deliv- 
 ered, or if it had been unlike all tlie otiiers, 
 the question would have been very differ- 
 ent. The authorities cited by counsel 
 would then have afforded some founda- 
 tion for their positiim. 
 
 And here we may correct another mis- 
 take on the part of the counsel. They 
 seem to suppose that the delivery of sev- 
 eral machines in Milwaukee, in whatever 
 form, so that one could have been ob- 
 tained by the defendant within the time 
 jirescribed, was all that was necessary 
 under the contract to pass the title; and 
 that this court so decided when the cause 
 v\-as here for the first time. 9 Wis., 146. 
 But this was not so. The delivery there 
 spoken of was a delivery in the general 
 sense of bringing the machine to Milwau- 
 kee, in pursuance of the contract, so as to 
 entitle the plaintiffs to recover damages 
 for the defendant's nonacceptance, — not 
 that specific delivery made necessary by 
 law, to transfer title. The contract of the 
 defendant was distinct and independent of 
 that of every other person, and a compli- 
 ance with its terms, as well as the law, 
 required a distinct and independent deliv- 
 ery, in order to vest the title in him. He 
 never agreed to receive his machine in 
 fragments, commingled with those of the 
 machines of a hundred other persons, in
 
 G ANSON V. MADIGAN. 
 
 329 
 
 Hiich manner thai nutbiu;^ could be iden- 
 tified. Tlio way in wliicli the niacliines 
 caiiitf tc> the liaiidH of tlie conHiKnecH, wnH 
 tlic phiiiitirrH' fault, or at IcaHt, not tlie 
 fault of the defendant. 
 
 Th(' word " team," as UHed in the con- 
 tract, is of doubtful slKnitication. It may 
 mean liorHew, mulen oroxen.and two, tour, 
 Hix or even more of either kind of heuHtH. 
 We look upon tlie contract and cannot 
 Hay what it is. And yet we know very 
 well that the i)artie.s had some definite 
 purpose in nsiiiK the word. 'I'he trouble 
 \n not that the word is insensible, and lius 
 no settled meaninR, but that it at the 
 same time admits of several interpreta- 
 tions, nccordinji; to the subject matter in 
 contemi)lation at the time. It is an uncer- 
 tainty arising from the indelinite and 
 e(|uivocul moaninK of tlie word, when an 
 iolerpretation is attempted without the 
 aid of s'.irroundinK circumHtanc(«. It ap- 
 pears on the face of the instrunu'ut. and is 
 in reality a patent ambiguity. The tiues- 
 ti(jn is, can extrinsic evidence be received 
 to explain it? We think it can. There is 
 undoubtedly some confusion in the au- 
 thorities upon this subject, especlalli- if we 
 look to the earlier cases; but the latter 
 decisions seem to be more uniform. As 
 observed by Chancellor Desaiissure, in 
 Duprce v. McDonald, 4 Des., L'O'J. the Kreat 
 distinction of arabiKuitas latens, in which 
 parol evidence has been more freelv re- 
 ceived, and of amblKUitas patens, in which 
 it has been mure cautiously received, has 
 not l)een suflicient to >;uide the minds of 
 the judges with unerriuK correctness; 
 some of the later cases show that there is 
 a middle ground, furnishiiis cireumstances 
 of extreme dilliculty. .lucl^e Story was 
 of opinion (Feiscli v. Dickson, 1 Mason, 
 11), that there was an intermediate class 
 of cases, partakinfj; of the nature bolli of 
 patent and latent ambiiruities, and com- 
 prisiriK tliose instances where the words 
 are equivocal, but yet admitof preeiseand 
 delinite application by resortinfr to the 
 circumstances under which the instrument 
 was made, in which parol testimony was 
 adinissil)lo. As an example, be put the 
 case of a party assijinins his freii;ht in a 
 particular ship liy contract in writinir: 
 sayiuK that parol evidence of the circum- 
 stances attiiidiuK the transaction would 
 be admissible, to ascertain whether the 
 word "freiijht" referred to the jjoods on 
 board of theship.oran interest iiitheenrn- 
 in^sof the ship. Tills distinction seems to 
 be fully sustained by the later authori- 
 ties, and we can discover no objection to 
 It on principle. Ueay v. lUchnrdson, 2 C, 
 M. & H., 4->2; Hall v. Davis, -.K N. II., nc,!); 
 Emery v. Webster, 42 Maine, 204; ISaldwiu 
 V. Carter, 17 Conn., 201 ; Drake v.(iorte. 22 
 Ala.. 400; Cowles v. Garrett, 30 Ala., :t4s; 
 Waterman v. Johnson. i:i rick.,2(il; Me- 
 chanics' Hank v. Hank of Columbia, 5 
 Wheat., ;!2fi; .lenniiiKs v. .Sherwood, 8 
 Conn., 122; 1 Cireeul. Kv., S5 2S(!. 2s7 and 
 2S.S. 'J'lie seneral rul'* is well stated by 
 the supreme court of New Hampshire. 
 In Hall V. Davis, as follows: ".\s all 
 writti'ii Instruments are to be inter- 
 preted accordinf.: to tlieir subject mat- 
 ter, and such construction niven tliem as 
 will carry out the inteutiou of the pai- 
 
 ticH, whenever It is legally possible to do 
 so, consistently with the lauKUUKe of tho 
 instrniiients themselves, parol or verlial 
 testimony may be rcsorteil to, to ascer- 
 tain the nature and (|uallties of the sub- 
 ject matter of those iiistruuientM. to ex- 
 plain the circunislanecs surrounding the 
 riarties. and to ex|)lain the instruiiientH 
 tlicmselves by showiiiK the situation of 
 the parties in all their rclatlcjus to persons 
 unri things around them. Thus, If the 
 lant^uaKe of the instrument is applii able 
 to several persons, to several parcels of 
 land, to several species of goods, to sev- 
 eral UKinunienls, boundaries or lines, to 
 several writiaj{s, or the terms be vague 
 I and general, or have divers meanlniis. In 
 1 all these and the like cases, parid evidence 
 i Is admissilile of uay extrinsic drcuni- 
 ' stances tending to sliow what pePHon or 
 persons, or what thinus, were Intended 
 by the party, or to ascertain his meaning 
 j in any other respect; and this without 
 I any infringement of tiiegeneral rule.uhicli 
 j only excludes parol evi<lence of other lan- 
 guage, declaring the meaning of the pur- 
 tics, than thai which is contained In the 
 instrunieiit itself." 
 
 If evidence of surrounding facts and cir- 
 cumstances is admitted to explain the 
 sense in which the words were used, cer- 
 : tainly proof of tlie declarations of the 
 I parties, made at the time of their iinder- 
 ! standing of them, ought not to be ex- 
 cluded. And BO it was held In several of 
 I the cases above cited. 2 C, M. & I!.. 422. 
 42 Maine, 204: ]:! E'ick., 2G1. Such dcclnrn- 
 tlons, it satisfactorily established, would 
 seem to be stronger and more conclusive 
 i evidence of the intention of the parties 
 than i)roof of facts and circumstances, 
 since tliej' come miiro nearly to direr-t evi- 
 dence than .•iiiy to be obtained, whilst the 
 otlii'r is but circumstantial. 
 
 And though in general the construction 
 of a written instrum'.'nt is a matter of 
 law for the court— the meaning to be col- 
 lected from the i;istrumcnt itself; yet, 
 ', where tlie meaning is to be judged of by 
 extrinsic evidence, the construction Is 
 j usually n question for llie jury. .lennings 
 I v. Sherwood, and other cases above. The 
 circuit judge was therefore right in receiv- 
 ing parol evidence, to ascertain the sense 
 in wliich the word was used by the par- 
 1 ties, and in subuiittiiig that question to 
 1 the derision of the jury. 
 
 Hut he was clearly wrong In receiving 
 
 I evidence of tlie slatcments of the plain - 
 
 i tiffs' agent to the witness Ciinn. at the 
 
 time of making the contract with hlin. 
 
 iTIie occasions were clifferent— the tworoii- 
 
 ! tracts entirely dlsci'iinectpd. and though 
 
 bothconcerned a meilicineof ihe samepat- 
 
 tern mid ninnutaetnre. yet what was said 
 
 ; In the one case was not a part of the 
 
 I transaction in the other. It was no port 
 
 I of the res gestiP. It the agent Chase, In 
 
 negotiating with Guna, had made an nd- 
 
 inission of his representations to the 
 
 ' plaintiff, evidence of such nilinission could 
 
 not have been received. Mil. an.l Miss. I!. 
 
 K. Co. V. riiiney, 10 Wis., :iss. It would 
 
 liegtiingmucli loofar, were wetohohl that 
 
 it « as [iroper to give the jury the agent's 
 
 stati'Mii'iit to Gunn. as evidence lendiuR 
 
 I to prove that a similar stnteiueiit was
 
 330 
 
 GANSON V. MADIGAN. 
 
 uiQde to the plaintiff If it has any such 
 tenilency, it is so fLMiiote that the law 
 cannot lay hold of and apply it. 
 
 The question tlien comes up, must the 
 judtfuient, for this reason, be reversed'.' 
 The defendant's counsel insist not— that 
 the evidence l)efore the jury was sufficient 
 without tliis, and it it had been rejected, 
 the verdict must liave been the same. 
 We are inclined to talie tlie same view. 
 The defendant's testimony was clear and 
 positive as to the liind of team — tliat tlie 
 asent said "one span of horses" would 
 work the macliine up to tlie warranty. 
 In this he was not contradicted, but 
 rather corroborated by the asent, who 
 was himself upon the stand. We woulil 
 naturally expect, if the fact had been 
 otherwise, the agent would have said so. 
 On the other hand, he testifies very frank- 
 ly that the defendant said he had but one 
 team; and that he told him one good 
 team would work the machine. The ad- 
 
 mission of the improper evidence could 
 not, therefore, have affected tlie findinj; of 
 the jury upon this point; and conse<iuent- 
 ly the plaintiffs were not prejudiced by it. 
 We can hardly believe that the arjiu- 
 metit of tlie plaintiffs' counsel upon the 
 construction of the warranty, that it re- 
 j ferred to the capacity of the machine 
 : without regard to the kind of team em- 
 I ployed, and was satisfied, if, under any cir- 
 cumstances, and with any numiier of 
 I horses, it could be made to perform as 
 I alleged, was urged with any real hope of 
 I success. Such a construction would be 
 I directly opposed to the manifest intention 
 of the parties. 
 
 The jury, upon proper evidence and un- 
 der proper instructions, having found 
 that the machine delivered at Milwaukee 
 was not such as the contract called for, 
 the judgment upon their verdict must be 
 affirmed. 
 Ordered accordingly.
 
 GARDNER v. LANE. 
 
 333 
 
 GARDNER V. LANE. 
 (9 Allen, 493.) 
 
 Supreme Judicial Court of Massachusetts. Es- 
 sex. January Term, 1S65. 
 
 I{e|ilevin. The writ oommnmled the 
 officer to replevy the tjoods nii'l chattels 
 folio winj;, to wit: "One huiidreil and 
 thirty-live barrels of No. 1 mackerel, forty- 
 Ki.\ barrels of No. 8 niackerel, and forty- 
 einht barrels filled with salt, together 
 with the salt contained therein." The 
 olhcer's return showed that hetooU thirty- 
 twobarrels and fifteen half barcels of No. 
 1 mackerel, forty-nine barrels and twohalf 
 barrels of No. 8 niackerel, and forty-ei;;ht 
 barrels of salt. The answer avei-red that 
 the defendant had the iiroperty in his pos- 
 session as attaching ollicer under n writ I 
 of uttaclinienl against (ieor;;e V. Wonson [ 
 and others, to whom the same belony,e<l. i 
 Jt appeared that in November, IM!'.', 
 (jteortce K. Wonson & Brothers owed the 
 plaintiff $l,.'!:W.Or>, and bargained to him 
 in payment one hnndred ami thirty-five 
 barrels of No. 1 niackerel, at ten doUai-s a 
 barrel, amounting;, with inspector's fees, i 
 to $I,:W7.1.'.'), anil uave liim a bill of sale 
 tliereof, wherenpon he save them n re- 1 
 lease, and paid them the difference, fuS..'i',); 
 that on the 5th of January, ISGIi, he called 
 ui>on them for the mackerel, and Gecr^^e | 
 F. Wonson went with him to a wharf, ; 
 where a lar^e quantity was stored, and 
 counted outeishty-fivebarrelsof mackerel, 
 which both supiiosed to be .Vo. 1, which 
 were delivered to tin- plaintiff and left 
 there; that they then went to a store i 
 where Wonson counted off two rows of 
 barrels, containing;, as he siiid, fifty biir- 
 rels, marked the barrel at the end of each [ 
 row, and nuve plaintiff a st.ir.-itre receipt j 
 In the name of (ieorse F. Wonson & Hroth- ' 
 ers, and, before the same were removed, ' 
 (lie .ittachment by the defendant was 
 made. The two rows in the store in fact j 
 contained only forty-ei;;lit barrels, and 
 the barrels containeil s;ilt. A portion of 
 the (piantity in the shed was No. 1 mack- 
 erel, and a portion was No.:!. The dt- 
 fendant iistioduced evidence that two half 
 barrels would exceed one whole barrel in 
 price by lifty-four cents, for inspector's 
 fees; and the iilaintiff introduced evidence 
 that, when the replevin suit was served, 
 the defendant ajrreed that two half bar- 
 rels should be considered as eciui^nlent to 
 one whole one. ami that the officer serv- 
 ing the replevi:! acted under such agree- 
 ment. The defendant then asked thecourt 
 to rule inasmuch as the eiy;hteen halt bar- 
 rels of mackerel replevied by tliedefeiiilan t 
 were not embraced in the bill of sale nor 
 in tile storaj»e receipt, nor was there any 
 evidence introduee<l that any lialf barrels 
 were ever sold or attemiited to be deliv- 
 ered to the plaintiff, the plaintiff had es- 
 tnblislied no title or rl;iht of possession to 
 the half barrels; and that inasmnch as 
 there were rejilevied l)y the plaintiff's writ 
 forty-five barrels of No. :! niackerel and 
 forty-eishr barrels of salt, and inasmuch 
 as the bill of sale and the stiir.'ijie receipt 
 were of No. 1 mackerel, and if theattempt- 
 ed delivery was to consist of No. I mack- 
 erel Didy, and by mistake in such delivery 
 
 there were No. 3 mackerel and dnlt, the 
 bill of sale, receipt, and delivery did not 
 convey to the plaintiff the No. :i mackerel 
 and the salt; and that, the writ not di- 
 recting the officer to reidevy any half bar- 
 rels, the officer servin;; It would not be en- 
 titled to replevy such half barrels. The 
 jufltte instructed the jury that If plaintirr 
 had a bill of sale of one humlred and thir- 
 ty-five barrels of No. 1 mackerel, anil if 
 substantially that nuniber of barrels was 
 in fact delivered to him, the bill of sale 
 ■would amount to a warranty that the 
 barrels so delivered contained No. I luack- 
 crel. If it afterwards proved on examina- 
 tion that soiiio of the merchandise delivered 
 was of inferior quality and a lower brand, 
 and known as No. :i. and alxo that a por- 
 tion of the barrels delivered contained only 
 salt, the |)laintiff would have the rli;lit to 
 rescind the sale in |iart, and return the 
 articles which did not answer the descrip- 
 tion ; or. if he saw fit to keep what was so 
 delivered, and to rely upon his warranty 
 for recoveriai;; back whatever he had over- 
 paid beyond a fair value, he could do so, 
 and that a third person, not a party t<» 
 the contract, could not impeach the plain- 
 tiff's title under the bill of sale; and that 
 it was acreed between the plaintiff ond 
 the defendant that In the service of the re- 
 plevin two half liarrels should be tr"-nted 
 I and considered as one whole barrel, and 
 ; that the term "barrel" sliould be taken as 
 a measure of quantity, and not as descrili- 
 ini; the iiioile in which the iiro|)erty was 
 I)Ut ui), the plaintiff could replevy the half 
 barrels, provided they were in fact Includ- 
 j ed amon^r the jioods which were delivered 
 to him. The jury returned n verdict for 
 the plaintiff, and the defendant alleged 
 I exce|)tions. 
 
 i J. C. Perkins, for plaintiff. J. G. Abliotl 
 ; and L. Child, fur defendant. 
 
 j BIGEI.OW, ('. .1. 1. The evidence of- 
 fered by I he ilefeniiant and re] rted was 
 clearly iiii(ii!;peterit. This Is not an ac- 
 tion in which an a.-sij;iiee in insolvency Is 
 seeking t" recover property belon>;inK to 
 the insolvent debtor for the purpose of 
 distribution amouK all the creditors. It 
 is controversy l>etween tw<i creditors, 
 each of them striviiiir to hold property of 
 their debtor ntiaiiist the other for the 
 purpose of approiiriatiuvr it in |)ayment 
 of their pre-exlstinn debts, by way of 
 preference over other creditors. Neither 
 of them can claim any rights in this ac- 
 tion under the proceedings in Insolvency. 
 The provisions of the Insolvent laws for 
 the avoidance of sales, transfers and nt- 
 tachmeiits, which may oi>erate as a pref- 
 erence, are desl;;iied exclusively for the 
 benefit of those who come in under the 
 assiitnee or otherwise to obtain an equal 
 share of the property of the insolvent In 
 the mode provided by law: and these 
 provisions cannot be invoked In aid of a 
 person who stands only In the position of 
 a creditor, endeavorinc to sivure hl« 
 whole debt, either by means of a sale or 
 by an attachment, rennlman v. Cole, 8 
 \iet. VM\, .'lOU. Hurt v. I'erklus, '.1 Cray. 
 :!l'i». The rights of creditors under the In- 
 solvent proreedln>;s can In nti way be nf-
 
 334 
 
 GARDNEK v. LANE. 
 
 feeted by tlie result of the issue between 
 the parties to this suit. If the property 
 ill controversy can he rightfully claimed 
 by the assignee in insolvency for the ben- 
 efit of creditors, liis title to it can be as- 
 serted with like effect, whether the plain- 
 tiff or the defendant succeeJ.'j in establish- 
 ing a right of possession and property In 
 this action. 
 
 2. Other and more interesting questions 
 were raised at the trial, and remain to l)e 
 considered. The first and most impor- 
 tant one is, whether on the evidence ad- 
 duced at the trial any title passed to the 
 plaintiff, under the contract of sale set up 
 by him, to that part of the property re- 
 |)levied which is described in the writ "as 
 forty-six liarrels of No. 3 mackerel, and 
 forty-eight barrels filled with salt." The 
 facts in regard to the articles are few and 
 simple. The plaintiff entered into a eon- 
 tract of sale with the original owners of 
 the property, under whom both parties 
 claim, for one hundred and thirty-five bar- 
 rels of No. 1 mackerel, at ten dollars per 
 barrel, amounting with inspector's fees to 
 $l,yi)7.2o, for which payment was made by 
 the plaintiff by releasing claims against the 
 vendors for about thirteen hundred and 
 fift.v dollars, and by money to the amount 
 of about fifty-five dollars This transac- 
 tion tuok place on the 2()th day of Novem- 
 ber, ISO-'. No delivery, however, of the 
 mackerel included in the contract of sale 
 then took place, but subseijuently, five or 
 six weeks afterwards, a delivery was made 
 of certain barrels supposeil to contain No. 
 1 mackerel, in pursuance ot the contract ; 
 of the barrels so delivered, a large num- 
 ber did not contain No. 1 mackerel, hut in- 
 stead thereof, forty-five barrels contained 
 No. 3 mackerel, and forty-eight contained 
 salt only, and these were delivered by 
 miotake as a part of the one hundred and 
 thirty-five barrels of No. 1 mackerel which 
 were agreed to be sold to the plaintiff. 
 
 On these facts it seems to us to be in- 
 consistent with elementary principles to 
 hold that any property in the barrels of 
 No. 3 mackerel and of salt t)assed to the 
 plaintiff. To constitute a valid sale of 
 goods, wares and merchandise, complete 
 and consummate, so as to p.sss the prop, 
 erty to them, there must be an agreement 
 or contract of sale by which the vendor 
 agrees that the articles shall pass to and 
 become theproperty of the vendee. With- 
 out such contract or agreement, there can 
 be no sale. Delivery is not always essen- 
 tial. As between the vendor and vendee 
 of specific chattels, in esse, the title will 
 pass when the contract of sale is complete 
 without delivery. But the minds of the 
 parties must meet, and there must he a 
 mutual assent to the transfer of certain 
 specified projicrty, before any change of 
 title to it can l)e effected. Until this takes 
 place, that is, until there is an agreement 
 to sell certain specific, identical goods, 
 there can be no actual sale or change of 
 ownership. So strictly is this held, that 
 where goods, part of an entire bulk or 
 mass, are agreed to be sold, the contract 
 of sale is deemed to be incomplete and no 
 propert.v passes, if such part has not been 
 separated or ilesignated in such man- 
 ner that it may be distinguished from the 
 
 mass or hulk with which It is mingled. 
 Until the parties are agreed as to the 
 specific, identical goods, the contract can 
 be no more than an agreement to supply 
 goods of a certain kind, or answering a 
 particular descri[itiou. The reason of 
 this is obvious. There can he no transfer 
 of propei'ty until the parties have ascer- 
 tained and agreed upon the articles sold. 
 Before they are designated and set apart 
 in some form, there is nothing to which 
 the contract of sale can attach, or on 
 which it can operate. Chit. (.'on. (lOth 
 Amer. Ed.) ;;. -398. Aldridge v. Johnson, 
 7 El. & Bl. fsS-'i. Scudder v. Worcester, 11 
 Cusli. 573. It necessarily follows from 
 these familiar principles, that where par- 
 ties to a contract of sale agree to sell and 
 Iturchase a certain kind or description of 
 property not yetascertained, distinguished 
 or set apart, and subsequently a delivery 
 is made by mistake of articles differing in 
 tlieir nature or quality from those agreed 
 to he sold, no title passes by such delivery. 
 They are not included within the contract 
 of sale; the vendor has not agreed to sell 
 nor the vendee to purchase them ; the sub- 
 ject matter of the contract has been mis- 
 taken, and neither party can beheld to an 
 execution of the contract to which he has 
 not given his assent. It is a case where, 
 through mutual misapprehension, the con- 
 tract of sale is incomplete. Delivery, of 
 itself, can pass no title; it can he effective 
 and operative only when made as inci- 
 dental to and in pursuance of a previous 
 contract of sale. Such a caseseems clearly 
 to fall within that class in wliich, through 
 mistake, a contract which the parties in- 
 tended to make fails of effect ; as where in 
 a negcUiation for a sale of propert.v, the 
 seller has reference to one article and the 
 buyer to another, or where the parties 
 supposed the property to be in exi-ftence 
 when in fact It had been destroyed. In 
 such cases the contract is ineffectual, l)e- 
 cause the parties did not in fact agree as 
 to the suliject matter, or because it had 
 no existence. Kice v. Dwight Manuf. Co., 
 2 (!ush..s6. So in the case at bar. Tlie c<jn- 
 tract of sale did not pass the property, as 
 against attaching creditors, because there 
 was no delivery to the vendee of that 
 which constituted the subject ma ttcr of 
 the contract; tne flelivery of different ar- 
 ticles from those embraced in the contract 
 is inoperative, for the reason that there 
 is no agreement for their purchase an<l 
 sale. And this is the precise distinction 
 which marks the line between the case at 
 bar and those cited by the learned counsel 
 for the plaintiff. In all of the latter, the 
 particular articles which formed the sub- 
 ject of the saleand delivery were mutually 
 agreed upon ; there was no mistake or 
 misaijprehensiou concerning them ; the 
 same goods which the vendor agreed to 
 sell and the vendee to buy, were deliv- 
 ered. The mistake was only as to the 
 quality of the article; it was the same 
 identical thing in specie as that respect- 
 ing which the i)arties had negotiated. Al- 
 though in such cases there can be no 
 doubt of the right of the vendee to rescind 
 the sale and return the property, by rea- 
 son of a breach of warranty or fraud, 
 i there is as little doubt that the title to
 
 GARDNER v. LANE. 
 
 33.', 
 
 the property passes, subject only to such 
 (JlHnlfiriiiiiiice by tlie vendee. The ermr 
 lit the trial ciinwiHted in lu.siii^ Hi>;ht of th«! 
 diHtiriction between cusch of this chHruc- 
 ter jiiid the one at bar; between an asree- 
 lucnt to Kell and deliver a Hpecifii'd article, 
 coneeriiind the quality of whicli the par- 
 ties were deceived or niiHtaken, and an 
 aKreeiui'ut to sell one article and a deliv- 
 ery by iniHtaUe of a wholly different ar- 
 ticle, which did not form the Mul)iect mat- 
 ter of the Hjjreenient. In the former the 
 title paHses at the election of the vendee; 
 ill the latter it does not. ThiH view of 
 the iirinciples of law applicalile to the 
 factH developed at the trial shows very 
 I'lcarly that the second hiHtruction asked 
 for by the defendant wnH in Hubstunce 
 correct, and hIiouIiI have been jiiven to 
 the jury, as the riilins by whicli they were 
 to be governed in considerins and apply- 
 inK the testimony. 
 
 3. It is somewhat difficult to under- 
 stand the precise posture ol the case at 
 the trial, on rhe point raised in the third 
 lirayer for instruction submitted Ity the 
 defendant. We are l)y no means sure that 
 the point is open on the pleadiiiRs; but 
 assumiuK it to be so, we do not think it 
 tenable. It is certainly true as any ab- 
 stract proposition, that an officer in serv- 
 ina a writ of replevin can take only such 
 property as properly comes within the 
 terms of tlie description contained in the 
 writ. But it is an error to suppose that 
 the term "barrels" necessarily imiiorts a 
 definite and precisedescription of a partic- 
 ular article or thint;. It may aiid often is 
 used to desiRnate a certain quantity, ami 
 not the vessel or cask in whicli an article 
 is contained. There is nothinfj on the 
 face of the writ to show tliat it was used 
 in the latter sense; on the contrary, the 
 evidence tended very clearly to show, and 
 the jury have found under the instructions 
 of the c<>urt, that the term "barrel" was 
 not intended as a precise and deHiiito de- 
 ecriptiua of the specific articles wbiuL the 
 
 sheriff was rominanded to replevy, but 
 as a designation of the (|uanlity of a par- 
 ticular kind or quality of ina'-kerel which 
 he was to take, irrespective r)f the mode 
 in which it was packed, or the particular 
 vessels or casks in which It was con- 
 tained. Nor does the case stop here. It 
 appears that the defendnnt so understood 
 the description in the writ, and assented 
 that it should be served by takiiiKasuf- 
 licient number of half barrels to make up 
 the quantity which the sherifl was re- 
 quired to replevy. After such assent the 
 ilefen<l,-uit cannot be permitted to say 
 that the description in the writ was im- 
 perfect or insutlicieiit lo warrant the serv- 
 ice of the writ. The plaintiff havlii): acted 
 on the streiiKlh of the assent of the de- 
 fendant, and incurred the expense of com- 
 pleting tlie service and prnsecutln^ the 
 suit for the iiurpose of lltiifiitiii); the title 
 to the property which was actually reple- 
 vied, it would be unjust and unreasonable 
 to allow the defen<lant now to defeat the 
 rlKht of the plaintiff to holil a i;art of the 
 property on the }!;round of any defect or 
 ambiiiuity in the description of the prop- 
 erty ill the writ. 
 
 4. The only remaJuiiiK point of exception 
 arises on the first pray?r for instruction. 
 It seems to us the verdict rendered under 
 the instructions given leaves no question 
 open to the defendant on this poiii* of the 
 case. The jury must have found that the 
 lialf barrels of mackerel were included in 
 the sale and delivery. .X mere mistake in 
 the bill of sale, or the desciiption of the 
 mode in which the property was packed, 
 would not prevent the property passine 
 by the delivery, if It was of the same kind 
 and quality as that which the parties in- 
 tended to include in their aKi'eeiiient. 
 
 The result is, that the case must go to a 
 new trial, in consequence of misdirection 
 on the point raised In the second prayer 
 for instructions submitted by the defend- 
 ant. 
 
 Exceptions sustained.
 
 GILES V. SIMONDS. 
 
 837 
 
 GILES V. SIMONDS. 
 
 (15 Gray, 441.) 
 
 Supreme Judicial Court of Massachusetts. 
 Boston. June, 18C0. 
 
 Tort [i)r breakiiiK ful iiiterinp: defend- 
 ant's close, and cutting; trees tlicrenn. 
 Uefenduiit alleired a verbal wale of the 
 trees to his father, and a payment of the 
 price, and that, after his lather had ont 
 Koine of the trees, u transfer of all his in- 
 terest, with pluiutiff's consent, to defend- 
 ant, rialntiff re(iue8ted « charue that an 
 oral license to so on his lands and cut the 
 trees was revocable, except so far as it 
 liafl been acted on, and that the license 
 after revocation was no defense, although 
 the price of the trees hud been paid. The 
 judKe refused the instruction, and the jury 
 found for defendant. 
 
 ('. Allen and S. T. Field, for plaintiff. A. 
 Brainard. for defendant. 
 
 HICKLOW. J. If the plaintiff had a 
 rijrlit to revoke the license to enter upon 
 his land, under which the defendant seeks 
 to justif.v the acts of trespass alley,ed in 
 the (h'claration, it i^s entirely clear that the 
 veriiict rendered in favor of the defendant 
 cannot stand. The decision of the case 
 turns therefore on the question wliether 
 an owner of land, who has entered into a 
 verbal contract for the sale of standing 
 wood or tinU)er to be cut and served from 
 the freehold by the vendee, can at his 
 pleasure revoke the license which he there- 
 by itives to the ()urchaser to enter on his 
 land and cut and carry away the wood or 
 timber included in the contract. That 
 such a contract is not invalid as passing 
 an interest in the l;ind is too well settled 
 to admit of doubt. It is only an e.xecn- 
 tory I'ontract of sale, to be construed as 
 conveying an interest in the trees wJicn 
 they shall he severed from the freehold and 
 shall becotneconverted into jjersonal pro];- 
 erty. Nordoes the permission to enter on 
 the land, which such a contract expressly 
 or by implication confers on the ven<lee, 
 operate to create or vest in him any es- 
 tate or iiiterer,t in the pteniises. It is oiUy 
 a license or authority to do certain acts 
 on the land, which, but for such license or 
 authority, would be acts of trespass. If 
 it were otlierwise,lf under such a contract 
 a ritrht were conferred on the vendee to 
 enter on the land and then to exercise a 
 risht or privilege at his own pleasure, free 
 from the control of the owner of the land, 
 during the continuance of the contract, it 
 would clearly confer on the vendee a rlKlit 
 or interest in the premises, which would 
 contravene the statute of frauds. l{ev. 
 Sts. c. 74, g 1. There can he no doubt tli.-it a 
 valid license toenter on land may be jjiven 
 by parol. I'.ut this rule rests on the dis- 
 tinction that a license is only an author- 
 ity to do an act or series of acts on the 
 land of another, and passes no estate or 
 interest theri'in. 
 
 'I'lie nature uniJ extent of the rijiht or 
 authority conferred by a license, and how 
 far it is within the power ot the licenser 
 to modify or revoke it, hnveuiven rise to 
 much discussion and many nice and Hul>tle 
 distinctions in the books, as well as con- 
 L.\W SAI.F> — 22 
 
 flictinK decisionB in thecourlR ofconiinon 
 luw. Certain princliiles, however, seem 
 now to be well settled. If the owner of 
 land sells chattels or other personal pro|t- 
 erty situated on his land, the vendne there- 
 by obtains an implleil license to enter on 
 the premises, anil take possession of and 
 remove the |)roperty. In such case the 
 license is coupled with and supported by 
 a valid interest or title in the property 
 sold, and cannot he revoked. Wooil v. 
 Manley, II Ad. & El. :U. Heath v. Han- 
 ilall, 4 Cush. It).'). So, too, If the owner of 
 chattels or other personal proi)ertv. by 
 virtue of a contract with or the permis- 
 sion of the owner of land, places his prop- 
 erty on the lanil, the license to entir upon 
 it for the purpose of tukin}; and removing 
 the property Is irrevocable. Patrick v. 
 C<dPrick,8 .M. & \V. 4s3. Itussell v. Kich- 
 ards. 1 Fairf. 4L1I, and 2 Fairt. .t?!. .Smith 
 V. Benson, 1 Hill (S. Y.) 17(i. The rintit of 
 property in the chattels draws aftiT it the 
 liKht of possession : the lieeiiHe tDenter on 
 land to obtain possession of them i.-< subsid- 
 iary to this ritfht of property, which can- 
 not be enjoyed if the license lie withdrawD 
 or terminated. This ri^ht in the chattels 
 is not derived from the license, but existH 
 in the owner by virtue of a iMstinct and 
 separate title, the validity of which in no 
 W!iy depeiids on any rijjht or interest in 
 the laud. Hut with the assent of tlie 
 owner of the land the property has been 
 placed in a situation where it cannot be 
 used or enjoyed except by a license toenter 
 upon his land. The continuance of thlH 
 license is therefore essential to the enjoy- 
 ment of tlie ri^lit. It would he a manifest 
 breai'h of good faith to pi'rmit such n 
 license to be revoked. No man shoul<l In- 
 permitted to keep the property of others 
 by inilucing tliem to place it ui)on his 
 land, and then denying them the right to 
 enter to regain its possession. A party is 
 therefore not permltteil to withdraw his 
 consent, by settini; up his title to the land, 
 after it lias been acted on by others, and 
 when their rights will be impaired or lost 
 by its withdrawal. In like manner ami 
 for similar reasons, a license li> enter on 
 land for the r>urpo.se of removing trees or 
 ti:;:l)er therefrom, which have bi-en felled 
 in pursuance of a contract of sale, cannot 
 be recalled. So far as it has been execut- 
 ed, the license is irrevocable. I!y virtue of 
 the contract, and with the express or im- 
 plied consent of the owner of the soil, tlie 
 vendee lins been induced to expend his 
 money and services. The trees, so far an 
 they have been sevi red from the freetiold. 
 have become converted Into personal 
 prt)perty, and vested in the venilee. A 
 revocation of the license would, to the ex- 
 tent to which it had been exifiiteil. oper- 
 ate us a fraud on the vendei-. and ileprlve 
 him of property to which he hail b'vonie 
 lenally eiititleil. Bi'sides, the owner of 
 Inml cannot, by a subse(|uent revocation 
 of his license, render that unlawful which, 
 with all Its incidents and necessary conse- 
 quences, was lawful at the time it watt 
 done, by virtue of his own authority anil 
 consent. 
 
 The true distinction between an execu- 
 tory verbal license lo enter tin l:ir.d under 
 a contract for the 8ule of timber or tree*
 
 338 
 
 GILES V. SIMONDS. 
 
 growing thereon, and a Hiniilar license ex- 
 ecuted, seems to i)e this: The former con- 
 fers no vested interest or property uo 
 money or lal)or is espeixled oii the I'aitli 
 of it, and no rigjit OP title is iini)aire(l or 
 lost by its revocation. If tlie party to 
 whom it is granted is injured l)y its vrith- 
 drawal.his remedy is Ijy an action asainst 
 the licenser for a breach of the ctjntract. 
 It cannot be held to extend further, so as 
 to confer a riglit to use tlie land of an- 
 other without his consent, because it 
 vyould thus confer ex proprio vigore, an 
 interest in land, which cannot be created 
 except by a writing. But such a license 
 executed, to the extent, to which it has 
 been acted on, has operated to induce the 
 vendee to expend money and services on 
 the property, and thereby to convert it 
 into personal chattels which have become 
 vested in him. The revocation of the 
 license in such case would deprive the ven- 
 dee of his property. It has therefore been 
 
 held that such a license, while it is execu- 
 tory, may lie countermanded, but that 
 when executed it becomes irrevocable. 
 Cook V. Stearns, 11 Mass. ii33. Cheever v. 
 Pearson, IG Pick. 273. RurkIcs v. Lesure, 
 24 Pick. 190. Clattin v. Carpenter, 4 Met. 
 .'JSO. Nettletou v. Hikes, S Met. 34. 
 
 Applying these principles to the case be- 
 fore us, it is clear that the defendant could 
 not justify the acts of trespass charged in 
 the declaration. Before l)is entry on the 
 land for the purpose of cutting trees, the 
 plaintiff revoked the license which he had 
 given by the verbal contract of sale under 
 whicli the ilefendant claimed to act. So 
 far as the license was executory it was 
 revocable, and the entry of the defendant 
 after its revocation was unlawful. 
 
 The view which we have taken of thecase 
 seems to render a decision of the otlier 
 questions raised by the exceptions unnec- 
 essar.y. 
 
 Exceptions sustained.
 
 I
 
 GIJJ. V. BENJAMIN. 
 
 341 
 
 GILL et al. v. BKN.IAMLN. 
 
 (25 N. W. Rep. 445, &i Wis. 3(52.) 
 
 Supn-ini- Court of Wisconsin. Nov. 3, 18S5. 
 
 Aiipi-Jil from county court, Milwaukee 
 county. 
 
 TiiL'futtH fullv fippenr in the following 
 statcnicnt by CASSODAY, .1.: 
 
 Tlic plaintiffs were enKJ'Ked in tlie busi- 
 ness of fnniiHhin)^ wood l>y contract at 
 • Jill's I'iei-, .\Iic!ii;;an. The defenilant was 
 a woud anil coal dealer at Mdwaiikee. 
 .\Iurcli I. 1SS4, the plaintiffs sent to the de- 
 fendant tliefollowing written proposition, 
 \\ liicli was Hceepted in writing by the de- 
 fendant, as follows: "fiilTs t'ier, Mich., 
 .March 1, l,>ss>4. H. M. lienjainin, .Mil- 
 waukee, Wis. — Dear !Sir: We will sell 
 Jind deliver to you one thousand cords 
 maple wood, to he delivered from Gill's 
 I'ier, l^eelenaw ci^unty, Mich., over the 
 rail of the vessel, at three dollars antl 
 twenty-five cents jf.'J.i;.')) per cord : all the 
 wood to he sound body, inarketal>K> ina|>le 
 wood, and to be delivered from time to 
 time to your vessel as wanted during the 
 season of navigation of 1SS4. The said 
 wooil to lie piled .-is taken from vessel, 
 and to he measured and paid for when 
 piled on your ilock in .Milwaukee, Wis. 
 Vours, respectfully, William (iill & Son. 
 1 accept the above. Milwaukee, March 10, 
 1SH4. II. .\l. Henjamin." 
 
 The undisputed evidence was to the 
 effect that tlie captain of the scliooner 
 .Surprise, a vessel owiie<l by the defendant, 
 took the lirst cargo of wood from the 
 plaintiffs' pier on June 30, ISS4, and at va- 
 rious times thereafter chartered certain 
 other vessels to transport cargoes to the 
 <lefendant'sdock in .Milwaukee; that there 
 were in all, aside from the one in dispute, 
 six of these cargoes, ngKregating V!:!^^ 
 cords of wood, which were loaded at (iill's 
 I'ier, carried across Lake .Michigjin, unload- 
 ed, assorted, piled, and measured on the 
 defendjiiit's dock at .MiUvaukee, and then 
 paid for; that two of the six cargoes were 
 delivered anil received after October 7, 
 IsM; that the defendant paid the freight 
 for such transportation, and the expense 
 of unloading. culling, and i)iliiig the wood, 
 and part of tlie expen.-<(! of measuring; 
 tlint the plaintiffs paid the expense of 
 placing the wood over the rail of the ves- 
 sel ut their pier, and employed and paid 
 one .Saveland. residing ;i t .N.ilwaiikce. as 
 their agent in doinc whatever was neces- 
 sary t<i be done in such measurement, and 
 sen. ling a statement t hereof to the plain- 
 tiffs; that in the six cargoes so delivered 
 LM> cords were treated aHculN.anil paid U-v 
 at a less ratethan the'-ontract price; that 
 «oo.I sound, marketai le maple wood 
 could be culled: that the per cent, of culls 
 in the six cargoes mentioned was very 
 small— unusually so; that the defendant 
 Jilways dealt fairly about culling wood; 
 that the J. E. Bailey, chartered by the 
 captain of the Surprise for that purpose, 
 was present at (Jill's I'ier, .Mirliiijan, O.-to- 
 her 7, l■^^4, to get a cargo of wood for the 
 defendant under the contract, when the 
 plaintiffs delivered over the rail of the 
 Bailey ut that place lOo curds ofgood 
 
 [sound, marketable, body maple wood, 
 [sawed ends," aside from the wood here- 
 in before mentioned, which l.",.-. cords of 
 wood the vessel's crew, and the men they 
 hired, (liled and stowed on the Baili-y ; 
 that the last was put on board nboiit 
 half past six in the evening of October 7, 
 18S4; that the 1;').-. cords did not constitute 
 o full cargo for the Bailey, as she was ca- 
 llable of c;irrying 1!).'. to IJiiO cords of such 
 wood; that the captain thereof gave the 
 plaintiff* a receipt therefor a day or two 
 after in these words : "Gill's Pier, Mich., 
 October 7. Iss4. Shipped in good oriler 
 and condition, tiy William Gill & Son, at 
 the risk of whom it may concern, on 
 lionrd the J. E. Bailey, whereof Bereiison 
 is ni.ister, now in port at Gills I'ier, 
 bound for .Milwaukee, Wis., \m cords 
 maple wood. Henry Berenson." The 
 night after the wood was so put ou board 
 the Bailey it began to rain quite heavily 
 and the wind blew, and the next morning 
 the Bailey was ashore, and the l.Vi cords of 
 wood was partly washed overboard, and 
 the balance thrown overboard by those 
 in charge of the vessel, and became a 
 total loss; the captain thereupon tele- 
 graphed the defendant to the effect that 
 the schooner Bailey w;is ashore with l.">5 
 cords of his wood ; the plaintiff admitted 
 that the wood placed on the Bailey was 
 of the same kind and character in general 
 as the other wood delivered, except the 
 latter had a part cargo of dry wooil ; this 
 action is to recover for the l.'i.l cords of 
 wood at the contract [irice. and intere-it 
 from November 1. ISM. Upon the facts 
 stated the court directed n verdict for the 
 plaintiffs, and from the judgment entered 
 thereon the defendant appeals. 
 
 Markham & Noyes. for appellant. J. E. 
 Wlldish, for respondents. 
 
 CAS,SODAV, J. The facts are undls- 
 puted. Does the law [lut the loss of the 
 I.').') cords of wood upon the pl.'iintiffs <ip 
 the defendant".' The contract when made 
 was executory. The plaintiffs thereby 
 agreed to sell and deliver to the defend- 
 ant l.nno cords of wood. The wood was 
 to be of the kii:d and iiuality named in the 
 contract. No iiartiLUlnr l.iMio cords of 
 wood was then designated nor described 
 therein. It was all "to be delivered from 
 (iili's Pier » • • over the rail of the 
 vessel." It was, moreover, " to be deliv- 
 ered froui time to time" at that place, "UH 
 wanted, during the season of navigation 
 of Issf." The Bailey was chartered liy the 
 captain of the defendiinl's vessel, and for 
 the luirposes of the contract must be re- 
 garded the same as though it were the 
 liroperty of the defendant. True, each 
 cargo was " to be piled on the defendnnt's 
 dock in .Milwaukee" as taken from the 
 vessel, and to lie measured and iiniil for 
 at the price named when so idled. Fills 
 raises the ipiestion whethrr, by the terms 
 of the agreement, the title of each cargo 
 became vested in the defendant when ile- 
 livered to and "over the rail of the" de- 
 fendant's vessel at tiill's Pier, or remained 
 vesteil in the plaintiffs while being curried 
 across the lake on the defendant's vessel, 
 and until taken from his vedsel and piled
 
 342 
 
 GILL c. BENJAMIN. 
 
 on his dock in Milwanl<ee. If the title to 
 each oirgo reuiaineO vested in the plain- 
 tiffs until piled on the dcfend.Tnt's dock in 
 Mil waiikee, then did it continue to be vest- 
 ed in tlioni until measured; and if until 
 measured, tlien did it remain vested in 
 them until paid for? The piliuR on the 
 dock was appiircntly to facilitate the 
 measurement, and tlie measurement was 
 apparently to ascertain the amount to 
 be paid. But can it he that the title of a 
 coruo so piled upon the defendant's dock 
 and measured dill not heconie vested in the 
 defendant until he liad paid tor it: and if 
 it became vested in him before he paid for 
 it, then why n;)t before it was measured 
 or i)ile(l on his dock or taken from his ves- 
 sel? The words "sell and deliver to you 
 * * * from Gill's Pier, » * • over 
 the rail of the vessel," clearly designated 
 that as the place of delivery. 
 
 On the delivery of any car^o being made 
 in that way at that place, the possession 
 of such cargo was Uianifestly intended by 
 the contract to immediately pass entirely 
 from and beyond the ct)ntrol of the plain- 
 tiffs into the absolute and e.xclusive pos- 
 session and control of the defendant. 
 The vessel upon which such cargo was so 
 placed belonged to the defendant, and was 
 controlled by his captain; or else the ves- 
 sel was chartered by his captain for his 
 service in the transportation of such car- 
 go, and hence was, so far as the contract 
 was concerned, his vessel for that voyage 
 for the purposes of such transportation. 
 The plaintiffs had no control over the 
 management of the vessel, nor the direc- 
 tion in which it should go, nor the port 
 at which it should land. The contract, 
 though e.'secutory when made, yet as it 
 contemplated a delivery from time to 
 time, as wanted, in separate cargoes, each 
 of wiiieh was to be paid for as indicated, 
 it was clearly severable. Scott v. Kittan- 
 ning Coal Co., Si) Pa. St. 231 ; Goodwin v. 
 Merrill, 13 Wis. 65S; Sawyer v. Chicago & 
 N. W. Ry. Co., 22 Wis. 385. This being so, 
 it necessaril.v follows that, as each cargo 
 was delivered on board thedefendant's ves- 
 sel, the contract as to such cargo became 
 an executed sale, so far as the plaintiffs 
 were concerned, unless the mere fact that 
 their man was expected to participate in 
 the measurement of such cargo when piled 
 on the defendant's dock prevented the 
 title to such cargo from becoming vested 
 in the defendant until so measured. Mor- 
 row V. Reed, 30 Wis. SI ; Mi>rrow v. Camp- 
 bell, Id. 90; Fletcher v. Ingram, -JG Wis. 
 191, .'lO N. W. Rep. 424; Scott v.Kittanning 
 Coal Co., supra. 
 
 Such being the wording and effect of the 
 contract, we must hold that each cargo, 
 on being delivered "over the rail of the 
 vessel" sent for that jmrpose oy the de- 
 fendant or his captain, became at once the 
 property of the defendant, unless the stip- 
 ulation for piling and measuring on the 
 defendant's dock, bi-fore payment, i)re- 
 vented the title from so vesting in him. 
 ')f course the 155 cords, being lost, was 
 not so piled on the defendant's dock in 
 Milwaukee, nor measured ; and thereforeit 
 is claimed there is no obligation to pay. 
 The contract contemplates no such loss. 
 It contains no stipulation as to any one 
 
 taking the risks of the perils of the lake. 
 Without such stipulation, such risk would 
 necessarily tall upon the owner of the 
 cargo at the time of loss. It will be ob- 
 served that the contract contains no 
 8tii)ulaiion for any inspection or sorting 
 of tlie wood on the defendant's dock. The 
 wood was to be taken from the vessel, 
 piled and measured on the dock ; but it is 
 i silent as to who shoidd do the piling or 
 i the measuring. It seems to be conceded 
 that the delcndant was to do the i)ilii)g. 
 lit ma.v he inferable that the i)laintiffs' 
 man was exjiected to witness or partici- 
 pate in the measurement of every cargo, 
 as he did of each that was so piled on the 
 dock. Was such piling and nieasuiing a 
 condition precedent to the vesting of the 
 title thereof in the defendant? Where the 
 manifest intention of the parties is to 
 transfer the title, the sale may be com- 
 plete, notwithstanding the property is 
 yet tobe measured, and thearaount of the 
 price yet to be ascertaineil. Sewell v. 
 Eaton, 6 Wis. 490; McConnell v. Hughes, 
 29 Win. 537; .Morrow v. Campbell, supra ; 
 Fletcher v. Ingram, sui)ra. .So held where, 
 by the agreement, the vendee was to have 
 the title to saw-logs as soon as the ven- 
 dor deposited them in a certain i)lace. 
 Morrow v. Reed, supra. These principles 
 are fully recognized and sanctioned in Pike 
 V. Vaughn, 39 Wis. 505, relied upon by 
 counsel for the defendant. Thus, in Dixon 
 V. Baldwen, 5 Kast, 175, A. <fc B., traders 
 in London, ordered goods from the defend- 
 ants at Manchester to be sent to M. & 
 Co., at Hull, for the purpose of being aft- 
 erwards .sent to the corresjjondents of A. 
 & B. at Hamburg, and the defendants 
 sent the goods to i\I. i*i Co. at Hull to be 
 shipped by them to Hamburg, as usual, 
 pursuant to the order; and it was held 
 as between the buyer and seller, the right 
 of the defendants to stop as in transitu 
 was at an end when the goods came to the 
 possession of M. & Co. at Hull; for they 
 were for thispurpose theappoinied agents 
 <»f the vendees, and received orders from 
 them as to the ulterior destination of the 
 goods; and the goods, after their arrival 
 at Hull, were to receive a new direction 
 from the vendees. To the same effect, 
 Kendal V. Marshall, 11 Q, B. Div. 350; Ex 
 parte .Miles, 15 Q. B, Div. :i9. 
 
 We must hold that the intention of the 
 parties, as expressed in the contract, was 
 that the title to each cargo should imme- 
 diately vest in the defendant on being 
 placed on board of the defendant's vessel 
 at Gill's Pier. True, the contract pro- 
 vifles, in effect, that each cargo was to be 
 ]"l)aid for when piled on " the defendant's 
 j dock in Milwaukee, and that the cargo of 
 155 cords was never so piled on that 
 dock. But theundisputed evidence shows 
 that the failure to so pile on the <lefend- 
 ant's dock was in no way attril)utable to 
 the i)lain tiffs. It may be conceded, also, 
 that it was not the fault of the defendant 
 nor his agents, although the cargo was in 
 the exclusive possession of the defendant 
 at the time it was lost. Assuming that 
 the loss of the cargo was not the fault of 
 the defendant's agents, then such piling 
 on the defnndant's dock was rendered im- 
 possible solely by the act of God, and
 
 GILL c. HEN.IAMIN. 
 
 343 
 
 hence the defendant, npon Its loss, there- 
 upon liecaine liaiile for its valiif. I'dwcfh 
 V. UelliiiKer. .VI Wis. ■JbU. II X. \V. K.-p. .V.i7 ; 
 Niiuent V. Smith. 1 C. I'. Div. 4i<; 2 Ik-nj. 
 Sales. §S(;i. 
 
 It appears from the andifiputerl evidence 
 that the lij.") cords of wood lost was of the 
 kind and substantially of the quality 
 called for in the contract, and the same as 
 the other wood which had been received 
 hy the defendant without any objection, 
 although a deduction was made in the 
 price of 20 cords called culls. The title to 
 the !.">."> cords of wood havinir become 
 vested in the defendant when the same 
 was placed on board of the Bailey, and 
 the captain of the 15ailey being in law 
 the ajrent of the defendant for the pur- 
 pose of receiving the wood, and having 
 received the same on brjanl the Bailey 
 without any objection as to quality, and 
 the wood having been lost, as indicated, 
 it may be very doubtful whether any 
 damages could be recovered in this action, 
 even had there been a counter-claim for 
 such damages in the answer. Locke v. 
 Williamson, 40 Wis. 377. But here there 
 
 was no such countrr-olaim. ami hence the 
 ipieHtion need ni>t be diterrnltied. The de- 
 fenriant does claim damages by way of 
 counter-claim, however, for the failure to 
 deliver the balance of thel.lMK) cords called 
 for by the contract. Including the 15."> lost. 
 But the contract «jnly re<|iilred that the 
 plaintiffs should deliver the wood at their 
 pier to the defendant's vessel from time to 
 time, "as wanted, during the season of 
 navigation of l'^^4." There is no evidence 
 of any failure to deliver any wood "an 
 wanted" by the defendant "during thai 
 season, nor of any unreasonntile delay in 
 furnishing wood to any vessel calling for 
 it at the plaintiff's pier in hthalf of the de- 
 fendant. 
 
 We discover no ground upon which the 
 defendant is entitled to any ilaniagi-H un- 
 der his counter-claim. Simpson v. l"ri|)- 
 pin, L. R. H Q. B. 14; Higgins v. Delaware. 
 L. & W. R. Co.. 6U S. Y. .">5:i; .Scott v. Kit- 
 tanning ('oalCo..80pra ; Ha inesr. Tucker, 
 50 N. H. a07. 
 
 BV THECOL'HT. The judgment of the 
 county court Is affirmed

 
 GIROUX V. STi:i).\rAX. 
 
 345 
 
 OIROUX V. STROMA N et al., (three cases.) 
 
 I'i:c.)l(I> V. SAMK. 
 
 (14 N. E. Uep. 538, 145 Mass. 430.) 
 
 Siiiin-mo .Tiidiciiil Court of Massachusetts. 
 HaiiiixJeii. Jan. 4, 18S8. 
 
 K.xcpptioiiB from Ktipci-ior court, Hunip- 
 (Icii iMiiiiity : I'itiiiiin, .IihI^c 
 
 'I'licse wiM'o aclioiiH hrouKht by Hidinrd 
 <iiri)iix, Mary (Jiniii.x, .JoHcpli I'pi-ord, and 
 Mary <;ii'i)ii.\, ( liy her next (rifiid, ) aj^iiifiHt 
 IMiiricas Slciliiian and another, to recDViT 
 iliiiiiaKCK lor tortH coniiiiit ti'd by them in 
 Helling' to the plaintiffs pork ntifit for 
 food. The pliiintiffH claimed to have pur- 
 ehascd from the defendantM certain pro- 
 visionH, to wit. certain ((uantitleH of 
 drcHseil pork; that naiil pork wa.s tainted, 
 and unlit for fooil : tijat they ate of Haid 
 pork, and were made Hick tliei'ehy At 
 the trial in the Mupi'rior court, tiio evi- 
 deiK'e Kliowed that the (h'fendantH were 
 farnierH carryinir on a farm in Cliicopee, 
 and jointly interested in raisins pij^s: 
 that ahoiic the middle of Septemher, l.ss."i, 
 the defendants found that an infectious 
 disease, known as " hou cholera, "' existed 
 upon their farm, and that their entire 
 heril h.id lieen exposed to the disease; 
 that on ()rtol)er :>, IS.'s."), tne defendants 
 liilleil two of their hoKH. dressed them, 
 .ind sold one-half of one of them to the 
 plaintilf Itich.ird (Jircuix, and oi;e half of 
 the othei' lio^ to the plaintiff .losepli 
 I'ecord ; that on Octoher oth the defend- 
 ants killed and dresscil two other lions, 
 one of which \\as sold to the plaintiff Pec 
 ord. 'I'lie evidence showed, further, that, 
 at the timi' of the several sales to the 
 plaintiffs, no representatioiLs as to the 
 <|ualily of the meat were made, and no 
 notice f;iven to the plaintiffs, at the times 
 of the s:iles, of the existence of the disease 
 anion;; the herds owned hy the defond- 
 ants; hut it aiipcarcd that the defendants 
 knew, at the tiiiie of ilie several sales to 
 the several plaiulilTs, that the meat so 
 sold hy them to the plaintiff was to 1)0 
 used liy the plaintiffs for provisions. The 
 presidium; jiidKc instrnctcd the jury In 
 term.-', the substance of which appears in 
 the opinion. The jury returned a verdict 
 lor the defendants, and the plaintiffs ol- 
 lejted exceptions. 
 
 \V. W. .McClench, for plaintiffs. E. W. 
 ( 'ha pi 11. foi defendants. 
 
 I)1:\'I;NS. .1. it whs known to the de- 
 fendants that tlie pliiintiffs purchased the 
 meat to he used as provisions, but it was 
 held by the presiilins' jndKc that, in order 
 that they should recover, they iiinst prove 
 the allei;.itions ill their declarations that 
 tin- defcudauts knew that th'' meat sold 
 liy them was nnwholesouie, and improper 
 to l)e used as provisions, lie iiistrncted 
 tliejurj that, at common law, the jieuerHl 
 rul(> is th.Mt where personal property is 
 sold in the presence of buyer anil seller, 
 ouch haviiif; an opportunity to see the 
 proiierty, and there is iiothiu;; saiil as to 
 the i|uality, the only implied warranty on 
 the part of the seller Is that '"e has a valiil 
 title in, or has n rl^ht to sell, the chattel. 
 
 Fie added that there is on exception to 
 this fieneral rule, where a provision flpolcr 
 or inurket-maii sells provlsioiiH. as meat 
 and veK;etableH. to his customers for use: 
 and that in such case there would bean 
 implied warranty that they wi-re lit for 
 use, and wholesome. WhethVr this excep- 
 tion exists or not it is not important. In 
 j the case at bar, to imiuire, as it cannot 
 be, and was not conlendeil, tliat the Je- 
 fendants were brou;;lit within It. The 
 contention of the plaintiffs is that, even 
 If the rule is well established that where 
 there is no express warranty, and no 
 fraud, no warranty of the iiuality of the 
 tiling sold is implied by law. and that 
 the maxim (jf caveat emptor a|iplies, there 
 is ,•! more (teneral exception, which e*- 
 cludes from its operation all sales of pro- 
 visions for immediate iloiueslic use. no 
 matter by whom made. That in a sole of 
 an animal by one denier to another, even 
 with the knowledKt that the latter dealer 
 intends (o convert it into meat for do- 
 mestic use, or that, in the s/ile of provi- 
 sions in the course <if commercial transac- 
 tions, there is no implied warranty of the 
 quality, appears to be well settled. Iir»w- 
 urd V iMiierson, 11(1 Mass. :JJU. and case8 
 cited: liuruby v. Itollett, lli Mees & W. 
 
 While occasional expressions may be 
 found (as in Van Hracklin v. Fonda, 12 
 Johns. -ICiS) which sustain the plaintiffs' 
 contention, we liave f<iund but one de- 
 cided case which supports it. In Van 
 lirncklin v. Fonda, iibi suiwa. it is said 
 that, in a sale of provisions, the vendor is 
 Ijouiid to know that they are sound a I his 
 peril: but the case shows that tlieilvfend- 
 aiil, who had sold beef for donie.-tic use. 
 knew the animal from which it came to be 
 diseased. This had lieen found by the 
 jury, and the remark is made in connec- 
 tion with the facts proved. The case of 
 Hoover V. I'eters, IS .Mich, ."il, does sustain 
 the plaintiffs' contention, as it is there 
 held that where articles of food ore 
 
 I bout;lit for domestic consumiilion. and 
 the vendor sells them for that express pur- 
 pose, the law implies a warranty that 
 they are fit for such purpose, whether the 
 sale be made by a retail dealer or by any 
 
 Dther person. This case imposes a heav- 
 ier liability mi n pers(ni not en>;ai;pd In 
 the sale f)f provisions .as a liusincss than 
 he should be called on to liear. The opln- 
 
 1 ion is not suiiported l)y any citation of 
 authorities. In a (lisscntiu!; opinhiii by 
 
 I Mr. Justice ("hristiancy, it is sjiid : "Had 
 it appeared that he [the defendant] was 
 the keeper of a meat market or butcher 
 shop, and was eiijiascil in the iiuslness of 
 selling meat for foorl, and therefore bound 
 <>•• presumed to know whether It was lit 
 for that purpose, I should ha ve concurred 
 in the opinion my brethren have ex- 
 pressed." If there is an exception to the 
 rule of i-ave;it emptor which ::rows out 
 of the circumstances of the case, and the 
 relations of buyer ami seller, where the 
 latter is a general dealer, anil the former 
 a luirchaser for immeiliate use. there ap- 
 pears no reason why it should bo further 
 extended. 
 
 j In the case at bar. the defendants were 
 
 I not common dealers In provisions or
 
 346 
 
 GIROUX V. STEDMA>r. 
 
 raarket-nieu. They wore fnnr.ern, KclliiiK 
 a portion of the iirodme of their fiiriiiH. 
 No representations of the qnality of the 
 meat sohl were made liy tliem. !n niali- 
 ing casuiil Bales from a farm of it.s prod 
 ucts. to liohl the owner to the duty of 
 ascertaining, at his peril, tlie cotiditiori of 
 the articles sold, and of ini|ilie<lly war- 
 ranting, if sold with the knowledge that 
 Ihey are to lie nsed as food, that they are 
 fit for the i)urpose, imposes a larger lia- 
 bility than should h<? placed upon one who 
 may often have no better nieansof knowl- 
 edge than the purchaser. Tlie plaintiffs 
 contend that the case of French v. Vining, 
 lOL' Mass V.j2. is ilecisive in their favm-, 
 bu t it a[)pear8 to us otherwise. In that 
 case, the defendant sold hay, which he 
 knew had been poisoned, for the purpose 
 of l;eing fed to a cow, although he had 
 carefully endeavored to separate tlie dam- 
 aged [lortion from the rest, and supposed 
 he had succeeded. From the eflects of 
 eating the hay the cow died, and the de- 
 fendant was lield liable. His knowledge 
 <jf the injury to the hay was certain and 
 positive; his belief that ho had remedied 
 
 the ditticulty was conjeclnral and uncer- 
 tain, and pi oved to be wholly erroiu-oiis. 
 In the case at bar. while the dofotidant's 
 herd had been exposed to hog cholera, 
 there Mas evidence that a portion of it 
 only had been affected: and, further, that, 
 even if affected, the meat of the aniiiials 
 was not necessarily unwholesome. There 
 was no evidence that the animals whose 
 meat was sold had ever, so far as the de- 
 fendants knew, actually liad the disease. 
 and the verdict of the jur.\- has establislicil 
 that they were igncjrant that tli<' meat 
 sold b.v them was un wlulesome. In 
 French v. Vining the defendant knew what 
 the condition of the hay had been, and 
 this is a vital partof the cose. He sold an 
 article which he knew had been poisoned, 
 and fi'om which he had taken no effectual 
 means to remove the poison. His belief 
 or supposition that his effort had been 
 successful could not relieve him from lia- 
 bility for thr- conse()uences that ensued be- 
 cause it had been unsuccessful, it he sold 
 the hay without informing the purchaser 
 of the dangerous injury which it had re- 
 ceived. Kxceptions overruled.
 
 ll
 
 GODDARD V. BINNEY. 
 
 S4!> 
 
 GODDARD T. BINNEY. 
 
 (115 Mass. 450.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. fcSept. 4, 1ST4. 
 
 Contrnot to rerover tlie price of a biicKy 
 liuilt l)y pliiliitift for (Itrcndant. Plaintiff 
 H<;r('i'(l to tniilil a l)u««.v for defeudant, 
 jiiiil tu di'livcr it at a certain time. De- 
 fendant nave Hpecial directioiiM at< to Kt.vle 
 /ind liniHli. The liiifitl.v waH Imilt accord- 
 ing: to directioiiH. llefore it was finished, 
 defendant called to see it. and In answer 
 to phiintiff, who asked him if he woulil 
 sell it, said no; that he would keep it. 
 When the biiu^y was finished. i)laintiff 
 sent a hill for it, which defendant retained, 
 promisiriK to see plaintiff in regard to it. 
 The l)nj;;>?y was afterwards burned in 
 plaintiff'H possession. The case was re- 
 [)orted to the supreme judicial court. 
 
 C. A. Welch, for plaintiff. G. Putnam, 
 Jr., for defendant. 
 
 AMES, J. Whether on aKreemcnt like 
 that descrihed in this reixirt should be 
 comidered as a contract fur the sale of 
 goods, within the inianinp; of the statute 
 of frauds, or a contract for laboi', services 
 and materials, and therefoi'e not within 
 tliat statute, is a question upon which 
 there is a contlict of authority. According 
 to a long course of decisions in New York, 
 anil in some other states of the Union, an 
 agieemeiit for the sale of any commodity 
 not in existence at the time, but which the 
 vendor is to manufacture or put in a con- 
 <litiou to be delivered, (such as flour from 
 wheat not yet ground, or nails to be made 
 from iron in the vendor's hands), is not 
 a contract of sale within the meaning of 
 the statute, ''rookshank v. Burrell, Is 
 Johns. 58. Sewall v. Fitch. S Cow. L'l.>. 
 Hobertson v. Vaughn. :j iSaiidf. 1. Downs 
 V. Hoss, L'.'i Wend. 1!70. Eiclielberger v. 
 M'Cauley, ."> iiar. & .1. 21:1 In England, 
 on the other hand, the tendency of (he re- 
 cent decisions is to treat all contracts of 
 such a kind intended to result in a sale, 
 as snbstaiitinll.v contracts for the sale of 
 chattels; and the decision in Lee v.tJrillin, 
 I I!. & S. 1.'7L'. goes so far as to hold tliat a 
 colli I act to make and tit a set of artiliclal 
 teeth (or a patient is essentially a con- 
 tract for the sale of goods, and therefore 
 is suliject to the provisions of the statute. 
 Nee .\Iaberlev v. Sheppard, 10 Bing. 'M\ 
 Howe V. Palmer. S 15. & Aid. ai'l ; Haldey 
 V. Parker. 1' U. & (;. 37; Atkinson v. Bell, 
 8B. &C. 277. 
 
 In this commonwealth, a rule avoiding 
 both of these extremes was established In 
 Mixer v. IIowarth.21 Pick. 20"), and has 
 been recognized and aflirnied in repeated 
 decisions of more rirent <la te. The effect 
 of these decisions we understand to be 
 this, namely, that a lontract for the sale 
 of article.-' then existing or such as the 
 vendor in the ordinary course of his busi- 
 ness manufactures or procures for the gen- 
 eral market, whether on hand at the time 
 or not, is a contract for the sale of goods, 
 to which the statute applies. But on the 
 t)ther hand, if the goods are to be manu- 
 factured especially for the purchaser, and 
 
 upon his Bpeclal order, and not for the 
 general market, the case Is not witliln the 
 statute. Spencer v. Ccuie, 1 .Met. 2s;t. 
 "The distinction." says Chief Justice 
 Shaw, in Lamb v. Crafts. 12 Met. :\:>.\. "we 
 believe is now well understood. When a 
 person stipulates for the future sale of ar- 
 ticles, which he is habitually nuiKlng. and 
 which, at the time, are not' n;ade or lln- 
 Ished, it is essentially a contract of sale, 
 and not a contract for labor ; otliirwlse, 
 when the article Is macle piiisuant to the 
 agreement." In (iardner v. .loy, !) .Met. 
 177, a contract to buy a certain numlier of 
 boxes of candles at a fixed rate per pound, 
 which the vendor said he woulil mantirac- 
 ture and deliver in about three niontliH, 
 was held to beacoiitract of saleand with- 
 in the statute. To the same general effect 
 are Waterinnn v. Meigs, 4 Cush. 4'.)7, and 
 Clark V. Mchols, 107 Mass. .".17. it is true 
 that in "the inllnltely various shades of 
 different contracts," there is soine |)racti- 
 cal dilliculty in disposing of the •(iiestionH 
 that arise under that section of the stat- 
 ute, (icn. Sts. e. 10."), § ,">. But wi- see no 
 ground for holding tliat there is aiii' iin- 
 certaint.v in the rule its'lf. On the contra- 
 ry. Its correctness and justice are clearly 
 implied or expressly allirii;eii In all of our 
 decisions upon the subject matter. It Is 
 
 I proiier tc say also tliat the present case 
 is a much stronger one than Mixer v. 
 Ilowarth. In this case, the cariiwge was 
 not oiil.v built for the d?fenilant, but in 
 conformity in some resiiecls with his dl- 
 
 ! rcctions, and at his reipiest was marked 
 with his initials. It was neither Intendeil 
 nor adapted for the general market. K» 
 we are by no lueaiis jirepared to overrule 
 the decision in that case, we must there- 
 fore hold that the statute of frauds does 
 not apply to the contract which the plain- 
 tiff is seeking to enforce in this action. 
 
 Independentl.v of that statute, and la 
 eases to which it does not appy. it is well 
 settled that as between tlie immediate 
 parties, propert,\ in personal clint'.els may 
 pass by bargain and sale without actual 
 delivery. If the parlies liave agreed upon 
 thespecilic thing that is sold and the price 
 that the buyer is to pay for it, and noth- 
 ing remains" to be done but that the buyer 
 should iiay the price and take the same 
 thing, the property passes to the buyer, 
 and with it the risk of loss by l!re or any 
 other accident. Tlie appropriation of the 
 chattel to the buyer is eiiuivalent. forthat 
 purpose, to delivery by the seller. Tlie 
 assent of the buyer to take Ihespccllic 
 chattel is equivalent for the same luirpose 
 to his acceptance of possession. Dixon v. 
 Yates, 5 B. & Ad. .iia, :!4n. The property 
 niny well be in the buyer, though the right 
 of possession, or lien for the price, is in 
 the seller. There could in fact be no such 
 lien without a change ot ownership. No 
 man can be s;iid to liavea lien, in theprop- 
 er sense ot the leriii. upon his o» n proper- 
 ty, and the seller's lien can only be upon 
 tiie buyer's property. It has often been 
 decided" that nssiiiiipsit for the price of 
 goods bargained and sold can be lualn- 
 taine.l where tliea(M>ds have been selected 
 bv the Inner, and set apart for him by the 
 seller, tlnnigh not actually .lelivereil to 
 hliu, and where nothing n-maiim to bo
 
 350 
 
 OODDAKl) V. UINNEY. 
 
 done e:^cept tlint the liuyer should pay the 
 sgreod price. In such a state of thiujis 
 the property vests in liini, and with it the 
 risk of any accident that may happen to 
 the Roods in the meantime. Noy's Max- 
 ims, S'J. 2 Kent. Com. (12th Ed.) 491,'. 
 Blo.vani v. Sanders, 4 B. & (.". i)41. TadinR 
 V. Baxter. G B. & U. 3G(). Hinde v. White- 
 house, 7 East, 571. Macomlier v. Parker, 
 13 Pick. 175, 183. Morse v. Sherman, 100 
 Mass. 430. 
 
 In the present case, notliinp; remained 
 to be done on the part of tlie plaintiff. 
 The price had been agreed upon; tlie spe- 
 cific chattel had been finished according 
 to order, set apart and appropriated for 
 the defendant, and marked with his ini- 
 tials. The plaintiff had not undertaken 
 to deliver it elsewhere than on his own 
 premises. He gave notice that it was fin- 
 
 ished, and presented his liill to the defen<l- 
 ant, who promised to pay it soon. He 
 had previously re()uested that the car- 
 riage should not be sold, a request which 
 substantially is equivalent to asking the 
 plaintiff to keep it for him when finished. 
 Without contending tluit these eiicuin- 
 stnnces amount to a deliveiy and accept- 
 ance within the statute of frauds, tlie 
 plaintiff may well claim that enough has 
 been done, in a case not within that stat- 
 ute, to vest the general ownership in the 
 defendant, and to cast ui)on him the risk 
 of loss by fire, while the chattel remained 
 in the plaintiff's possession. 
 
 According to the terms of the reserva- 
 tion, the verdict must be set aside, and 
 judgment entered for the plaintiff. 
 
 COLT and ENDICOTT, J.f., absent.
 
 i
 
 GOMPERTZ c. I5AKTLETT. 
 
 8^ 
 
 GOMPERTZ T. BAUTLETT. 
 
 (2 El. & Bl. 849.) 
 
 Court of Queen's Bench. Xov. 14, 18.5.3. 
 
 Action for nioiic'3- hail iinil received. 
 Pleii : Never indebted. I.ssiie thereon. 
 On the trial, before Lord Caniphell. C. .1., 
 nt the Kittinir.s at (iuildhall after last 
 Trinity lerni, it appeared that the defenrl- 
 ant, in London, Hold to the plaintiff a hill 
 of excliatifje puri)ortinR to lieilniwnat 
 .Siei-ia Leone hy .Jolly & Co.. of that plaee. 
 on Bellot & Co., of London, and aecefHed 
 hy I'.ellot & Co.. payable to the onler of a 
 third per.Mon in London. The instrument 
 was endorsed in blank by the payee; it 
 was iin.staniped , but both parties be- 
 lieved it to bo a foreicn iiill and eonse 
 fjiiently to reijuire no Htamji. The defend- 
 ant illii nut endorse the bill; and it was a 
 sail' without reeonrse. The plaintiff paid 
 £sl.'» to the defendant, as the price of the 
 bill, vvliieh was handed to plaintiff; and 
 he, in Hke manner, sold the 1)111 to another 
 person, also without recourse. Before 
 the bill attaineil maturity, all the parties 
 to the bill became bankrupt. On the 
 holder sei-kinK to prove a^raiiiHt the estate 
 of the acceptor, it was discovered that 
 the bill, thouRh bearing the uennino sig- 
 nature of a Sierr.-i Leone firm, had, in fact 
 been drawn by one of the partners in this 
 kinK-<lom. and eonseiiuently was unavail- 
 able for wan t of a stamp. The commis- 
 sioners in bankrui)tcy refused to allow the 
 proof. The holder ilenianded back Irom 
 the plaintiff tln^ price paid to him: and 
 the plaintiff, under threat of legal proceed- 
 ings, paid him. The plaintiff now sought 
 to recover from the defendant £sl.'>, the 
 price of the bill, as money p.'iid on a con- 
 sideration which had faileii. It was ad- 
 mitted that the defendant, at the time of 
 the sale, liona fide believed the bill to have 
 been drawn at .Sierra Leone ; and neither 
 fraud nor negligence was imputed to him. 
 The lord chief justice directed a nonsuit, 
 with leave to move to enter a v^^rdict for 
 the plaintiff. 
 
 Petersdorff, in this term, obtained a rule 
 nisi aci'ordingly. M. Chambers and Pear- 
 son now showed cause. Petersdorff, con- 
 tra. 
 
 Lonl C.\MPnF,r>L, C. .f.— At the trial, I 
 was impressed with the consideration 
 that this w;is a transaction of pure sale, 
 and that the vendor really had title to 
 the bill which he sold, and was perfectiv 
 ignoiant of the latent defect. Besides, 
 the bill would probably have in fact been 
 paid had the parties to ii continued sol- 
 vent: and Oh the whole I was then iiK lineil 
 of think that the defect was n.erely one in 
 the (juality, which t he vendor did lioi war- 1 
 rant. But, now, having heard the argu- 
 ment, 1 think that the action is maintain- 
 able, on the ground t ha t the article does I 
 not answer the description of that which 
 was sold, viz., a (oieign bill. There was 
 no written stnteuicnt or direct assertion 
 that this bill was drawn at Sierra Leone; | 
 LAW SAI.KS— -3 
 
 but it purported to be BO drawn; nnd It 
 must be taken that It nas Hold b,' th^ 
 description of a bill drawn at Sierra 
 Leone. In fart it was drawn in London: 
 and, on that account, it could not be en- 
 forced. If it really hail been a foreign bill, 
 any secret defect would have been at the 
 risk of the purchaser; but this is not a 
 case in whcli an article answering the de- 
 scri|)tion by which it is sold has a He<-ret 
 defect, but one in which the article i-- not 
 of the kind which was sold. I think, 
 therefore, that the money jiaid for it may 
 be recovered as paid in mistake of facts. 
 The law is, I think, accurately laid down 
 in the passage cited from Addison on 
 Contracts. If. Iieing what was sold, thf 
 bill was valueles.-. because of the insol- 
 vency of the parties, the vendor would not 
 be answerable; but ho isnnswerable if the 
 bill be spurious. .lones v. Kvde, .'> Taunt. 
 4SN. and Young v. Cole, .3 New ("as. 7lM. 
 7:iO, are strongly in point. Young v. Cole 
 is indeed a very strong case ; for the things 
 sold there as Guatemala bonds were In 
 one sense of the words (iuatemala bonds; 
 but they were not what was |)ro[essed to 
 be sold, viz.. bunds binding on the Guate- 
 mala government. The case is precisely 
 as if a bar was sold as gold, but was in 
 fact brass, the vendor being innocent. In 
 such a case the purchaser may recover. 
 
 COLEHIDGE, J.— I am of thpsameopin- 
 ion. What took place at the time of the 
 sale was merely that the vendor did not 
 endorse the bill, and stipulated in effect 
 that this should be a sale without war- 
 ranty. Tliat being so. the vendor wa» 
 not bound to see that he sold a bill of 
 good quality, or to answer for the insf>l- 
 vency of the (inrlies ; but the vendee is stIU 
 entitled to ha ve an article answering thp 
 descrifjtion of that which he bought. 
 Here he bought, as a foreign toll, what 
 turns out not lo be a foreign bill, and 
 therefore valueless. Common justice re- 
 quires that he should have back the price. 
 
 ' Erie, J., had gone to Clinmbors, 
 
 •See the Digest, lib. xviii. tit. 1. De Contrah. 
 Emt.; laws It, 10. 11, niiil 14, where the sub- 
 ject of the principal ci!si» is discussol. The 
 civilians seem to have come to the conclusion. 
 "Si" "aes pro aun> vcneat non valet," aliler "si 
 auruni quidom fuerit, doterius autem iiuam 
 euitur existimarct: tunc eniin emiio valet.'
 
 GOODWIN c. IIOLUnOOK. 
 
 acr, 
 
 GOODWIN y. HOLUUOOK. 
 
 (4 Wend. mi. I 
 
 Supreme Court of New York. May, 1830. 
 
 Dftniirror to ileelaration. On the 20th 
 Mfin-li, IsKJ, at Au^cliu.^, an aKroeniont 
 uniier seal waH entereil into between H. 
 (ioodwin, of Atirclius in CayiiKn county, 
 and J. MatthowK. of Salinu in Onondana 
 county, wlieroby (Joodwin ngreed to hoII 
 and convey unto Matthews all hiH rlKht, 
 intercKt and claim in and to certain wait 
 workw. desciilicd as 8H!t lot No. '.(; and 
 Matthews nurccd to pay for the same 
 f 1,(100 in tirwt <|iialitv OnondaRa salt; ^L'OO 
 to be iiaid on the Ist October, IslC, $400 
 on the Ist October, 1H17, and the residue 
 in one year thereafter, with interest from 
 the 1st" October, ISIG. He further agreed 
 to pack all the salt in barrels in the usual 
 way of Hacking salt, the biirrels to be fur- 
 nished by (ioodwin and delivered ut the 
 salt works. It was further stipulated 
 that Matthews should take possession 
 within three days from the date of the 
 agreement, and that the writings should 
 be executed within si.xtydays; there was 
 also a sti|)ulation in relation to the then 
 occupants of the lot. On the 27th .Tune, 
 IsKi. the time for conii)lelin«; the writings 
 was exlendi'd. liy an en''orsement on the 
 asrreement si^jned bv (lOodwin and Mat- 
 thews, to the Ist October. IsKi. On the 
 Nth April. IMS. Matthews assigneil nil liis 
 title to the salt Works njireed to be con- 
 veyed by (ioodwin to the defendant Hoi- 
 brook, in consideration whereof llidbrook, 
 by an instrument under seal, bearing date 
 at Salina on the same da.vaKMcd to make 
 to (ioodwin the payments then due, an<t 
 which should thereafter becomedueon the 
 contract lietween (ioodwin and Matthews. 
 In February term, !>>.'!'.». 'ioodwin com- 
 menced a suit atrainst llolbrook, an<I de- 
 clare(l nuainst him in covenant. The dec- 
 laration set forth that on. &c., an article 
 of aKri'cment was entered into b.v and 
 between (ioodwin and .Mat thews wliereby 
 .Matthews aKreed to pay to (Joodwin ?1,- 
 000 in tirst (juality Onondafra salt, specify- 
 ing theproportions and times of payment, 
 as contained in the asreenient; that on, 
 &c.. .Matthews assinned the ajireement to 
 Holbrook, in consideration whereof llol- 
 brook covenanted and ayrreed to pay all 
 such sums of money as were then due anil 
 owinu by .Matthews to (lood win upon the 
 said agreement thusassijined, and all such 
 sumsas should becomedue thereon. Tlien 
 follows an averment that at the time of 
 the Bssijinment of the afrreement there 
 was due to (ioodwin on the agreement 
 $.'i(lO, iiayable in salt, after which follows 
 the breach. The defendant prayeil oyer 
 of the instruments declared on, which be- 
 ing reail, he put iii a general demurrer to 
 the declaration. 
 
 ('. P. Kirklnnd, for plaintiff. .1. A.Spen- 
 cer, for defendant. 
 
 MARCY, J.— It is said that the execu- 
 tion of the writings relntive to the salt lot 
 was a condition precedent to the pay- 
 ments to be made by the defendant, and 
 tbat tiie declaration Is defective io not 
 
 averring that this was done. It la very 
 evident, from an inspertion of the agree- 
 ment, that the covenant for the convey- 
 ance l)y the plaintiff is independent of 
 the covenant on the part of the defend- 
 ant, liy the first agreement, the con- 
 veyance was to lie made at a time prior 
 to that on which tlii> cotislileration, 
 or any part of it. was to l)e paid: and. 
 though it was extended afterwards to 
 a time when a portion of the consider- 
 ation became payable, there Is nothing to 
 show that the payment was to depend on 
 the execiition of the writings. There 
 woulil have been more reason for inferring 
 such an intent in the parties if the pay- 
 ment of the whole consideiation ami the 
 execution of the writings had been simul- 
 taneous acts. 
 
 The plaintiff, to whom thei)aynient was 
 to be made, lived at Aurelins, "where the 
 covenants were entered into, ami .Matth- 
 ews, to whoso rights and liabilities the 
 defendant hds succeeded, livcil at Salina, 
 where the pren)iscs contracted for were 
 situated, and where the article wl-.icli was 
 to be taken as payment was manufac- 
 tured. 
 
 It will be observed that the contract in 
 to pay one thousand ilollars In salt. II 
 the payment had been to be made in mon- 
 c.v. there could have been no doubt as to 
 the place of performance, it would have 
 been tlie duty of the defendant to seek the 
 l)lalnliff-< in order to make the (la.vment. 
 Is the place of performing the contract 
 changed by substituting a commodity for 
 money? The implied place of performance 
 is sometimes rliniiged by the nature of the 
 article to be delivered. If u merchant or 
 manufacturer engages to pay on dem&nd 
 in the articles of his trade, ami no place Is 
 specilied in the contract, the store of the 
 merchant or the workshop or pb-re of de- 
 posit of the fabrics of the manufacturer 
 is the place where the payment must be 
 demanded before an action accrues for 
 the nonperformance of the contract (Chip, 
 on Cont. 2^. 11.) It Is said by the same au- 
 thor, that " if a note of hanil be given for 
 catl'e, grain or other portable articles, 
 and no place of payment be designated In 
 the note. t!ie criditor",-) place of residence 
 is the place of pay ment "( Id. 25.) These 
 two positions ma.v seem to he contradic- 
 tory ; but ciiie or two conslderatl<>ns can 
 not fail to show that they are not so. 
 The peculiar circumstances am) course of 
 business of the promissurs in the hrst case 
 warrant the inference that the parties In- 
 tended that thearliclesshould bedelivered 
 at the promissors' usual place of making 
 and deliveringof the articles sold liy them. 
 The engagement is that the articles shall 
 bedelivered on demand. This seems to 
 imply that the creditor must go to the 
 debtor to make the demand. Iiefore the 
 latter can Ite in detault. Hut the last 
 proposition suiMioses the i)lace omitted, 
 but the tiniefor delivery nxed. It presents 
 a case like the one umler consideration, 
 and contains the rule of law that ought 
 to be applied to it. Salt is as much a 
 portable article as grain, and the time for 
 the delivery of It in this case being speci- 
 fied in the contract, the defendant's en- 
 gagement must be construed to l)e for Its
 
 356 
 
 GOODWIN V. nOLBROOK. 
 
 delivery to the plaintiff at his rtsidtnee in 
 Aurelius, iinlesH a different construction is 
 authorized by the clause relative to pack- 
 inj; the salt in barrels to be delivered by 
 plaintiff at the salt works in Salina. This 
 clause does not, in my opinion, weaken — 
 it rather strengthens the legal inference 
 that Aurelius was the place of delivery. 
 Jf the barrels were to befuinished at the 
 place where the salt was to be delivered, 
 why was it deemed necessary to siiecify 
 that i)lace? The salt was to be packed at 
 the place of mniiufacture; this act neces- 
 sarily was to precede the delivery, but it 
 could not be done till the plaintiff had fur- 
 nished the barrels. There was something: 
 then to be done by the plaintiff before the 
 delivery, and the defendant is not in de- 
 fault for making delivery as long as this 
 act remains unperformed by the plaintiff; 
 it does not appear by the [ileadings that 
 it was ever performed by him. 
 But it is said that what relates to pack- 
 
 ing and furnishing the barrels is a distinct 
 agreement, solely for the benefit of the 
 plaintiff, and that he was at liberty to dis- 
 pense with its performance. I view it as 
 a part of the contract, and I do not know 
 that it would not be less expensive to the 
 defendant to pack the salt in barrels, and 
 deliver it in them, than to deliver it in 
 bulk; if it would be less e.\[>ensive. th;it 
 I)art of the agreement was beneficial t() 
 the defendant and without his con.sciit 
 the plaintiff could not di.s|)eMse u illi it. 
 But whether this be so or not is in no « ise 
 material; for if the plaintiff could have 
 dispensed with it, the record does not 
 show that he did so; and 1 hold the de- 
 fendant excused for waiting until the 
 |)laintiff performed the act which neces- 
 sarily preceded the delivery, or distinctly 
 waived the part of the agreement relative 
 to that act. 
 
 .Judgment on demurrer for defendant, 
 with leave for plaintiff to amend.
 
 COULD V. i?oi:hoi:ois. 
 
 359 
 
 GOULD V. BOURGEOIS. 
 
 (18 Atl. Rep. 6^, 51 N. J. Law, 361.) 
 
 Supreme Court of New Jersey. June 17, 1889. 
 
 Rule to show cause. 
 
 Error to circuit court, Atlantic county; 
 before .lusticp Rkkd. 
 
 Argued at February Term, 1889, before 
 I}easlky, Chief Justice, and Justices De- 
 PUK, Van Syckel, and Knapp. , 
 
 Learning d: Black, for tlie rule. D. J. 
 Pancuasl, conlra. 
 
 Depi'e, J. This suit was upon a promis- 
 sory note made by the defendant. Thit de- 
 fense was the want or failure of considera- 
 tion. The city counril of Holly Reach City 
 proposed to build a hnakwater. The de- 
 fendant was an applicant for a contract to 
 do the work, and prepared and sent to the 
 city council an agreement with the city to 
 that effect. Members of the city council sent 
 wonl to the defendant that the city had al- 
 ready entered into a contract for the building 
 of the breakwater with (!ould <fc Downs, that 
 these parties could not fulfill their contract, 
 and that, if the defendant would make a sat- 
 isfactory arrangeuient with (iould & Downs, 
 the city would give him the contract. The 
 parties thereupon entered into negotiation, 
 the conclusion of which was a contract in 
 writing and under seal, whereby Gould & 
 Downs, for the consideration of a note for 
 8376 and $500 in city bonds, assigned to the 
 defendant "all our right, title, and interest 
 in a certain contract entered into by the au- 
 thorities of Holly Beach City and ourselves 
 to build a certain bre:ikwater ordered built 
 by a resolution passed .\pril 14, 1887." Suh- 
 seciuently, the city council, having obtaine<l 
 the opinion of counsel that the city had no 
 power to build the breakwater, refused to 
 ratify the arrangement of the defendant with 
 Gould <fe Downs, and abandoned the jiroject 
 of constructing the work. The note sued 
 on was given in compliance with the terms 
 of this assignment. There was no pmot of 
 an express warranty by Gould & Downs of 
 the validity of their contract, nor any evi- 
 dence from which fraud, either in represen- 
 tation or concealment on their part, could be 
 inferred. The power of the city to make the 
 contract was not mooted until after these 
 parlies had concluded their arrangement 
 and the assignment bad been made; and, if 
 tlie contract was invalid, its invalidity arose 
 fioui the city charter,— a public act equally 
 within the knowledge of both parlies. 'I'he 
 defendant's contention was that, inasmuch as 
 there was a sale of the contract, a warranty 
 that the contract was a valid contract was im- 
 plied, and that, the contract being ultra vires 
 on the part of the city, and void, the considera- 
 tion entirely failed. If the proposition on 
 which the defense was rested be sound in 
 law, the defense was appropriate in this 
 suit. The doctrine of implied warranty of 
 title in the sale of goods applies as well to 
 
 the sale of a chose in action, and extends not 
 merely to the paper on which the chose in 
 action is written, but embraces also tlie va- 
 lidity of the right purported to be transferred. 
 Wood V. Sheldon, 42 N'. J. Law, 421. Nor 
 is there anything in the nature of the alleged 
 infirmity of the contract that woidd bar the 
 defense. In the ordinary case of a suit on a 
 breach of warranty of title the validity of the 
 vendor's title against the adverse claimant 
 is triable, if the purchaser has in f.ict lost 
 title, although the transactions which deter- 
 mine the vendor's title are res itiier alios 
 add. If the contract wliich was the sul>- 
 ject-matter of the assignment was in fact 
 ultra vires, a foundation was laid for this 
 defense, the city having repudiated the con- 
 tract in limine on that ground. 
 
 The validity of the defensp offered and over- 
 ruled depends upon the fundamental propo- 
 sition whether, under the circumstances of 
 this sale, a warranty of title is implied in 
 law. The theory on which a warranty of 
 title is implied upon tlie sale of personal 
 projierty is that the act of selling is an af- 
 firmation of title. Theearlier English cjises, 
 of which Medina v. Stoiighton, 1 Salk. 210. 
 
 1 Ld. Kay;ji. 5'J3, is a type, adopted a dis- 
 tinction between a sale by a vendor who was 
 in possession and a sale where tlie chattel 
 was in the possession of a thiril person; an- 
 nexing a warranty of title to the former, and 
 excluding it in the latter. In the celebrated 
 case of I'asley v. Freeman, 3 Term 11. 51, 
 liULLEK, J., repudiated this distinction. 
 Speaking of Medina v. Stoughton, this 
 learned ju<lge said that the distinction did 
 not apjiear in the report of the case by Lord 
 Kaymond, and he a<lds: "If an allirmation 
 at the time of the sale be a warranty, I can- 
 not feel a distinction between the vendor's 
 being in or out of possession. The thing is 
 bouglit of him, anil in consequence of his 
 assertion; and, if there be any dilTerence, it 
 seems to me that the case is strongest ai;ainst 
 the vendor when he is out of possession, be- 
 cause then the vendee has nothing but the 
 warranty to rely on." Nevertheless the En- 
 glish courts continue to recogiii/o the dis- 
 tinction, with its Incidents, as adopted in 
 Medina v. Stoughton, to some extent, at 
 least so far as to annex the incident of an 
 implied warranty of title on a .sale by a ven- 
 dor in possession. Later decisions have 
 placed the whole subject of implied warranty 
 of title on a more reasonable basis. .Mr. 
 Benjamin, in his Treatise on Sales, after :t 
 full examination and discussion of (he late 
 English cases, states the rule in force in 
 England at this time in the lollowiiig terms: 
 "A sale of personal chattels iin|dies an allir- 
 niation by the vendor that the chattel is his, 
 and therefore he wanaiils the title, unless it 
 be show n by the fads and circumstances of 
 the sale that the vendor did not intend to as- 
 sert owneiship, but only to transfer such in- 
 terest as he might have in the chattel sold." 
 
 2 Benj. Sahs. (forbin's Kd.) g^ '.•45-it(>l. 
 In this country llio distinction between sales
 
 360 
 
 GOULD V. BOURGEOIS. 
 
 where the vendor is in possession and wliere 
 lie is out of possession, witli respect to im- 
 plied warranty of title, has been generally 
 recoiinized; but the tendency of later decis- 
 ions is against the recognition of such a dis- 
 tinction, and favoralile to the moilorii En- 
 glish rule. Id. § 902, note 21. Bid. War. 
 §§ 246, 247. The American editor of the 
 ninth edition of Smith's Leading Cases, in 
 the note to Chandelor v. Loptis, after citing 
 the cases in this country which have held 
 that the rule of caveat empiur applies to 
 sales where the vendor is out of possession, 
 remarks that in most of theiu what was said 
 on that point was obiter dicla, and observes 
 "that there seems no reason why, in every 
 case where the vendor purixuts to sell an ab- 
 solute and perfect title, he should not be held 
 to warrant it." 1 Smith, Lead. Cas. (Ed- 
 son's Ed.) 344. In ^Vo()d v. Slieldon, supra, 
 Chief Justice Bi;asli:v, in delivering the 
 opinion of the court, adopted, in terms, the 
 rule stated by Mr. Benjamin, and made it 
 the foundation of decision. The precise 
 question now under discussion did not then 
 arise. In Eicliholz v. Bannister, 17 C. B. (N. 
 S.) 708-721, EiiLi:, C. J., said: "I consiiler 
 it to be clear upim the ancient authorities 
 that, if the vendor of a chattel by word or 
 conduct gives the purchaser to understand 
 that he is the owner, tliat tacit representa- 
 tion forms part of the contract; and that if 
 lie is not the owner his contract is broken. 
 * * * In alujost all the transactions of 
 sale in common life, t!ie seller, by the very 
 act of selling, holds out to the buyer that he 
 is the owner of the article lie offers for sale." 
 In that case it was held that on the sale of 
 goods in an open shop or wareliouse, in the 
 ordinary course of business, a warranty of 
 title was implied; but there is a line of En- 
 glish cases holding that, where the facts and 
 circumstances show that the |)ur[)ose of the 
 sale, as it must have been understood by the 
 jiarties at the time, was not to convey an ab- 
 .solute and indefeasible title, but oidy to trans- 
 fer the title or interest of tlie vendor, no 
 warranty of title will be imjilied. In this 
 proposition the fact that the vendor is in or 
 out of possession i-; onlv a circninstance of 
 more or less weight, according to the nat- 
 ure and circNnistunces of the particular 
 transaction. Thus in Morley v. Attenbor- 
 ough, 3 Exch. 5U0, the holding was tliat 
 on a sale by a pawnbroker at pulilic auction 
 of goods pledged to him in the way of 
 business tliere was no implied warranty 
 of absolute litle, tije undeitaking of the ven- 
 dor being only that the subject of the sale 
 was a pledge, and irredeemable by the pledge- 
 or. In Chapman v. Speller, 14 Q. B. 621, 
 the defendant bought goods at a sheriff's 
 sale for £18. The plaintiff, who was pres- 
 ent at the sheriff's sale, bought of the de- 
 fendant his bargain for £23. The plain- 
 tiff was afterwards forced to give up the 
 goods to the real owner. He then sued 
 the defendant, alleging a warranty of title. 
 The court held that there was no implied 
 
 warranty of title nor failureof consideration; 
 that tlie plaintiff paid the tlclendant, not for 
 the goods, but for the right, title, and inter- 
 est the latter had acquired by his purchase, 
 and that this consideration had not failed. 
 In Ba;;ueley v. Ilawley, L. 11. 2 0. P. 625, a 
 like decision was made, where the defendant 
 resold to the plaintiff a boiler the former had 
 bought at a sale under a distress for poor- 
 rates, the plaintiff having knowledge at the 
 time oT his purchase that the defendant had 
 bought it at sucdi sale. In Hall v. Conder, 
 2 C. B. (N. S.) 22, the plaintiff, by an agree- 
 ment in writing by which, after reciling that 
 he had invented a method of preventing 
 boiler explosions, and had obtained a jiatent 
 therefor within the L'niled Kingdom, trans- 
 ferred to the defendant "the one-half of the 
 English i)iitent" for a consideration to be 
 I)aid. In a suit, to recover the consideration 
 thedefcndant ) leaded that the invention was 
 wholly worthless, and of no jniblic utility or 
 advantage whatever, and that the plaintiff 
 was not the true and first inventor thereof. 
 On demurrer the plea was held bad, for that, 
 in the absence of any allegation of fraud, it 
 must he assumed that the plaintiff was an 
 inventor, and there was no warranty, ex- 
 press or implied, either that he was the true 
 and tirst inventor within tlie statute of James, 
 or that the invention was useful or new; but 
 that the contract was for the sale of the i)at- 
 ent, such as it was, each party having equal 
 means of ascertaining its value, and each 
 acting on his own jud,'ment. A like decis- 
 ion was made in Smith v.Xeale, 2 C. B. (N. 
 S.) 67. 
 
 Chief Justice Eiile, in his opinion in Eich- 
 holz V. Bannister, descrilies Morley v. At- 
 tenborough, Chapman v. Speller, and Hall v. 
 Conder, as belonging to the class of cases 
 where the conduct of the seller expresses, <it 
 the time of the contract, that he merely con- 
 tracts to sell such title as he himself has in the 
 thing. The opinion is valuable, in that, while 
 it rescues the common-law rule of implied 
 wananty of title from the assaults of distin- 
 guished judges who held that caoeat emptor 
 a|iplied to sales in all cases, and that in the 
 absence of express warranty or fraud the 
 purchaser was remediless, it also placed the 
 rule under the just limitation thaC it should 
 not apply where the circumstances showed 
 that the sale purported to be only a transfer 
 of the vendor's title. Expressions such as 
 "if a man sells goods as his own, and the 
 title is deficient, he is liable to make good 
 the loss," (2 Bl. Coinm. 4.51.) or "if he sells 
 as Ills own, and not as the agent of another, 
 and for a fair price, he is uii.ierslood to war- 
 rant the title." (2 Kent, Comm. 478.) — as a 
 statement of the principle on which the doc- 
 trine of implied warranty of title rests, is not 
 inconsistent with the principle adopted by 
 Chief Justice EuLE. Stating the principlein 
 the negative form adopted in Morley v. At- 
 tenborough, that there is no undertaking by 
 the vendor for title unless there be an ex- 
 press warranty of title, or an equivalent to it
 
 GOULD %}. BOUUGEOIS. 
 
 861 
 
 by (leclaiat on or condiipt, affects only the 
 Older of proof. It whs nonctMlcil in tint case 
 tliat tlie pawnbroker siliiiig his i;i)0 Is iimler- 
 took tliat tlipy had l)i en jjli'iiiji'd. ami wpio 
 irredeemable by the pledgeor, and if it be as- 
 .siiiued, as X lliiiik il luiibL be, that the act of 
 selling amounts to an allirnialion of title of 
 some SDrt, but that its force and effect may 
 be explained, qualilied, or entirely overcome 
 by the laclsand ciicumstaiices connected wiih 
 the transaction, the difference between Mot- 
 ley V. Altenborough and Kichholz v. Bannis- 
 ter will rarely be of any pralical impoitance. 
 The liniitaliim above mentioned upon the 
 doctrine that the act of selling is an allirma- 
 tion of title has hi en ad()|iled in this state. 
 In IJogert v. Chrystie, 24 X. J. Law. 57 00, 
 this court held that the general rule that the 
 vendor of goods having posse-ision, and sell- 
 ing them as his owu, is bound in law to war- 
 rant the title to the vendee, did not apply 
 where the venilor sells with notice of an out- 
 standing interest in a third [lartv, and sub- 
 ject to that int.rest. In ll<iagla'nd v. Hall, 
 ;58 N. .1. Law, ;J51, the vendor agreed in 
 writing to assign a lease he held upon cer- 
 tain premises, and to sell and transfer goods 
 and chattels mentioned in a schedule. Tlie 
 premises were a licensed inn and tavern, and 
 in the scliedule of the articles sold were 
 enumerated "the licenses ol the house. " The 
 law under which the license was granted pro- 
 hibited the transfer of a license, and in the 
 purchaser's hands it would be void and value- 
 less. The court held that that circumstance 
 ;lid not justify the purchaser in withdrawing 
 from his contract; that there was no war- 
 ranty by tlie vendor that the license, when 
 assigned, would be of any value to the pur- 
 chaser; and that the latter, having obtained 
 by the :issigiiment what lie had bargained 
 lor, could nut annul his contract unless he 
 showed fraud or inisiepiesentation with re- 
 spect to the subject-uialler of the contract. 
 In Dank v. Trust Co., Vl-'i ilass. o^JO, the de- 
 fendant had a contract with B., uled^in" to 
 
 liim certain toba'-co, in which it was recited 
 tiiat the tobacco was B.'s own property, and 
 free from all incumhranc s, and made an iis- 
 signnient to the plaintilT "of all his right, 
 title, and interest in and under the contract, 
 with all the jiioperty therein mentioned." 
 The tobacco was then in the defendant's pos- 
 session, and was delivered by him to the 
 [ilaintiff. Afterwards a third person de- 
 manded and recovered of the plaintiff part of 
 the tobacco as his property, which had been 
 pledged to the clefendant without i ight. The 
 plaintiff then sued the defeii.lant on an al- 
 leged implied warranty of title. The court 
 ruled adversely to the plaintiff's claim. In 
 the opinion the court said that the written 
 assigniui-nt did not purport to be a sale of 
 the giiols, but of all the defendant's right 
 under the contract, and its obvious purpose 
 was to substitute the plaintiff in the place of 
 the original pledgee, and that the fact that at 
 the time of the transfer to the plaintiff the 
 goods were in the actual possession of the 
 defendant did not vary the case. 
 
 In the case in hand the circumstances con- 
 nected with the assignment, independent of 
 the words "all our right, title, and interest," 
 etc., contained in it, preclude the implication 
 of a warr.mty of the validity of the contract. 
 Taken in connection with the words of the 
 assignment, the intention of the parties is free 
 from doubt. 
 
 The contention that the plaintiff was in 
 fault in that he made no delivery of the con- 
 tract to the defendant is without substance. 
 The contract was neither produced at the 
 negotiation b-tween the parties, nor was it 
 required. The transaction was the purchase 
 of tJoiild & Downs' interest to consummate 
 an arrangement whereliy those parties were 
 to be got rid of, that the city might give the 
 defendant a contract. The defen<lant ob- 
 tained by the a.ssignment ail he bargained 
 for. The defense was properly overruled, 
 and the rule to show cause should be dis- 
 charged.
 
 GOULD V. STEIN. 
 
 86ff 
 
 GOULD et al. v. STEIN et al. 
 
 (22 N. E. Rep. 47, 149 Mass. 570.) 
 
 Supreme Judicial Court of Massachusetta. 
 Suffolk. Sept. 4, 181^9. 
 
 Exceptions from superior court, Suffolk 
 county; Houkkt C. Piim.vn, Judge. 
 
 Action by Henry A. (lould and others 
 against Abe Stein and otliers lor brcadi of i 
 warranty on tlie sale of certain rubber. 1 
 Judgment for plaintiffs. Defendants except. 
 
 /. /?. Warner and H. E. Warner, for 
 plaintiffs. ./. H. Dougherty and (J. A. Kiny, 
 for defendants. i 
 
 C. Allen, .J. The determination of this 
 case dejiends upon tlie construction to be 
 given to the bonglit and sold notes, which 
 were similar in their terms. It does not ad- 
 mit of doubt that these notes were intended 
 to express the terms of tlie sale. They were 
 carefully prepared and were read to the par- 
 ties line by line, as they were written. Of 
 course all the existing circumstances may be 
 looked at, but the contract of the parlies is 
 to be found in what was thus written, when j 
 re.ad in the light of those circumstances. 
 The goods re.spccting which the controversy 
 has arisen were a certain lot of rubber which 
 the defendants had on liand, and which could 
 be identilied. The transaction was a present 
 sale, and not an agreement to deliver rubber 
 in the future. The defendants now contend 
 that the contract was executory, and that, if 
 there was any warranty, there was none which 
 survived the acceptance of the goods by the 
 plaintiffs; but the argument that it was not an 
 executed present sale finds no support in the 
 bill of exceptions, and no such point was taken 
 at the trial ; and there is no occasion to consid- 
 er the further question whether, in case of an 
 execulory agreement to sell, a warranty will 
 survive the acceptance of the goods. The 
 bought note, which the plaintiffs put in evi- 
 dence, was of "148 bales Ceara scrap rub- 
 ber, as per samples, viz., 46 bales of first 
 quality marked 'A;' 102 bales of second 
 quality." The controversy relates only to 
 the 102 bales. It appeared that there was no 
 exact standard by which the grade of rubbei 
 could be hxed, but that it was a matter of 
 judsjment. The court also found that Ceara 
 rubber of second quality is well known in 
 the market as distinct from a third or inferior 
 grade; and there was evidence which well 
 warranted this linding. The parties in their 
 contiact recognized the existence of dilferent 
 grades or ciualities, though all of the rubber 
 properly classilied as of lirst quality or of sec- 
 ond <iuality might nut be of an exactly uni- 
 form standard nr grade. 
 
 The plainlilfs at the trial claimed damaces 
 merely on the ground that the IU2 l)ales 
 were not of second quality, and made no 
 claim of inferiority to the samples shown, as 
 a distinct ground, but waived all claim 
 founded on tlie exhibition of samples, and 
 the court found dama.ces for the ulaintllTs 
 
 solely on tlie ground "that the defendant* 
 failed to deliver rubbei of the second quality; 
 ruling that the broker's note contained an ab- 
 solute warranty of second quality rubber. If 
 this ruling was right, it disposes of the defend- 
 ants' second and third requests for instruc- 
 tions. The general rule is familiar and admit- 
 ted that a sale of goods by a particular descrip- 
 tion imports a warranty that the gooils are 
 of that description, llenshuw v. Kobins, 9 
 Mete. 83; Harrington v. Siiiilh. 138 Ma,ss. 
 92; White v. .Miller. 71 N. Y. 118; Osgood 
 V. Lewis, 2 Har. & (i. 4%: Randall v. New- 
 son, L. K. 2 ti. H. Div. 1(»2; Jones v. Just. 
 L. K. :3 0. B. 197; Josling v. Kingsford, 13 
 C. ]i. (N. S.) 447; Howes v. Shand, L. U. 2 
 App. Cas. 455. And where goods are de- 
 scribed on a sale as of a certain quality, 
 which is well known in the maikct ns indi- 
 cating goods of a distinct, though not abso- 
 lutely uniform, grade or standard, tlie de- 
 scription imports a warranty that the goods 
 are of that grade orstandard. In such cases, 
 the words denoting the grade or quality of 
 the goods are not to be treated as merely 
 words of general commendation, but they 
 are held to be words having a specific com- 
 mercial signification. Thus, in Hastings v. 
 Loverinff, 2 T*iek. 214. the words, in n sale- 
 note, "Sold Mr. E. T. Hastings 2,000 gal- 
 lons prime quality winter oil," were held 
 to amount to a warranty that the article 
 sold agreed with the description: and in 
 Hensliaw v. Kobins, 9 Mete. S7, it was 
 said that the doctrine laid down in that 
 case has ever since been considered as the 
 settled law in this commonwealth. So in 
 Chisholm v. I'roudfoot, 15 U. C. (J. B. 203, 
 it was held that where a manufacturer of 
 Hour marked it as of a particular quality, 
 viz., "Trafalgar Mills Extra Superhne," it 
 amounted to a warranty of its being of such 
 a (juality. A similar doctrine may be found 
 in llogins /. I'lympton, 11 Tick. 97; Winsor 
 V. Lombard, 18 I'ick. 57, d"; Forcheimer v. 
 Stewart, 05 Iowa, 593, 22 N. \V. Kep. 88ti; 
 Mader v. Jones, 1 N. S. Law H. 82. In 
 Gardner v. I^iiie, 9 Allen, 492, 12 Allen, 39, 
 it appeareil that thest itutes provided for the 
 preparation, division into different qualities, 
 packing, inspecting, and branding of mack- 
 erel, and it was held that if a certain number 
 of barrels of No. 1 mackerel were sold, and by 
 mistake barrels of No. 3 mackerel were deliv- 
 ered, no title passed to the purchaser, and 
 ; that the barrels of No. 3 mackerel thus de- 
 livered by mistake mij:ht beattacheil jusprop- 
 ; erty of the vendor, anil that each dilferent 
 quality, after being thus prepareil for mar- 
 ket, was to be regarded as a different kind 
 of merchandise, so tliat no title passe<l to Iho 
 vendee; there being no assent on the part of 
 the vendee to take the No. 3 m ickerel in 
 place of those which he agreed to buy. 
 
 Now, if the words ";i3 jier samples" liad 
 not been in theboiight note, it would be quite 
 jilain that the present ciise would fall within 
 the ordinarv rules above given. But tlie in- 
 sertion of those words raises the inquiry
 
 -364 
 
 GOULD V. STEIN. 
 
 whether they limit the implied WMiianty of 
 the vendor, so tliat if the rubl)er sold was 
 equal in quality to the sample he would be 
 exonerated from liability, tliongli it was not 
 entitled to be classed as of tlie second quality. 
 If no other meaning could be given to tlie 
 words "as per samples" except that they 
 alone were to be considered as showing the 
 tiuality of rubber to be delivered, tlie argu- 
 ment in favor of the defendants' view would 
 be irresistible. .So if there was a plain and 
 necessary inconsistency between the two de- 
 scriptions of the rubber, it might perhaps be 
 succe-sf uUy contended that the vendor's ob- 
 ligation was only to deliver rubber which 
 would conform to the inferior quality de- 
 scribed; that is to say, that in case of such 
 inconsistency, the words "as per samples" 
 should prevail, and the words "of second 
 quality" be rejected. If it were to be held 
 that the vendor's obligation was fulfilled by 
 delivering rul^ber of a quality equal to the 
 samples, though it was not of the second 
 quality, then the words "of second quality" 
 would mean nothing, or they would be over- 
 borne by the words "as jier samjiles." lUit 
 if it is found that tlie bought note admits of 
 a reasonable construction liy wliich a proper 
 ■significance can be given both to the words 
 "as per samples" and also to the words "of 
 second quality," there will be no occasion to 
 disregard either. Oases are to be found in 
 the books where such a construction ha^ 
 oeen given to contracts of s.de. Thus, iu 
 Whitney v. Boardman, 118 Mass. 242, a sale 
 of Cawnpore bulTalo hides, with all faults, 
 was held to mean with such faults or de- 
 fects as the ai tide sold might have, retaining 
 still its character and identity as the article 
 described: and the court cited witli approval 
 the case of Shepherd v. Kain, 5 Harn. &, Aid. 
 240, where there was a sale of .'i ropnpr-fast- 
 ened vessel, to be taken "with all faults, 
 without allowance for any defects whatso- 
 ever," and this was held to mean only all 
 faults which a copper-fastened ve.-sel might 
 have, the court saying I v way of illustration: 
 "Suppose a sdver service sold with all faults, 
 and it turns out to be plated. " So, in Nichol 
 V. Godts, 10 Exch. 191, an agreement for the 
 sale and delivery of certain oil, described as 
 "foreign refined rape oil, warranted only 
 equal to samples," was held to be not com- 
 plied with by the tender of oil which was not 
 foreign refined rape oil, although it might 
 be equal to the quality of the samples. The 
 decision of this case lias stood in England, 
 though not without sor.ie questioning at the 
 bar. See Wieler v. Schilizzi, 17 0. B. 619; 
 Josling V. Kingsford, 13 C. B. (N. S.) 447: 
 Mody V. Gregson, L. K. 4 Exch. 49; Jones 
 V. Just, L. R. 3 Q. B. 197; Randall v. New- 
 son, L. R. 2 Q. B. Div. 102. In the present 
 case, by a fair and reasonable construction 
 of the bought note, effect can be given to 
 both of the phrases used to describe the rub- 
 
 ber. Construed thus, the article sold was 
 102 bales of Ccara rubber, of the second 
 quality, and as good as the sanqiles. The 
 rublier delivered was in fact Ceara rubber. 
 There was no question that it was of the 
 right kind; but it was not of the second 
 quality. There is no necessity to disre^'ard 
 the words describing the rubber as of the 
 second quality. They signified a distinct 
 and well-known, though nut absolutely uni- 
 form, grade of rubber. There was no exact 
 standard or dividing line betwer-u rulilier of 
 the second quality and of the third quality, 
 any more tlian there is between daylight and 
 darkness. But nevertheless a decision may 
 be reached, and it may be easy to reach it in 
 a particular case, that certain rubber is or is 
 not of the second quality. This general desig- 
 nation being given, the specification "as per 
 samples" being also included in the note, the 
 rubljer must also be equal to the samples. It 
 must be rubber of the second quality, and it 
 must be equal to the samples. If it fails in 
 either particular, it is of no consequence that 
 it conforms to the othi ■• particular. There 
 is no inconsistency in such a twofold war- 
 ranty; and, this rubber having been found 
 to be not of the second quality, the warranty 
 was broken, without legard to the question 
 whether or not it was e(|ual to the samples. 
 
 The fact that the plaintiffs had an oppor- 
 tunity to examine the rubber, and actually 
 made such examination as they wished, will ■ 
 not necessarily do away with the effect of the 
 warranty. The plaintiffs were not bound to 
 exercise their skill, having a warranty. They 
 might well rely on the description of the rub- 
 ber, if they were content to accept rubber 
 which should conform to that description. 
 Henshaw v. Robins, 9 Mete. 83; Jones v. 
 Just, L. R. 3 Q. B. 197. And the exhiljition 
 of a sample is of no greater effect than the 
 giving of an op| ortunity to inspect the goo Is 
 in bulk. Notwithstanding tlie sample or the 
 inspection, it is an implied term of the con- 
 tract tiiat the goods shall reasonablv answer 
 the description given, in its commercial sense. 
 Druinniond v. Van Ingen, L. R. 12 App. 
 Oas. 284; Mody v. Gregson, L. R. 4 Exch. 
 49; Nichol v. Godts, 10 Exch. 191. In the 
 two former of these cases it was held that 
 there might be, and that under the circum- 
 stances then existing there was, an implied 
 warranty of merchautalde quality notwith- 
 standing tlie sale was by a sample, which 
 sani])le was itself not of merchantable quali- 
 ty, the defect not being discoverable upon a 
 reasonalile examination of the sample. 
 
 The point urged in the defendants' argu- 
 ment, that tlie plaintiffs' remedy was de- 
 stroyed by their acceptance of the goods, was 
 not taken at the trial, and no ruling was 
 asked ailapted to raise the question as to the 
 effect of such acceptance. For these reasons, 
 in the opinion of a majority of the court, the 
 entry must be: Excsptions overruled.
 
 GREGORY V. MORRIS. 
 
 367 
 
 GREOOnT y. MORRIS. 
 
 (!»(J I,'. S. 619.) 
 
 Supreme Court of the United States. Oct. 
 Term, 1877. 
 
 Krror to tlie supreme court of Wyoming 
 territory. 
 
 On Fell. !•(!, IS?;!, W. A. MorriH and A. J. 
 Urejiory made a written contriict nt Aiih- 
 tiii. Tix.. for the Rali- to tlic latter of a 
 larfje nuiiilicr of oattli'. Tlie contract pro- 
 vi<lud tliut .MorriH wuh to retain a lien on 
 the cattle until the price, ?s,(Mi(), Hliould be 
 |!ai(l, and autliorized him to dcBiji'nate 
 H(jine pcrnoii as liiH naent to ixo alon^with 
 and retain poHsc.-sion of the cattle. If the 
 tialtince of the piicewas not paid on or 
 hefoni October Iwt (olIouiuK, Huch anient 
 waH toKcU all orHuch portion of the cattle 
 an woidd pay the purcha.se money then 
 due, us well as the wanes and other e.\ 
 penses of the af^ent. After the contract 
 was signed, Morririexecuted to one Poteet 
 ft l)ower of attorney, autlioriziiiK him to 
 accompany the cattle, and retain the lien 
 provided for. The cattle arrived on the 
 Laramie Plains in September. October 
 4th, the price not Imvinf; been paid by 
 tirejjory, I'oteet took forcible possession 
 of the cattle, and diove them from tlie 
 ranch where they were Kraziiif? to that of 
 one .\lsop, some distance off. Grej^ory 
 then lirou^ht replevin av:ainst .Morris and 
 Poteet to recover possession of the cuttle. 
 The defendants, in their answer, denied all 
 the allei;ati(ins of the petition, and esi)e- 
 eially that they wronnfully detained lbs 
 cattle. At thetrial, the plaintiff having in- 
 troduced evidence to prove possession and 
 ownershli), the value of the cattle, the tak- 
 ing and detention of tliem,and hisdemund 
 for their return, the defendants offered the 
 written contract and other documentary 
 evidence, which offer was obiected to b.v 
 the plaintiff, and the objection sus- 
 tained. The defendants, having amended 
 their answer, were pertnitted to introduce 
 the special matter which, under tlieir orig- 
 inal answer, had been excliideil by the 
 court. Tl;e plaintiff Ihoreupoa cxcepteil. 
 
 The court, without objection, charged 
 the jury that, "there l)eing no ipiiRtion of 
 title to the cattle (lUt in issue by the plead- 
 ings, but of possession only, if you lind for 
 the defendants, you will lin<l 'that they 
 liad the right of possession.' and will as- 
 sess such damages as they have sustained 
 by reason of lieiPig deprived of that pos- 
 session, and the opportunity of selling the 
 cattle according to the contract." The 
 plaintiff (iraycd for certain .instructions, 
 which were refused by the court. They 
 are stated in the seventh assignment of er 
 ror. The jury foun<l for the defen<lants. 
 anil assessed their damages $7,4.")4.0l). .\ 
 motion by the plaintiff tor a new trial was 
 overruleil, and judgment rendered, which 
 was allirmed by the sniirenie court of the 
 territory. Plaintiff sued out tliis writ, and 
 assigns for error that said supreme court 
 *rred, — 
 
 1. In sustaining the ruling of the ilistrict 
 court in instructing the jur.v as follows, to 
 wit, "The jury must compute the dnin- 
 aKes,antl return their verdict on thatcuni- 
 pututiou in dollars und cents; and, if the 
 
 jury finil the contract on the part of the 
 plaintiff was to pay a certain sum of 
 money in gold, they will compute the dif- 
 ference between gohl and currency, and 
 render their verdict in dollars and cents in 
 currency. " 
 
 2. In sustaining the ruling of said dis- 
 trict court In giving to the jury the follow- 
 ing instructl(jn : "That the written con- 
 tract between .Morris and (ireg.)ry,in con- 
 uection with the bill of sale, the" receipt, 
 and the power of attorney to Poteet. ne<;- 
 essurily explain on<l deline the rights and 
 interests of the parties to this acthjn In 
 the property in (juestion." 
 
 ;!. In sustaining the ruling of sairl dis- 
 trict court in giving to the jury the ffd- 
 lowing instruction : "That by and under 
 those iiapers the defendants had a legal 
 right to take poss"ssiou of the cattle In 
 question on or .■ifter the first rlay of Oc- 
 tober last, and retain such possession, for 
 the purpose of selling them, according to 
 the terms of saiil contract." 
 
 4. In sustaining the riding of said dis- 
 trict court in giving to tlie jury the fol- 
 lowing instruction: "That if the jury lind 
 that Poteet, in |)ursuance of his power of 
 at torney, took pusaession of said cattle, 
 and removed tliem to .Vlsop's rnuch for 
 the purpose of sellini; them, according to 
 the terms of said contract, then the.y must 
 find the right of possession in the defend- 
 ants at the coniinencement of this action, 
 and must assess such damnKes for the de- 
 fendants UP are just and proper." 
 
 .^>. In sustaining the ruling of said dis- 
 trict court in giving to tlie jury the fol- 
 lowing Instruction : "That the iileadings 
 ill this ca.ie put in issue only the right of 
 possession at the time of the service of the 
 writ of replevin, and you are Instructed 
 that the right of the plaintiff in these cat- 
 tle at that time was only a right of re- 
 demption as a mortnagor after condition 
 broken; and that he had no rijiht to the 
 possession of the cattle, and no riglit to 
 take them, by replevin or otherwise, from 
 these defeMclniits. or either of them, until 
 he had paiil or tendered the amount due 
 on the coiitr/ict." 
 
 (i. In sustaining the ruling of said dis- 
 trict court in giving to the jury the fol- 
 lowing instruction: "If the jury tind that' 
 liy the terms of the written contract, 
 which uiust govern in this case, that the 
 delendants, on the lirst day of Octolier. 
 1S7:!, had a right to sell these cattle, the 
 right to sell necessarily carries with it the 
 riglit of |)usses8ion." 
 
 7. In sustaining the ruling of fl-e said 
 district court in refusing to give to the 
 jur.v the followinjr instructions: "If the 
 vendor. Morns, made an ngreemeiit of sale 
 and delivery, and. in conforhiity there- 
 with, did sefl and ilellver cattle to iJreg- 
 ory, the vendee, and liy the terms ot the 
 agreement made ttctween the parties the 
 vendor was to ha ve and maintain a lien 
 upon the chattels, or cattle, for the bal- 
 uiiee of the iiurchase price, by keeping 
 the said cattle in the possession of the ven- 
 dor during the journey from Texas to 
 Wyoming, until the first day of October. 
 1S73, the vendee, (iregory, after receiving 
 the cattle from Morris, must have tlrst re- 
 delivered the said cattle to Morris, and
 
 368 
 
 GKEGORY V. MOItlUS. 
 
 placed them in his hands as a pledge be- 
 fore the agrt'etl lien of Morris for balance 
 of purchase price could vest; and, second, 
 if such redelivery was made by Gregory, 
 the vendee, to Morris, the vendor, and 
 thereafter the vendor, Morris, by himself 
 or his agents, by his own fiinlt, careless- 
 ness, or negligence, permitted the posses- 
 sion of the said cattle to again pass to 
 Gregory, the vendee, Morris, the vendor, 
 thereby lost his lien, and all right of pos- 
 session and right of properti". and posses- 
 sion must thereafter rest and remain in 
 Gregory. " 
 
 S. In sustaining the ruling of the dis- 
 trict court in overruling the motion of tlie 
 plaintiff to set aside the verdict as defect- 
 ive in form. 
 
 10. In sustaining the ruling of said dis- 
 trict court in overruling the plaintiff's 
 motion to grant a new trial. 
 
 11. In sustaining the action and ruling 
 of the district court in admitting in evi- 
 dence written instruments, the execution 
 of the same not having been proved. 
 
 Mr. W. W. Corlett, for plaintiff in error. 
 Mr. J. M. Wilson, contra. 
 
 Mr. Thief Justice W.VITE delivered the 
 opinion of the court. 
 
 The sei'oud, third, fourth, fifth, sixth, 
 seventh, and tenth assignments of error 
 ma.v be considered together. They relate 
 entirely to the construction and effect 
 given the contract between Gregory and 
 Morris, as shown Ij.v the several instru- 
 ments in writing put In evidence. There 
 was no real controver.sy as to the facts; 
 but Gregory claimed that he was the pur- 
 chaser of the cattle in dispute from Mor- 
 ris, and that the lien pro\ided for in favor 
 of Morris was one which a delivery of the 
 property under the contr.'ict extinguished. 
 There was no pretence of payment on his 
 part further than that shown by the con- 
 tract itself, or of title, except such as was 
 ac<iuired through this i)urchase. 
 
 The lien at common law of theveudorof 
 jiersonal property to secure the paynient 
 of purchase money is lost by the volun- 
 tary and unconditional delivery of the 
 property to the purchaser; but this does 
 not prevent the parties from contracting 
 for a lien which, as between themselves, 
 will be good after delivery. 8o, ordi- 
 naril.v, when the possession of a pledge is 
 reliniiuished. the rights of the pledgee are 
 gone. In this case, however, Morris was 
 not willing to rely upon the lien which the 
 law gave him as vendor, or upon a mere 
 pledge of the property, but reo.uired a spe- 
 cial contract on the part of Gregory, se- 
 curing his rights. 'I'his contract created 
 acnarge upon the property, not in the 
 nature of a pledge, l)ut of a mortgage. 
 The lien, as between the parties, was not 
 made to depend upon possession, l)ut 
 upon a contract, which defined the rights 
 both of Morris and Gregory, and the pow- 
 er of Moriis for the enforcement of his se- 
 curity. When Poteet assumed the exclu- 
 sive possession of the property, no rights 
 of third persons had intervened, and there 
 was notliing to prevent the execution of 
 the agreement according to its terms. 
 This clearly gave Morris the right, after 
 
 Oct. 1, if the purchase money was not 
 paid, to take the cattle into his own pos- 
 session, detain them until the balance due 
 him was discharged, and sell them if nec- 
 essary to obtain his money. We think the 
 court defined correctly the rights of tlie 
 parties, and that there was no error in 
 this particular, either in the charge or the 
 refusal to charge. 
 
 The first assignment of error brings up 
 for consideration the rule of damages laid 
 down by the court. By the laws of Wj'o- 
 miug territory, property tjiken in replevin 
 is delivered to the plaintiff upon his enter- 
 ing into an undertaldng to the defendant, 
 with one or more sufficient sureties in at 
 least double the value of the property 
 taken, to the effect that the plaintiff shall 
 duly prosecute his action, and i)ay all 
 costs and damages which may be awarded 
 against him. Civil Code, l.sti'J, sect. 190. 
 If the property is so delivered, and the 
 jury find for the defendant upon the issues 
 joined, they are also re(iu'red to find 
 " whether the defendant has the right of 
 propert.v or the right of possession oid^- ; 
 . . . and if they find either in his favor, 
 the.v shall assess such damages as they 
 think right and proper for the defendant; 
 for which, with costs of suit, the court 
 shall render judgment for the defendant." 
 Sect. I'Ju. The delivery of the property to 
 the piaintiff passes the title to him as 
 against the defendant, who must look for 
 his i)rotectlon to a recovery in damages, if 
 the writ is wrongfully sued out. 
 
 In this case, the finding for the defend- 
 ant is, under the pleadings, in effect, that 
 Morris was the mortgagee of the prop- 
 erty in possession after condition broken, 
 and that Gregory hud by the replevin 
 wrongfully deprived him of his possession. 
 That rendered Gregory liable for such 
 damages, in consequence of hi." wrongful 
 act, as were "right and proper" under the 
 circumstances. The obligation secured b.v 
 the mortgage or lien under which Morris 
 held was for the payment of gold coin, or, 
 as was said in Bronson v. Kodes (7 Wall. 
 229), "an agreement to deliver a certain 
 weight of standard gold, to be ascertained 
 by a couut of coins, each of which is cer- 
 tified to contain a definite proportion of 
 that weight," and is not distinguishable 
 "from a contract to deliver an equal 
 weight of bulllor. of eijual fineness." In 
 that case, it was held that juilgment might 
 be rendered upon such a contract payable 
 in coined dollars; but here the suit is not 
 upon the contract for the recovery of the 
 amount agreed to be paid, but. In effect, 
 for damages on account of the wrungful 
 detention of propert.v mortgaged to secure 
 the debt. Gregory himself asked the court 
 to charge that "the jury must compute 
 damages and return their verdict in dol- 
 lars and cents." This \vas undoubtedly 
 correct, and It was done; but he further 
 asked the court to say that "no agreement 
 or contract to pay a certain numlier of 
 dollars In gold can be enforced. The na- 
 tional currency Is l)y law a legal tender at 
 its face value for all debts and demands, 
 public or private, except duties on Imports 
 and interest on the public debt." This 
 was in confiict with Bronson v. Rodes, 
 aud therefore projierly refused.
 
 GREG OK Y V. MOUUIS. 
 
 369 
 
 But the court dill say to the jury, that, 
 if tliL'y found the contract on tlio part of 
 the plaintiff was to pay a certain Hum of 
 money in irold, tliey HJiould compute tlie 
 difference between t^ohl and currency, and 
 render llieir verdict in dollars and cents in 
 currency ; and in this we see no error. 
 While we have decided that a judgment 
 upon a contract payable in jjolil may be 
 fijr payment in coined dollars, we have 
 never held that iii all cases it must be s.>. 
 While Kold coin is in one sense money, it is 
 in another an article of merchandisp. 
 (Iref^ory was re{iuired to discharf^e his 
 debt inK-'l'l liefore he could rightfully take 
 tlie property into liU possession under the 
 replevin. If tlie payment had been so 
 made, Morris would have had his coin ut 
 that time to use as money or merchandise, 
 according to liis discretion. Hut it was 
 not made; and (Jretjory, by his wrouKful 
 act in taking the property, BUl)jected him- 
 self to damay;es. If the contract liad been 
 in terms for the delivery of so much yold 
 bullion, there is no doubt but the court 
 niit;ht have directed the jury to (ind the 
 valuo of the bullion in currency, and lirinj; 
 in a verdict accordingly. Hut we think, 
 as was thoujiht in Bronson v. Hodcs, such 
 a case is not really distinRuishable from 
 this. The question is not whether (Jref;- 
 ory had the right to pay in gold dollars 
 after his debt had become due, but wheth- 
 er, hnviiiK wrongfully got the property 
 into Ills possession witliout payment at 
 nil, the damages he is required to pay on 
 account of this wrongful act must, as n 
 matter of law, be estimated in sold, or 
 whether they may be in currency. We 
 think it clear, that, under such circum- 
 stances, it was within the power of the 
 court, so far as (Jregory was concerned, to 
 treat the contract as one for the delivery 
 of so much gold bullion: and, if Morris 
 was willing to accept a judgment which 
 might be .lischnrged in ouriency, to have 
 his dnninges estimated accfjrding to the 
 currency value of bullion. Cert'iinly, if 
 Morris had in good faitli sold the cattle 
 under his power of sale for currency, and 
 
 LAW SALKS — 24 
 
 received payment In that klnil of money, 
 he would have been entitleil to ronvertthe 
 curiency into gtjhi before crediting It upoo 
 his debt. So here, if. with the approba- 
 tion of the court, he takes a judgment 
 that may be discharged in currency, the 
 judgment should be for an ncnount which 
 would be tlie e(|uivalent in currency of the 
 specilied amount of coin as bullion. This 
 was the rule adopted liy the court, and 
 we think it correct. 
 
 The eighth and ninth assignaientM of 
 error I'elate to the form of the ver<lict. As 
 has already breii seen, where the proiierty 
 has been delivereil t(j theiilaintirf. the jiiry, 
 if they liixl for the defendant, must also 
 find whether the defendant has " the right 
 of property or the right of possession 
 only." In this case the verdict, though 
 for the ilefendant, is siknt uj.on that 
 point; but the record shows that by con- 
 sent the court charged the jury if they 
 found for the defendants they shoulil Hnd 
 "that they had the right of i)osHession 
 only." This cures any defect there may 
 have been in the verdict in this particular. 
 The whole recoril must be tiiken together; 
 and, as the jury did not find to the con- 
 trary of the instruction, the presumption 
 is that thc.v followeil it. 
 
 .\ll the other ussignments relate to the 
 admissibility of evidence, and as to them 
 it is suflicient to say we are satisfied with 
 tlie rulings tliat were made. Certainly, the 
 instruments in writing which were ob- 
 jected to were adinissiljle. They tended 
 directly to prove the defence set up in the 
 amended answer, and no objection ap- 
 pears to have been made at the trial as to 
 the proof of their execution. The cross-ex- 
 amination of Gregory, which was ob- 
 jecteil to, was clearly legitimate, under 
 the most stringent rules governing that 
 subject. He had testified that hehad pur- 
 chased the cattle from Morris. It was 
 clearly proper, therefore, on cross-exami- 
 nation, to ask him if his contract of pur- 
 chase was in writing, and, il so, to iden- 
 tify the paper. 
 
 Judgment affirmed.
 
 GRIEB V. COLE. 
 
 371 
 
 GRIEB T. COLE 
 
 (27 N. W. Rep. 579, 60 Mich. 397.) 
 
 Supreme Court of Michigan. April 8, ISSC. 
 
 Error to St. CInir; StevenH, Juflge. 
 
 AssiiinpHit. Del'enduut brings error. 
 ReverHC'd. The lai'ts are stated in tlie 
 opiuioii. 
 
 (jforge P. V'oorheis.forappellant. Chad- 
 wicli & Wood, for plaintiff. 
 
 CIIAMPI.l.N. J. On .May 1, 1S,S3, one W. 
 U. .NU'l^auKJiiin, as agent for i)l«intiff, 
 toot; from tlie defendant tlie following 
 (irder: "(iratlot, .Midi., .\Iny J, l.ss;!. To 
 Clinrles Oriel), I'ort Huron, .\liili.: Yon 
 will please Tiliip me, on or about tlio first 
 day of .luiii", ls.>;j, t)ne Huckeye liglit 
 mower, to I'ort Huron, for wliieli I agre'? 
 to pay you $77, in manner as followH, (re- 
 serving, however, tlie full henetlt of the 
 warranty hereon indorsed:) $3.5 cash, 
 with freight from Port Huron, on deliv- 
 ery, and execute approved notes as fol- 
 lows: S.'iy, payable on the first day of 
 January, 1XS4, with interest at 7 per cent, 
 from delivery; ¥-12, payable on the first 
 day of January, ISS."), with interest nt 7 
 
 per cent, from delivery; $ , payalde on 
 
 the day of , If^S-, with interest 
 
 at 7 per cent, from delivery. For the pur- 
 pose of obtaining credit for the above, I 
 
 certify that I own. in my own unine. 
 
 acres of land in the township of (iratiot, 
 county of St. Clair, and state of Michigan, 
 of which M) acres are improved, anil the 
 wlule worth, at a fair valuation. $.5,0(10 
 over aiid above ail incuiul)rances, lialnli- 
 ties, and legal exetniitions. It is not in- 
 oumtiered, except 1,(KH) dollars, and the ti- 
 tle Is perfect. I nl8o own f.'iOO worth of 
 personal jjroperty over and above all 
 indelttedness, and not e.\empt from execu- 
 tion liy law. P. O. address. Port Huron. 
 Taken by \V. D. McLaughlin, Agent. 
 
 His 
 Chas. X Cole," — across the back of which 
 
 Miirk 
 
 waH printed a Ijlank warranty, with 
 (jrieb's printed name appended,' as fol- 
 lows: "Whereas, ,\Ir. has this day 
 
 given us his order for a , we hereby 
 
 agree, in consideration of said order and 
 the faithful ()erfonnance of the conditions 
 
 heieiii mentiinied, to warrant said 
 
 one year to be good and well made, and 
 to do as good W(jrk as any other machine 
 of lis class. It is an express condition of 
 Ihis warranty that the directions for 
 using this macliine shall be faithfully fol- 
 lowed, and if for any reason it fails to 
 perform as warranted, immediate notice 
 of the same must be conimunicated to 
 tliea;reiit to whom the order is given, and 
 If said agent should fail to make the ma- 
 •'liine perform as wnrrnnted, it may be 
 returned, and money or note refun.ied. 
 And It is also agreed, should the machine 
 be used from day to day or at intervals. 
 or set aside before or after use, without 
 giving said agent notice, then, in either of 
 said cases, it shall be conclusive evidence 
 that the machine is acceptotl and the war- 
 rant is at an end. Dated . 
 
 Charles Orieb." The agent delivered this 
 so-called "order" to the plaintiff, who 
 claims that he accepted It, and delivered 
 to the defendant the said machine on the 
 eighteenth day of July. lKs;j. hut the de- 
 fendant has neither paid for said machine, 
 nor executed and delivered the notes; and 
 after the time expired when the note for 
 ?3.') mcntioneil in Uie order would have 
 I matured, had it been executed, the plain- 
 J tiff brought suit in justice's court to re- 
 cover the amount claimed to be due at 
 I that time. The plaintiff's declaration was 
 in writing, ami, besides the common 
 'counts in asHunipsit. contnine<1 a special 
 count, and setting out the sul)stance of 
 tlie above order. and nlleiring a delivery of 
 the macliine ordered. The |)lea was the 
 general issue. 
 
 It is always proper. In construing a con- 
 tract, to take info consideration the po- 
 sition which the parties occu|)ied, and the 
 1 circumstances under which the agreement 
 was entered into. The plaintiff resided at 
 Port Huron, and was engaged in the bus- 
 iness of supplying mowing-machines to 
 farmers. Hewasnota manufacturer, but 
 took written oniers, and purchased the 
 machines to till such orders. Defendant la 
 a farmer, residing in the vicinity of Port 
 Huron, and on thesecond day of May,Ks.'!, 
 signed the oriler above set out. anil deliv- 
 ei'eil it to plaintiff's agent. On the trial 
 the plaintiff offered In evidence the afore- 
 said order, and warranty thereon In- 
 dorsed; to which the defendant objected 
 because not admissible under the declara- 
 tion, and as immaterial to the issue. The 
 t objection was overruled, and this consti- 
 tutes defendant's first assignment of error. 
 This objection is based uixin the idea that 
 the paper is incomplete; that the order 
 refers to the warranty on the back, and 
 reserves the full lienetit of such wariimty, 
 and it appears that the blanks in the war- 
 ranty were not hlled out; and it is 
 claimed, and I think rightly, that the 
 warranty indorsed must be of surli legal 
 validity as to support an action thereon 
 by Cole in case of a l)reacli thereof. 
 
 By reference to the warranty indorsed, 
 it w'ill be oliserved that the name of .Mr. 
 Cole, and the description of the machine 
 ordered, are omitted, as well as the date. 
 If the warranty stood alone, there could 
 be no doubt that it would be so far in- 
 complete as to render it invalid, because 
 thus standing it lacks the essential nuul- 
 ities of naming the party to lie indemni- 
 fied and the subjeot-malter. It does not 
 aitpear from it whether the machine Is a 
 steam-thresher or a mowing-machine. 
 But the reference in the order to the war- 
 ranty indorsed thereon constituted the 
 order and warranty one instrument, and 
 when read together.no ambiguity or un- 
 certainty appears. The party to whom 
 the warranty is made is tlie party making 
 the order, and the machine is the machine 
 described in the order, and the date of the 
 order supplies the date to the warranty, 
 for they are contemporaneous, and the 
 warranty has the same force and effect as 
 if embodied In the order itself. The war- 
 rantor is bound by the printed signature 
 which he adopts as his as fully as if It was
 
 372 
 
 GRIEB V. COLE. 
 
 in his handwriting. The order and war- 
 ranty were properly admitted in evidence 
 at that stage of the case. 
 
 The plaintiff gave evidence tending to 
 show that he had coinplied with the con- 
 tract on his part, and had delivered the ma- 
 chine at Port Huron within the terms and 
 meaning of the contract, and also had re- 
 quested defendant to execute the notes, 
 and that defendantdeclined toacceptsuch 
 delivery, or to execute and deliver the 
 notes. Tlie fact of delivery was contro- 
 verted by defendant. The defendant also 
 offered testimony tending to show that 
 the mower which plaintiff claimed to have 
 delivered to defendant was a second-hand 
 machine, showing considerable wear; 
 that the worn parts had been stripped 
 and filled with paint in the woodwork, 
 and parts of it had been painted ovorafter 
 having been used and worn; that the 
 axles had old grease upon them, one set 
 of knives were chipped and broken, and 
 the tongue and neck-yoke considerably 
 worn ; that the entire machine liad been 
 used oneseason somewhat; butthe court, 
 on objection of plaintiff's counsel, ex- 
 cluded this evidence as not admissible un- 
 der the plea, and not tending to show the 
 condition of the machine when delivered. 
 The latter portion of this ruling was 
 based upon the fact that the witnesses by 
 whom these facts were sought to be 
 proved did not make the examination of 
 the machine until after the trial in the jus- 
 tice's court in April, 18S4. The evidence, 
 however, showed that on the twenty-first 
 of July, 1.SS3, which was three days after 
 plaintiff claims to have S3nt the machine 
 
 to defendant's farm and demanded the 
 notes, defendant gave written notice to 
 plaintiff that he refused to purchase it, 
 and that it was there at plaintiff's risk, 
 and to come and take it away, and the 
 testimony was that it had not been used 
 since. There was therefore no reason for 
 excluding the testimony on this ground. 
 
 The court erred also in excluding the ev- 
 idence upon the other ground stated. It 
 was proper for the defendant, under the 
 plea of the general Issue, to prove thsit the 
 article delivered was not the article he 
 purchased. He did not order or purchase 
 a second-hand mowing machine, or one 
 that had been in use and worn ; but the 
 order, taken in connection with the cir- 
 cumstances under which it was made, 
 called for a new machine. A purchase of 
 a machine from a dealer implies that the 
 machine sold shall be new. — that is, not 
 second-hand, or the worse for wear, — and 
 under such an order the dealer could not 
 impose upon the purchaser a second hand 
 and worn article, whether it complied 
 with the terms of the warranty or not, as 
 to being good and well made, and will do 
 as good work, as any other machine of its 
 class. This evidence, if believed, fairly 
 met and rebutted the plaintiff's case, and 
 tended directly to sustain the defendant's 
 plea, which put in issue each and every 
 allegation .if the plaintiff's declaration. 
 Rodman v. Guilford, 112 Mass. 405. 
 
 The judgment must be reversed, and a 
 new trial ordered. 
 
 CAMPBELL, C. J., and MORSE. J., con- 
 curred. SHERWOOD. J., did not sit.
 
 1
 
 GROAT V. GILE. 
 
 I 
 i 
 
 375 
 
 GROAT et al. t. GILE. 
 
 (51 N. Y. 431.) 
 
 Commission of Appeals of New York. 1873. 
 
 Appeal from order nettinn iiHiiie o ver- 
 dict for plaintiffs and granting a new 
 trial. 
 
 Action to recover ttie value of wool 
 wliicli tlu'dcfcnilaiit linil Hhornfroiu Hlu-cp, 
 to which I lif pJMintill'.s claimed title. The 
 opinion titateM the facts. 
 
 John II. IteynolilH.lor api)elluiitM. John 
 (jaul, Jr., for ix-Mpoiulent. 
 
 LOTT, C. C. Ah the verdict of the cir- 
 cuit in favor of tlie [ilaintiffs wa.s onlered 
 by tlie judge who tried the action on the 
 version given by the liefi ndant oi tlir con- 
 tract or agreement lietween the parties, it 
 becomcH neccHsni'y to refer to it with par- 
 ticularity tor tlie purpose of ascertaining 
 whether his conclusion Af law based there- 
 on was correct. 
 
 The defendant, on his direct examina- 
 tion, after stating that the plaintiffs 
 called on him about thel'Olh of May, \sm, 
 and that he and the plaintiff Croat had 
 some convci-sation about the purchase of 
 his sheep and lamtis, in which he sai.l that 
 he wanted to sell the old sheep with the 
 lambs, and that he would ask .1f4 apiece 
 for tlietn, testilled as follows: '"J'hey con- 
 cluded to go and nee the slieep ; 1 told 
 tliem where they were; »)ne tlock was 
 near a mile Ironi thelionse; they went off 
 together; went to the further lot tirst; 
 when Ihey came back from this lot I tolil 
 tliem wlwre the others were; I told them 
 1 did not t)elieve they would like that lot; 
 they did not look as well as the others, as 
 some of th"m had lost their wool; then 
 they went off to see the other lot and 
 came back; they asked me how many 
 BiHH'p and lambs there were; I tolil tliein I 
 could not tell how many there were; I did 
 not know myself; I think I H:iid in the 
 neighborhood of so many sheep and ho 
 many laml)s; then they in(]uired about 
 taking tiK- sheep; it was agree<l that they 
 shouhl take the lambs the middle of Sep- 
 tember and the old sheep tli<' first of No- 
 vember, anil pay me .54 apiece for sheep 
 anil lambs; this was the contract; think 
 I told them 1 would give them a good 
 chance; something was said about cut- 
 ting the lambs' tails off; I told tiicin 1 
 thought it wasnot in iident ; I trieil todis- 
 suade them from having it done; that they 
 had eot too large and might die; some- 
 thing wjis said in answer to if, but I doa't 
 know just what; they askid me if the 
 sheep were sound afler they had been to 
 see them; 1 told them I did not consider 
 them eiil in ly sound ; then lliey asked that 
 I should doctor the sheep if they needed it ; 
 1 told them 1 would; after the talk they 
 li.Mudeil me over twenty live <lollars to 
 bind the bargain, . -IS they said ; then they 
 Went away." On his crosse.\amin;ilioii, 
 he said : " When (iroat and .lacobia were 
 there in May, I had sheep in two lots: the 
 sheep I sold them wei-e in the lots men- 
 tioned; I sold them all that were in these 
 lots; did not knt)w how many sheep 1 
 bud; had not counted them forsoinetime; 
 
 soroetimes thoy die; told them I did not 
 know how many I had; that there would 
 be in the neighborhood of ninety old 
 Hliec|); they were to take all the sheep in 
 the two hUs, except two bucks and a lame 
 ewe; they got all the sheep In the two 
 lots except two buiks and a lame ewe; 
 they agreed to give four dollars per head ; 
 in the bargain they were to have all the 
 sheep except two Imcks ami a lame shc-ep; 
 1 agreed to sell the sheep at that price; 
 nothing was said about the wool; they 
 got ninety-tW'. old sheep anil seventy-one 
 lambs." And o[i further re-dircct exam- 
 ination he said: "When they made the 
 contract for these sheep, there was noth- 
 ing said about the wool." Ami also: 
 "Son)e of the lambs came in March, and 
 so along, and some were only n tew ilayi 
 old; some time in August is the usual 
 and projier time for taking lambs from 
 sheep; they had not been siparated from 
 the siieep on the nineteenth of .May; the 
 lambs were in no condition to be separat- 
 ed from the sheep at that time without 
 ruining the lambs." 
 
 The i)rcceding statement of the defend- 
 ant's evidence contains all that nlates to 
 the negotiation and making of the agree- 
 ment, and fidly jnstilies the construction 
 given to it by the learned judue at the 
 circuit, it is clear that the pluiuliffs In- 
 tended to buy of t Ik? defendant, and that It 
 was his Intention to sell to them ail of the 
 sheep and lambs that were rnnniuii in the 
 two lotsof bind referred to by him (except 
 two bucks and ji lame ewe, as to the iilen- 
 tity of which there was no (luestioii), at 
 .•^4 per he;iil, and that no further or other 
 designation or s-lection was contemplat- 
 ed. All the parties nnderntood what iiar- 
 tii-ulnr sheep and lambs were intended to 
 be sold, and there is no doubt that these 
 were snilicicntly identilied. Indeed, that 
 fact does not appear to have been disput- 
 ed on tlifc trial. rndersuchcirrumstanceB, 
 when the terms of the sale were agreed 
 on and the payment of ?"J.'i was made to 
 the deie!iilant on account of the purchase- 
 money by the i)laintiffB. their liability be- 
 camelixed f.jr the balance, which was as- 
 certainable by a siiii|de arithmetical cnl- 
 cnlation based upon a c<uiut of theshe<»p 
 and lambs and the price to be paid per 
 head for them. No delivery of them or 
 other act whatever in relation to them by 
 the defcnilaiit was reipiired or inteiideil. 
 The plaintiffs were to take tliem without 
 any agency in delivering them on the part 
 of "the defeiiilant, and they, ironi tin- time 
 the agreement was made, liecjime the 
 owners thereof. Tl;e defendant siilise- 
 ipieiitly kept them at the risk of the plain- 
 tiffs, riiancellor Kent, in his Commenta- 
 ries, vol. 1', p. 4!»L', in stating the rule gov- 
 erning salesat common law. says: "When 
 the terms of sale are agreed on and the 
 bargain is struck and everything tliat the 
 seller lias to do with the gooils is com- 
 plete, the contract of sale becomes abso- 
 lute as between the parties witlioiit actual 
 payment or delivery, and the property and 
 the risk of accident to the goods vest In 
 tlie buyer. " Tills rn!e is moililied by our 
 statute of frauils so far as to reipiire In 
 certain cases tlint a note or niemor.induin 
 of the contract shall be niuJe In writiu,;
 
 376 
 
 GROAT V. GILE. 
 
 and subscribed hy the parties ti> be 
 cbargeil, or that the buyer shall accept 
 and receive a part of the property sold, or 
 at the time pay some [lart of the purchase- 
 money; and in sucli cases he says, at p. 
 49!): "When the bargain is made and is 
 rendered binding by giving earnest, or by 
 part payment, or part delivery, or by a 
 comi)liance with the requisition of tlie stat- 
 ute of frauds, the property, and with it 
 the risk, attach to tlie purchaser; but 
 though the seller has parted with the ti- 
 tle, he may retain possession until pay- 
 ment." The fact that the number of tne 
 sheep and lambs sold was not ascertained 
 at the time the terms of sale were agreed 
 on did not prevent the ajjplication of the 
 rule referred to in tliis case. It is true 
 that the same learned jurist, after stating 
 that "it is a fundamental principle, per- 
 vading everywhere the doctrine of sales of 
 chattels, that if goods of different values 
 be sold in bulk and not sejiarately and for 
 a single price, or per aversionem, in the 
 language of the civilians, the sale is perfect 
 and the risk with the buyer," adds, "but 
 if they be sold b.v number, weight or meas- 
 ure, the sale is incomplete, and the risk 
 continues with the seller until the si)ecific 
 property be separated and identified." 
 The present case is not one of the latter 
 class. That rule has reference to a sale, 
 not of specific propei-ty clearly ascertained, 
 but of such as is to he separated from a 
 larger quantity, and is necessary to be 
 identified befoi'e it is susceiitible of deliv- 
 ery. The rule or principle does not apply 
 where the number of the particular arti- 
 cles sold is to be ascertained for the sole 
 purpose of ascertaining the total value 
 Thereof at certain specified rates or a des- 
 ignated fixed price. Th's distinction is 
 recognized in I'rofoot v. Bennett, 2 N. Y. 
 25S; Kimberly v. Patchin, 19 id. 3:W; 75 
 Am. Dec. :«4; Bradley v. Wheeler, 44 N. Y. 
 495. The sale in question was in fact of 
 a particular lot of sheep and lambs, and 
 not of a certain undesignated number to 
 be selected and delivered at a future time, 
 and tlie postponement of the time for tak- 
 ing them away did not prevent the title 
 passing to the plaintiffs. 
 
 A sale of a specified chattel may pass 
 the property therein to the vendee and 
 vests the title in him without delivery. 
 See Chittv Omtracts (Sth Am. ed.), 3:32, 
 and Terry v. Wheeler, 25 N. Y. 520. 
 
 All the parties apiienr to have under- 
 stood the transaction, at the time it took 
 place, as a present absolute sale and 
 change of title. Wliat was said about 
 cutting the lambs" tiiils off an<l doctoring 
 the slieep, if they needed it, is evidence r)f 
 such understanding, and there is nothing 
 in what is said to have been the agree- 
 ment about taking them away inconsist- 
 ent with it. That gave the plaintiffs the 
 privllegeof leaving them in the defendant's 
 pasture till the time specified for taking 
 them away, but did not deprive them of 
 the right to take them before, if they chose 
 so to do. The remark of the defendant at 
 the time to the plaintiffs, that he " would 
 give them a good chance," shows that 
 such was its object and intention. It is 
 proper moreover to consider the state- 
 
 ment in reference to such agreement in 
 connection with what had bien i)reviously 
 testified to by the plaintiffs, and which 
 was not denied by the defendant, and 
 therefore impliedly admitted, to the effect 
 that <iroat, one of the plaintiffs, before 
 going to look at the sheep and lambs, had 
 stated to the defendant that he had no 
 pasture for them, to which he rejilied thaf 
 he had lots of pasture and would keep 
 them for tlie plaintiffs if they purchased, 
 and that they, after looking at them, had 
 stated to him tliat they would take them 
 at the price named, if the parties could 
 agree upon the time for keei)ing them. 
 Considered in that connection, it is clear 
 that the agreement was one for the plain- 
 tiffs' accommodation and an inducement 
 to them to make the purchase at the price 
 asked, which hud been fixed irrespective 
 of their subsequent pasturage on the de- 
 fendant's land. It affords no ground or 
 warrant for saying that the defendant, 
 during the time they were so kept, intend- 
 ed to assume and bear all the rieks inci- 
 dent to a continuance of his ownership of 
 them, and consequently that the purchase- 
 money receival)le by liim should depend 
 on the number tliat should be living at 
 the time specified or limited for that pur- 
 pose. On the contrary, tlie fact that the 
 price at which thoy were sold was that 
 named by him when the first application 
 to him to sell them was made, without 
 reference to the (juestion of the future 
 keeping of them iii his i)asture, and the 
 other circumstances attendant on the 
 transaction, as stated by him, clearly 
 show that such was not his intention. 
 
 It follows, from what has been said, 
 that there was no error in the ruling of 
 the judge that the title to the sheep 
 passed to tlie plaintiffs immediately upon 
 the completion of the contract and the 
 payment of the .^25 by them. That neces- 
 sarily carried with it the right to the vfool 
 on them, it being shown that there was 
 no reservation thereof, or any thing said 
 about it during the negotiation or at the 
 time the contract was made. It is not a 
 mere presumpti(»n, as stated in the pre- 
 vailing opinion in the supreme court, that 
 the parties "intended, in the absence of 
 evidence to the contrary, that the title 
 to the wool should follow tlie title to the 
 sheep." As was well said by .lustice In- 
 galls in his dissenting opinion: "When 
 the siieep were sold the wool was grown 
 and was a part of the sheep, adding to 
 their value, "and thei'e is no reas.)n or 
 principle for saying that such particular 
 part did not pass to the purchaser with 
 the rest of the animals. Tlie sale was of 
 the entireaniraaland not of different parts 
 or portions constituting it, or of what it 
 was formed. 
 
 Assuming then that the legal effect of 
 the agreement of the parties, as testified 
 to by the defendant himself, was to vest 
 the title to the wool in the plaintiffs, it 
 was clearly incompetent to sliow a cus- 
 tom in (^)lumbia county, where the 
 transaction took place, that the wool of 
 sheep sold, uni'er the circumstances dis- 
 closed, does not go to the purchaser. See 
 Wheeler v. Newbould, IG N. Y. 392,401;
 
 GKOAT V. GILE 
 
 377 
 
 IliKKi'iifi V. M Of) re, 34 id. 417; Bradley v. 
 Wheeler, 44 id. 4!).'.. 
 
 TlnTf were weveial offers of evidenoe hy 
 the (lotendnnt which were rejected by the 
 court. .\iii()iiK them wore the following: 
 Int. That tlie i)ljiintiff Uroat, on a prevl- 
 <)U.'< oc<-asion, purcha.sed a iiiiinlier of 
 Hheop and laml)s of the defendant umler 
 an arrangement precisely nimilar tri tlie 
 present, and that lie did not claim the 
 wool; i!d. That the plaintiffs admitted to 
 a witness, on heiiiy; offered $HM tor their 
 liar(;iiin with the defendant and to take 
 the slK-ep anil lamlis oft their hands, al- 
 lowing the defendant to ha ve the wool, 
 refnseil the offtT an<l Haid that the sheep, 
 withont the wool, were worth inme mon- 
 ey llian the offer; Jind :!d. That the plnin- 
 tifl (lioat admitted that he did not nnder- 
 Mtand he had lion^^ht the wool in(iuestion. 
 or think of makiiiK any claim to it nntil 
 his co-plaintiff suggested that they could 
 hold it. 
 
 'I'hese were properly e.xcliided. It was 
 immaterial to the present controversy 
 what the ]daintiff8, or either of them, had 
 claimed of the defendant under a previous 
 sale. Their legal rights could not lie con- 
 trolled under the present contract hy a 
 failure to ilemand what they were entitled 
 to under a previous one, and it cannot lie 
 held that the wool, under this agreement, 
 was excepted from the operation of the 
 sale, because one of the [ilaintiffs did not 
 assert his rights under another, and it 
 could Dot aid in determining what the 
 contract in disjiute was, whether or not 
 the purchase of the sliee|i was so prolit- 
 ahle as to cause the plaintiffs to reject the 
 offer made them for their bargain. Nor 
 could the understanding of one of the 
 plaintiffs, as to the question whether he 
 had liouiiht the wool or not, alter the 
 i'ffect of the transaction or the contract 
 actually entered into. What he in fact 
 did buy was the ()uostion, ami that ilid 
 not depend on what he understood, but 
 on the agreement. The defendant was 
 also asked what was the v.iliie of the 
 sheep without thewool uniler thearraiige- 
 ment he had testified to. That ijuestion 
 was properly excluded; the in(|niry was 
 wlioUy irrelevant. The jiarties could 
 make such agreement as they saw tit, and 
 It was immaterial whetlKM- the defendant 
 sold the [iroperty in iiuestion for more or 
 less than it was worth, in the absence of 
 any fraud or other evidence affecting its 
 validity. 
 
 There was a request to charge the jury 
 That if the statement of the defendant was 
 correct, then the sum of $i"i paid by the 
 plaintiffs was merely paid to bind the bar- 
 gain and take the contract out of the 
 statute of frauils, and that the title to 
 the sheep did not thereby pass absolutely 
 to the plaintiffs. This was refuseil, and 
 what has already been said as to the legal 
 effect of that statement, shows that such 
 refusal was correct. 
 
 The court was then asked by the defend- 
 ant to submit the tidlowing (luestions to 
 the jury: 
 
 1st, Whether thecontract in suit wasex- 
 ^cuted or executory; whether it was the 
 intention of the parties that the title to 
 the sheep should pass to the plaintiffs Im- 
 
 tnediarely upon the making of the con- 
 tract <ir at some future periml. 
 
 'J<1. Whether tlii' detendatit, uiion the 
 iiiaking of this contract, inlentled to Bvli 
 or the plaintiffs t<i buy the wool In queit- 
 tion in this suit; and on his refusal ho to 
 <lo. and after projier exceptioiiH were 
 taken, he was reiiuested t(» charge the 
 jury that if the contract was exe<-utory 
 and it was not the intention to pass the 
 title to the i-heep until delivery and pay- 
 ment, then the wool sheared" from the 
 sheep, before they were actually ilelivered 
 and paid for, tielonged to the defendant. 
 This was also refused, and an exception 
 was taken to such refusal. 
 
 There was no error to submit those 
 'luestions or give that instruct ion to the 
 jury. They all involved the submission of 
 matters of law to their consideration and 
 determination. The court had previously 
 decided that the terms, nature and effect 
 of the contract should lie determined and 
 controlled by the defeniiant's statement, 
 or version of it, which was the most fav<»r- 
 able view in which it could be c<iiisidered 
 for him. The case was thus substantially 
 one in which there was no dispute of facts 
 as to the terms of the agreement, and it 
 therefore became a (piestioii of law to be 
 determinerl by the court, whether thecon- 
 tract was executed or executory, and 
 what was the intention of the parties (to 
 be aseeriained from the contract) as to 
 the nature, extent and effect ot t he sale. 
 
 The only remaining ipu'stion to be con- 
 sidered relates to the rule of damages laid 
 down by the court, which he stated to be 
 "the highest market priceof wool between 
 the time of the demand and the time of 
 trial, with interest from the time of tho 
 demand. " 
 
 It may lie questionnlile whether the in- 
 struction as to the riglit to recover inter- 
 est iscorreet ; and I understand, from the 
 points of the counsel of the defemlant, 
 that he only makes obji'ction on this ap- 
 peal to that portion of the charge. That 
 ((uestion was not presented by his excep- 
 tion, wliich was to the entire InstructiuD 
 and not to the allowance of inti'rest only. 
 The part allouiiis a recovery for the 
 liighest market value lietween the conver- 
 sion and the time of trial was held by us in 
 Lobdell V. Stowell. decided at the Septem- 
 ber term, 1>>7"J, l."d N. V.7tl,l to be the proper 
 rule or measure of dauiages orcompensa- 
 tion, on the autliorilv of llomaine v. Van 
 .Mien. -M .\. Y. ;tO'.l ; Hiirt v. Dutcher, :U Id. 
 4;>:i; .\laikham v..laudon.41 id. L':'..'i. There 
 
 was therefore no ground of < iplaint to 
 
 that portion of the charge. Tin- exception 
 lieini: to that as weP as to the portion re- 
 lating to the interest, was too broad and 
 conseiiuently not well taken, and is not 
 available as a ground tor setting asidethe 
 verdict infavor of theplaintlffs and grant- 
 ing a new trial. 
 
 The result of the views above expressed 
 is, that the order of the gi-iiernl term 
 granting such new trial slioulil be re- 
 versed, and judgment must be orden^d 
 against defendant on the verdict, with 
 costs. 
 
 .Ml concur. 
 
 Order reversed and judgment accord- 
 ingly.
 
 1 
 
 I
 
 GROVER 0. GROVER. 
 
 879 
 
 GROVER T. GROVER. 
 
 (24 Pick. 201.) 
 
 Supreme Tiidicial Court of Massachusetts. 
 Middlesex. March 20, 1837. 
 
 AHsunipwit upon a note inatlc by ClmrloH 
 W. (jr()V('r, luiil pji.vniile to the order of 
 lliriini !S. (jrover, the iilaintifl'H intestate. 
 In March, Is.'iJ, (ii-over \V . Blancliard 
 ealh'il to Kee tlie inte.state, and aHked 
 vvlicther the iriort^aKe deed given to secure 
 the payment of th(' note in qiioHtion had 
 been recorded? The deed liad not been re- 
 corded, and tile intestate naid to Itlaucli- 
 ard,"I will make a present of these toyou, 
 if you will accept them." Blanchard then 
 took them, and put them in his pocket, 
 sayinj;; that he would accept them as a 
 token of affection, lllanchard afterwards 
 gave them back to the intestate, savins, 
 "You may keep the papers until I call for 
 them, or collect them for me." NoassiKii- 
 ment was made on the note or mortijaKe- 
 The intestate then put the morteage dee(l 
 on record. The plaintiff, after the death 
 of tlio intestate, took the deed from the 
 renister's ollice, and, havintr received pay- 
 ment of the amount secured thereby, dis- 
 charKed the niortnaKe. I'pon the death of 
 tlie intestate, the note was found in his 
 chest, with his papers; and Blanchard 
 took it, refused to deliver it to the plain- 
 tiff, and caused this action to lie l)rou;;ht 
 liy the administrator for his benefit. The 
 defendant contended (1) that no valid frift 
 of a chose in action could t)e made inter 
 vivos without writinj;; (2) that the name 
 of the donor or of his administrator could 
 not be used without his consent in an ac- 
 tion for the use of the donee; and (3) that 
 the donor could not, by law, .ict as the 
 apent of the donee to keep the papers or 
 collect the money. The jury found that 
 the hitestate ,iid int'Mid to give the prop- 
 erty contained in the note and raortj?ap;e 
 absolutely to Blanchard. The wholecourt 
 were to determine whether or not the 
 property parised and vested in Blanchard, 
 and whetlier or not he nilfrht maintain 
 this action withotit the consent of the 
 nominal plaintiff, for his own use. 
 
 Hour, for plaintiff. Keyes and Farle.v, 
 for defendant. 
 
 WILDi:, .1. The jury have found, that 
 the deceased intended to Rive the iiroperty 
 in the note, and in the mortgnfie made to 
 secure it, absolutely, to Blauchani; and 
 the question is, whether by the rules of 
 law this intentiuD can be carried into 
 effect. 
 
 It is objected, that no valid gift of a 
 chose in action can be made inter vivos, 
 without writing, and this objection would 
 be well maintained, if a legal transfer of a 
 otiose in action wife essential togive effect 
 to a gift. But as a good and effectual 
 equit.'ible assignment of a chose in action 
 may be made l)y pared, and as courts of 
 law take notice of and give effect to sncli 
 assignments, there seems to be no good 
 foundation for this objection. It is true 
 that the cases, which are numerous, in 
 which such equitable assignments have 
 been supported, are founded on assign- 
 
 ments for a valuable consideration; but 
 there is little, if any, distinction In this re- 
 spect, between contracts and gifts inter 
 vivos; the latter indeeil, when tiiaile per- 
 fect by delivery of the things ijiven, are 
 executed contracts. 2 Kent's Coram. CJd 
 ed.H'!^- By delivery and acceptance the 
 title ()asses, the gift becomes perfei't. and 
 Is irrevocable. There is, therefore, no 
 good reason why properlv thus ac(|uired 
 should not be protected as fully a nrl effec- 
 tually as property acipiired bv purchase. 
 And so we think that a gift of a chose in 
 action, provided ne) clainis of creditors in- 
 terfere to affect its validity, ought to 
 stand on the same footing lis a sale. 
 
 The cases favorable to the defencedo not 
 depend on the question, w tiether an ns- 
 signment must be in writing, but on the 
 question, whether a legal transfer Is not 
 necessary to give validity to a donation 
 of a chose inaction. The rionation of a 
 note of hand payable to bearer, <irof bank 
 notes, lottery tickets and the like, where 
 the legal title iiasses by delivery, is good; 
 for by the form of the contract "no written 
 assignment is necessary; but as to all 
 other chosps in action, negotiable securi- 
 ties excepted, it has been held in several 
 cases, that they are not sulijecls of dona- 
 tion mortis causa, on the ground un- 
 (bjiibtedly, for 1 can imagine no other, 
 that a legal assignment is necessary to 
 give effect to such donations; and the 
 same reason would apply to donations in- 
 ter vivos. The leading case on this point 
 is that of Miller v. Miller, :l I'. Wms. ;J5(!, In 
 which it was held, that the gift of n note, 
 being a mere chose in fiction, could not 
 take effect as a donati<in mortis causa, 
 because no property therein could pass by 
 delivery, and an action thereon must be 
 sued in the name of the executor. But In 
 .Snellgrove v. Bnily, '.i Atk. 214. Lord 
 Hardwieke decided, that the gift and de- 
 livery over of a bond wiis good as a dona- 
 tion mortis causa, on the ground that an 
 equitable assignment of the bond was 
 sulHclent. It seems to be very dillicult to 
 reconcile these two cases. The disiinctloo 
 suggested by Lord Hardwieke in the case 
 of Ward v. Turner, 2 Ves. Sen. 4:!I, io 
 which he adheres to the decision in Snell- 
 grove V. Bally, is technical, and. to ray 
 mind, unsatisfactory; and certainly has 
 no appli<ation to our la ws, which place 
 bends ami other securities on the same 
 fooling. We cannot, therefore, adopt both 
 decisions without manifest inconsistency; 
 and we think, for the reasons already 
 stated, that the decision in .Snellgrove v. 
 Bail.v is supported liy the lietter reasons, 
 anil is more conformable to general prin- 
 ciples, and the modern decisions in respect 
 to equitable assignments. We are. there- 
 fore, ol iMiinion that the gift of the note 
 of hand in question is valid: and in com- 
 ing to this conclusion, we cniicur with the 
 decision in tlie case of Wright v. Wright. 
 1 Cowen, .V.K, wherein it was liiOd, that 
 the gift and delivery over of a promissory 
 note, mortis causa, is valid in law, al- 
 tliough the legal title did not pass by the 
 assignment. 
 
 It is not necessary tod«^lde whether the 
 gift of the mortgage security is valid, al- 
 though it is reported to have been said by
 
 380 
 
 GROVER V. GROVER. 
 
 the vice chancellnr, in the case of Piiffipld 
 V. Elwcs, 1 Siiu. & Stu. 248, that a niort- 
 gaRor waH not conipellable to pay the 
 mortgage debt without having back the 
 mortgage estate; and for that and other 
 reasons he decided, that a mortgage was 
 not a subject of a gift, mortis causa. This 
 decision, however, was afterwards over- 
 ruled in the house of lords, Dufiield v. 
 Elwes, 1 Uligh's New. K. 4!)7, on the 
 ground, tliat the gift of the debt oi)crated 
 as an e<iuitable assignment of the mort- 
 gage. But as we think it clear, that the 
 right to maintain this action does not 
 depend on that question, we give no opin- 
 ion in regard to it. 
 
 Another objection is, that if the gift was 
 valid and complete, by the delivery of the 
 note, it was annulled by the redelivery to 
 the donor. We think this objection also 
 is unfounded. In the case of Hunn v 
 Markham, 7 Taunt. -.'30, (iibbs, C. J. lays 
 it down as a well settled principle, that if 
 after a donation mortis causa, the donor 
 resumes possession, he thereby revokes 
 and annuls the donation. This is the law 
 no doubt. Whether there may not be an 
 exception to this rule, when the donor 
 takes back the thing given at the request 
 of the donee, for a particular purpose, and 
 agrees to act as his agent under circum- 
 
 stances negativing every presumption that 
 he intended to revoke his gift, is a question 
 which it is not necessary now to consider ; 
 for the principle has no relation to a dona- 
 tion inter vivos. When such a donation is 
 completed by delivery, the property vests 
 immediately and irrevocably in tliedonee; 
 and the donor has no more right over it 
 than any other person. But a donation 
 mortis causa does not pass a title imme- 
 diately, but is only to take effect on the 
 death of the donor, who in the mean time 
 has the power of revocation, anil may at 
 anv time resume possession and annul the 
 gift. 
 
 The last objection to tlie maintenance of 
 this action by Blanchard, in the name of 
 the administrator, has been sufiiciently 
 answered in considering the first objection. 
 It is contended, that the consent of the 
 administrator is necessary. But if an eq- 
 uitable assignment issufflcient tocompleto 
 the gift, it follows that the administrator 
 is trustee, and cannot set up his legal 
 right in order to defeat the trust. This is 
 fully established by the case of Dufiield v. 
 Elvves, 1 Bligh's New R. 497; Hurst v. 
 Beach, a Madd. Ch. H. 351; and Dufiield v. 
 Hicks, 1 Dow & C 1. 
 
 Judgment for plaintiff for the use of 
 Blanchard.
 
 ♦ 

 
 GRYMES t>. HONE. 
 
 383 
 
 GRYMES T. HONE. 
 
 (49 N. Y. IT.) 
 
 Court of Appeals of New York. Mar. 26, 1872. 
 
 DcfenclaufH teHtutor. so years old and 
 fct'lile. niaile un ali.-iohito asHi;>nm«'nt of 
 bunk Htock to li's Kranddauuhtcr. and dc- 
 livcrpd tilt' a8si;;iinieiit to Iuh wife, witli 
 instructions t(» deliver it to the jjrand- 
 daii!;;liter In ease of lii.s death. Kive 
 months afterwards he died. The ntuck 
 had not been transferred on the bank 
 bookH. 
 
 Jolin II. Reynolds, for appellant. Or- 
 lando Meads, for reapoudenC. 
 
 PF;cKnA.\I, J. On the 19th of AiiRUst, 
 ls()7, tile alli'jied donor heinR the owner of 
 one hundred and twenty sharen of Htcjck, 
 Included in <»ne certitieate, in the Bank of 
 Conjmeree of .Vew York city, made an ali- 
 Holute asHijrnini nt in writinc. tran.sferat)le 
 on the book.s of the bank on the Hurrender 
 of the certificate, under.senl and witnessed, 
 of twenty shares thereof to this plaintiff, 
 his favorite KranddnuKhter, for value re- 
 ceived, as tlie assignment purports, and 
 appointed her his attorney irrevocable to 
 sell and transfer the same to her use. Aft- 
 er this paper had been signed "he kept it 
 by him for awhile" (how long nowhere 
 appears), and afterward handed it to his 
 wife, to put with the will and other pa- 
 pers in a tin box she had. Wlien he gave to 
 his wife the paper so drawn, he said: "I 
 intend this for Nelly. If 1 die, don't give 
 this to the executors; it isn't for tliem, 
 but for .N'elly; give it t(j her, herself." .She 
 aski'il, " Why not give it to her now'.'" 
 "Well." he said, " better keep it for the | 
 present; I don't know how much longer I 
 may last or what may happen, or wheth- 
 er we may not need it." This is the state- 
 ment as given by the widow of donor. 
 It was admitted that at the time of exe- 
 cuting said instrument the donor was 
 from seventy-eight to eighty years of age, 
 was in failing health, and so continued 
 till his death. .January '2ii, isds. L'pon 
 these facts was there a valid gift mortis 
 eausa'.' 
 
 I'|)on the question as to what consti- , 
 tutes such a gift, the authorities are in- 1 
 finite, not always consistent. I?nt at this 
 time it is generally agreed that to consti- 
 tute such ;i gift, it must be made with a 
 View to the donor's death from iiresent ill- 
 ness, or from external and apprehended 
 peril. It is not necessary that the donor 
 should l)e in extremis, but he should die of 
 that ailment. If he recover from the ill- 
 ness or survive the peril the gift thereby 
 becomes void: and until death it is sub- 
 ject to his personal revocation. '.' Kent 
 Com.4J4, an<l ce.ses cited: 2 Kedf. Wills, 
 2i»i) ct se«i.; 1 Story Kq. .lur., § (>06, etc., 
 notes and authorities. I 
 
 In the next place there nnist he a deliv- ) 
 ery of it to the donee or to some person 
 for him, and the gift becomes perfected by 
 the diath of the donor. 
 
 Three things are necessary. 1. It must 
 be made with a view to donor's death. 1*. i 
 The donor must die of that ailment or 
 peril. 3. There must be a delivery. The | 
 
 appellant inslBts that the gift In this case 
 fullills neither requisition. 
 
 Was this gift made with a view to the 
 donor's death'.' It issofound bv the referee 
 as a question of fact. What the witness 
 intended to convey by the term "falling 
 health " is not clear; but intendments are 
 against the appellant where the fact Is left 
 uncertain. There Is nothing In the case 
 inconsistent with the idea that the tes- 
 tator, when ho signed this assignment, 
 was conlined to his bed and so continued 
 till his death ; though I do not wish to he 
 understood as saying that such confine- 
 ment was necessary to validate the gift. 
 It seems that he died, as the referee finds, 
 from this failing health. In five months 
 thereafter; so that the terms as used in- 
 (licated a very serious ailment. 
 
 True he did not, and of course could 
 not, know when death woidd occur when 
 he executed this assignment, but he was 
 ina|)prehpnsionof it. His age a ml his "fail- 
 ing" told him death was near, but when 
 it might occur he had no clear conviction. 
 .\n ailment at such an age is extremely ad- 
 monitory. 
 
 From these facts, can this court say as 
 matter of law, that this testator was not 
 so seriously ill when he executed this as- 
 signment as to be ai>preliensive of death; 
 that he was not legally acting "in view" 
 of death; tnat he was not so ill as t<i be 
 permitted to make this sort of gift'.' True, 
 the donor died live motiths thereafter; 
 but -we are referred to no case or principle 
 that limits the time within which the 
 donor must die to make such a gift valid. 
 The only rule is that he must not recover 
 from that illness. If he do, the gift is 
 avoideil. Tlie authoritii-s cited bv the ap- 
 pellant's couns.l, of Weston v. Might, 17 
 Me. 2X7, :!j Am. Dec. '2.")U, ami Stanihind v. 
 Willott, a .Mc.N. & (i. (KU. are both in- 
 stances of recovery, and the gifts on that 
 ground declared void. In the latter the 
 donor and his committee recovereil back 
 the stocks given, because of his recovery. 
 The lirst case is improperly ijuoted in 2 
 I!edf. .'iu(l, note 11, as not originally au- 
 thorizing the gift. 
 
 'I he declaration of the donor that his 
 wife should keep the assignment and not 
 hand it over until after his death, as he 
 did not know what might happen, nor 
 hut that they might need it, was simply a 
 statement of the law as to such a gift, 
 whether the declaration was or was not 
 made. Clearly he could not tell whether 
 he should die or rccoverfrom that ailment. 
 If he did recover the law holds the gift 
 void. 
 
 The transaction as to such a gift Is, the 
 donor says I am 111, and fear I shall die 
 of this illm'ss, wherefore I wish you to 
 take these tilings and hand them to my 
 granddaughterafter mydeath: bntdonot 
 hand them to her now, as I may nvover 
 and need them. .\ good ilonatio mortis 
 causa always implies all this. If dellvereil 
 absolutely to the rlonec in person, the law 
 lndds it void in case the donor nvovcrs, 
 and he may then reclaim It. .Stauiland v. 
 Willott, supra. 
 
 To make a valid gift mortis causn. It is 
 not necessary that there should l)e any ex- 
 press qualitication in the transfer or the
 
 384 
 
 GRYMES V. HONE. 
 
 dolivery. It may be found to be such h 
 Kift fruni the attending cirounistances, 
 though the written transfer and the deliv- 
 ery may be abnolute. Nee the last case. 
 
 i think tliis donor made tliis gift " with 
 u view tohisdeatli," within the meaning 
 of the rule on that subject. 
 
 2d. This also settles thesecond requisite, 
 as it is admitted tliat he did not recover, 
 hut died of tliis "failing health," as it is 
 expressed. 
 
 3d. Was there a delivery? The assign- 
 ment was delivered to his wife for the 
 donee. She thus became the agent of the 
 donor. So far as the mere delivery is con- 
 cerned this is sufficient. Seethe elementary 
 writers before cited; also Drury v. Smith, 
 1 P. Wms. 404; Sessions v. Moseley, 4 
 Cush. S7; Coutant v. Schuyler, 1 Paige, 
 316; Borneman v. Sidlinger, 8 Shep. IS,"); 
 Wells v. Tucker, 3 Binn. .300; Hunter v. 
 Hunter, 19 Barb. 031. Such a delivery to 
 be given to the grantee after the grantor's 
 death is good as to a deed of real estate. 
 Hathaway v. Payne, 34 N. Y. 92. 
 
 It is urged that this gift was not com- 
 pleted; that thestock was not transferred 
 on the books of the bank, and could not 
 be until the certificate held by the ilonor 
 was surrendered, and that equity will not 
 aid volunteers to perfect an imperfect gift. 
 
 Within the modern authorities this gift 
 was valid, notwithstanding these oI)jec- 
 tions. The donor by this assignment and 
 power, parted with all the interest in the 
 stock assigned as between him and the 
 donee, and the donee became the ecjuitable 
 owner thereof as against every pei'son but 
 a bona fide purchaser without notice. De- 
 livery of the stock certificate without a 
 transfer on the bank's books would have 
 made no more than an equitable title as 
 against the bank (N. Y. &. N. H. R. Co. v. 
 Schuyler, 34 N. Y. ISO, and cases cited), 
 though it wc>uld give a legal title as 
 against the assign<jr (McNeil v. Tenth 
 Nat. Bank, 46 N. Y. :i25, 7 Am. Rep. 341, 
 just decided), and according to the case of 
 
 Duflield V. Elwes, 1 Bligh (N. R.), 497, .'')30, 
 decided in the house of lor<l8. The repre- 
 sentatives of tlie donor were trustees for 
 the donee by operation of law to make 
 the gift effectual. See also to the same 
 effect Ex parte Pye, IS Ves. 140; Kekewieh 
 v. Manning, 1 Ue G.,M. & (.). 176; Richard- 
 son v. Richardson, I.,. R. 3 Eq.Cas.CM6. This 
 trust, like this species of gift, is peculiar. 
 The trust, like the gift, is revocable during 
 the donor's life, and is perfected and irrev- 
 ocable by his deatli. 
 
 This extended the law as laid down by 
 Lord Hardwicke, in Ward v. Turner, 2 
 Ves. Sr. 431, 442, upon this subject, and 
 our courts have gone in thesaniedireetion 
 with Dufiield v. Elwes. Where notes pay- 
 able to the donor's order and not in- 
 dorsed, and other things of similar char- 
 acter, have been given mortis causa, 
 courts compel the representatives of the 
 donor to allow the donee to sue in their 
 name, though the legal title has not 
 passed. See last case; Grover v. Grover. 24 
 Pick. 261, 3."i Am. Dec. 31'.); Chase v. Red- 
 ding, 13 Gray, 41S; Bates v. Kempton, 7 
 id. 3S2; and see also Westerlo v. I)e Witt, 
 36 N. Y. 340, 93 Am. Dec. 517; Walsh v. 
 Sexton, 5.') Barb. 2.M. 
 
 The eijuitable title to this stock is thus 
 passed by the assignment, and it was not 
 necessary to hand over the certificate. A 
 court of equity will compel the donor's 
 representatives to produce the certificate, 
 that the legal title to the stock may be 
 perfected. 
 
 As there is great danger of fraud in this 
 sort of gift, courts cannot be too cautious 
 in recpiiring clear proof of the transaction. 
 This has been the rule from the early days 
 of the civil la w ( wliich required five wit- 
 nesses to such !\ gift) down to the present 
 time. In this case the proof of the assign- 
 ment, etc., is entirely clear, the question 
 being as to its effect. The judgment 
 should be affirmed, with costs to be paid 
 out of the estate. 
 
 All concur; ALEEN, J., not voting.
 
 HAGUE V. PORTER. 
 
 387 
 
 HAGUE et al. t. PORTER. 
 
 Suprem( 
 
 (3 Hill, 141.) 
 Court of New York. July, 1842 
 
 Action Ijy Hague ami Reiifield aKxinst 
 •one I'orter for kooiIh Hold and delivered. 
 JiKlKnicnt for defciidiint, and plaintiffH 
 brirm error. Allirincil. 
 
 Defciidant, a iiiercliant in New York, 
 agrieil to take of [jlaintiffpt, iloin;; liUHines^ 
 in Newark, N. .1., two do/.pn lainpH, which 
 wei'e [laid for and delivered. At the Hanie 
 time (lefendaut ordered 100 more lampH of 
 the Kunie kind, to be made and delivered 
 an soon aH practicalile. Suhse(inently de- 
 fendant KUKKested an alteration to t)e 
 made in the 100lam[)H soordered, and they 
 were completed an directed, and sent to 
 defendant'.s store. Defendant refused to 
 receive the lamps, ancl they were left on 
 the sidewalk. The court below directed a 
 nonsuit, on tlie ;;round that there was no 
 proof of delivery. 
 
 R. N. Morrison, for plaintiffs in error. 
 €. W. Van Voorhis, for defendant in error. 
 
 COWEN, J. Here was no actual deliv- 
 ery and acceptance by the defendant be- 
 low. The contract was executory, and 
 he refused to receive. It was scarcely a 
 case of goods bargained and sold.i The 
 
 ' Something roiiiainc*! to he done to the l.imps, 
 at the time tlicy were ordered, before they were 
 ready for delivery; and hence the sale was in- 
 complete. (See Downer v. Thompson, 2 Hill, 
 137.) 
 
 count should. I apprehend, have been spe- 
 cial, for refusInK to accept. All the cases 
 on this point were considered In .Mkiiison 
 V. Bell, {'> .Man. & Ityl. l':ij. s I'.arn.Ac Cress. 
 277, S. C..) and the subject entirely ex- 
 hausted: indeed the case itself is directly 
 OKaiust the plaintiff in error. The con- 
 tract for the two dozen bimpH was dis- 
 tinct, and th(! delivery of these bore no 
 relation to the one hundred in question. 
 (Thompson v. Maceroid, 3 Itarn. & Cress. 
 1.) 
 
 The case of Downer v. ThompHon, (2 
 Hill, ]:!7,) or rather the dictum cited from 
 that case, went on the assntiiption that 
 there had been a delivery to and accept- 
 ance by the carrier with the as.sent of the 
 ven<lee.2 That is a constructive delivery 
 to the vendee himself, and sntihtiesa count 
 for goods sold and delivered, the same as 
 a personal delivery to and acceptance by 
 him. If he order goods to be sent by a 
 carrier, though he do not n.inie him. and 
 they are sent accordingly, that is a deliv- 
 ery. (I)utton v. Solomonson, 3 Hos. & 
 Pull. .')S'_'.) Such direction may certainly 
 be implied from the course of trade; but 
 1 do not see here any direction so to send, 
 either express or implied. The practice 
 between Newark and New York is not 
 shown. There was no dispute in the cases 
 cited that the goods were to be sent by a 
 carrier, nor that they were so sent pursu- 
 ant to order. 
 
 iludgment affirmed. 
 
 'And see Grosvenor & Starr t. Phillips, (2 
 Hill, 147.)
 
 I
 
 HANSON 0. BUSSE. 
 
 389 
 
 HANSON et al. v. BUSSE. 
 
 (45 III. 496.) 
 
 Supreme Court of Illinois. Sept. Term, 18C7. 
 
 Action by Ralph HmiBon and another 
 ji^aiiiHt Frederick liiiKHf. From a judf;- 
 iiu'iit for defendant, pluiutiffH apijeal. Af- 
 lirnied. 
 
 Blod^ett & Winston, for appellants. 
 Tlioinan Shirley, for appellee. 
 
 LAWKI:N(;E, .J. This was action, 
 liroiight by Hanson anil Barrett, againHt 
 liiiHse, to recover tlie price of one hundred 
 and ten barrels of apples, sold by them 
 to BuKse. The demand was resisted, on 
 theKronnd that the apples, when opened, 
 proved to lie decayed and entirely worth- 
 less. The jury found for the defendant 
 and the plaintiffs appealed. 
 
 The court Kave for the defendant a se- 
 ries of instruction.s, neai'l^- all of which 
 embody the idea, that if the plaintiffs 
 represented the apples to be Ktxjd, and 
 the defendant bought them, relyin>^ upon 
 such representations, and they were bad 
 and unmerchantable, and the defendant 
 offered, at once, to return them, he would 
 not be liable for the price. 
 
 In reference to the sale of personal prop- 
 erty, which is open to the inspection and 
 c.Kamination of the purchaser, this would 
 not l)e the law. In such cases it is imma- 
 terial how far the purchaser may rely up- 
 on the representations of the vendor as 
 to the (|uality of the goods, if there was 
 no intention on the part of the vendor to 
 warrant, and if he used no lanKunge fair- 
 ly implying such an intent. The different 
 rule of the civil law may be founded on 
 higher morals, and the modern decisions, 
 both in ICngland and this country, seem 
 to be tending in that direction. This ten- 
 dency is shown in the recognition of ex- 
 cei)tions to the rule. But the rule itself 
 must be considered (irmly settled in the 
 common law, that tlie vendor of goods 
 which the purchaser has. at the time of 
 inirchase, the opportunity of examining, is 
 not responsible for defects of ijuality, in 
 the absence of frauil and warranty; and 
 although no particular form of words is 
 re<|uisite to constitute a warranty, yet a 
 simple commendation of the goods, or a 
 representation that they are of a certain 
 quality does not make a warranty, unless 
 the language of the vendor, taken in con- 
 nection with the circumstancesof the sale, 
 fairly implies an intention, on his part, to 
 bo nnderstood as warranting. The rule 
 lias been thus laid down by this court in 
 
 several cases. Towell v. Gutewood, 2 
 Scam. 22; Adams v. Johnson, 15 111. 34u, 
 and Kohl v. Lindley, 3'J id. ]'.15. In the 
 last case the role is fully considered. 
 
 But, although these instructions would 
 be erroneous if applied to ordinary sales 
 of personal property open to Inspection, 
 yet they nuist be consi<lered in reference 
 to theii- application to this particular 
 case, and. tried by that standard, we can- 
 not say they misled the jury. Asstateilby 
 this court in Kohl v. Linilley, above quot- 
 ed, one of the exceptions to the general 
 rule is, where the sale is made by sample, 
 and another, where the purchaser has no 
 opportunity for inspection. The bulk 
 must be as good as the sample, and. If 
 there i-i no opportunity for examination, 
 the article sold must be what the vendor 
 represents it to be. In such cases the 
 maxim i^aveat emptor can have no appli- 
 cation. 
 
 Ill the case before us the proof shows 
 that the 110 barrels were piled up in tiers 
 at a railway depot in Chicago. The [inr- 
 chnser went with the clerk of the plain- 
 tiffs to look at them. They opened a 
 couple ol barrels that stood on the tloor. 
 The purchaser was lamefrom rheumatism, 
 and requested tlie clerk to climb up and 
 oi)en a barrel on the top of the tiers. He 
 did so, and showed the purchaser some 
 upi)les which were in good condition, 
 and said they were all like that. The 
 I)laintiff8 had told the delendant the ap- 
 ples were just such as he had previuusly 
 l)Oughf, shippetl by the same man, and 
 good handpicked fruit. The apples in the 
 three barrels exhibited as saiu|iles were 
 unqnestional)ly merchantable, or the tlc- 
 fendant would not have l)ought. It 
 would be unreasonable to reijuire that he 
 should hnveoi'ened every one of the 110 
 barrels. He had the right to rely on the 
 samples shown to him, and on the repre- 
 sentations of the plaintiffs that the aiiples 
 were good. He had no opportunity for 
 the exercise of his own judgment, and 
 the plaintiffs must have known that he 
 bought relying upon their representa- 
 tions. The case falls clearly within the 
 exceptions 1o the general rule above men- 
 tioned, and there is no ground for saying 
 caveat emptor. The verdict was Jnt-t. and 
 the instructions as applied to the facts of 
 this case could not have misled the jury. 
 
 The plaintiffs' instructions were pro[)cr- 
 ly refused, because inapplicable to the 
 facts of this case. They would have 
 tended to mislead the jury. 
 
 The judgment must be affirmed. 
 
 .ludgment affirmed.
 
 IIARDMAN V. BOOTH. 
 
 3'Jl 
 
 I 
 
 HAIIDMAN ct al. v. ROOTII. 
 
 a Hurl. & C. 8<i:!.) 
 
 EiiBlisli Court of Exchequer, flilary Term, 20 
 Vict. Jan. 12, IStiS. 
 
 Ti'ovor for twenty-two pieces of Herne 
 anil eiirlity-two pieces of woollen linin^rs 
 of the plnintiffH. 
 
 I'IcMH. — KirHt: Not guilty. Second: 
 that the ko'"'** "re not the plaintiffs'. — 
 IssucM tlioreoi). 
 
 At tlie trial, before Martin, I!., at the 
 London sittinfiM after last J rinity term, 
 the following factw appearefl. — Tlie jilain- 
 tiffs were worsted nianiifacturerH at Unw- 
 tonstall, near Manclie.ster. and they ein- 
 j)l<iyed MessrH. HukIick and Kcijililey aH 
 their London aKcntH. In .May, iMil'. one of 
 the plainliffH lieiiiK in London, atid having 
 heard of a firm oi (inndeli & Co., in .loin- 
 ers' Hall Buihlinas, Upper Thames street, 
 called, with Keifihley, at thorfe pretniwes 
 and inquired for .MeHHrs.tJandell. At that 
 time the firm, which had been estalillKlied 
 ei;^hty or ninety years, and was well 
 known, couHisted only of ThoniiisGandell, 
 %vho was old and in bad healtli; and liiw 
 son, who wa.s hiw clerk, managed tlie bus- 
 iness. Thelirm of (iandell & C<i. was only 
 known to the plaintiff and KeiKliley by 
 reputation, an<l, on their iiKjuiriuK for 
 Messrs. (Jandell. one of the workmen di- 
 rected them t<i the conntiiiir house, where 
 they found Ldwnrd (iandell. Keii'hiey 
 said, "1 believe yon are a buyer of the 
 class of noods .Mr. Ilnrdman is makinsi." 
 and introduced the plaintiff to him. After 
 some conversation, and when they were 
 about to leave, I'Mward (iandell said, 
 ■' We are government packers, but weha ve 
 a shipping connection that we sometimes 
 buy for, and I have no doubt we shall be 
 able to do a little business together." On 
 leaving, the plaintiff began to copy the 
 name from the door-post, when Kdward 
 (ian<lell handed him a printed card, hav- 
 ing on it: "Thomas (iaiiilell & Co., Pack- 
 ers, Joiners' Hall Uuildings, 7!t Upper 
 Thames Stieet." Keighley had twosub- 
 seijui'iit interviews witli Kdward (iamlell, 
 at the lirst of which he introduced hini to 
 one 'I'odil. The goods in (inestion were 
 order'd by Kdward (iandell, anil sent at 
 two different times inJul.v. The first lot 
 was sent to Joiners' Hall Buildings, and 
 n receipt for it was given by one ol (ian- 
 dell & ('o.'s men; the other lot was taken 
 away in a cart of (Iandell & Co., which 
 Edward (iandell had offered tosend for it. 
 ^'he plaintiff drew a liill of exchange for 
 the first lot of goods on " .Messrs. Thomas 
 Gandell & Co."; but, at the reipiest of ICd- 
 ward (iandell. the name was altered to 
 "Edwaril." The invoice for l)oth lots was 
 headed:— "Mesrs. Edward (iandell & Co., 
 Joiners' Hall Uuildings, Upper Thames 
 Street, London. Bought of Hardman, 
 Brothers, per William Hughes it Co." 
 Edward (iandell carried on business in 
 partnership with Todd, whom he intro- 
 duced to Keighley, and who had an othce 
 in Size Lane. Neither the plaintiff nor 
 Keighley knew of the lirm of (iandell iV- 
 Todd. The goods were pledged by Ed- 
 ward Ouodell to the defendant, who wae 
 
 an auctioneer, with a [lower of sale, as b 
 security for £:}()() l)ona fide advanced hv 
 the defendant to (iandell A: Todd. Short- 
 ly afterwards Gandell & Todd tiecame 
 bankrufit; and the defendant. In pursu- 
 ance of the power, sold the goods liy aiiP- 
 tion for t:M4, and retained £.'!(»(), and paid 
 over t;J4 to tlie assignees. 
 
 It was submitted, on liehalf of the de- 
 fendant, that the action was not main- 
 tainable, inasmuch as there was a sale of 
 the goods to Edward (iandell. The 
 learned judge non-suited the plaintiffs, 
 reserving leave to move to enter the ver- 
 dict for them for t:U4. 
 
 Balhintine, Serjt., in last Mid'aelmas 
 term, obtained a rule nisi accordingly, on 
 the ground that no proiierty passed lt> 
 Edward (iandell in consei|Uence of his 
 fraud, and therefure the defendant was 
 liable for the valui" of the goods. Hawk- 
 ins now shewed cause, (iiffurd and Po- 
 land, in support of the rule. 
 
 FtH.LOCK.C. B.— 1 am of opinion that 
 the rule should be absolute. Tlie firot 
 question is whether there was a contract. 
 It is difficult to lay down any general rule 
 by which, at all tiiiie-< and nnder nil cir- 
 cumstances, it may be delermim-d wheth- 
 er or no there is a contract voidable at 
 the option of the party defrauded, Ijut in 
 this ease I tl'.ink it cl^-ar that there waH 
 no contract. Mr. Hawkins contendei) 
 that there was a contract iiersonally with 
 Edward (iamlell. the individual witli 
 whom the conversations took place. It 
 is true that tlie words were uttered by 
 i;nil to <iim, but the plainliff>< supposed 
 that they were dealing with (iandell & 
 Co., the packers, to whom I hey sent tlie 
 goods; the fact tieiiig that Edward (Jan- 
 dell was not a member of that tirm and 
 had no authority to ;ict as their agent. 
 Therefore at no period of time were there 
 two consenting minds to the same agree- 
 ment. Then, what is tlie consequence? 
 A person having no antl'.ority whatever 
 over the goods sends them to the defend- 
 ant, an auctioneer, who, supposing the 
 goods belong to that person, bona lide 
 advances money upon them, taking a 
 power of sale; but that did not authorize 
 him to sell another person's goods and 
 retain the proceeds to reimburse himself. 
 
 1 think that he is liable to the e.\tent of 
 the money realized by th" sale, and that 
 the rule should be absolute to enter the 
 verdict for that amount. 
 
 MAT5TIN, B.— I am also of opinion that 
 there was no contract. I cannot doubt 
 that the plaintiffs believed that they were 
 dealing with (iandell \- Co., the packers. 
 The cases cited are quite correct; and If 
 (iandell & Co. had obtained the goods liy 
 means of fraud, the plaintiffs might have 
 been precluded from recovering. But the 
 case is very different. The goods wen* ob- 
 tained bythe fraud of Ivdward (iandell, 
 who iiret'eiiiled that he was a iiieniber of 
 the lirm of (i.iiidell & Co.. and led the 
 plaintiffs to lielleve that they were ilenlinK 
 witli (iamlell A: Co. The only doiilit I 
 have had was whether there oiiglil not to 
 lie a new trial, in order that the question
 
 892 
 
 HAEDMAN v. BOOTH. 
 
 mislit he submitted to a jury; but I do 
 not think it rlfjlit to Henil dowu tlie case 
 for a new trial, for it is clear tliat the 
 plaintiffs believed that tliey were dealing 
 with Gandell & Co., and therefore there 
 was no contract. 
 
 CHANNELL, B. — I am also of opinion 
 that there ought not to be a new trial, 
 but that the rule ought to be absolute to 
 enter the verdict for the plaintiffs. I do 
 not thinii tliat the defendant was in the 
 position of a mere couduit-pipe, as a car- 
 man would have been; but that he is re- 
 eponsible for the conversion of the goods, 
 and the plaintiffs are entitled to recover 
 provided the goods bek)ng to thera. 
 There is no doubt they were originally the 
 plaintiffs' goods, and they must still be 
 theirs unless there has been u contract of 
 sale to divest the property. It is not sug- 
 gested that there was a sale to Uandell & 
 Co.; and 1 do not think there was a sale 
 to (iJaudell & Todd, or either of them, so 
 as to render a repudiation of the contract 
 by the plaintiffs necessary, for it is evident 
 that the yjlaintlffs l)elieved that they were 
 dealing with Gandell «& Co., and never 
 meant to contract with Gandell & Todd. 
 
 WILDE, B. — I am of the same opinion. 
 The defendant made advam'os to Gandell 
 & Todd upon the security of the goods, 
 and under a power of sale he sold them 
 to recoup himself. The defendant now 
 sets up a contract, voidable he admits, t)e- 
 tween the plaintiffs and Edward Gandell; 
 and if there had been such a contract, and 
 the defendant had sold the goods before 
 the plaintiffs repudiated it, no doul)t the 
 defendant would have had a good defense. 
 The real question therefore is, whether 
 there has been such a dealing as amounts 
 to a sale. It is clear thai there was no 
 sale to Gandell & Co., because they never 
 authorized Edward Gandell to pnrcliase 
 for them ; and it is equallyclear that there 
 was no sale to Edward Gandell, because 
 the plaintiffs never intended to deal with 
 liim personally. The fact of his name be- 
 ing Gandell cannot affect the question, 
 inasmuch as the dealing was not with him 
 personally, but under the belief that he 
 represented the firm of Gandell & Co. The 
 result is that there was no contract, and 
 the evidence is too strong to render it 
 worth while to submit the case again 
 to a jury. 
 
 Kule absolute.
 
 I 
 
 I
 
 I 
 
 IIAUKNKSS 0. Ui;.SSKLL & CO. 395 
 
 HAUKXESS V. RI.'SSELL & CO. I iir-tc.l. P. O.. Oxford. On.-l.ln County, 
 
 JMiiiio territory. if.W). IMii-Inn & Fer- 
 (7 Sup. Ct. Uep. 51, 118 U. S. G03.) KUM(jn." Some of tin- iiotcH wi-rr jjlven lor 
 
 the price of one of the ciiKincH witli itM nc- 
 
 Suprcme Court of the Uuiteil .Slatrs. Nov. 8, coiiipiiiiyiiiK lioiler iiikI iiiill, iiiiil the 
 
 ISSC. otIierH for the prioe of ilie otiiir. .Some of 
 
 the riotcw were paid; iinil tin' preHcnt Huit 
 
 A|)i)ealfrom tlie supreme court of tlie vv';ih liroiiKlit on those tliul urrc not paid, 
 territoi'y of I, tail. The property wan iJilivereil to I'heJHii & 
 
 Tlie facts fully appear in tlie followinj; I'er^vison on the e.xeniiion of the uoteH, 
 statement by Mr. jimtice I!U.\1);.,KV : and Knl).>.e(|iieiitly tliey Holrl it to the de 
 
 This was an appeal fioin thesupreme feiidan t llarl<nenH. in part payment of u 
 court of I'tali. The action was lirouKl't deht due from t hem to liiin ami one I.aiiKH- 
 in the 'list rid court for Weber county, to (loif. The defendant, at the tiinx of the 
 recover the value of two stea ui-enKiiies sale to him, knew that the puri-liase price 
 anil boilers, and a portable saw -mill con- , of t he property had not been paid to the 
 nectcd with each engine. A jury bein>r , plaintiff, and that the plaintiff claimiil 
 waived, the court found the fac'^s, and ! title thereto until such pa vment was made, 
 rendered judKment for the plaintiff, I!us- I The unpaid notes u'iven for each engine 
 Hell & Co. The plaintiff is an Ohio corpo- and mill e.vceedecl in amcuinl the vjilue of 
 ration, and by its at;ent in lil;\lio, on the such eiiiciuf and mill when the action was 
 second of October, lss2, a;;reed with a commenced. 
 
 partnei'ship tirm by the name of I'lielan The territory of Idaho has a law relat- 
 & FernusiMi, residents of Idaho, to sell to inir to chattel mortuanes. [act of .Jann- 
 tliem the said eugiises. boilers, and saw- ary I:.', Is7."),] reiiuirin;; that every such 
 nnlls for the price of $4. liss, nearly all of mort};a;;e shall set unt certain particidarM 
 which was secured by certain promissory as to parties, time, amount, etc., >\ ith an 
 noti's, which severally c.iniained tlie alTnlavit nttaclied that it is bona fide, 
 terms of the aurreement lietwecn the ))ar- and made witliout any design to defraud 
 ties. One of the notes (the others beiiiy; and dela.v creditors; and rei|uirinn the 
 in the same form) was as follows, to-\\ it : mortKa«e and allidavit to be recorded in 
 ".Salt Lake City, Octol)er L', Issil. On or the county where the niort>;ai;or liveH, 
 before the tirst day of May, In*<:!. for value and in that where the property is located: 
 received in ore si-Xteen-horse i)(;rtable en- and it is declared that no clialtel tnort 
 Kine, No. l,()'J(i, and one portable saw-iuill, ' >ra;re shall be valid (except as between the 
 No. ll'N, all complete, bouf;ht of I>. I'.. Mat- parties tlit;reto) without compliance with 
 tison, auent of Kussell & Co., we, or either these requisites, unless the inortKairee 
 of us, promise to pay to the order of I shall have actual poss^ession of the prop- 
 Kussell & Co., Massillon, Ohio, .1f:!iiO, pay- ' eriy niortirajjed. In the present case no 
 al)le at Wells, Faryro & Co.'s lui nU, Salt alfidavit was attached to the nt)ttH, dot 
 Lake City, Utah Territory, with ten per j were they recorded. 
 
 cent, interest per annum from October 1, j Tin- court found that it was the Inten- 
 1882, until paid, and reasonable ai tor- tioii of I'lielan it I'"eri;nson and of Kiissell 
 ney's fees, or any costs that may be paid i>c Co. tlia t tiie titli' to the said proiicrty 
 or incurred in any action or [iroceedinj:; in- sliould not iiass from Kussell & Co. until 
 Htituted for the collictioii of this note or all the notes were paid. I'pon these facts 
 enrorcement of this covenant. 'J"lie ex- the court found, as conclusions of law, 
 press condition of this transaction is such that the transaction between I'helan & 
 that tlie title, ownership, or possession l-Crsruson and Kussell iV Co. was a condi- 
 of said enjrine and s.-iw-niill ilocs not pass tioiuil or executory sale, and not an aliso 
 from the said Kussell & Co. until this note lute sale with a lien reserved, and that 
 and interest shall have been paid in full, the title did not pass to I'helau A: Ferjru- 
 and llio said Kussell & Co. or his afient son, or from them to tlie defendant, and 
 has full lioiver to declare this note due, t;a ve jiidKUient for (he plaintiff. The hii- 
 and take i>ossi'Ssion of said ensine and preme court of the territory alliniied this 
 saw-mill when they may tieeui tlieinsclves jud;;nient. [7 I'lic. Hep. MI."> ] 'I'liis ap- 
 insecure even liefiire the maturity of this peal was taken from that judgment, 
 note; and it is further agreed bv the mak- i ,, , , ,,..,,. ,i, , v i-;..,i...ii 
 
 ers hereof that if said note is not paid at ' ^ "^'''y V'p" ■''""""■ 'i'"'" H.i^i h '/,' r 
 maluritv. that the interest sliali 'be two '""• -^/-"V' ';/'!'»' ^'Ji ,„L, t!;',?. 
 percent, per month from tnaturit v here- "PPHlant. Charles W . lieuuett. for ap- 
 of till paid, both before and after jiidu'- l'^'"''''- 
 ir.ent, if anv should be rendered. In case 
 
 said saw-mill and eiiKiue shall be taken Mr. Justice TiHAnLF.Y, after statins the 
 back, Kussell & Co. may sell the same at facts as above reported, delivered the 
 public or privjite sale without notice, or opinion of the court. 
 
 thev may, without sale, indorse the true The lirst nucstion to be considered is 
 \alueof the property on this note, and whether the transaction in iiiic-tion was 
 we aaree to iiav on tlie ni te any lialance a conditional sale or a niortH:a;;e : that is, 
 due thereon, after such indorsement, as whether it was a mere agreement to sell 
 damages and rental for said machinerv. upon a condition to be perforn.ed. or an 
 As to tills debt we waive the rifibt to ex- absolute sale, with a riMervatlon of a lien 
 empt, or claim as exempt, any property. Or mortfra«e to secure the pnrehase 
 real or personal, we now own, or mav nioiie.\ . If it was the la tier, it is ronceded 
 iiereafti-r ac<|uire, bv virtue of anv home- tliat the lien or iiiorlnaKf was void as 
 stead or exemption law, state or federal, a^'ainst third persons, liecaiise not vcrlHed 
 now in force, or that hereafter uiav be en- 1 by atlldavit, and not recorded as re<iulre<l
 
 396 
 
 IIAHKNESS V. RUSSKLL & CO. 
 
 by the Inw of Tdnho. But, so far hh 
 words iincl the I'xprcsH intPiit of the i)nr- 
 ties can go, it is perfectly evi<lpiit tliat it 
 was not an alisolnte sale, hut only an 
 aareeuient t!) sell upon condition that th(? 
 pnrcMiasers should pay their notes at ma- 
 turity. The laiiKuaf^e is: "The expre.ss 
 condition of this transaetif)n is snch that 
 the title * « ♦ does not pass • » * 
 I'.ntil this noteand Interest shall havelieen 
 paid in full." If the vendees should fall in 
 this, or if the vendors should deem them- 
 selves inseeure hefore the maturity of the 
 notes, the latter were authorized to repos- 
 Hes.s themselves of rhe machinery, and 
 credit the then vahic of it, or the proceeds 
 of it if they should sell It. upon the unpaid 
 notes. If this did not pay the notes, the 
 balance was still to be paid by the makers 
 by way of "damages and rental for said 
 machinery." This stipulation was strict- 
 ly in accordance with the rule of daniaRes 
 in such cases. I'pon an aureement to sell, 
 if the purchaser fails to execute his con- 
 tract, the true measure of damaares for its 
 breach is the difference between the price 
 of the goods agreed on and their value at 
 the time of the breach or trial, which may 
 fairly be stipulated to be the iiriee they 
 bring on a resale. It cannot he saitl, 
 therefore, that the stipulations of the con- 
 tract were inconsistent with or repugnant 
 to what the paities declared their Inten- 
 tion to be, namely, to make an executory 
 and conditional contract of sale. Such 
 contracts ai-e well known in the law and 
 often recognized ; and, when free from any 
 fraudulent intent, are not repugnant to 
 any principle of justice <jr equity, even 
 though possession of the property he 
 given to the proposed purchaser. Therule 
 is formulated in the text-books and in 
 many adjudged cases. 
 
 In Lord Hlackburn's Treatise on the 
 Contract of Sale, published 40 years ago, 
 two ri'les are laid down as established. 
 (1) That where, by the agreement, the 
 vendor is to do anything to the goods be- 
 fore delivery, it is a condition precedent to 
 the vesting of the property; (2) that 
 where anything remains to l)e done to the 
 goods for ascertaining the (irice, such as 
 weighing, testing, etc., this is a condition 
 precedent to the transfer of the pi'operty. 
 I^lackb. Sales, l.'rj. .\nd it is sul)se(iuentiy 
 added that "the partle.s may indicate an 
 intention, by their agi'eement, to make 
 any condition precedent to the vesting of 
 the property ; and, if they do so. their in- 
 tention is fulHlled." Blackb. Sales, 107. 
 
 Mr. Benjamin, in his Treatise on Sales of 
 Personal Property, adds to the two for- 
 mulated rules of Lord Blackburn a third 
 rule, which is supported by many authoi-l- 
 ties, to-wit: (3) "Where the buyer is by 
 the contract bound to do anything as a 
 condition, either precedent or concurrent, 
 on which the pnssing of the property de- 
 pends, the property will not i)ass until the 
 condition be fulfilled, even iliough the 
 goods may have been actually delivered 
 into the possession of thel)uver." Keiij. 
 Scales, (L'd Ed.) 2:jfl; Id. (3d Ed.) § 320. 
 The author cites for this proposition 
 Bishop V. Stilllto, 2 Barn. & Aid. 32'J, note 
 a; Brandt v. Bowlby,2 L5arn.& Add. 932; 
 Barrow v. Coles, (Lurd Ellen borough,) 3 
 
 Camp. 92; Swain v. Shepherd, (Baron 
 Parke, 1 I .Moody & R. 223; Mires v. .Sole- 
 bay, 2 Mod. 213. 
 
 In the last case, decided in the time of 
 Charles II., on<' Alston took sheei) to ]m8» 
 ture for a certain time, with an agreement 
 that if, at the end of that time, he shinld 
 pay the owner a certain sum, he should 
 liave the sheep. Before the time expired 
 the owner sold them to another person; 
 and it was lield that the sale was valiil, 
 and that the agreement to sell the sheep 
 to Alston, if he would pay for tlnni at a 
 certain day, did not amount to a sale, but 
 only to an agreement. The other cases 
 were instances of sales (jf goods to l)e paid 
 for in cash or securities on delivery. It 
 was held that the sales were conditional 
 only, and that the vendors were entitled 
 to retake the goods, even after delivery, 
 if the condition was not i)erformed; the 
 delivery being considered as conditional. 
 This often happens in cases of sales by 
 auction, when certain terms of payment 
 are prescribed, with a condition that, if 
 they are not complied with, the goods 
 may be resold for account of the buyer, 
 who is to account for any deficiency be- 
 tween the second sale and the first. Such 
 was the case of Ijamond v. Duvall, 9 Q. B. 
 1030; and many more cases could be cited. 
 
 In Ex parte ('rawcour, L. H. 9 Ch. Div. 
 419, certain furniture dealers let Robertson 
 have a lot of furniture upon his paying 
 £10, in cash and signing an agreement to 
 pay £.") per month (for which notes were 
 given) until the whole itrice of the furni- 
 ture should iiepald; and when all the in- 
 stallments were paid, and not liefore, the 
 furniture was to be the property of Rob- 
 ertson; but, if he failed to pay any of the 
 installments, the owners were authorized 
 to take possession of the property, and all 
 prior payments actually made were to be 
 forfeited. The court of appeals held that 
 the property did not pass by this agree- 
 ment, and could not he taken as Robert- 
 son's property by his trustee under a liq- 
 uidation i)roceeillng. The same conclu- 
 sion was reached In the subsequent cHse 
 of Crawcour v. Salter, L. R. IS Ch. Div. :i0. 
 
 In these cases, it is true, support of the 
 transaction was sought from a custom 
 which prevails In the i''f>tps where the 
 transactions took place, of hotel. keepers 
 holiling their furniture on hire. But they 
 show tliat the intent of the parties will be 
 recogtnzed and sanctioned wh.ere it is not 
 contrary to the policy of the law. Thi.9 
 policy, in England, is declared by statute. 
 It has long been a provision of the Eng- 
 lish 'jankrui)t laws, beginning with 21 
 .fames I. c. 19, that if any person l)ecom- 
 ing bankrupt has in his i)ossession, order, 
 or disposition, by con.sent of (he owner, 
 any goods oi- chattels of which he is the 
 reputed owner, or takes upon himself the 
 sale, alteration, <»r disposition thereof as 
 owner, snch goods are to be sold for the 
 benefit of his creditors. This law has had 
 the effect of preventing or defeating condi- 
 tional saies accompanied by voluntary 
 delivery of possession, except in cases like 
 those l)efore referred to; so that very few 
 decisions are to be foimd m the English 
 books directly in |)oint on tne question 
 nnder consideration. The following case
 
 HARKXESS 0. RUSSELL & CO. 
 
 897 
 
 preBL'titH a fair illustrati<jn of the Enttlish ' 
 law iVH bnspil upon the Htjitiitcw of bank- 
 ruptcy. In Horn v. liaki/r, '.I HiiHt, 111."), thi- 
 owner of a term in a (linti!lery, and of the 
 apparatUH and uteuHilH einphiyed therein, 
 decniwed the same toJ.&.S. in connidera- 
 tion of an annuity to l)e paid to tlie owner 
 and liis wife during their several liveH.and 
 upon tluir (leiith the lesweeH to have the 
 liberty of purclianiu}^ tlie residue of the 
 term, and tlic api)aratus anil utensils, 
 with a proviso for re-entry if the annuity 
 should at any lime be two niontlis in ar- 
 rear. The annuity havinj? beeom:' in 
 arrenr for that |)eriod, instead of makinfr 
 entry for condition broken, tlie wife and 
 administrator of the owner broujiht suit 
 to recos'er the arrears, which was stopped 
 by the bankruptcy of .1 . & S. The ([ues- 
 tiiin then arose %vhether the urensils 
 passed t<» the assignees of .J. & .S. under 
 the bankrupt act, as beinsr in their posses- 
 sion, order, and disposition as reputed 
 owners; and tlie court held that they 
 did; but that, if there had been a usaxe 
 in the trade of letting utensils with a dis- 
 tillery, the case would have adniitteil a 
 diff'.'ient considc'ration, since such a cus- 
 tom niight liaverebutU'd the presumption 
 of ownership arising from the possession 
 and apjiarent order and dispohition of the 
 goods. Thiscase was fidlowed in Holroyd 
 V. (iwjniK', L' Taunt. 170. [ 
 
 This prcsuuiiition of property in a bank- 
 rupt arising from his possession and re- 
 (luted ownership became so deeply imlied- 
 (le<l in the English law that in process of 
 time many persons in the profession, not 
 adverting to its origin in the statute of 
 Imnkruptey, were led to regard itnsniloc- 
 trine of the common law; and hence in 
 some states In this country, where no such 
 statute exists, the principles of the statute 
 have bi-eii followed, and conditional sales 
 of the kind now under consideration iiave 
 been condemned either as being fraudulent 
 and void as against I'leditors, or as 
 aniountliii:, in effect, to alisulute sales 
 with a reserved lii-n or mortgage to secure 
 the paywicnt of tlie|iurch.Tse money. This 
 view is based on the notion that such sales 
 are not allowed by law, and that the in- 
 tent of the [larties, however honestly 
 formed, cannot legally be carried out. 
 The insuMiciencv of this argument is dem- 
 onstrated by the fact that conditiomil 
 sales are adnimsible in several acknowl- 
 edged cases, .Mild therefore there cannot be 
 any rule of law against them as such. 
 They may sometimes be used as a cover 
 for fraud ; and, when this is clinrt'cd. all 
 the circumstances of the case, this includ- 
 ed, will be open for the consideration of a 
 jury. Where no fraud is iiitendeil, but 
 the honest purpose of the parties is that 
 the vendee shall not have t he o wnershi|) 
 of the goods until he has |>nid for them, 
 there is no general principle of law to 
 prevent their purfiDse from h.-iving effect. 
 
 In this country, in states where no such 
 statute as the English act referred to is in 
 force, many decisions have lieen rendere<l 
 BUHtalnIng conditional sales accompanied 
 by delivery of possession, lioth as between 
 the parties themselves and us to third 
 persons. 
 
 In Hussey v. Thornton, 4 Mass. 404, (de- 1 
 
 cided In 180S,) where Rctods were delivered 
 on board of a vessel for the venrlee upon 
 an agreement for a sole, subject to the 
 condition that the goods should remain 
 the property of the vendors until they re- 
 ceived security for |iayment, it was "held 
 (Chief .Justice I'arsoiis delivering the 
 opinion) that the property dill not pass, 
 and that the goods could not be attached 
 by the creditors of the vendee. 
 
 This case wasfolloweil in l^-'l' by tliat of 
 Marston v. lialdwin, 17 .Mass. Ciiti, which 
 was replevin against a sheriff for takini; 
 goods which the plaintiff had agreed to 
 sell to one Holt, the defendant in the at- 
 tachnient; but by the agreement thefirop- 
 crty was not to vest in Holt until he 
 shouMpay ?100, (part of the price,) which 
 condition was not performed, though the 
 goods were delivered. Holt had iiaid $75, 
 which the plaintiff did not tender back. 
 The court held that it was sullicient for 
 the plaintiff to be ready to refiuy the 
 mone.v when he should te rei)uesteil, nnJ 
 a verdict for the plaintiff was sustained. 
 
 In Barrett v. Fritchard, 2 Pick. 512, the 
 court said: "It is impossible to raise a 
 doubt as to the intention of the parties in 
 this case, for it is expressly stifiulated 
 that "the wool, before manufactured, 
 after being manufactured, or In any stage 
 of manufacturing, shall ne the propert.v 
 of the plaintiff until the price be paid.' 
 It is difliciilt to imagine any good reason 
 why this agreement should not bind the 
 Iiarties. • » » The casi! from Taunton 
 ( Holroyd v. G wynne, ) was a case of a con- 
 ditional sale ; but the conditiuu was void 
 as against the polic.v of the statute "Jl .lac. 
 1, c. 1!), § 11. It would not have changed 
 the decision in that c!ise if there had bem 
 no sale; for, by that statute, if the true 
 owner of goods .nnil chultels suffers an- 
 other to exercise such control and man- 
 agement over them as to give him the ap- 
 (learance of being the real owner, and he 
 becomes bankrupt, the goods and chattels 
 shall be treated as his profierty, and shall 
 be assigned liy the comtiiissloners tor the 
 beneht of his creditors. The case of Horn 
 V. Haker, !) Kast, LM"). also turned on the 
 same [loiiit, and nothing in either of these 
 cases has any bearing on the present ques- 
 tion. " 
 
 In t'ogeill V. Hartford & X. H. U. O)., 3 
 (Jray, .'il.'i. the rights of a bona tide pur- 
 chaser from one in possession uniler a con- 
 ditional sale of goods were H|iecillcally dis- 
 cussed, and the court held, in an alile opin- 
 ion delivered by .Mr. .lustice Higelow. that 
 a sale and delivery of goods on rondllion 
 that the title shall not vest in the vendee 
 until payment of the price passes no title 
 until the conilitiiin is performed, and the 
 vendor, it guil'y of no ladies, may re- 
 rliilni the property, even from one who 
 has purchased from his vemb-e in good 
 faith, and without notice. The learned 
 justice commenced his opini in In the fol- 
 lowing terms: "It has long been the set- 
 tled rule of law in this commo:: wealth 
 that a sale and delivery of goods on con- 
 dition that the properly is not to vest un- 
 til the purchase money is paid orsei-ured, 
 does not pass the title to the vendee, and 
 that the vendor, in case the condition Is 
 not fullilled, has a rit'lit to repossess him-
 
 398 
 
 HAI?KNESS B. RUSSELL & CO. 
 
 self of the goods, both asninHt the vcikIpo ' suit mid of the injunction, tlio remedy 
 and UKHinst his creditors clniniin;^ to !iohl 
 tlicni under nttnclinients. " lie thi'n ad- 
 dresses liiinsi'lf to a consideration of the 
 rights of a l)ona fide piircliascr from the 
 vendee, imrcliasinii- witliout notice of che 
 condition on wliicli tlie latter liidds tlie 
 goods in liis possession; and lie concludes 
 that thc.v are no greater than those (jf a 
 creditor. He says: "All the cases turn 
 
 J 
 
 inld ha ve been gone. 
 
 In Strong v. Taylor. 2 Hill, S2(i, Nelson, 
 C. .1., pioiKMincing the opinion, it was held 
 to he a conditional sale where the agrer- 
 ment was to sell a canal-hoat for a cer- 
 tain sum, to be paid in freighting Hour 
 and wheat, as directed by the vendor, he 
 to liave h;ilf the freight until paid in full, 
 with interest. Before the money was all 
 
 Oil the principle that the compliance with paid the boat was seized under an execu- 
 the conditiens of sale and delivery is, by tion against the vendee ; and, in a suit by 
 the terms of tlie contract. precedent to the the vendor against the sheriff, a verdict 
 transfer of the jiroiierty from the vendor , was foanil for the plaintiff, under the in- 
 to the vendee. The vendee in such cases struction of the court, and was sustained 
 accjuires no proiierty in the goods. Ho is j in banc ujion the authority ot the Massa- 
 
 ehusetts case ot Barrett v. Pritchard, 2 
 Pick. 512. 
 
 In Herring v. Hoppock, 15 N. Y. JO!), the 
 same doctrine was f(jllowed. In tliat case 
 there was an agreement in writing for 
 the sale of an Iron safe, which was deliv- 
 ered to the vendee, and a note at si.\ 
 months given therefor; but it was ex- 
 pressly understoo.l that no title was to 
 pass until the note was paid; and if not 
 paid. Herring, the vendor, was authorized 
 higher to retake the safe, and collect all reason- 
 
 only a bailee for a specific purpose. The 
 delivery which in ordinary cases passes 
 the tide to the vendee must take effect 
 according to the agreement of tlie parties, 
 and can operate to vest the property <inly 
 when the contingency eouteni plated by 
 the contract arises. The vendee, there- 
 fore, in such ca.ses, having no title to the 
 property, can pass none to others. He 
 lias only a bare right of possession, and 
 those who claim under him, either as cied 
 
 itors or purchasei-s, can aciiuii'' 
 
 or better title. Such 
 
 suit of cairyin 
 
 of the parties t 
 
 livery. .\ny other rule would bo 
 
 lent to the denial of tlie validity of such 
 
 contracts. But they cert;!inly violate no 
 
 rule of law, nor are they contrary to 
 
 sound policy." 
 
 This case was followed in Sargent v. 
 Metcalf, 5 (iray, 30G; Deshon v. Bigelow, 
 X Gray, 159; Whitney v. Eaton, 15 (iray, 
 225; Hirschorn v. Canney, 9S Mass. 149; 
 and Chase v. Ingalls, 122 Mass. 3fSl: and is 
 
 is the necessary re- able charges for its use. The sheriff levied 
 effect the intention on the safe as the property of the vendee, 
 nditional sale and de- with notice of the plaintiff's claim. The 
 iniva- court of appeals held that tlie title did 
 not pass out of Herring. Paige, ,1., said : 
 " Whenever there is a condition iirececlent 
 attached to a contract of sale which is 
 not waived liy an absolute and iincondi- 
 tiona delivery , no title passes to the ven- 
 dee until he performs the coa>lilion or the 
 seller waives it. " C<jnistock, .1., said that, 
 if the question were new, it might be more 
 in accordance with the analogies of the 
 
 Believed to ex[)resB the settled law of ' law to regard the writing given on thesale 
 
 Massachusetts. 
 
 'J'he same doctrine prevails in Connecti- 
 cut, and was sustained in an able and 
 learned opinion of <'hief Justice Williama, 
 in the case of Forbes v. Marsh, 15 Conn. 
 :W4, (decided in 1S43,) in which the [irinci- 
 pal authorities are reviewed. The deci- 
 sion in this case was followed in the sub 
 
 asa mere security for tliedebtin tlien;iture 
 of a personal mortgage; but lieconsidered 
 I the law as having been settled by the pre- 
 vious cases, ana the court unanimously 
 concurred in the decision. 
 
 In the cases ot Smith v. Lynes.S N. Y. 41, 
 and Wait v. Green, 35 Rarl).5s5,on appeal, 
 3fi N. Y. .556, it was hold that a bona fide 
 
 seijuent case of Hart V. Carpenter, 24 Conn, purchaser, without notice from a vendee 
 
 who is in possession under a conilitional 
 sale, will be protected as against the orig- 
 in New York the law is the same, at 1 inal v?iidor. These cases were reviewed. 
 
 427, where the question arose upon the 
 claim of a bona fide ourchaser. 
 
 least so far as relates to the vendee in n 
 conditional sale and to his creditoi's; 
 
 and, we think, substantially overruled, in 
 the subsequent case of Ballard v. P.iirgett. 
 
 though there has been some diversity of 40 N. Y. 314, in which separate elnb'irate 
 
 opinion in itsapplicatioii to bona fide pur- 
 chasers froru such vendee. 
 
 opinions were delivered by .ludges (jrover 
 and Lott. This decision was concurred in 
 
 As early as 1S22, in the case of Ilaggerty by Chief Judge Hunt, and Judges VVood- 
 V. Palmer, () JoliuH. Ch. 437, where an auc- ruff. Mason, and Daniels; Judges James 
 tioneer had delivered to the purchaser and Murray dissenting. In that case Bal- 
 goods sold at auction, it being one of the lard agreed to sell to one France a yoke of 
 conditions of sale that imlorsed notes oxen for a price agreed cm, lint the con- 
 should be given in payment, which the tract had the condition " that the oxen 
 
 were to remain the property of Ballard 
 until they should be pai(! for." The oxen 
 were delivered to France, and he subse- 
 (piently sold them to the defen<lant Bur- 
 gett, who purchased and received them 
 without notice that the plaintiff had any 
 claim to tliera. The court sustained Bal- 
 lard's claim; and subsequent cases in 
 
 purchaser failed to give. Chancellor Kent 
 held that it was a conditional sale and 
 delivery, and gave no title which the ven- 
 dee could transfer to an assignee for the 
 benefit of creditors; and he said that the 
 cases under the English bankrupt act did 
 not apply here. The chancellor remarked, 
 however, thafif tliegoods had beenfairly 
 
 sold by P., [the conditional vendee.] or if New Y'ork are in harmony with this deci- 
 the proceeds had been actually appropri- sion. See Cole v. Mann, 62 N.Y. 1 ; Beau v. 
 ated by the assignees before notice of this Edge, 84 N. Y. 510.
 
 IIARKNESS V. RUSSELL & CO. 
 
 3<» 
 
 We (Jo not perceive that the case of 
 DovvH V. Kiildcr, S4 N. Y. iL'l, is adverse to 
 tlie ruling? in I'lilliird v. HiirKctt. There, 
 iiltlioiiKJi file plaintiffs stipulated that the 
 title to the corn should not pass until 
 payment of tlii; price, ( which was to l)e 
 lasli, the same day,) yet they indorsed 
 and delivered to the piirchaspr the evi- 
 dence of title, namely, the weigher's re- 
 turn, to enable liim to take out the hill of 
 lading in his own name, and use it in 
 raisiuK funds to pay the plaintiff. The 
 purchaser misapiiropriated the funds, anil 
 ilid not pay for the corn. Here the intent 
 of hoth parties was that the |)urchaser 
 niJKht dispose of the corn, and he was 
 merely the trustee of the plaintiff, in veste<l 
 hy him with tlie le^al title. ( )f course, the 
 ianoceut party who purchased the corn 
 from the lii'st purchaser was not liound 
 l)V the e(iuities hotween him and the plain- 
 tiff. 
 
 The later case of Parker v. Baxter, S(! N. 
 Y. ."iS(i, was precisely similar to Dowh v. 
 Kidder; and the same iirinciple was in- 
 volved in Karwell V. lmporters'& Traders' 
 Hank, Dlt N. Y. -Is:!, where the ()laintiff de- 
 livered his own note to a hroker to }ict it 
 discounted, and the latter pledged it as 
 collateral for a loan ma le to himself. The 
 U'Kal title passed: and although, as be- 
 tween the plaintiff and the hi'oker, the 
 former was the owner of the note an<l its 
 proceeils, yet that was an eiiuity which 
 was not hindinfj; on the innocent holder. 
 
 The liecisions in Maine, New IIam|)sliire, 
 and Vermont are understood to l>e suh- 
 stantially to the same effect as those of 
 Massachusetts and .Mew York; thouj;h hy 
 recent statutes in Maiire and Vermont, 
 as also in Iowa, where the same ruling 
 prevailed, it is declared in effect that no 
 acreements that personal proi erty, l)ar- 
 Uained and delivered to another, shall 
 remain the property of the vendor, shall 
 he valid against third persons without 
 notice, (jeorue v. Stulihs, L'(> Me. IM:}; 
 Sawyer v. Kislier, ;V2 .Me. 2S; Brown v. 
 Haynes, .")L' .Me. r>7S; Boy n ton v. Lihhy, (>l' 
 Me. 1.'.'.:!; KoHcrs v. Whitehouse. 71 Me.L'L'L': 
 Sartrent v. (Jile, S X. IL :!!'.->; McFarland v. 
 Farmer, 41' N. II. :!S('>; Kin« v. Hates. T)? 
 N. H. 44r,, UefJlin v. Hell. .!() Vt. 1:!4; Arm- 
 InKtoii V. Houston, ;!s Vt. 4lJ<; Kales v. 
 Uolierts, :!S Vt. .'^id:!; Duncans v. Stone, 4.") 
 Vt. 12!; Moseley v. Shattuck.4:5 lowa,r.4n; 
 Thorpe v. Fowler, .">7 Jowa, j41,ll N. W . 
 Hep. :!. 
 
 The same view of the law has been 
 taken in several other states. In New.Ier- 
 sey, in the case of ('(de v. Berry, 4L' N. ,J. 
 Law, :tOS, it was hehl that a contract for 
 the sale of a sewinif-mnchino to he deliv- 
 ered and paid for Dy instadments, and to 
 remain the i)ropert.v of the vendor until 
 paid for, was a conilitional sale, and f;av 
 the vendee no tilleuntil tlie condition was 
 performe<i ; aiul the cases are ver.v fully 
 discussed and distinfj:uislied. 
 
 In I'ennsylv.inia tlie law is understood 
 to lie somewhat dlfferiMit. It is thus sum- 
 marized liy. Indue Depue, in the opiniun 
 deliven-d in fole v. Berry. 4l' N.J. Law. 
 .■!14. where ho ways: "In Pennsylvania a 
 distinction is taken between delivery un- 
 der a liailnient. with an ofition in the 
 liailee to purchane at a named price, and 
 
 a clelivery under a contract of sale con- 
 taining a reservation of title in the ven- 
 dor until the contract price be paifl; It 
 beiuK held that in the former Instance 
 property <loes not jiass as in favor of cred- 
 itors and purchasers of the bailei-. but that 
 In the latter instance delivery to the ven- 
 dee subjects the property to execution at 
 the suit of his creditors, and makes It 
 transferrable to bona tide purchasers, 
 f'hambeilain v. Smith. 44 Pa. St. 4:!!; 
 Hose v. Story, 1 Pa. St. I'.IO; .Martin v. 
 Mathiot.USerK. & R.214: llaak v. I.inder- 
 tn.ui, C-l Pa. St. 4'.t!). " Hut, as the l.-arned 
 judge adds: "This distinction Is discred- 
 ited by the great weiglit of anthcirity, 
 which puts [lossession under a conditional 
 contract of sale and possession under a 
 bailment on the same footing,- liable to 
 lie assailed by creditorsanil purchasers for 
 actual fraud, but not frauilulent perse." 
 
 In this connection, see the case of Cop 
 land V. Bos(|uet. 4 Wash. ."iS.s, where Mr. 
 .lustice Washington and .fudge peters 
 (the former delivei'ing the opinion of the 
 c<iurt) sustained a conditional sale and 
 delivery against a purchaser from theven- 
 dee. who idairiied to be a bona tide pur- 
 chaser without notice. 
 
 In Ohio the validity of conditional sales 
 accompanied by delivery of possossinn is 
 fully sustjiined. The latest reported case 
 brought to oiir attention is that of fall v. 
 Seymour. 40 Ohio St. (170. which arose up- 
 on a written cuntract contained in sev- 
 eral promissory notes given f<ir install- 
 ments of the purchase moie'.v of a ma- 
 chine, and resembling very niMcdi the con- 
 tract in tlie case now under coiiKideratlon. 
 Following the note, and as a part of the 
 same document, is this condition: "The 
 express conditions of the sale and pur- 
 chase of the separator and horse-power 
 for which this note is given, is such that 
 the title, ownershij), or piisscHslon does 
 not pass from the said Seymour, Sabin * 
 Co. until this note, with interest, is paid 
 In full. The said Seymour. .Saliiii & Co. 
 have full power to declare this note due. 
 and take possession of salil separator and 
 liorse-power. jit any lime they may deem 
 this note insecure, even before the ma- 
 turity of tlie note, and to sell the said ma- 
 chine at Dublic or private sale, the pro- 
 ceeds to be applied upon the unpaid bal- 
 ance of the purchase price." The machine 
 was seized under an attachment issued 
 against the vendei-. and the action was 
 lirought by the vendor against the con- 
 stable who" served the attachment. The 
 case was fully argneil, and the authori- 
 ties pro ami con duly considered by the 
 court, which sustained the condition ex- 
 pressed in the contract, and aHiriiied the 
 judgment for the plaintiff. Siv, also, 
 Sanders v. Kcber, -.N Ohio St. ("la. 
 
 Thesaniclaw prevails in Indiana. Shire- 
 man V. Jackson. 14 Ind. 4."i'.>; Piinbar v. 
 Itawles, L'S Ind. L'L'.'i : Hradshaw v. Warner. 
 .'i4 Ind. .W; Ilodson v, Warner. iW Ind. J14: 
 McGirr v. Sell, Id. L'4'.i. The same in .Michi- 
 gan. Whitney v. MrConnell, L".» .Mich. IL'; 
 Smith V. Lozo. 4J .Mich. C. ^ N. W. Rep. 
 l'L'7; Maniuette .Miiaufg Co. v. Jeffery. 40 
 Mien. Js:!. I.! N. W. Rep. .V.tJ. The same in 
 .Missouri. Ridgeway v. Kennedy. .V.' .Mo. 
 :!4; Wangler v. Franklin, 70 Mo. G.VJ; Sum-
 
 400 
 
 HARKNESS v. RUSSELI. & CO. 
 
 ner v. Cottey, 71 Mo. 121. The same iii Al- 
 nbnnia. FairbaukH v. Kiireka,()7 Ala. 10!); 
 Sumner v. Woods. Id. 139. Tlio Kair.e in 
 several other states. For a very elabo- 
 rate colleetion of cases on the subject, see 
 Mr. I5ennett's note to Benj. .Sales, (4th 
 Ed.) § 320, pp.32'J-33(i; and Mr. Freeman's 
 note to Kanaka v. Taylor, 70 Amer. Dec. 
 62, 7 Ohio St. 134. It is unnecessary to 
 quote further from the decisions. The 
 quotations already made show the 
 grounds and reasons of the rule. 
 
 The law has been held differently in Illi- 
 nois, and verj' nearly in conformity with 
 the English decisions under the operation 
 of the bankrupt law. The doctrine of the 
 supreme court of that state is tliat if a 
 person asirees to sell to another a chattel 
 on condition that the price shall be paid 
 within a certain time, retaining the title 
 in himself in the mean time, and delivers 
 the chattel to tlie vendee so as to clothe 
 him with the apparent ownershii), a bona 
 fide purchaser, or an execution creditor 
 of the latter, is entitled to protection as 
 against the claim of the original vendor. 
 Brundage V. Camp, 21 111.330; McCormick 
 V. Hadden, 37 li:. 370;Murch v. Wrisht, 
 46 111.488; Michigan Cent. R. Co. v. Phil- 
 lips, 60 111. 190; Lucas V. Campbell, 88 111. 
 447; Van Duzor v. Allen, 90 111. 49il. Per- 
 haps the statute of Illinois on the subject 
 of chattel mortgages has influenced some 
 of these decisions. This statute declares 
 that "no mortgage, trust deed, or other 
 conveyance of personal property having 
 the effect of a mortgage or lien upou such 
 property, is valid as against the rights 
 and interests of any third person, unless 
 the possession thereof be delivered to and 
 remain with the grantee, or the instru- 
 ment provide that the possession of the 
 property may remain with the grantor, 
 and the instrument be acknowledged and 
 recorded." It has been supjjosed that 
 this statuteindicatesa ruleof public policy 
 condenming secret liens and reservations 
 of title on the part of vendors, and mak- 
 ing void all agreements for such liens or 
 reservations unless registered in the man- 
 ner re(juired forchattel mortgages. At all 
 events, the doctrine above referred to has 
 becone a rule of property in Illinois, and 
 we have felt bound to observe it as such. 
 
 In the case of Her'ey v. Khode Island 
 Locomotive Works, 93 U. S. 064, where a 
 Rhode Island company leased to certain 
 Illinois railroad contractors a locomotive 
 engine and tender at a certain rent, i)aya- 
 ble at stated times during the ensuing 
 year, with an agreement that, if the rent 
 was duly paid, the engine and tender 
 should become the property of the lessees, 
 and possession was delivered to them, 
 tliis court, being satisfied that the trans- 
 action was a conditional sale, and that, 
 by the law of Illinois, the reservation of 
 title by the lessors was void as against 
 third persons unless the agreement was 
 recorde<l, (which it wasnotin proper time,) 
 decided that a levy and sale of the prop- 
 erty in Illinois, under a judgment against 
 the lessees, were valid, and that the loco- 
 motive works could not reclaim it. Mr. 
 Justice Davis, delivering the opinion of 
 the court, said: "It was decided by tliis 
 <-ourt in Ureen v. Van Buskirk, 5 Wall. 
 
 307, and 7 Wall. 139, that the liability of 
 property to be sold under legal process 
 issuing from the courts of the state where 
 it is situated, must be determined by tlie 
 law there, rather than that of the jurisdic- 
 tion where the owner lives. These deci- 
 sions rest on the ground tiiat every state 
 has the right to regulate tlie transfer of 
 property within its limits, and that who- 
 ever sends property to it impliedly sub- 
 mits to the regulations concerning its 
 transfer in force there, although a differ- 
 ent rule of transfer prevails in the jurisdic- 
 tion where he resides. * * * The policy 
 of the law in Illinois will not permit the 
 owner of personal property to sell it, 
 eitherabsolutely or conditionally, and still 
 continue in possession of it. Possession is 
 one of the strongest evidences of title to 
 this class of property, and cannot be 
 rijjhtfully separated from tlie title, except 
 in the manner pointed out by the statute. 
 The courts of Illinois say that to suffer, 
 without notice to the world, the real own- 
 ership to be in one person, and the ostensi- 
 ble ownership in another, gives a false 
 credit to the latter, and in tliis way works 
 an injury to third persons. Accordingly, 
 the actual owner of personal property 
 creating an interest in another to whom 
 it is delivered, if desirous of preserving; a 
 lieu on it, must comply vsith the provi- 
 sions of the chattel mortgage act. Rev. 
 St. 111. 1874,711,712." The Illinois cases 
 are then referred to by the learned justice 
 to show the precise condition of the law 
 of that state on the subject under consid- 
 era lion. 
 
 Tlie case of Hervey v. Rhode Island Lo- 
 comotive Works- is relied on by the ap- 
 pellants in the present case as a decision 
 in their favor; tint this is not a correct 
 conclusion, for it is apparent that the only 
 points decided in that case were — First, 
 that it was to be governed by the law of 
 Illinois, the place where the property was 
 situated; secondly, that by the law of Illi- 
 nois theagreement for continuing tlie title 
 of the property in the vendijrs after its 
 delivery to the vendees, whereby the latter 
 became the ostensible owners, was void 
 as against third persons. This is all that 
 was decided, and it does not aid the ap- 
 pellants, unless they can show that the 
 law as held in Illinois, contrary to the 
 f^reat weight of authority in Fn^iland and 
 this country, is that which should govern 
 the present case. .4nd this we think they 
 cannot do. We do not mean to say tliat 
 the Illinois doctrine is not supported by 
 some decisions in other states. There are 
 sucli decisions; but they are few in num- 
 ber compared with those in which it is 
 held that conditional sales are valid and 
 lawful as well against third persons as 
 against the parties to the ccmtract. 
 
 Tlie appellants, however, rely with much 
 confidence on the decision of this court in 
 Her.vford v. Davis, 102 U. S. 235, a case 
 coming from Missouri, where the law al- 
 lovvs and sustains conditional sales. But 
 we do not think that this case, any more 
 than tliat of Hervey v. Khode Island Loco- 
 motive Works, will be foimd to support 
 their views. The whole question in Hery- 
 lord V. Davis was as to the construction 
 of the contract. This was in the form of 
 
 I
 
 HARKXESS t>. RUSSELL & CO. 
 
 401 
 
 a lease, but it contained pruvisionB eo 
 irrf'conuilal)le wltli the iileu of its bein>? 
 really a lease, and ho (lemonslruble that 
 it wart an absolute sale witli a rewervation 
 of a niortftaKe lien, that the latter inter- 
 pretation ivas Kiven to it by the court. 
 Tliirt interpretation rendered it obnoxious 
 to the statute of Missouri requiring niort- 
 >tug«s of personal property to bn recorded 
 in order to be valid as accMinst third per- 
 sons. It was conceded Ijy the court, in 
 the opinion delivered by Mr. Justice 
 StroDK. that if the agreement had really 
 amounted to u lease, with an aureeiuent 
 for a conditional sale, the claim of the 
 vendors would have been valid. The first 
 two or three sentences of the opinion fur- 
 nish a key to the whole effect of the deci- 
 sion. Mr. .Tustiee StrotiK says: "The cor- 
 rect determination of this case depends 
 altt.Kether upon the construction that 
 roust begiven to the contract between the 
 Jackson & Sharp Company and the rail- 
 road company, ajiainst which the defend- 
 ants below recovered their ju<lf;ment and 
 obtained their execution. If that con- 
 tract was a mere lease of the cars to the 
 railroad company, or if it was only a con- 
 ditioniii sale, which did not pass the owu- 
 ersliip until the condition should be per- 
 formed, the property was not subject to 
 levy and sale under execution at the suit 
 i>f the defendant apainst theeompany. But 
 If, on the other hand, the title passed by 
 the contract, and what was reserved by 
 the Jackson & Sharp Company was a lien 
 or security for the payment of the price, 
 or what is called sometimes a mort^jajte 
 back to the vendors, the cars were subject 
 to levy and sale as the property of the 
 railroad company." The whole residue 
 of the opinion is occupied witli the discus- 
 sion of the true construction of the con- 
 tract : and, as we liave stated, the conclu- 
 sion was reached that it was not really a 
 lease nor a conditional sale, but an abso- 
 LAW SALE* — 26 
 
 lute sale, with the reserratioD of a lien or 
 security for the payment of tlij pricv. 
 This ended the case; for, thus interpreted, 
 the instrument inured as a mortKace la 
 fa vor of the vendors, and ou^ht to have 
 been recorded in (jrder to ijrotect them 
 airainst tliird persons. 
 
 I!ut whatever the law may be with re- 
 Kard to a bona fiile purchaser fronj the 
 vendee in u conditional sale, there Is a cir- 
 cumstance in the present rase which makes 
 it clear of all dilliculty. The appellant Id 
 the present case was not a bona lide pur- 
 chaser w ithout notice. The court below 
 find that, at the time of and prior to the 
 sale, he knew the purchase price of the 
 property had not been paid, and that 
 Hussell & Co. claimed title thereto until 
 such payment was made. Under such cir- 
 cumstances, it is almost the unaninionR 
 opinion of all the courts that he cannot 
 hold the property as against the true 
 owners; but as the ruiinus of this court 
 have been, as we think, somewhat inisuo- 
 derstood, we have thouubt it proper toex- 
 ainine the subject with some care, and to 
 state what we regard as the >;eneral rule 
 of law where it is not affected t)y local 
 statutes or local decisions to theccjntrary. 
 
 It is only iiecessary to add that there is 
 nothing; either in the statute or adjudged 
 law of Idaho to prevent, in this case, the 
 operation of the general rule, which we 
 consider to be established by overwhelm- 
 iuR authority, namely, that, in the alisence 
 of fraud, an aRreeraenr for a conditional 
 sale Is );oo<l and vnliil as well against 
 tliird personsas against the parties to the 
 transaction; and the further rule, that a 
 bailee of personal i)roperty cannot con- 
 vey the title, or subject it to execution for 
 his own debts, until the condition od 
 which the agreement to sell was made, 
 has been performed. 
 
 The judgment of the supreme court of 
 the territory of Utah is affirmed.
 
 I
 
 HASTIE 0. COUTUllIER. 
 
 403 
 
 HASTIE et al. t. COUTURIER et al. 
 
 (9 Exch. 10-2.) 
 
 Courts of Exchpriuer Cliaiiiber. June 25, 1S53. 
 
 Error on a bill uf e.\et'i)ti()iiH, hh allowed 
 by the court of excheciucr in the cawe of 
 Couturier v. IlaHtic, S Exch. 4(t. The lilil 
 of excci)tion.s Hct out the cviiU'iicc.ln ) and 
 contained nn alIe«ation that the nieaniim: 
 of "free on hoard " Ih, that tlie f^ooiJH are 
 on l)onrd. The hill of (?xceiition8 hIhcj 
 Htated, that the lord chief haron, at the 
 trial of the cauHe, ruled iiHfollowH: (li) 
 "That the meaning and I'onMtruction of 
 the contract with A. Callender wan, that 
 A. (.'allender, aw imrchaser, wns to take 
 upon hiiUHcIf all rinU, from the time of the 
 Bhipment of llic corn ; tliat the purchaHcr 
 houKht the car;;o, if it existed at tlie date 
 of the contract; hut that if it had hern 
 <lainaKeil or lout, he l)ou;;ht tlie licnefit of 
 the iuHurance, hut no more; and that by 
 HelliuK the carjjjo the vendor undertook 
 that the vendee whould have it, if it exist- 
 ed, and that the vendor had not Hold it 
 tiefore to another. And the lord chief 
 haron then further ruled and directed the 
 jury, that, if they believe<l the evidence, 
 the sale of the cargo at TnniH by the 
 agents of the defendants waw not Huch a 
 Hale as to defeat the contract, and that 
 It waH rendered necewKary in eotiHefinence 
 <if Hea damage, and was made merely to 
 prevent the loss beinu; ho great aH itotlier- 
 wiflo would necessarily have been." 
 
 Before COLKKIDCE, .MAULE, CUESS- 
 VVELL, WKilirMAX, WILLIAMS, TAL- 
 EOIJRD, and CKOMl'TON, .1.1. 
 
 Butt (Bovill with him), for plaintiffs in 
 error, the defen<lantH below, (-'owling, for 
 dciendont in error. 
 
 COLEHIDOE, .1.— (After Ktatlng the 
 pleadingH jind evidence liiH lordHliip pro- 
 ceeded : ) — The caHo was originall.v tried 
 before Martin, B., who, in directing the 
 jury, ruled that the contract imported 
 that, at the time of the sale, the corn was 
 in bxistence as such, and capable of deliv- 
 ery, and a verdict waa found for the de- 
 feinlants, the plnintiffH having leave to 
 move to enter a verdict in their favour on 
 all the issues except those on the lifth and 
 sixth pleas, and on those pleas for judg- 
 ment non obstante veredicto. The case 
 was argued before the lord chief baron 
 and Barons I'arko anil Alilerson. The 
 lord chief baron agreed in the opinion ex- 
 pressed by Martin, B.. at nisi [)rius; but 
 the othei' learned barons differed from 
 him, and made the rule absolute; where- 
 upon it was agreed that the question 
 should be brought before this court on 
 a bill of exceptions, as if tne lord chief bar- 
 on had directed th(> jury in conformity 
 witli the oidnion of Barons I'arke and 
 Alderson. The case thereforecomes before 
 us without any great preponderance of 
 authority in favour of the defendants in 
 error. Nor do wo find in th(> arguments 
 of counsel, or in the judgment of the court 
 below, any case referred to upon which 
 that judgment was foundeil. It turned 
 entirely on the meaning of the contract 
 made between the parties, which was in 
 
 these terms: " Bought of Ilasfie & Uuteh- 
 iiiHon a cargo of about ) IMI (|uarterH of 
 I Salonica Indian corn of fair average qual- 
 ity when shippeil per the KvrAn I'age,' 
 Captain I'age. from Snlonica, bill of ladinR 
 dated the I'L'd of Eebrnarv, iit LVh per 
 I quarter, free on boar. I, and Including 
 freight and insurance to a safe port In the 
 j Lnlted Kliigcloin, the vessel calling at 
 Cork or I'almouth for orders, measure to 
 I be calculated as customary, payment at 
 two months from this date, or" in cash. 
 ' IcHs discount at the rate of t.'i per cent, per 
 I annum for the unexpired time upon hand- 
 ing shipping documents." .\n attempt 
 was made to explain this dornnient bv ev- 
 idence, but failed. Then- is. indeed, an ex- 
 pression in the bill of exi'cptionH." that the 
 meaning of free on board is, that thegoodu 
 are on board," which, taken literally, may 
 impf)rt that they are on board at the time 
 when the words are used; but it was not 
 contended for th? plaintiffs In error that 
 such is the true meaning. The case, there- 
 fore, is not affected by that statement, 
 and the question depenils up<jn the ivords 
 of the contract, unexplained by any evi- 
 dence. 
 
 For the plaintiffs in error it was con- 
 tended, that the parties plainly contract- 
 ed for the sale and purchase of go.jds, iliiit 
 the price to be paid was for goods, and 
 that for the price the purchaser was to 
 have the benellt of a contract to carry 
 them anil a policy of Insurance; that a 
 vend(»r of goods undertakes that they ex- 
 ist, and that they are capable of being 
 transferred, although he may not stipu- 
 late for tlieir condition; ami that as the 
 good in (|uestiun liad been sold and de- 
 livered to other parties before the con- 
 tract in question was made, theri^ was 
 nothing on which it could opisrate- and 
 Barr v. Cibson, :! M. & \V. :)!»0, ami Strick- 
 land V. 'i'urner, 7 Exch. L'os, were cited. 
 
 On the otiier hand it was argued, that 
 this was not B mere contract for the sale 
 of an ascertained cargo, but that the pur- 
 cliu.ser bought theadventure. and took up- 
 on himself all risks from 'he shipment of 
 the cargo. It was said that the mention 
 of the condition of the cargo at the time 
 of shipment was a proof of the intention of 
 the parties that the buyer should take all 
 risks from that time that its condition 
 at the time of sale, or the fact of its exist- 
 ence, could not then bo ascertained, and 
 therefore the purchaser must be supposed 
 to have taken the risks; that If it had ex- 
 isted, however much deteriorated, the 
 purchaser must have taken It, although 
 the loss had been all but total, and there- 
 fore there was no re^ison for exchnling to- 
 tal loss from the risks that he was to 
 bear; that if it had ceased to exist the 
 consideration wovild not fall, for the pur- 
 chaser wouhl have the shipping ilocu- 
 ments. It was further argued that thi^ 
 stipulation for payment, which would 
 probably have to be made before thearrlv- 
 al of the cargo. Indicated an intention 
 that the purchaser was in all events to 
 pay for It, on account of thelnconvenience 
 that woulil ensue If he might havetori>- 
 claiin the money back. It was not disput- 
 ed that the cases of Hair v. (ilbson and 
 Strickland v. Turner were well decliled.
 
 404 
 
 HASTIE V. COUTURIER. 
 
 It appears to iis that tlie contract in 
 question was for tlio sale of a carRO sup- 
 posed to exist, ami to be capable of trans- 
 fer, and lliat, iunsinucli as it liad been 
 sold and delivered to others by tiiecaptain 
 before the contract in question was made, 
 the plaintiffs cannot recover in this ac- 
 ti(jn. With regard to the description of 
 the cargo as " of fair averajipquality when 
 shipped," we think that, if those words 
 had not been introduced, it must have 
 been held that the purchaser of a cargo 
 (jn a voyage would take upon himself the 
 chance of what its condition at the time 
 of purchase might be, and that this clause 
 was introduced for his benefit, by enabling 
 him to object, if the fact were so, that the 
 cargo was had when shipped. If, in Barr 
 V. Gibson, there had been a stipulation 
 that the ship, when she sailed on the voy- 
 age during which she was sold, was sea- 
 worthy, that would not have made the 
 purchaser liable, if a total loss harl oc- 
 curred before the contract was entered in- 
 to. It has been said, that if the loss had 
 lieen all but total, if the cargo had become 
 all but wortliU'88, yet, if it existed in spe- 
 cie, the purchaser must unquestionably 
 have been bound, and therefore there is no 
 reason for holding that he was not also to 
 take the risli of a total loss. The same 
 argument would have applied in Strick- 
 land V. Turner. If the annuitant, at the 
 time of the sale of the annuity, had been 
 in extremis, and had died the next hour, 
 the i)urchaser would have been bound and 
 could not have recovered the purchase 
 money, but was held to be so entitled, the 
 annuitant having died before the sale. 
 Again, it has been supposed that there is 
 an inconsistency in saying that, if the car- 
 go had sustained sea-damage, constitut- 
 ing an average loss covered by the policy, 
 
 it would pass to the purchaser so as to 
 secure to him an indemnity, l)ut would 
 not pass in the event of a total loss. This 
 seems to depend upon the same point, and 
 not to be attended with any realdithculty. 
 
 If the contract for sale of the cargo was 
 valid, the shipping documents would iiass 
 as accessories to it; but if, in consequence 
 of the previous sale of the cargo, the con- 
 tract failed as to the principal subject- 
 matter of it, the shipi)ing documents 
 would not pass. Although we cannot 
 find anv decisicjn in point, there is a case 
 of Sutherland v. I'ratt, 11 M. & W. l".)G, 
 where this subject was mentioned. In 
 that case, the plaintiff had txiught goods 
 on a voyage, and effected an insurance, 
 lost or not lost. They had sustained sea 
 damage before the sale, and the purchaser 
 sued on the policy. The underwriters 
 pleaded that the goods were damaged be- 
 fore The plaintiff had acquired any interest 
 in them. On demurrer, it was held that 
 the plea was bad; but the very learned 
 counsel who argued for the plaintiff ad- 
 mitted, in answer to a question put by 
 i^arke, B., that if the goods had been to- 
 tally lost before his contract of purchase 
 was made, there would not have been an 
 insurable interest, as a person cannot buy 
 a thing that has been totally lost. 
 
 For these reasons, it appears to us that 
 the basis of the contract in this case was 
 the sale and purchase of goods, and that 
 all the other terms in the bought note 
 were dependent upon that, and that we 
 cannot give to it the effect of a contract 
 for goods lost or not lost. The conse- 
 quence is. that the judgment of the court 
 below must be reversed, and entered for 
 the plaintiffs in error according to ar- 
 rangement between the parties. 
 
 Judgment reversed.
 
 HATCH V. BAYLEY. 
 
 407 
 
 I 
 
 HATCH T. BAYLEY. 
 
 (12 Cush. 27.) 
 
 Supreme Judicial Court of Mass.-ichusetts. Suf- 
 folk and Nantucket. Mar. Term, 1853. 
 
 In thiH action a verdict was returned 
 for the plaintiff, and tlie defendant e.xcept- 
 cd to the rulinjL^B. 
 
 C. A. Welch, for plaintiff. E. Wright, 
 for defendant. 
 
 SHAW.C. .1. This is an action of re- 
 plevin for twenty-three barrelH of Hour, 
 and the siiifjlo ([uestion \», whether it was 
 the property of the plaintiff. It was at- 
 tached Uy the defendant as llie iiroperty 
 of J. H. llooj^H. It ai)pearH by the case, 
 that lloo;i;s. previously to his departure 
 for AlliMiiy to i)urclia.se (lour, promised 
 the plaintiff, in consideration of a loan of 
 his note to raise money upon, to si-ll the 
 I)laintiff two hundred barrels of liis pur- 
 chase, at prices fi.xed. At Albany, Hooys 
 purchased and put on board the railroad 
 cars for ISoston, one hundred barrels of 
 one brand and twenty-three of another, 
 to be forwarded to Boston, taking the 
 usual receipt or way-bill, niakins the said 
 flour deliverable to himself. 'I'he flour 
 was forwarded, and Hooks inclosed to 
 the plaintiff a written order, making the 
 flour deliverable to him. This the plain- 
 tiff notitieil to tlie agent of the railroad 
 company, and at the same time paid the 
 freiiiht. The agent took the plaintiff's 
 directions as to the mode and place of de- 
 livery; the agent marked the car contain- 
 ing it, and directed the car to be run on 
 a side-track to a jioint near the plaintiffs 
 warehouse, for the purpose of l)eing there 
 delivered; but the flour was not taken 
 out of the car, nor had the car been actu- 
 ally removed. All this occurred before 
 the attachment. 'I'here was no evidence 
 of any l)ill of sale, or other conveyance of 
 said Hour, from Hoogs to the plaintiff. 
 
 The court, in reference to this evidence, 
 which was not controverted, instructed 
 the jury, that if tliey should find that the 
 saiil car. containing said twenty-three 
 barrels of Hour, was, prior to said attach- 
 ment, marked as aforesaid by the clerk of 
 the cori)oration, in the jiresence cif said 
 I)laintiff. wlio then gave the foregoing di- 
 rection in i-cgar<l to its marking and dis- 
 posal, it w;is a sutlicient delivery; and 
 that it was not necessary that the corpo- 
 ration shiMild open the car, separate the 
 twenty-three barrels of Hour from the rest 
 of the merchandise, or run the said car on 
 the side-track, or do any other act to 
 complete the delivery. 
 
 These directions, we think, were correct. 
 No bill of sale or other- contract in writ- 
 ing was necessary to effect an actual sale 
 and transfer of ijroperty ; the verbal con- 
 tract made by the said Hoogs. i[i Itoston. 
 to sell the |)laiutiff two liundred barrels of 
 tlour, though being an executory con- 
 tract, could not be enforced by law, by 
 reason of the statute of frauds, without 
 writing, yet when it was actually exe- 
 cuted, the property passed to the vendee. 
 
 Then, was it executed by a snfliiient de- 
 livery? Tutting the tloni' into the cars 
 ut Albany, was not a delivery, because 
 
 the way-bill made the flour deliverable to 
 Hoogs himself. But the right to n-celve 
 the property on arrival was asHlgnaldo, 
 and when Hi>ogs ordered it delivered to 
 the plaintiff, and the company, by their 
 authorized agent, aeknowleilged the plain- 
 tiffs right, took his dliections as to the 
 delivery, then marked the car containing 
 it, with directions to the subordlnatCB 
 of the company so to deliver the merehan- 
 1 dise, it was a good constructive delivery, 
 [pursuant to the agreemi-nt to sell, and 
 vested the property in the vendee. 
 
 In general, that act, which changes the 
 control and dominion of property, after 
 an agreement for a sale, that whicli su[ier- 
 sedes tlie power and control of the vendor 
 and transfers it to the vendee, is a good 
 delivery to pass the property; such as h 
 delivery of the key of the" warehouse, 
 Wilkes V. Ferris, ,">, Johns. :{:!.'>; Packard v. 
 Dunsmore, lli:ush.2S2; transfer of a ware- 
 house-keeper's receipt, notified and assent- 
 ed to by the warehouse-kcpper, Tu.x worth 
 V. Moore, t) I'ick. .'547; removal of a horse 
 from vendor's sale-stable to his livery- 
 stable, to keep for the vendee, ICIrnore v. 
 lSt<jne, 1 Taunt. 4.")S; transfer of dock war- 
 rants for goods in the London dock ware- 
 houses. Zwinger v. .Samiida. 7 Taunt. 205. 
 
 In all these cases, tlie ground is. that 
 the same person who was the agent of 
 the vendor to keep, becomes the agent of 
 the vendee to keep; and the possession of 
 the agent is the possession of the principal. 
 Gardner v. llowland. 2 I'ick. ."I'Jl); (Jibuou 
 v. Stevens, s IJow. :!S4. 
 
 And wo tliink the judge was right in di- 
 recting the jury as he did. What amounts 
 to a delivery of goods sold, when the (acts 
 are found, is a (luestion of law. The court 
 left it to the jury upon the evidence, to 
 decide whether the facts were true, and 
 directed them hypothetically. that if such 
 facts were true, they constituted a sutli- 
 cient delivery. This was no encroach- 
 ment on the province of the jury: it left 
 them at liberty to weigh the evidence, to 
 draw their own inferences, and decide on 
 the facts; and the judge did what it was 
 his province to do, directed them in niat- 
 ter of law, to enable them to return a gen- 
 eral verdict. 
 
 .Another ground o( defence is. that the 
 sale was fraudulent, in regard to which 
 the court instructed the jury that it was 
 necessary that the defenclant should ad- 
 duce stronger proof, to establish fraud, 
 iV:c.. than is necessary to prove a debt or 
 a sale; that the presumption was, that 
 every man conducted honestly without 
 fraud; and when fraud was alleged, the 
 proof must not only bt- sutlicient to estab- 
 lish an innocent act, but to overcome the 
 presumption of honesty. These were ob- 
 viously general remarks, upon the nature 
 of evidence in application to facts to be 
 proved by it, and pcrhiips they are not 
 stated with all the illustrations which ac- 
 companied them, or precisely as they 
 were made. 
 
 .\s we understand them, the judge in- 
 tended to say, that he who alleges (rauiJ 
 against another, is bound to prove It. 
 Thatevery man is iiresumed toiict lione«t- 
 ly until tiie contrary Is proved; that he 
 who charges another with au act involv-
 
 408 
 
 HATCH V. BAYLET. 
 
 ing moral turpitude or legal delinquency, 
 must prove it; that as tliis is an allega- 
 tion against a presumption of fact, it re- 
 quires Bonievvhat more evidence tlian it no 
 such presumption existed. It carried no 
 direction as to tlie amount of evidence re- 
 quired, or as to the nature of evidence, 
 wliether positive or circumstantial, hut 
 only that, on the whole, it Uiust be some- 
 what stronger: and we cannot perceive 
 that such a direction ia incorrect. The 
 ordinary direction to the jury is, that be 
 
 who charges fraud must prove it to the 
 satisfaction of the jury. We tliinlc it not 
 contrary to any rule or principle of law 
 for the judge to inform the jury, that as 
 the charge of fraud is a charge against a 
 presumption of fact, perhaps often a alight 
 one, .vet the jury, In order to be satisfied, 
 might require somewhat stronger evi- 
 dence, than would suffice to prove the ac- 
 knowledgment of an ol)ligation, or the de- 
 livery of a ctiattel. 1 Greenl. Ev. § 380. 
 Exceptions overruled. 
 
 I
 
 HAWES o. WATSON. 
 
 411 
 
 HAWKS et al. t. WATSON et al. 
 
 (2 Bani. & C. 540.) 
 
 King's Bench. Jan. 28, 1824. 
 
 Trover for u qunntity of tallow. Plea, 
 not K'i'lty. 
 
 .M the trial before AlUtOTT, C. J., at 
 tlie Loniliin Hittin^jH after MiclinelmaH 
 term, the fnllowinir facts were proved for 
 the plaiiitiflH. Tlie plaintiffs on the 2oth 
 of Septeinhcr, ls:;:{, purchased by contract, 
 of Messrs. .Moberly & Bell, :J<I0 caskH of tal- 
 low at 4i)s. per ewt. On the 27th of Sep- 
 tember, ill part e.\ecution of their con- 
 tract, Moberly & Bell sent to the [ilaintiffs 
 the followinjr transfer note, sisned by the 
 defendants, who were wharfingers: — 
 
 "MessrB. .1. & H. Hawcs.— We have this 
 day transferred to your ac<(nint ( l)y vir- 
 tue of an order from .Messrs. .Moberly & 
 Hell), loo casks tallow, ex Matilda, with 
 charKes from October 10, 1S23. H. & M. 
 100 casks. " 
 
 The iil.Tinfiffs then cave Moberly & Bell 
 their acceptance for £2SS0, the price of the 
 tallow, which was duly paid, and after- 
 wauls sold 21 casks of this tal'ow, which 
 the defendants delivered, pursuant to 
 their order. .Moberly & Bell stopped pay- 
 ment on the nth October, and on the 14th 
 the defendants received noticefrom Haikes 
 & Co., the oriKi'i'Tl vendors of the tallow, 
 not to deliver the remaining casks lo Mo- 
 berly & liell, or their order; and the de- 
 fendants in cunse(iu(nce, refused to deliver 
 the remainder of the tallow to the plain- 
 tiffs, upon their demanding the same. On 
 the part of tlie defendants it was proved, 
 that .Moberly & Bell, on the 2('>th .Septem- 
 ber, had iiurchased of Haikes & Co. 100 
 casks of tallow (the same that were after- 
 wards sold to the plaintiffs) landed out of 
 the Matilda, lyin;; at Watson's wharf, at 
 £2 Is. i;er cwt. to be paid for in money, 
 allowing -% pc cent discount, and four- 
 teen days 'for delivery; and on the same 
 day Kal'kes & Co. c'lve a written order up- 
 on the defendants to weiKli, deliver, trans- 
 fer, or rehouse the tallow. Moberly «& Bell 
 had not pnid for the same, nor had it been 
 weighed subse(iueiitly to this order, up- 
 on these facts it was contended at the 
 trial, on the jiart of tlie defendants, that 
 they were not bound to deliver to the 
 plaintiffH the remaining seventy-ninecasks 
 of tallow, iiijisiiiuch as Haikes & Co. had, 
 as lietween them and .Moberly & Bell, u 
 rislit to stop them in transitu, the deliv- 
 ery to Moberly & Bell not liein;; perfect, in- 
 asmuch as the tallow had not been 
 weighed. The I>ord Chief Justice, howev- 
 er, wasof opinion that whatever the ques- 
 tion miglit be as between buyer and seller, 
 the defendants having, by their iioteof the 
 27tli of Septeml)er, acknowledgpd that 
 thev held tlie tallow on account uf the 
 plaintiffs, could not now dispute their ti- 
 tle; and the plaintiffs had a verdict. 
 
 The .'\ttorney-(>eneral now moved for 
 a new trial, upon the ground taken at 
 the trial. Hanson v. Meyer,' is an au- 
 thority to shew, that the absolute proper- 
 ty in the tallow would not vest in .\lober- 
 
 ' 6 East. 614. 
 
 ly & Bell, the ttfHt vendee, until It was 
 weighed. The contract in that case wa» 
 In terms siniilar to the contract made be- 
 tween the original vendors and .Moberly 
 & Bell. The weighing must precede the 
 delivry, in order that theprlce iiiaybeaH- 
 certained. In that case too, part of the 
 goods had tieen weighed and delivereil, 
 yet it was lield that the vendor might re- 
 tain the remainder, which continued 
 iinweighed in his possession; and .Shepley 
 V. Davis^ is also an autliority to the Hame 
 effect. 
 
 ABBOTT, C.J. The plaintiffs, in this 
 case, paid their money upon the faith of 
 the tran^-fer note, signed by tliC defend- 
 ants, by which tliey acknowledged that 
 they held the tallow as their agents. If 
 we were now to hold, that, notwith- 
 standing that acknowledgment and that 
 payment, the [ilaintiffs are not entitled to 
 recover, we should enatile the defend- 
 ants to cause an innocent man to lose his 
 money. To hold that the doctrine of 
 stoppage in transitu api>lieil to such n 
 case as the present, woulil have the effect 
 of putting an end to a very large portion 
 of the commerce of the city of London. 
 
 BaYLEY, J. This appears to ine very 
 different from the ordinary case of vendor 
 and vendee. In such cases, justice re- 
 quires that the vendee shall not have the 
 goods unless he pays the price. If he can- 
 not pay the price, the vendor ought to 
 have his goods back; tint if tlie question 
 arises, not between tlie original vendor 
 and the original vendee, but lietween the 
 original vendor and a purchaser from the 
 vendee, that purchaser having paid the 
 full price for the goods, what is the lion- 
 esty and justice and equity of the case? 
 Surely, that the vendee who has paid 
 the price, shall be entitled to the posses- 
 sion of the goods. 1 am of opinion, that 
 when Messrs. liaikes & Co. signed the or- 
 der to transfer, weigh, and di'liver, that, 
 according to tlie settled course and usage 
 of trade, enabled .Moberly & Bell to sell 
 the goods again. There are innny cHses in 
 which it has l)een held, that if the Hrst 
 vendor does any thing which can lie con- 
 sidered as sanctioning the sale by his ven- 
 dee, that destroys all right of the former 
 to stop in transitu. Stoveld v. Hughes, » 
 Harman v. Anderson. ■* 
 
 HOI.KOYD, J. I think that the note 
 given by the defendants makes an end of 
 the piesent ()ucstion. When that note 
 was given, the tallow became the prop- 
 erty of the ))laintiffs, and is to l>e coiisld. 
 ered from that time as kept liy the defend- 
 ants as theagentsof theplainlills, and the 
 latter were to be liable froir. the loth 
 October for all charges. This ca.se is very 
 different from that of Hanson v. Meyer. 
 There, there was a sale of nil the veiidnr's 
 starch (the quantity not being ascer- 
 tained) at (il. Iier cwt. The order was to 
 weigh and deliver all the veiulor's starch, 
 and a part having been weighed and de- 
 
 '5 Taunt. 017. 
 ' 14 Kast. .-.as. 
 ' 2 Caiiii). 24^
 
 412 
 
 HAWES V. WATSON". 
 
 livered, but not the residue, the main 
 question hefore tlie court was, whether 
 the weighing and delivery of part did or 
 did not in point of law operate as a trans- 
 fer of the pr<>j)erty as to tlie whole. The 
 court held, rightly, that it did not, be- 
 cause there the price of the whole which 
 was to be paid for by l)llls could not l)e 
 ascertained before It vras weialied. The 
 delivery of part, therefore, was not a de- 
 livery of the whole, but the order was 
 complied with only as to the part which 
 was weighed and delivered, and the prop- 
 erty in the residue remained unchanged 
 until something further was done. It was 
 not a delivery of part for the whole, and 
 therefore it did not operate in law as a de- 
 livery of the whole so as to divest the 
 vendor of his right to stop in transitu; 
 but here, the wharfingers, upon the re- 
 ceipt of the order directing them to weigh 
 and deliver, sent an acknowledgment that 
 they, the wharfingers, had transferred 
 the goods to the vendees, and that they 
 would be considered as subject to charges 
 from a certain period. I think, therefore, 
 that the wharfinger then held the tallow 
 as the gcKtds of the plaintiffs and as their 
 agents, although there was not any ac- 
 tual weighing of them; and that the plain- 
 tiffs were then in possession by thedefend- 
 ants as their agents, they having acknowl- 
 edged themselves as such by their note. 
 For these reasons I am of oi)inion that 
 the plaintiffs are entitled to recover. 
 
 BEST, J. I am also of opinion that the 
 acknowledgment which has been given in 
 evidence puts an end to all question in 
 this ease. The very point has already 
 been decided In the case of Harmon v. An- 
 derson. 5 There the wliai finger had trans- 
 ferred the goods to the name of the Ven- 
 dee and actually debited him with ware- 
 house rent, but he having become insol- 
 vent the sellers gave notice to the wharf- 
 ingers to retain the goods; and upon an 
 action of trover being brought against 
 the wharfingers by the assignees of the 
 vendee, it was contended that the seller's 
 right to stop in transitu continued; but 
 Lord Elleiiborough said: "That the 
 goods havinu been transferred into the 
 name of the purchaser, it would shake the 
 best established principles, still to allow 
 a stoppage in transitu. From that moment 
 the defendants became trustees for the 
 purchaser, and there was an executed de- 
 livery, as much as if the goods had been 
 delivered into his own hands. The pay- 
 ment of rent in these cases is a circum- 
 stance to show on whose account the 
 goods are held, but it is immaterial here; 
 the transfer in the books being of itself 
 decisive." In the ensuing term, the then 
 attorney general (after Lord C. J. Gibbs) 
 expressed his acquiescence in the decision 
 
 '2 Camp. 243. 
 
 at ni.si prius. In that case indeed, It does 
 not appear that in order to ascertain the 
 price, it was necessary to weigh the goods, 
 but in a subsequent case of Stonnrd v. 
 l)unkin,8 it was expressly held by Lord 
 Ellenborough that a warehouseman, who 
 on receiving an order from the seller of 
 malt to hold it on account of the pur- 
 chaser gave a writien acknowledgment 
 that he so held it could not set up as a 
 defence for not delivering it to the pur- 
 chaser, that by the usage of trade the 
 property in malt sold was not transferred 
 till it was remeasured and that liefore 
 tile malt in question was remeasured, the 
 seller became bankrupt; and there Lord 
 Ellenborough says: "Whatever the rule 
 may be between the buyer and seller, it is 
 clear the defendant cannot say to the 
 plaintiff ' the malt is not yours' after ac- 
 knowledging to hold it on hisaccount. By 
 so doing they attorned to him." It ap- 
 pears to me, too, that if we consider the 
 principle upon which the right of stoppage 
 in transitu is founded, it cannot e.xtend to 
 such a case as the present. The vendee 
 has the legal right to the goods the mo- 
 ment the contract is executed, but there 
 still exists in the vendor an e(iuitable 
 right to stop them in transitu, which he 
 may exercise at any time before the goods 
 get actually into the possession of the 
 vendee, provided the exercise of that right 
 does not interfere with the rights of third 
 persons. Now, it appears to me impos- 
 sible that it can be exercised in this case 
 without disturbing the rights of third per- 
 sons, for the property has not only been 
 transferred to the purchaser in the books 
 of the wharfingers, but there has been an 
 acknowledgment by them that they hold 
 it for the purchaser, who has paid the 
 price of it. It has been said that there has 
 been no change of property. If there has 
 not, I do not see how there can be any 
 until the tallow is actually melted down 
 and converted into candles. If the argu- 
 ment on the part of thedefendantsb.° valid, 
 the vendor, if he is not fully paid, has a 
 right, if the goods are not weighed, to 
 stop in transitu, even though they have 
 passed through the hands of a hundred 
 different purchasers and been paid for by 
 all except the first. It appears to me that 
 we should disturb an established prin- 
 ciple if we held that this could be done in 
 such a case as the present. I think the 
 right of stoppage in transitu is an equi- 
 table right, to be exercised by the vendor 
 only when it can be done without disturb- 
 ing the rights of third persons. '? Here, 
 that cannot be done, and therefore I think 
 that Kaikes & Co. had not any right to 
 stop in transitu, and that the plaintiffs 
 are therefore entitled to recover. 
 Kule discharged. 
 
 '2 Camp. 344. 
 
 ' See Cuming v. Brown, 9 East, 506.
 
 1-. i
 
 HEXSCHEL 0. MAURER. 
 
 415 
 
 riEXSCHEL, Adiu'r, etc., v. MAURER et al. 
 
 (34 N. W. Rep. 926. 69 Wis. 576.) 
 Sii|)reme Court of Wisconsin. Xov. 1, 1S87. 
 
 .Appeal fr(»ui circuit court, Slieboygan 
 roimty. 
 
 TliH facts fully appear in the foUowlns 
 Ktatenicnt by CASSOD.W, J.: 
 
 'I'luH action waH coinniPnccd February 
 17, Issi). for till' forecloture of a niortjjaiLi^ 
 uiioii real estate e.'jecuted January 2, ls77, 
 by one t'onrad Maurer, (since deceased,) 
 and the defendant Marie .Maurer, then his 
 wife ■•ind now his widow, given to secure 
 a ()roniisr<()ry note of even date, executed 
 by riaid Conra<l, an<l both running and 
 payable to the i)laintiff8 intestate, for 
 $1, -(ID, two years from the date thereof, 
 with interest at S per cent. Thecomplaint 
 is in the usual form, and alleged that said 
 George died intestate, .September 27, 1SS4, 
 and that the plaintiff was appointed such 
 administrator. .March .">, lsr>5. The said 
 widow and the minor heirs of said Con- 
 rad, by their gunrdian ad litem, byway 
 of answer, in eflect denied that the plain- 
 tiff wan the owner and holder of said note 
 «ud mortgage; denied that there was any 
 sum due or payable thereon; and allege, 
 upon information and belief, in effect, that 
 September 22. l.SSl. and while said tieorge 
 was the owner and holder of said note 
 and mortgage, and in his last sickness, in 
 contemplation and expectation of death, 
 he, the said (jeorge, executed and ac- 
 knowledged a written discharge of said 
 mortgage, in the presence of two wit- 
 nesses, who subscribed their names there- 
 to as such, and wherein the said George 
 ackno%vledged satisfaction and payment 
 in full of said mortgage, and thereby re- 
 leased the same, and all his right, title, 
 and interest in and to the mortgaged 
 premises, and thereby authorized the 
 register of the county to enter such satis- 
 faction of record ; that September 26, 1nS4, 
 ia immediate contemplation and expecta- 
 tion of death, the said George delivererl 
 said satisfaction piece, Itigether with said 
 note and mortgage, and also certain 
 other i)ersonal property and clioses in ac- 
 tion, to his uncle, one Fred .Maurer. for de- 
 livery, and with ilireclion to deliver said 
 note and mortgage, and said satisfaction 
 thereof, to said Conrad, as a gift and re- 
 lease of said note and mortgage; that at 
 the same time said George delivered to 
 said Fred a written order to the effect 
 that he deliver, of the money and other 
 personal property in his lianils, $2.") to 
 Mrs. Marie Henschel or order, and the 
 balance to his said brother, Conrad, and 
 Mrs. .Adolph Henschel, i;s to his verbal or- 
 der; that, upon the death of said (Jeorge, 
 and during the life of said Conrad, said 
 Fred delivered to said Conrad said note, 
 mortgage, and satisfaction piece, as so 
 directed by said (jeorge. 
 
 .At the close of the trial the court found, 
 in effect, that thenotejind mortgaiie were 
 executed, and payments made thereon, as 
 stated in the complaint ; that September 
 22. Iss4, and while of sound and ilisposing 
 mind Hn<l memory, but in extremesiik- 
 ness and expectation of death, the said 
 <ieorge made and cxecuteil said satisfac- 
 
 tion piece; that on the same day he deliv- 
 ered the same, together with snld note 
 and mortgage, to said (onrad, as and for 
 a satisfaction of said mortgage, and subse- 
 quently, and on the same day, caused 
 said note and mortgage, and satisfaction 
 piece, to be placed with said Fred for Hnal 
 delivery after his death, without any con- 
 dition or control over the same; that 
 said note, mortgage, and satisfaction iilcce 
 were subse(|uently, and prirtr to the com- 
 mencement of this action, delivered to said 
 Conrad by said Fred ; that the making of 
 said satisfaction piece, and the delivery of 
 the ?ame with said note and niortKage. 
 were intended and made as a release and 
 satisfaction of said mortgage, anil the In- 
 debtedness thereby secured, and a gift 
 causa mortis thereof tothesaiil Conrad, 
 who was brother to said (ienrge. As con- 
 clusions of law the court found, in effect, 
 that said satisfaction constituted a good 
 and valid gift causa mortis, and a release 
 and discharge of said mortgage and in- 
 debtedness to the said Conrad ; that thB 
 plaintiff, as administrator, had received no 
 right to or interest in the mortgage; that 
 the defendants were entitled to judgment 
 dismissing the complaint, and adjudging 
 said note and mortgage fully satixlied 
 and discharged, and for costs and dis- 
 bursements against tile estate of said 
 George; and judgment was ordered there- 
 <m accordingly. From such judgment so 
 entered thereon the plaintiff briuga this 
 appeal. 
 
 Krez & Krez, for appellant. Seaman & 
 Williams, for responilents. 
 
 CASSODAY, J., (after stating the facts 
 as atjove. ) The evidence is tcj the effect 
 that .September 22, 1S>>4. the plaintiff's In- 
 testateat first requested oneCharles Helns 
 to draw his will. and to give all his prop- 
 erty, except *2."i mentioned, to his brother, 
 Conrad, and liis sister, Mrs. .\dolph Hen- 
 schel; that, when informed that it would 
 probably cost 5()0 or $70 In the probate 
 court, he declined to make a will; that he 
 then asked if such distribution could not 
 be made in some other way, and was told 
 by Heins that it could, and accordingly the 
 satisfaction piece wus drawn and exe- 
 cuted, and then, with the note and mort- 
 gage, delivered, Hrst to Conrad, then to 
 the uncle, and subsequently to Conrad, as 
 found . that at the same time he executed 
 a deed of ItiO acres of land in .Marathon 
 count.v to his sister. Mrs. .\dolph Hen- 
 schel. "and delivered that to her: that he 
 theieupon directed her to deliver the deed 
 to his uncle, and she did so; that at the 
 same time he eave to his uncle an order 
 for the personal property, with directinns 
 to keep all the papers until he ascertained 
 the value of the .Marathon county lands, 
 and then divide the personal property, so 
 that his said brother and sister sliould 
 each have one-half of all his property, ex- 
 cept that he should give .Mrs. Herman 
 Henschel Sf2.'.; that In executing the pa- 
 pers he wrote his own name, and was at 
 the time physically weak, but of sounil 
 mind, with no hope of recovery, but. per- 
 haps, with na e.\pectaiion of reclaiming 
 the property if hedid ri-covcr; and he died
 
 416 
 
 HENSCHEL D. MAURER. 
 
 five days thereafter. Upon these facts it 
 is urged by counsel that tlie whole trans- 
 action, when taken together, was simply 
 an attempt by the intestate to <iispose of 
 all his propertj; by will, or to delegate to 
 his uncle the power to do so upon his 
 death, or both together. 
 
 There can be no question but what a 
 person of sound mind, oven in extremis, 
 may make a partial as well as a total dis- 
 position of his property by will. The 
 same is true in case of a gift as to any 
 property which is the subject of gift. The 
 mere fact that he attempts at the same 
 time, and as a part of the sacne transac- 
 tion, to dispose of the whole of his prop- 
 erty, but for some cause the disposition is 
 ineffectual as to a part of it, will not pre- 
 vent its being effectual as to the other 
 part. Here the matters of con veying the 
 land to the sister, and the directions for 
 disposing of the personal property, are 
 not within the issues, and hence not be- 
 fore us for determination. No question of 
 creditors or other claimants is involved. 
 The only question presented is whether 
 what was said and done by the intestate 
 constituted a complete satisfaction and 
 extinguishment of the note and mort- 
 gage. A mortgagee may undoubtedly, 
 by way of gift to the mortgagor, com- 
 pletely satisfy the debt, and discharge the 
 mortgage. Moore v. Darton. 4 De Gex & 
 S. 517; Lee v. Boak, II Grat. 182; Uarland 
 V. Taylor, 52 Iowa, 503, 3 N. W. Rep. 510; 
 Carpenter v. Soule, SS N. Y. 251. Where a 
 gift of personal property is made with in- 
 tent to take effect immediately and irrev- 
 ocably, and is fully executed by complete 
 and unconditional delivery, it is certainly 
 binding upon the donor as a gift inter 
 vivos, even if the donor at the time is in 
 extremis, and dies soon after. Tate v. 
 Jjeithead, Kay, 65S; McCarty v. Kearnan, 
 8<) 111. 2!)2. But where such intent is not 
 manifest, and the gift is otherwise made, 
 under such circumstancesit will ordinarily 
 be regarded as a gift causa mortis. 
 Rhodes v. Childe, 64 Pa. St. 23, 24; Grymes 
 
 V. Hone, 49 N. Y. 17. But even such a 
 gift is not complete without delivery. Id.; 
 Wilcox V. Matteson, 53 Wis. 23, 9 N. W. 
 Rep. Sl4. Brunn v. Schuett, 59 Wis. 2G0, 
 18 N. W. Rep. 2«0. Such a gift may be de- 
 fined as one made by the delivery of per- 
 sonal property by the donor in his last 
 sickness, and in expectation of deatn then 
 imminent, and upon condition that it 
 shall lielong to the donee if the donor 
 dies, as anticipated, without revoking the 
 gift, leaving the donee him surviving, and 
 not otherwise. Rhodes v. Childs, supra ; 
 Grymes v. Hone, supra ; Ogilvie v. Ogil- 
 vie, 1 Bradf. Surr. Snti; 2 Quar. I>aw Rev. 
 440; 21 Amer. Law Rev, 734, and cases 
 there cited. But even such a gift is de- 
 feated if the donor survive such sickness. 
 Staniland v. Willotr, 3 Macn. & (J. r)(i4. 
 Here the intestate, as mortgagee, actually 
 delivered the note, mortgage, and satis- 
 faction to the mortgagor personally as a 
 present. True, the intestate subsequent- 
 ly directed the mortgagor to deliver them 
 to the uncle, as he directed Mrs. Adc.lph 
 Henschel to deliver the deed she had re- 
 ceived from him to the uncle. But this 
 was apparently done in order that the 
 uncle might the better ascertain the value 
 of the land conveyed, and thus ascertain 
 the difference in the value of the two gifts 
 thus made, and then divide the personal 
 property so as to make the gifts equal. 
 Under such circumstances, and in view of 
 the apparent absence of any hope of re- 
 covery, it would seem that the note, mort- 
 gage, and satisfaction may l)e regarded 
 as so delivered to the mortgagor as an 
 absolute gift in prtesenti. But even if 
 there was an absence of such intent to 
 make a then present and unconditional 
 gift, yet as the delivery by the donor was 
 complete, and he was at the time in his 
 last sickness, and died soon thereafter, 
 without revoking the gift, we must re- 
 gard it as a valid and binding gift causa 
 mortis. 
 
 The judgment of the circuit court is af- 
 Brmed.
 
 HIGGINS V. DELAWARE, L. & AV. R. CO. 
 
 419 
 
 HIGGINS V. DELAWARE, L. & W. R. CO. 
 
 (60 N. Y. 553.) 
 
 Court of Appeals of Now York. Feb. Term, 
 1875. 
 
 .Vpoeal from order reversing jiidKinont 
 ill favur of plaintlft and diHiniHHiii^ pluin- 
 tiff'H eoiu|ilaiiit. 
 
 Action to recover the vnlue of one Inin- 
 dred tons of coal allejjed to have heen piir- 
 chnsed by i)laiiitiff of defendant, and 
 which it refused to deliver. 
 
 On .September L'!), 1870, at a retinlar 
 monthly auction sale of coal, held by de- 
 fendant in New York, pinlntiff hid off one 
 hundred tons. The notice of sale stated 
 tliat ninety thousand tons were to Lesold, 
 deliverable at the company's depot dur- 
 ing the month of October, li70, upon these 
 teinis, ainoHK .jtliers: 
 
 "Fifty cents per ton, in city bankable 
 funds, to be deposited on the day of sale, 
 us a security for the fulfillment of the con- 
 tract by the purchaser, and the balance 
 to be paid within ten days thereafter at 
 the ofiice of the company, when the order 
 for the delivery of the coal will be given 
 on their a^ent at Elizabethport. The 
 coal to be taken away during the month 
 of October, 1870. Should the purchaser 
 fail to take it away within the month, the 
 oompiny may, at their option, at any 
 time thereafter, discontinue furtlier deliv 
 eries, and retain the fifty cents per ton de- 
 posited on the day of sale; or slniulil the 
 company elect so to do, they may resell 
 the coal, either at public sale or other- 
 wise, for account of such defaulting pur- 
 chaser, who shall i)ay to the company 
 any deficiency caused by the coal beiriE; 
 sold at a price liss than that agreed orig- 
 inally to be paid. " 1 
 
 "The company may deliver at Hoboken, j 
 N. ,J., all or any portion of the coal now 
 sold, and the purchaser shall accept the 
 same as being delivered on the contract j 
 made by this sale, and shall pay therefor 
 ten cents i)er ton in addition to the price 
 agreed to be paid for the coal delivered at 
 Elizabethport." 
 
 "Every effort Tvill be made by the com- 
 pany for the fulfillment of its contracts 
 for the delivery of coal ; but if at any time 
 the business of the company is so inter- 
 rupted by storms, floods, breaks, acci- 
 dents, combinations, turn-outs, strikes 
 amoiiij: miners or other employees, or by 
 any other occurrence whatsoever, as to 
 materially decrease the quantity of coal 
 which the company would otherwise have 
 heen able to obtain and deliver during 
 the month in which the coal now sold is 
 deliverable, the company will not hold It- 
 self liable for or pay any damages sus- 
 tained by reason of the non-delivery of 
 the coal now sold, or of any portion there- 
 of, although a portion of the coal that is 
 received daring said month may, in the 
 usual course of the comp;iny'H cojil sales 
 and business, be •lispo.-.erl of otherwise 
 than in the fulfillment of the contracts 
 made by this sale. .Vorwill the company, . 
 In case the coal now sold is not delivered, I 
 undertake a pro rata distribution among ! 
 the respective ijurchasers of what is de- j 
 
 livered; but In all cbbcb of nondelivery 
 from any of the above caiisi-s the money 
 paiil on coal will be prijmptly refunded." 
 
 Nelson Merrill, for'appcllant. Hamilton 
 Odell, for resiiondent. 
 
 FOLGER. J. At the special terra the 
 judgment in this case was put iiiiiin the 
 ground that the facts found in tlir- find- 
 ings, anil some inferences therefrom made 
 in the opinion, brought this ease within 
 the holdings in Kiniberlv v. I'ntchin, lit N. 
 Y. :t;50; 75 Am. Dec. :'M, an. I Kuswell v. 
 rarrinirton, -IJ N. V. lis, 1 Am. Rep. 49N. 
 The learned judge, in forming his opinion, 
 liaving arrived at the concluHion (Iwit, hh 
 a matter of fact and inference, the sale 
 was of a specilii'd quantity of coal, to be 
 taken from a specified general mass, indis- 
 tinguishnble In quality or value, and that 
 it was the inti'iition of the parties to pass 
 the title to the amount sold, deemed the 
 case within the ]irinci|ile of those author- 
 ties, anil held that there was a complete 
 sale to the plaintiff and a perfect title 
 given to him. 
 
 At the general term the court was con- 
 tent with refuting, to its satisfaction, the 
 theory upon which the special term had 
 gone; and did not perceive in the finilingH 
 nnr in any inferences properly deducilile 
 therefrom, that the sale was from some 
 certain or identilied body of coal, either 
 in bulk or included in any other mass then 
 being anywhere in existence or capable of 
 iilentilication.and so it held that this case 
 did not fall within the rule laid down in 
 the cases above cited. 
 
 The special term did not notice, as a clr- 
 cumstanceeiititled toeffect in thedecisicii, 
 and the general term, thoiigli alluding to 
 it. laid no stress upon it, that by the terms 
 of the sale to the plaintiff he was liound 
 to take away the coal in the month of 
 October. It is evident that this was a 
 part of the terms of sale of some moment 
 in the estimation of tlie defendants, for 
 they based upon it, in the same terms of 
 sale, important consequences. A failure 
 of the buyer to take away all tlie coal 
 bought, within the time specifieii, gave the 
 iletcndants the right and posver to refuse 
 further delivery, and to forfeit the earnest 
 nione.v paid by the l)uyer, or to resell 
 the coal on the buyer's account, and at 
 his risk of loss. .\nd we can readily 
 perceive that it is essential to the success- 
 ful prosecution of the l)usiiiess of the 
 defendants, that they should not lie com- 
 pelled by the dilatorincss of their ven- 
 dees to furnish, upon their docks at Kill- 
 abethport or Hoboken, space for the k<*p- 
 ing into succeeding months, of tiie coal 
 sold liy them deliverable in a given 
 month. ilence their stipulation in the 
 terms of the sale appears, from a fair con- 
 sideration of the language of it, and of the 
 other parts of those terms and of the cir- 
 cumstances, to be of the essence of the 
 contract, to have been really intended by 
 the parties, and to have formed a condi- 
 tion precedent, to lie observed ami kept 
 by file idalntiff if he wislied to lie able to 
 retain his contract and to have It enforce- 
 able against the defendants. Renj. Sales 
 (2d Ed.). 481. The finding Isthattheplaln-
 
 420 
 
 HIGGINS V. DELAWARE. L. & W. R. CO. 
 
 tiff demanderl a delivery of tliecoal in Feb- 
 ruary, 1871. There is a finding tliat lie did 
 not offer to take it away until then, and 
 hence did not offer to in th"^ month of Oc- 
 tober, 1S70, as he was required to do to 
 meet the condition precedent. There is 
 lackinK then a fact which should have 
 been found to sustain the conclusion of 
 law and the judRuient. It is a fact which 
 the proofs will not supply, for theevidence 
 was that the defendants were ready and 
 willing to make delivery of the coal in Oc- 
 tober and November, l.STO. 
 
 It may not lie well said, that though 
 there is this condition precedent in the 
 terras of sale, the defendants had pre- 
 scribed the only remedies for themselves, 
 in ca.se the plaintiff did not keep the con- 
 dition. It is true that options of the 
 defendants were provided for; they could 
 forfeit the earnest money paid ; they could 
 resell, on the plaintiff's account, and at his 
 risk; they could discontinue future deliv- 
 eries. But these wore not all. There was 
 also the legal right of every contracting 
 party to hold himself absolved from his 
 obligation when the other contracting 
 party has failed to keep sfinie condition 
 precedent which he is bound to perform. 
 Thus, in an agreement to exchange pieces 
 of real estate on specified terms, and to 
 deliver the deeds at a fixed date, "or for- 
 feit the sum of f.'jOO," it was held by this 
 court tliat the partj- not in default might 
 elect to sue for the amount named as a 
 forfeit, or generally for his damages from 
 a breach of the contract by the other par- 
 ty, and in the latter action was not limit- 
 ed to the sum named. Noyes v. Phillips, 
 CO N. Y. 408. It is there said that parties 
 are not released from the performance of 
 their contract by reason of the same con- 
 tract containing a penalty for non-per- 
 
 formance. Here the options reserved to 
 the defendants, of a forfeiture of the earn- 
 est money, etc., uro in the nature of pen- 
 alties for non-performance by the plaintiff, 
 but the relations and rights of the con- 
 tracting parties, so far as harmonious 
 with the provisions of the contract re- 
 serving option, are to bo determined by 
 the legal principles applicable. 
 
 Nor do we think that this case falls 
 within the principle of 19 N. Y. and 42 Id., 
 supra. The findings of thespecial term do 
 not set forth facts suflicient therefor. Nor 
 are we able, from the evidence in the case, 
 to make inferences which will sujiply the 
 lack. There is not that in the testimony 
 which proves or indicates that there was, 
 either at Eliza bethport or at Hoboken, 
 at the time of the sale, a mass of ninety 
 thousand tons of coal, undistinguishable 
 in kind and quality and value from that 
 contracted for of the defendants; or that 
 at that time there was an ascertained 
 body of coal at either of those places, all 
 parts of which were of the same value, and 
 undistinguishable from each other. Rath- 
 er, it appears to us, that the terms of the 
 contract and the circumstances of the case 
 indicate, that the ninety thousand tons at 
 that time offered for sale, had not yet 
 reached either of the contemplated points 
 of delivery, and were not yet gathered into 
 one mass. Nor can we make the inference 
 that it was the intention of the defendants 
 to pass the title to the plaintiff before ac- 
 tual delivery of the (juantity he contract- 
 ed for. But we do not elaborate the rea- 
 sons for these conclusions. 
 
 As a new trial would not afford oppor- 
 tunity to change any of the facts as now 
 presented, we affirm the judgment to the 
 general term. 
 
 All concur. 
 
 »i
 
 HIGGINS V. MURRAY. 
 
 423 
 
 HIGGINS V. MURRAY. 
 
 (73 N. Y. 252.) 
 
 Court of Appeals of New York. 1878. 
 
 Action for work und materials. Defend- 
 ant eiii])loj'efl piniiitlff to manufacture 
 eoine circus tcntw, witliin a specifiofl time, 
 from material furniRlied by plaintiff. No 
 place o( delivery or price was Hpccifiod. 
 Defendant afterwardH reiiuented plaintiff, 
 by letter, to Hhip the tents to him at Lew- 
 iHton. He Hhip|)ed them by ateamboat, 
 via Portlan<l, C. O. D., and they were de- 
 stroyed by fire on the way. 
 
 S. T. Freeman, for appellant. John W. 
 Weed, for reHpondent. 
 
 CHURCH, C .1. The action is not strict- 
 ly for the sale of the article nianufactured. 
 but for work, labor, and materials, per- 
 formed an<l used inits manufacture (Mixer 
 V. Howarth, L'l Pick. 20."); 32 Am. Dec. 2.56) ; 
 and hence is not within the statute of 
 frautls. It is nndiK[)uted that the plain- 
 tiff [jcrformod his contract, and if the de- 
 fendant hud refused to take the tents, an 
 action upon the agreement would have 
 been sustaineil. Crookshank v. Burrell, 
 IS .Johns. .oS; '.) Am. Dec. Is". There is 
 some confusion in the juitliorities as to 
 when the title passes to the purchaser in 
 such cases. In Andrews v. Durant, II X. 
 Y. .'!.■>; ti2 Am. Dec. 55, Denio, J., la.vs down 
 the rule, that in such a case" the title does 
 not pass until the article is linished and de- 
 livered, or at least ready for delivery, and 
 api)roved by such party;" and there are 
 other authorities to thesanu- effect. Grip- 
 pen V. N. Y.C. R. Co., 40 N. Y. 36; Comfort 
 V. Kiersted, 26 Marl). 473. 
 
 It is urjred in this case that the title did 
 not pass, for two reasons : First. IJccause 
 there was no acceptance; and, second. 
 Because the plaintiff shipped the property 
 (-". O. D., thereby refusing to deliver until 
 the value was paid. This last ground was 
 sustained in liaker v. Bourcicault, 1 Daly, 
 24, where certain cards were ordered to be 
 sent to New Orleans, and were sent C. O. 
 D., and lost at sea. 
 
 The importdnt question to determine is 
 when the liabilit.v of the defendant at- 
 tached. If the article had burned durins 
 the progress of construction, it is clear 
 that no action would lie, for the reason 
 that the contract was an entirety, und 
 until performed, no liabilit.v wouhl exist. 
 And this rule 1 apprehend would apply 
 when the contract is to make and deliver 
 at a [)articular place, and loss ensues be- 
 fore delivery at tli(> place, and for the 
 same reason. But when the contract is 
 fully performed, both as it respects the 
 character of the article, and the <lelivery 
 at the place njireed \ipon or implied, and 
 the defendant is notified, or if a specified 
 time is fixed, and the contract is per- 
 formed witliln that time, ujion Keneral 
 principles I am unable to perceive why 
 the party makiuR such a contract is not 
 liable. One person nsirees to manufacture 
 a wacon for nnothcr in thirty days for 
 ?100, and the other atjrees to pay for it. 
 
 The mechanic performs his contract. la 
 he not entitled to enforce the obligation 
 against the other party, and if after such 
 performance the wa^on is deHtro.\ed with- 
 out the fault of the mechanic, is the undls- 
 charged liability canceled? It d<ieH not 
 depeml upon where the technknl title Is. 
 us in the sale of Roods. It was upon this 
 principle substantially that Adiard v. 
 Booth, 7 Car. & I'. Ids, was derided. The 
 ((uestion was submitted to tliejury wheth- 
 er the work of printing books was com- 
 pleted before the fire. 8uiijinse in this 
 case that the defendant had refused to ac- 
 cept a delivery of the tent, his liability 
 would have l)een the same, although the 
 title was not In him. The plaintiff had a 
 lien upon the article for the valuo of his 
 labor and materials, which was good as 
 long as he retained possession. Tills was 
 in ;l)e nature of a pledge or mortgage. 
 Retaining the lien was not inconsistent 
 with his right to enforce the liability for 
 wiiich this action was brought. That 
 liability was com[)lcte when the request 
 to ship was made by the defendant, and 
 was not affected by complying with the 
 request, nor by retaining the lien the same 
 as when the request was made. .\s the 
 article was shipped at the request of and 
 for the benefit of the defendant I assuming 
 tliat it was done in accordance with the 
 directions), it iollows that it was at his 
 risk, and could not impair the right of the 
 (ilaintiff to recover for the amount due 
 liim upon the performance of his contract. 
 
 If tlie plaintiff had agreed to deliver the 
 tent in Lewiston as a part of tlie contract 
 for its manufacture, ho coulil not have 
 recovered any thing; but this was not a 
 Iiart of the contract. Suppose the tent 
 had reached Lewiston in good order and 
 the defendant had refused to accept or re- 
 ceive it, his liabilit.v would be clear and 
 complete. As before stated, the point as 
 to who had the title is not <le<-iHive. It 
 may be admitted that theplaiiitiff retained 
 the title as security for the ilebt, and yet 
 the defendant was liable for the debt in a 
 proper personal action. This is a case of 
 misfortuDe where one of the parties with- 
 out fault must incur loss, and it seems to 
 me very clear that the legal riiiht is with 
 the plaintiff. A point is mnile that the 
 property was not proi)erly shipped. It 
 was directed to the defendant at Lewis- 
 ton, and was forwarded to rorthuxl <in a 
 steamer running to that place. It does 
 not appear but that was the usual mode 
 of shipment to Ix-wiston. and the devia- 
 tion would impose the oldigntion upon 
 the consignee at the latter place to for- 
 ward the property liy a coniie<-ting car- 
 rier. Wecanniit presume tliat there was 
 no connecting route, and if we could, it 
 is difficult to see what else the plaintiff 
 could have done. .\t all events it does 
 not appear that the loss was occasioned 
 by the defendant's negligence or fault lo 
 not properly shipping the goods. 
 
 The judgment must bealUrmed. 
 
 All concnrexcept ALLEN and MILLER, 
 J J., absent. 
 .Judgment afflrmcd.
 
 I 
 
 • I
 
 HILLESTAD v. IIOSTETTEB. 
 
 425 
 
 HILLESTAD et al. v. HOSTKTTEH et aL 
 
 (49 N. W. Rep. 192, 4(i Minn. 393.) 
 
 Supreme Court of Minnesota. June 30, 1891. 
 
 Appeal from district court, Polk county ; 
 MiM.H, .Jud^e. 
 
 A. C. Wilkinson, for appellants. H. 
 Stoenersou and iV. H. Avcrill, for respond- 
 ents. 
 
 VANDKRiiunoii, J. The plaintiffs sue to 
 recover for a bill of Roods Hold and deliv- 
 ered to the defendants and to Carver 
 Bros., lunihernicn, at the requeMt and by 
 the order of the defeiidanls. The account, 
 ns rendered, is admitted hy the pleadinfis 
 to be correct, except as to an alle;;ed ex- 
 cess of $!).L'."> in the account with t'iirver 
 Bros. The only issue In the case litigated 
 was whether the Roods were furnished un- 
 der an agreement that they were to be 
 paid for by the defendants in lumber. 
 The defendants allege that such was the 
 affi'eement, and the plaintiff.sdeny it. The 
 parties live in the same town, the plain- 
 tiffs beinK dealers in general merchandise, 
 and the defendants engaged in selling lum- 
 ber. The defendants' evidence tends to 
 prove that in December, issis, they and the 
 I'arvers were trading with another mer- 
 chant, and that at the request of the plain- 
 tiffs he made an arrangement with them 
 to deal with them, and "take goods for 
 lumber," and "that, at plaintiffs' re<juest, 
 Carvers Bros., who were lumbering for de- 
 fendants, were also induced to get their 
 supplies of pl.nintitfa, to he paid for in the 
 same way. There was no error in allow- 
 ing the defendants to show that this 
 change was made, and that the latter re- 
 questcil the Carvers to trade with plain- 
 tiffs on their account. This was an item 
 of evidence conhrmatory of the defend- 
 ants' claim as to the nature of the agree- 
 ment. One of the Carvers ((). F. Carver) 
 8Wt)rn for the defendants testihed that 
 there was some trouble with plaintiffs 
 about their orders, and that one of the 
 plaintiffs explained to him that thereason 
 was that the i)ass-boo,k was not present- 
 ed, but said "that it was all right," he 
 "had made a trade with Hostetter, " and 
 "should need a considerable lumber in the 
 spring." The witness also testilied that 
 he told him in the sameconversation what 
 Hostetter had said " that he had made a 
 trade with him to get goods there, and 
 that he was going to take lumber. " O. P. 
 Carver also testilied that he changeil his 
 trade to plaintiff at Hostetter's request. 
 He was then asked by defendants' counsel 
 to state what that reiiuest was. This 
 question the witness was allowed to an- 
 swer, over the objection of plaintiffs' 
 counsel, and in his answer he stated" that 
 Hostetter wanted him to trade with 
 plaintiffs, because he had arranged with 
 them to take lumber, and he was to take 
 groceries. AVe think it was error to allow 
 the witness to testify as to the terms or 
 particulars of the reciuest. It was inuna- 
 terial and hearsay. It was sutlicient that 
 iie was in the employ of the defeiulanls. 
 
 land that he went there to trade nt their 
 reipiest. At the close of this witness' evi- 
 dence the plaintiffs' counsel moved to 
 strike out all his evidence. The court an- 
 nounced that he would reserve his decis- 
 ion for the time, but soon after, and before 
 plaintiffs introduceil their testiinony In re- 
 buttal, stated that the olpje<-tionable tes- 
 timony above referred to was stricken 
 out. And subseiiuently, in its charge to 
 thejury, the court expressly so advised 
 the jury, distinctly calling their attention 
 to the fact and withilrawing the evidence 
 from their consideration. The objection- 
 able portion of the answer was not 
 strictly responsive to the question, and 
 shoulil have been stricken out immediote- 
 ly, in which case there would have been 
 no error to com|)lain of. But wc think 
 the Intervening delay was so short that 
 the action of the court in striking It out, 
 together with the charge on the subject, 
 was sutticicnt to counteract any imiires- 
 sion which might have been made on the 
 ndnds of the jury by this item of evidence, 
 liarticularly in view of the rest of the de- 
 fendants' evidence on the subj(K-t. .\fter 
 plaintiffs' account was rendereil to the 
 defendants, in the spring oflNS!), the latter, 
 on or about .lune 1st. by their attorney, 
 sent them written notice that they were 
 ready to deliver the lumber according to 
 agreement, and awaited their order. This 
 
 I was objected to by the plaintiffs, but was 
 received liy the court for the purpose of 
 showing that the defendants were ready 
 and willing to perform the contract. We 
 lind no exception in the record to this rul- 
 ing. The court instructed tin- jury tlint 
 tbey could only consider it for the purpose 
 mentioned; and we think there was no 
 error in submitting tlie evidence to the 
 jury. The time for the delivery of the 
 lumber and the prices arc not siii-citied iu 
 the agreement testilied to by the defend- 
 ants. It was suthcient that they were 
 ready and willing to furnish it when called 
 for. They had a lumber-yard amply 
 
 ' stocked, and it was the plaintiffs' doty to 
 apply for anil select the lumber In pay- 
 ment of the amount of their claim ; and 
 they would be entitled toit at the current 
 market rates. I!ish. Cont. § 14;!(>: Beede 
 V. Proehl, 34 Minn. 49S. :.>7 .N. W Hep. 191. 
 The court also, in the same conni-ction, 
 stated to the jury, in substance, that there 
 was some dispute as to the effect of the 
 letter in connection with defen<lnnt8' tes- 
 timony, but they might consider It for 
 what it was worth, or "as far as it went, 
 with the rest of the case." This does not 
 ai>pear to beerrorfrom anythlngdisclosed 
 by the record, and it is not siiecilically ex- 
 cepted to. The plaintiffs excepted gener- 
 ally to that portion of the charge "In re- 
 gard to the way or manner in which they 
 might consider" the lettiT." This Includes 
 all that was said on the subject, and the 
 exception is ineffectual if any part of the 
 instruction excepted to is projier, which, 
 ns we have seen, is the case here. We 
 have very carefully examined the entire 
 record, and lind no errors warranting a 
 new trial. Order athrmed.
 
 HINCHMAX r. LINCOLN. 
 
 427 
 
 HINCHMAN V. LINCOLN. 
 (8 Sup. Ct. Kep. 309, 124 U. S. 38.) 
 
 Supreme Court of the United States. Jan. 
 9, 188S. 
 
 In error to the circuit court of tlic 
 United StatcH for tlie southern diatriet of 
 New Yorli. 
 
 Theo. V.H. .Meyer nnd Wayne AfcVeuKh, 
 {A. H. U'iiiterHtcen, on tiie lirief,) for 
 pluiiitiff in error. .\UKUKtuH C. lirown, 
 for (li'fendnnt in error. 
 
 MATTHIOWS, J. ThiH i.s «n nction at 
 law lirouKlit liy Kufus P. I^ineoln, a citi- 
 zen of .New York.anainMt Cliarles .S. Ilinch- 
 inan. a citizen ol Pennsylrania, to recover 
 flH.OOU an the agreed price and value of 
 certain HccuritieM, stoi-ks, and UondH al- 
 iened to have lieen Hold and delivered l>y 
 the plaintiff to the defendant. The wale iH 
 alleged to have taljen place (jn .luly n, 1>n'.'. 
 It is set forth in the complaint that the 
 plaintiff a('(|Uired title to the Hecurities in 
 qucHtion b> purchase of one John K. 
 IJotlnvell, HUhject to any claim Wells, 
 Fnrtjo & Co. had upon the same for ad- 
 vances madeliy them to or for the account 
 of the said Both well; "that thereafter 
 this plaintiff paid to Wells, Far^o & Com- 
 pany the amount of their said advances, 
 and took possession of said seenrilics, 
 Htocks, and honds; hut stated to the 
 ahove-nameil defenilant that iie was will- 
 intrand wi>uld pay over to the Storniont 
 Silver Minins;' ('•iinpany, which conipany 
 was a 111 rue creditor of llie said Hotlnvell, 
 and in which company said defendant was 
 very larjrely intereste<l, any surplus which 
 he derived in any way from said securi- 
 ties, stocks, and lionds, after havini; re- 
 imhursed himself in the sum of aliout $L'(!.- 
 (lUO aiKl inti-rest for advances theretofore 
 made by hiin to and tor the account of 
 the said I'.othwell. " The answer ilenied 
 the alleged sale and delivery. The aclhin 
 was trieil in the circuit court of thoUuited 
 States for tlie .Southern district of New 
 York hy a jury. There wjis a verdict in 
 favor of the plaintiff, on which judgment 
 was renilered, to reverse which this writ 
 of error is prosecuted. A hill of excep- 
 tions sets out all the evi('ence in thecause, 
 together with the charge of the court, and 
 the i'Xcei)lions taken to its rnliims. At 
 the close of the testimony, defendanfs 
 counsel. amon>; other things, reiiuested 
 tlie court to charjie the jury "that there 
 i.s no evidence in the case of a completed 
 sale of the securities to the defendant; 
 nnd the plaintiff, therefore, cannot re- 
 cover." This recpiest was refused, and an 
 e.\ciption taken hy the defendant. This 
 raises the srenerai (inestion whether there 
 was snIHcient evidence In support of the 
 plaintiff's case to justify the court in suh- 
 mittiiiK it tt) the jury. The defense rested 
 u()oii two iiropositions: (1) That there 
 was no evidence of any asreement be- 
 tween the parlies for a sale and purchase; 
 nnd (u'i that, if there were, the airreemeiit 
 was not in wrfticiy:, and there hail been no 
 receipt and acceptance of the subject of 
 the sale, or any part thereof, hy the de- 
 fendant; anil that coiiKeiiiiently the asfee- 
 nient was within the prohibition of the 
 statute of frauds in New York. 
 
 In reward to the first branch of the de- 
 fense, we think there was sufllrlent evi- 
 dence of a verbal agreement between the 
 parlies for the sale of the sefurltlrs at the 
 pricenamed. It ai)peared in evidence thHt 
 the plaintiff, having acquired title and 
 possession to the securities previously 
 lieloiiKinK to Bothwcll by paving oft the 
 advances due to Wells, Far«o & Co.. 
 agreed with the defendant, as represent- 
 inix the Storniont .Silver .Minini; Coinpnny, 
 to Kive to that ciiinp;inv and ether cred- 
 itors of Clark and I'.othwell the beiielit of 
 any Hur[)lii3 there nii;:ht be after the pay- 
 ment of the amount due to the plaintiff. 
 There is evidence tendinR tn show that 
 thereupon, a siii;j;estion havin>; lieen 
 made that the defendant should purrhasu 
 the securities from the plaintlft. it was 
 agreed between them th'it the plaintiff 
 would sell and the defeiid;int would take 
 them at the price of *ls,Ot>i). jind the next 
 day at 3 o'clock wjis appointed ns the 
 time for delivery, [ly way of explanation, 
 and as havinc a bearing upon other items 
 of evidence in the cause, it is |>roper to 
 say that the defendant's testimony In 
 denial of the fact uf the aureeinent tends 
 t<j the point that the proposed purchase 
 hy him was not in his Individual capac- 
 ity, but as the representative of the 
 Storinnnt Silver Minini; Coiniinny, of 
 which he was one of the trnstces, anil was 
 made conditional on his procuring the 
 assent thereto of the other trustees. We 
 assume, however, in the further consl I- 
 eration of the c;ise. that the jury were 
 warranted in lindlnK the fact of a verlial 
 nureement of sale as alleLced by the plain- 
 tiff. The question as thus narrowed Ih 
 whether there was sulMcient evidence to 
 submit to the jury, of a recelutand accept 
 ance by the<lefen(laiit of theseeiiritii-H sold. 
 
 It appears that on July *<, l><s-, in pur- 
 suance of the appointment made the day 
 previously, the plaintiff handed the se- 
 curitics in question, at the ollice of the 
 storniont Silver .Minin-; Company in New 
 Y'ork. to Schuyler Van Kensselaer. who 
 was the treasurer of that company, and 
 to(d; from him the following receipt: 
 "Ollicc of Storniont Silver .Mining Com- 
 pany, No. 2 Nassau, Cor. of Wall Street. 
 "New York. July 8, ISS-J. 
 "President, William .S. Clark. 
 "Secretary, John U. Both well. 
 
 "Ueceived of Dr. Itufus P. Lincoln the 
 followini; certificates of stock on behalf 
 of C. S. Iliiichman, and to In- deli vereil to 
 him when he fiillills his contract with Ur. 
 Lincoln to purchase 8aid stocks fur 9ls.- 
 (lOii for— 
 
 l's.4(lii shares .Storniont Silver M'g Co. 
 
 San Itriino Copper M'k Co. 
 Kaiile Silver .Mv: Co. 
 Mile (iolil Qimrt/. Xi'tfCo. 
 Starr (irovc Silver .NI'k Co. 
 Menio (>idd (Jiiartz Co.. & 
 order on Wells. Kariro & 
 Co. fur 4.'.,(IOO siiureM 
 tiunrtz Co. 
 Satemo tiold Quart* Co. 
 .V. Y & Sea lleach It. U. Co. 
 .Mso $!»,.'.l)0 in llrst mortj:a;ie bonds of 
 the I'attle -Mn. & Lewis K. I!. Co. 
 
 "Schnvler Van Kensselaer. 
 " W itness : M . W ." Ty ler. " 
 
 24,:!<iO 
 
 MIO 
 
 LM',> 
 1.410 
 
 COO 
 100
 
 428 
 
 HINCHMAN V. LINCOLN. 
 
 The ilefpn'I.Tnt was not present. The re- 
 ceipt, sinned by Van Rensselaer, and which 
 he nave ti) the plaintiff, was witnessed hy 
 M. \V. Tyler, the plaintiff's attorney, and 
 had been prepared by him. The securi- 
 ties mentioned therein are the same with 
 those described in the comjilaint. For 
 the purpose of proving the authority of 
 Van Rensselaer to riceive and receipt for 
 the securities, some correspondeiH-e be- 
 tween the parties was put in evidence by 
 the plaintiff, the material parts of which 
 are as follows: On July 21, 1SS2, Tyler, 
 as attorney for the plaintiff, wrote to the 
 defendant as follows: "1 was much dis- 
 appointed in receivinj; .your letter this aft- 
 ernoon, postponing? your appointment 
 with me in re Lincoln neRotiation. When 
 Dr. Lincoln accei)ted your offer of f IS.OOO 
 for his position in reference to the Both- 
 well securities, he did so unqualifiedly, 
 without even sucsesting a modification 
 of your offer, in the hope that in this wn.v 
 he would expedite a c<inclusion of the 
 matter, and bolievina; that nothinp; was 
 open except the delivery of the securities, 
 and the receipt of the price. This was on 
 .lul.v 7tli. On .fuly 8tli, learninp; from Mr. 
 Van liensselaer that you had left word 
 with him to receive the securities, Dr. L. 
 called on .Mr. Van R., and left with him 
 the securities just as be received them. 
 Now, under these circumstances. Dr. L. 
 feels as if there was nothing left to be 
 done except the pa.vment of the money, 
 and that tiUKlit not to take very long. 
 Now, I will do anything to accommodate 
 you in this matter in the way of an ap- 
 pointment. If it is inconvenient for you 
 to see me ill New York, if you will appoint an 
 early day. I will meet you in I'hiladelphia. 
 If you desire anything in (larticular should 
 be signed or iloue by Dr. Lincoln in ad- 
 dition to what he has done already in de- 
 livering the securities to Mr. Van R., if 
 you will write me what yon request. I 
 will prepare it and take it on witli ine for 
 delivery to you." On the same daj' the 
 plaintiff wrote to the defendant as fol- 
 lows: " Agreeatile to a note from Col. Tyler, 
 I went down town this P. .\J. to meet you 
 as per appointment, and receive payment 
 for Storniont anu other stocks in accord- 
 ance with your offer. I was especially 
 disappointed, for 1 had promised to ap- 
 ply this money this week to cancel that 
 which 1 borrowed when I took up the 
 stock. I hope nothing will prevent your 
 carri'ing out our airangeiiient by Monday 
 or Tuesda.v at the furthest, ami I will es- 
 teem it a favor if, on receipt of this, you 
 will telegraph me when I shall receive a 
 check for tlie amount of the considera- 
 tion." In answer to this, the defendant 
 wrote to the blaintiff from Philadelphia, 
 .luly 22, ISSL', as follo%vs: "Dear Sir: Your 
 favor of the 21st, as well as Mr. Tyler's, 
 duly received, i did not understand that 
 the negotiation between us was finally 
 concluded, but, as I explained to Mr. Ty- 
 Itr, there were some otherquestions which 
 would have to be settled before I could 
 act in the matter, on account of my being 
 a trustee. I told Mr. Van Rensselaer 
 that he could receive the Stonnont stock 
 held by you for joint account of yourself 
 and Stormont, without requiring you to 
 
 advance any more mone.v, and that 1 
 would arrange with you about it; and 
 he, knowing that I was in negotiation 
 with you, took charge of the whole as 
 handeil to him by Mr. Tyler, your coun- 
 sel. There are several questions which 
 come up ill regard to it, and I cannot give 
 you any definite reply until 1 have con- 
 ferred with counsel and my co-trustees 
 on the subject. My advice to you is to 
 exchange the .Stormont stock for receipts, 
 as a majority have already done, on re- 
 ceipt of this; and if you do so, and not 
 convenient for you t(j advance the con- 
 tribution for additional stock, I will see 
 that it is carried until we have an oppor- 
 tunity to fix up the whole matter. " 
 
 It is further in evidence that a short 
 time after the date of Van Rensselaer's re- 
 ceipt, it was seen by the defendant, but 
 he said or did nothing to repudiate it. 
 Tyler also testifies that on July 20, 1882, 
 he met the defendant, and had this con- 
 versation with him: "1 said to Mr. Hinch- 
 man that I had been looking for him for 
 several days, and that I supposed he knew 
 we had (leiivei;ed the securities— the Both- 
 well securities — to Mr. Van Rensselaer, 
 as he had directed; and he said, 'Yes, 
 that was all right;' and I said, 'Well, 
 now, when will you be able to close this 
 matter?' 'Well,' he says, 'I am in a great 
 hurry this morning, but I will come to 
 your office certainly this afternoon or to- 
 morrow afternoon, at three o'clock. You 
 can rely upon my coming and seeing you 
 upon one or the other of those days.'" 
 The plaintiff also testified that he had an 
 accidental meeting with the defendant at 
 Long Beach about the first of August, 
 1882. The defendant was in comiiany 
 with his attorney, Mr. Meyer. The inter- 
 view is stated by the plaintiff as fi witness 
 as follows: "I spoke to him. I do not 
 know that he recognized ine, for I was 
 not well acquainted with him before, 
 and he introduced me to Mr. Meyer, and 
 he said, 'This is Dr. IJncoln, from wlioni 
 I have the Bothwell securities ;' and we 
 had some conversation about it, but noth- 
 ing very definite, althougli there came up 
 during the conversation a statement that 
 there was some controversy about it. I 
 don't know whether I made the state- 
 ment, or .Mr. Meyer, or Mr. Hinchman. I 
 remarked that there might be some differ- 
 ence — had heard something about some 
 difference — of oi)inion about it, but that 
 I had none; and I told Mr. Meyer that 
 the idea of turning them over to the Stor- 
 mont Company was an afterthought of 
 Mr. Hinchman; that I conceded nothing 
 of the kind. 1 never had." The following 
 letter also is in evidence: 
 
 "Office of Stormont Mining Company of 
 
 Utah, No. 2 Nassau, Cor. of Wall St. 
 "President, Charles S. Hinchman. 
 "Secretary and Treasurer, Schuyler Van 
 Rensselaer. 
 
 "New York, August 24, 1SS2. 
 "Schuyler Van Rensselaer, Esq., Sec'y 
 and Treas. Stormont S. M. Co., No. 2 
 Nassau St., N. Y.— Dear .Sir: Dr. Lincoln, 
 through his attorney. Col. M. W. Tyler, 
 having seen (it to disavow the understand- 
 ing and agreement by which he obtained
 
 H IN CUM AX V. LINCOLN. 
 
 429 
 
 ' his [><)rtiti()n ' in carryint; rlie .1. K. Itoth- 
 w'll Hcciiriticw in .vcjur liiin<l.s left tlicrc by 
 (,'i)l. Tyler, lifter conferciitM; with n tn;ij<Jr- 
 ity <j[ (jiir truxtpos, J am inntrnctcil to no- 
 tify yi)ii to rotiiii) possession of sniil seeii- 
 ritifs until a court of competent juriKilic- 
 tion KJiall direct you wliat to ilo Willi 
 tiiem : I eluimint;, uh trustee, for tlio lieii- 
 efit of Storrnont treasury, an e(|uitalilc 
 ami bona fide interest therein. I'lease 
 acknowledKe safe receipt. 
 " Y<iurH, truly, t'lwis. S. Hinchinnn, 
 
 "Prest. and Trustee S. S. M. Co." 
 
 There was some other correspondence 
 between the parties not material to the 
 present point, but n(jthin>; further was 
 done until November Hi, ISSJ, when a 
 written demand was maile by the plain- 
 tiff u|ion Van Hensselaer for the return of 
 the securities. Thi.s demand was read in 
 evidence on the part of the plaintiff. The 
 fullowins is a copy of it: 
 
 "To Schuyler Van FJensselaer: As Mr. 
 Charles S. liinchnian refuses to fulfill his 
 contract with Dr. IJncoln to iiunhasecer- 
 tnin securities delivered to you on the 
 eighth ilay of .July, IS'^'J, for Mr. Ilinch- 
 nmn, I hereby demand the immediate re- 
 turn of the Hecurities to lue, to-wit, cer- 
 tificates for — 
 2>i,40U shares of theStormontCo.'sstock, 
 
 or its equivalent. 
 24,300 " " San liruno Mining 
 
 Co.'h stock. 
 SOO " " Ensle .Silver Minins 
 
 Co.'s stock. 
 ,500 " " Hiteliold Quartz Mill- 
 
 ing Co.'s stock. 
 1,.SU) " " Star Grove .silver 
 
 Mining Co.V stock. 
 4(1,410 " " Meiilo Gold tjunrtz 
 
 Co.'h stock. 
 600 " " Satemo Gold Quartz 
 
 Co.'s stock. 
 100 " " N. Y. & Sen lieach R. 
 
 K. Co.'s stock. 
 ^O.-noo in first morti;hge bonds of the 
 
 battle .Mountain & Lewis R. R. Co. 
 "Dated New York. November IG, 1.S.S2. 
 "Yours, etc., Rufus P. Lincoln. 
 
 "By M. \V Tyler. Atty." 
 
 The reply to it by Van Rensselaer, as 
 proven, is as follows: 
 
 "New York. November 'JO, ISSl'. 
 
 " Dr. R. I'. Lincoln— Sir: In answer to 
 the demand matle upon me through .Mr. 
 M. W. Tyler, I beg to say that I hold the 
 securities mentioned therein on behalf of 
 yourself and Mr. (,'. S. Hinchman. and I 
 have no interest In or claim upon tlieni 
 personally, i have been notiileil by Mr. 
 Hiuchmiin not to deliver them to you. and 
 for that reason shall not be aiile to accede 
 to yourdemand. Any arrangement agreed 
 to by yourself and Mr. Hinchman shall 
 hove my prompt aciiiiicscense. 
 
 "I am, etc., S. Van Rensselaer. 
 
 "Per Nash & Kingsford. His Attys." 
 
 Nothing further occurred until the bring- 
 ing of this suit on Novemliei- L',"!. ISSL". It 
 is conceded by the counsel for the plain- 
 tiff that the delivery of the securities in 
 ((uestion by the plaintiff to Van Rensse- 1 
 laer was according tu the terms of the! 
 
 rpceijit taken from him at the time, and 
 of itself was not sulhcicnt evidence of u 
 receipt and acceptance l)y the ilefe:,dunt 
 tij sati.ify the stalute "of frauds. The 
 juryweieso instructed liy the court. In 
 speaking of it in his charge, the judge 
 said. "You will recollect that it recites 
 that the property was to lie delivered to 
 .\lr. Hinchman (I will situply state the 
 language in substance) ' when he had per- 
 formed his contract with .\lr. Lincoln;' in 
 other words, it nttixheil a condition. If 
 you litid upcui the cvidenee that Hiat was 
 all there was of this transaction. I think 
 it my duty to sav, as matter of law, that 
 there was not such delivery as would 
 take the case out of the statute, because, 
 if that were true, if he simply delivered the 
 stock to .Mr. Van Rensselaer, to be deliv- 
 ered to Mr. Hinchinnn. upon tlie payment 
 of the Slim by .Mr. Hinchiiian. it would 
 not be a receipt and accept.ini-e l)yhlm; 
 the possession would not b,- in him; he 
 could e.xercise no dominion over it until 
 he had performed the act which it was 
 necessary for him to perform in order to 
 olitain the title. To i)ut it more plainly, 
 perhaps the plaintiff would have in that 
 event maile .Mr. \'an Rensseiaer his agent, 
 as well as the agent of the defendant." 
 The position of tlie plaintiff's counsel on 
 this part of the case is stated by hiin in i\ 
 printed brief, as folhjws: "That receipt 
 was put in evidence, not as conclusive of 
 a delivery to Hinchman. but as a fact to 
 be taken into considtration, after the jury 
 had de'ermiiied the (lucstioii of delend- 
 aiit's capacity, in connection with hie ad- 
 mission that lie hud given Van Rensselaer 
 some authority in the premises; his ad- 
 mission to Tyler, after he saw the receipt, 
 that the deliver.v to Van Rensselaer was 
 ' all right ;' his admission at Long Reach 
 that lie had the securities, and his direc- 
 tion to Van Rensselaer, on .August ".Mth, 
 not to surrender any of the Hccuri'les. If 
 the jury should find, as it actually iliU 
 find, that Hinchman was acting in his 
 indiviiliial capacity, and that his claim of 
 a representative capacity, first intl- 
 irated in his letter of July L'Jd, was an aft- 
 erthought and false, then the authority 
 given liy him to Van Rensselaer was not 
 the limited authority he said it was, 
 and in view of the admission to Tyler 
 that the delivery was • all right.' the ad- 
 mission at Long Reach of possession, and 
 the subsciiuent assertion of dominion 
 over tiie securities, it was a fair inference 
 for the jury that Van Rensselaer's author- 
 ity was a general one to reieive thesj-cu- 
 rities for Hinchman. If the jury should so 
 find, tlii'ii, under the terms of the rivcipt, 
 the delivery to Van Rensselaer was a de- 
 livery to Hinchinnn, and an acceptance by 
 liim,"sullicient to satisfy the statute; for 
 nothing remained but for him to pay the 
 purchase price. " 
 
 In dealing with the queotlon arising on 
 this record, we keep in view the general 
 rule that it is a question for the jury 
 whether, under nil the circumstanccH. the 
 acts which the buy er does or forben rs to 
 do amount to a re<-elpt and acceptance, 
 within tlie terms of the statute of frauds. 
 Hushcl v. Wheeler, l."i Q. U. 442; Morton 
 v. Tibbett, Itl. 42S; Uorrowscale v. Bos-
 
 ^■.)^ 
 
 IIINCIIMAN 0. LINCOLN. 
 
 worth, ',)'.) Muss. 3SI ; Wartinan v. Breed, 
 117 Mass. IS. lUit where the tiiftB ill rela- 
 tion to n cun tract of sale allefied to lie 
 within the statute of frauds are not in 
 dispute, it belons-i to the court to deter- 
 mine tlieir Icfjal effect. Sliepherd v. Pres- 
 Hey, ;!l' N. H. .')(>. And so it is for tlie court 
 to witlihold tlie facts from tliejui.v when 
 they are not such as can in law warrant 
 finding;' an acceptance; and this includes 
 cases where, tliousli the court niinlit ad- 
 mit tliat there was a scintilla of evidence 
 tending: to show an acceptance, tliey 
 would still feel hound to set aside a ver- 
 dict finding an acceptance on that evi- 
 eiioe. Hrowne, St. Frauds, § 'S'2\ ; Uenny 
 V. Williams, 5 Allen, fi; Howard v. Borden, 
 13 Allen, 299; Biukhain v. Mattox, 5H N. 
 H. G04. 
 
 In order to take the contract out of the 
 operation of the stat\ite, it was said hy 
 the New York court of appeals, in Marsh 
 V. Rouse, 44 N. V. CV,i, that there must he 
 "acts t>f such a character as to unequivo- 
 cally place the property within the power 
 and under the exclusive dominion of the 
 buyer as absolute owner, discharged of 
 all lien for the price." This is adopted in 
 the text of Benj. Sales, (Bennett's 4th 
 Amer. Ed.) § 179, as the lan(iua,.ie of the 
 decisions in America. In Shindler v. 
 Houat(jn,l N. Y. 2(51, 49 Anier. Dec. 810, 
 Gardiner, J., adopts the lannnafie of tlie 
 court in Phillips v. BristoUi, 2 I'-arn. & ('. 
 .'ill, "that, to satisfy the statute, there 
 must he a delivery by the vendor, with an 
 intention of vesting theright of possession 
 in the vendee, and there must be an ac- 
 tual accceptance by the latter, with the 
 intent of taUinj;' possession as owner;" 
 and adds: "This, I apprehend, is the cor- 
 rect rule, and it is obvious that itcan only 
 be satisfied by something done sul)sequent 
 to the sale unequivocally indicating tlie 
 mutual intentions of the parties. Mere 
 words are not sufficient. Uailey v. Og- 
 den, 3 Johns. 421. * » * In a word, the 
 statute of fraudulent conveyances and 
 contracts pronounces these agreements, 
 when made, void, unless the buyer should 
 'accept and receive some part of the 
 goods.' The language is unequivocal, and 
 demands the action of both parties, for 
 acceptance implies delivery, and there can 
 be no complete delivery without accept- 
 ance." In the same case. Wright, J., said : 
 "The acta of the parties must be (jf such 
 a character as to unequivocall.v place the 
 property within the power and under the 
 exclusive dominion of the buyer. This is 
 the doctrine of those cases that have car- 
 ried the principle of constructive deljvery 
 to the utm( st limit. » » » Where the 
 acts of the buyer are equivocal, and do 
 not lead irresistibly to the conclusion that 
 there has been a transfer ami acceptance 
 of the possession, the cases qualify the 
 inferences to be drawn from tliem, and 
 hold the contract to be within the stat- 
 ute. » * » I think I may affirm with 
 safety that the doctrine is now clearly 
 settled that there must not only be a de- 
 livery by the seller, but an ultimate ac- 
 ceptance of the possession of tlie goods 
 liy the liuyer, and that this delivery and 
 acceptance can only be evinced by un- 
 equivocal acts independent of the proof 
 
 of the contract." This case is regarded 
 as a leading authority on the subject In 
 the state of New Y'ork, and has lieen uni- 
 formly followed there, and is recognized 
 and supported by the decisions of the 
 highest courts in many other states, as 
 will appear from the note to the case as 
 reported in 49 Amer. Dec. IJIO, where a 
 large numbt-r of them are collected. So, 
 in Kemick v. Sandford, l-'O Mass. :W9, 31G, 
 it was said by Devens, J., speaking of the 
 distinction between an acceptance which 
 would satisfy the statute, and an accept- 
 ance which would show that the goods 
 corresponded with the warranty of the 
 contract, that, "if the tmyer accepts the 
 goods as those which he purchased, he 
 may afterwards reject them if they were 
 not what they were warranted to be; l)ut 
 the statute is satisfied. But wliile such an 
 acceptance satisfies the statute, in order 
 to have that effect, it must be by some 
 nne(iuivocal act done on the part of the 
 buyer with intent to take possession of 
 the goods as owner. Thesaleiuust be per- 
 fected; and this is to be shown, not by 
 proof of a change of possession only, but 
 of such change with such intent. When it 
 is thus definitely established that the re- 
 lation of vendor and vendee exists, writ- 
 ten evidence of the contract is dispensed 
 with; although the buyer, when the sale 
 is with warranty, may still retain his 
 right to reject the goods if they do not 
 correspond with the warranty. * » * 
 That there has been an acceptance of this 
 character, or that the buyer has conduct- 
 ed himself in regard to the goods as 
 owner * * * is to be proved by the 
 partj' setting up the contract." 
 
 Mr. Benjamin, in his treatise on Sales, 
 § l!S7, says: "It will already have been 
 perceived that in many of the cases the 
 tsst for determining whether there has 
 been an actual receipt by the purchaser 
 has been to inquire whether the vendor 
 has lost his lien. Heceipt implies delivery, 
 and it is plain that, so long as vendor 
 has not delivered, there can be no actual 
 receipt by vendee. The subject was 
 idaced in a very clear light by Holroyd, 
 J., in the decision in Baldey v. Parker, 2 
 Marn. & C. o7: 'Upon a sale of specific 
 goods for a specific price by parting with 
 the possession, the seller parts with his 
 lien. The statute contemplaten such a 
 parting with the possession, and there- 
 fore, as long as the seller preserves his 
 (•ontrol over the goods so as to retain his 
 lien, he prevents the vendee from accept- 
 ing and receiving them as his own, within 
 the meaning of the statute.' No excep- 
 tion is known in the whole series of de- 
 cisions to the proposition here announced, 
 and it is safe to assume as a general rule 
 that, whenever no fact has been proven 
 showing an abandonment by the vendor 
 of his lien, no actual receipt by the pur- 
 chaser has taken place. This has been 
 as strongly insisted upon in the latest as 
 in the earliest cases. The principal deci- 
 sions to this effect are referred to in the 
 note." In accordance with this, the rule 
 is stated in Browne, St. Frauds, § 317a, 
 as follows: "Where, by the terms of the 
 contract, the sale is to lie for cash, or any 
 other conditi(ju precedent to tlie buyer's
 
 HINCIIMAN V. LIXCOhX. 
 
 431 
 
 acquiring title in the goods he inipoHed, or ] 
 the KoodH be at tlic timo of the alleKed re- 
 ceipt not litted for delivery according to 
 the contract, or auything leiiiaiii to he 
 done by the seller to perfect the delivery, 
 Hu<'h tact will be Konerully conclusive that 
 there was no receipt by the buyer. Thei'c 
 must be lirst u delivery by the seller, with 
 intent to Kive possession of the goods to 
 the buyer." 
 
 It is clear, and, us wo have seen, is con- 
 ceded, that the original delivery hy the 
 plaintiff to Van Uerisselaer of the securi- 
 ties, according to the terms of the receipt 
 taken at the time, was not a delivery to 
 the defendant in the sense of the rule es- 
 tablished by the authorities; and that 
 ionse(|uently there was not, and could not 
 have bi'cn, at that time, a receipt and ac- 
 ceptance of them by the defendant to sat- 
 isfy the statute of frauds. How far can 
 it be cltilmed that that inchoate and in- 
 complete delivery was made perfect by 
 any subsequent act or conduct of the par- 
 ties? The lirst circumstance relied on liy 
 the plaintiff as material to that point is 
 that, shortly after the receipt was given, 
 the defendant was informed of it, and 
 made no objection to it. Hut certainly 
 this is insi;^niticant ; it added nothing to 
 the transaction stated in the receipt tliat 
 the defeiiilaiit assented to it. That as- 
 .sent was simply that the securities had 
 been delivered to Van Itensselaer, to be 
 delivered to him when paid for. It did 
 not alter the implied contract between Van 
 Hensselaer and tiie plaintiff, arising upon 
 the terms of tlie receipt, that the subject 
 of the sale should not be delivered to the 
 defendant until he had paid the agreed 
 pr'ce. The ne.\t circums'ance relied upon 
 is the conversation testilied to l)y Tyler | 
 as having tal<en place on .luly L'Oth be- ' 
 tween him and the defendant. In that 
 conversation, Tyler testilies that he said . 
 to the defendant "that I supposed he 
 l<new we had'delivered the securities — the 
 IJothwell securities — to A'an H^nss-elaer as 
 he had <lirecteil; and he said, ' Yes, that 
 was all right.' " Here, certaiidy, nothing 
 was added to the transaction. Hoth 
 these circumstances are also fnll.v met by 
 the well-established rule that mere «ords 
 are not snlhcient to constitute n delivery 
 and acceptance which will take a verbal 
 contract of sale out of the statute of 
 frauds. Shindler v. Houston, ubi supra. 
 
 riie ne.xt item of evidence in support of 
 the plain tiffs contcTition is the conversa- 
 tion on August 1, ISSL', at Long Beach, be- [ 
 tween the defendant and the plaintiff, in l 
 which the defendant, introducing Meyer 
 io tlie plaintiff, said : "Tliisis Doctor Lin- j 
 cola, fi-om whom I have the liothwell se- 
 curities." This declaration of the defend- 
 ant is treated in the argument as an ad- 
 mission liy hijn ilistinctly (d tlie fact that 
 he had at that time possession of the se- 
 curities in question, which he coulil only 
 have by a deliver.v from \'an ISensselaer, 
 either actual or constructive. This con- 
 struction of the statement, however, in 
 our opinion, is entirely inadmissible. The 
 context plainly shows such not to have 
 been its meaning, tor, as appears by the 
 testimony of the plaintiff relating it. the 
 conversation immediately turned to the 
 
 controversy between the partlefi ns to 
 whether the (h'lendant had been negotiat- 
 ing for the sei'uritics In his Imllvldual 
 capacity, or as trustee for the Stormont 
 Silver .Mining Company. The expreHsion 
 testilieil to cannot fairly be extended be- 
 yond a casual reference to the trnnHuc- 
 tion as it had taken place, anil as it then 
 stood u|)on theteinisof the Van Kensseluer 
 receipt. There is nothing whatever in the 
 conversatioti to justify tlie inference that 
 there had been a subsequent delivery by 
 Van Itensselaer to tlie defendant, whereby 
 the possession of the securities had been 
 changed, or whereby the control and 
 dominion over them had been given to 
 the defen<lant by Van Itensselaer, contrary 
 totheleims of his agreement with the 
 plaintiff as contained In the receipt. .\iid 
 Nuch was and must have been the under- 
 standing of the plaintiff hiins>'ir. for sub- 
 sequently, on the si.xteenth of Xovembi'r, 
 he made the written ilemand upon Van 
 Itensselaer for the immediate return of the 
 si-enrities to him, on the ground that up 
 to that time the defendant had refused to 
 fuinil his contract for their iiurchasc. 
 This is certainly an unequivocal act on 
 the part of the plaintiff entirely inconsist- 
 ent with the assertion that there bad 
 been, prior to that time, any delivery by 
 him or by his authority to the defendant 
 of the suliject of the alleged sale. Its legal 
 effect goes lieyond that; It was a distinct 
 rescission of the contract of sale; it was 
 a notice to Van Rensselaer not to deliver 
 to the defendant thereafter, even if lie 
 should offer to complete the contract by 
 payment of the consideration ; it put on 
 end, by its own terms, to the n-lation be- 
 tween the parties of vendor and vendee; It 
 made it unlawful in Van Itensselaer there- 
 after to deal with the securities, except by 
 a return of them to the plaintiff as tbeir 
 owner. The refusal of Van Itensselaer to 
 comply with the terms of thedeniand sub- 
 jecteil him to an immediate action by the 
 plaintiff for their recovery specllically. If 
 he could reach them by process, or other- 
 wise, for damages for their conversion. 
 This certainly is conclusive of tlie (|nestion 
 of a prior delivery to the defendant, and a 
 receipt and acceiitance by him. Taylor 
 V. Wakelield, (J Kl. & lU. TC..".; lienj. Sales, 
 § 171. 
 
 To meet this view, however, the letter 
 of the definilant to Van Kensselaer of Au- 
 gust LMtli is relied on as evidence of a re- 
 ceipt and acceptance by the defendant at 
 that lime, being, ns it li^ argued, the ex- 
 ercise of control and dominion over the 
 securities by the defendant as owner. 
 That letter. It will be observed, is ad- 
 dressed to Van Itensselaer as secretary 
 and treasurer of the Stormont Silver .Min- 
 ing Company by the defendant, signing 
 himself president and trustee of the same. 
 It declares that the plaintiff had seen tit 
 to disavow the umlerstanding and agree- 
 ment bv which, as claimed by the tlefend- 
 ant, heliiid obtained control of the secu- 
 rities in question which had been left in 
 Van Kensselaer's hands; that, after con- 
 ference with a majority of the trustees of 
 the company, he had Ihhmi Instructeil to 
 notlfv Van Kensselaer to retain posses- 
 sion "of them until a court of competent
 
 432 
 
 IIINCHMAN C.LINCOLN. 
 
 jurisdiction Khoiild direct him wliat to do 
 with them ; nddinR, " Iclaiiiiiii«, as n truH- 
 tee, for the benefit of Storiiiont treasury, 
 an equitable and bona fide interest there- 
 in." Clearly, tliere is nothing in the send- 
 ing of this dornmeiit. or in its contents, 
 which can have the effect contended for, 
 whether considered alone, or in connec- 
 tion with the subsequent refusal of Van 
 Rensselaer to return the securities to the 
 plaintiff, in pursuance of his demand. 
 Taken together, they do not constitute 
 either the assertion or exercise of any 
 right in respect to the securities under anj- 
 contract of sale bc^tween the plaintiff and 
 the defendant as individuals. It is quite 
 true, and the authorities so declare, that 
 the receipt and acceptance l)y the vendee 
 under a verbal agreement, otherwise void 
 by the statute of frauds, may be complete, 
 although the terms of the contract are 
 in disi>ute. Keceiiit and acceptance by 
 some unequivocal act, sufficiently i)roven 
 to have tal<en place under some contract 
 of sale, is sufficient to take the case out 
 of the prohibition of the statute, leaving 
 the jury to ascertain and find from the 
 testimony wliat terms of sale were ac- 
 tually agreed on. Marsh v. Hyde, .3 'iray, 
 331; Townsend v. Hargraves, US Mass. 
 32.5; Uenj. .Sales, § 170. I?ut, as was said 
 by Williams, .1., in Tomkinson v. Staight, 
 17 C. B. GOT, the acceptance by the defend- 
 ant must be in the quality of vendee. 
 "The statute does not mean that the 
 thing which is to dispense with the writ- 
 ing is to take the place of all the terms of 
 the contract, but that the acceptance is 
 to establish the broad fact of the relation 
 of vendor and vendee." The act or acts 
 relied on as constituting a receipt and 
 acceptance, to satisfy the statute, must 
 be such as definitely establish that the 
 relation of vendor and vendee exists. 
 Remick v. SandfonJ, 120 Mass. 30'J. 
 
 Jn the present case the notice of tlie de- 
 fendant, as president and trustee of the 
 Stormont (^ompany, to Van Itensselaer, 
 to retain possession of the securities, and 
 Van Rensselaer's refusal to return the se- 
 curities to the plaintiff on his demand in 
 consecjuence thereof, certainly are not 
 facts which tend to establish the existing 
 relation of vendor and vendee between 
 
 the plaintiff and the defendant. The de- 
 fendant in his notice makes no claim as 
 Kucl) ; and certainly no assent on the part 
 of the plaintiff to his exercise of any such 
 dominion is shown. It is clear beyond 
 all controversy, so fur as this record 
 shows, that the plaintiff had never con- 
 sented that Van Rensselaer should deliver 
 the securities to the defendant except 
 upon payment of the price, nor is there a 
 particle of proof that Van licnsselacr has 
 ever done so. 
 
 It is further and finally nrgeil, however, 
 by his connsel, that it was competent for 
 the plaintiff to waive the condition of a 
 previous payment of the consideration, 
 and to authorize Van Rensselaertorleliver 
 the securities to the defendant without 
 performance of the contract on the part 
 of the latter, and that the bringing of the 
 present action was such a waiver. It, in 
 point of fact. Van Rensselaer had trans- 
 ferred the manual possession of tlie securi- 
 ties to the defendant, or if, contrary to 
 the terms of his original receipt, he had 
 agreed with the defendant to hold the 
 securities subject to his order as his agent, 
 free from the conditions of the purchase, 
 and as his absolute property, the plain- 
 tiff's assent to this new arrangement 
 might be well implied from his bringing 
 an action against the defendant to re- 
 cover the consideration. But the preni- 
 ise.s on which this conclusion rests are not 
 to be found in the present case. There 
 was no transfer of possession from Van 
 Rensselaer to the defendant, nor has there 
 been any change in the relation of Van 
 Rensselaer to his possession ot the securi- 
 ties, whereby he has agreed, with the con- 
 sent of the defendant, to hold tliem as 
 agent for the latter as vendee under any 
 contract of sale with the plaintiff. 
 
 On the whole, we are well satisfied that 
 there was no evidence of a receipt and 
 acceptance of the securities in question by 
 the defendant to authorize a recovery 
 against him upon the alleged contract of 
 .sale. It was error in the circuit court to 
 refuse to charge the jury to that effect, as 
 requested by the counsel for the defend- 
 ant. For that error the judgment is re- 
 versed, and the cause remanded, with di- 
 rections to grant a new trial. 

 
 iiouTON V. liurn.N rf)x. 
 
 435 
 
 IIOKTUX V. BUFl-'INTON. 
 
 (105 Mass. 399.) 
 
 Supremo Judicial Court of Massachusetts. 
 Bristol. Oct. Term, 1870. 
 
 I{('|)ioviii of n wujion. .JarviH I{. Ilortiin, 
 the orifiiiiiil owner of liie waKoii, sold niid 
 (Iclivcri'il it to Chiirlfs A. H^jrton, who 
 Hold it to the phiintifr. While in the plain- 
 tiff'H hfinilK, it WUH nltiiclied \>y the de- 
 fendant, a depnty wheriff, on a writaK"iiiwt 
 .larvis I!. Ilorton. There wuh evidenee 
 that the sale by JarviH I!. Korton to 
 Charles A. Ilorton waH on a .Sunday. The 
 defendant reiiueHted thejiidfreto inMtruet 
 the jury that, "if Jarvis H. Hortoii nnder- 
 took to sell the property to t'harl'.'H A. 
 Ilorton on Snnday, then Charles A. Ilor- 
 ton ai(|nireil no title to it l)y that tranH- 
 artion, anil could inii)art no title to the 
 plaintiff, when he undertook to sell it to 
 liiin. which *lie latter coulil set up aifaiast 
 an attaehin^ creditor of Jarvis I!. Ilor- 
 ton." Thejudtfc refnsi'd the instrnclion 
 prayed for, and instructed that "if t'liarles 
 .\. Horton purchased the wafj;«n on Sun- 
 day, and sold it to the plaintiff witl.out 
 informinij; him that it was purchrised on 
 Sun<lay, and the plaintiff was ignorant of 
 that fact when he l>ou};ht the wuk"". "'•'' 
 in no way particijjated in the transaction 
 on Sunday, then he wouhl nccjuire a title 
 to the wa;;on by thi; sale from Charles A. 
 Ilorton which he conld set up against an 
 attachinjr creditor of Jarvis B. Ilorton." 
 The jury found for ])laintiff, and the de- 
 fendant alleged exceptions. 
 
 C. A. Iteed. for plaintiff. G. .Mar.«iton 
 and O. E. Williams, for defendant. 
 
 AMES, J. It is well settled that con- 
 tracts made upon the Lord's day are ille- 
 gal and cannot be enforced. It is e(iually 
 
 well settled, however, that after bupIi a 
 contract lias been executeil and carried in- 
 to full effect, the law will not aid a parly, 
 who has paid money ordeliven-il property 
 in pursnance of its terms, to reclaim what 
 he has so parted with. The policy of the 
 law is to leave the parlies in nil such 
 cases without remedy against each other. 
 Thedefence of Illegality is allowed." not as 
 a iirotection to the defendant, but as a 
 • Usability in the plaintiff." Myers v. 
 .Meinrath, 101 .Mass. ;!(;(;. 
 
 The case linds that the wniton In dlH- 
 I)ute. ulthon«h it may be true that it 
 was sold by .Jarvis I!, lloiton on the 
 Lord's day, was delivered to his brother, 
 Charles A. Horton, was rtubse(|uently sold 
 by the latter to trie plaintiff, and was In 
 the actual possession and use of the plain- 
 tiff at the time of the attachment by the 
 defendant. In the absence of all evidence 
 to the contrary, it may be assumeil that 
 the consiileration of the Hrst sale waa 
 paid. Kniler such circumstances it is dlffl- 
 cult to see how the original vendor, Jar\ Ir 
 1'. lloitoii, could have reclaimed it on th» 
 irroiind of any illegality in the contract of 
 sale. 'I'he l:tw would not aid him to undo 
 what he had done, lie could only iiD- 
 peach the .sale by showiii); the illegality 
 of his own act. which in the case of atl 
 executcil and completed contract he cer- 
 tainly cannot do. This disability on his 
 part to reclaim it wo\ild avail the party 
 lioldiuK it. as n sullicient title. Myerf v. 
 Meinrath, ubi supra. It hod ceased to 
 be the original vendor's property, or lia- 
 ble fiir his debts, and therefore the attach- 
 ment under which the defendant seeks to 
 justify was wrongful. Kinii v. Ureen, 6 
 Allen, VM. Claridfte v. Iloare, U Ves. .".9. 
 Waj V. Foster, 1 .\llen, 4(is. Oreun v. \Vy- 
 nian. 4 Cush. "ll"J. .Sanipson v. SUaw, 101 
 .Mass. I4.->. 
 
 Exceptions overruled.
 
 IIos^rER c. wiLsox 
 
 437 
 
 HOSMKR et aJ. v. WILSON. 
 
 (7 JtiHi. 204.) 
 Snprprae f'iMir( of Mirliijjan. Oct. 17, 1859. 
 
 AsKiimpHit b.v John B. Wilson a^aintst 
 Itiifiis llosiiier and atiotlier "for wor'k ami 
 labour done, and HiTvicfM rendered, and 
 niati't'ialH furnished, hy jihiintiff and liiH 
 hervants for defendants, all at request of 
 sail! dcfwndiintH. " .Jndnment for idaintiff, 
 and defcndiints brinjj: error. Reversed. 
 
 It ,i|)|irnn'il (hat one of defendants had 
 called ;il iil;iintiff's foundry, tiiul ttierc 
 sinned a wit ten order for an etiRine. to be 
 paid for wlii'n taken f)iit of the shop, and 
 that plaintiffs clerk accepted the order; 
 that plaintiff then proceeded to make such 
 enirine, and only stopped when he received 
 .■I li'ller from defendant.s countermandinK 
 the order. 
 
 .lerorne & Swift, for plaintiffs in error. 
 Towle, Hunt & Newberry, for defendant 
 in error. 
 
 (."HKI.STI.\N(;Y, J. Whether the writ- 
 ten meniorandtiin sinned by the defenil- 
 ants belciw, when taken in connection 
 with the whole transaction between the 
 parties, was iimlerstood by all of them as 
 a contract, minht have been a fair ques- 
 tion of fact for the jury. Hut ndmittinn 
 the contract to have been proved in all re- 
 Kpects as clainuMl by the plaint iff. and that 
 defendants lielow wrongfully counter- 
 manded the order for the ennine, after the 
 plaintiff had. in nood faith, made most of 
 the castinjis, and done a larfz;e part of the 
 work; the lirsf (|ucstion which arises is, 
 whether th(" pinintiff was entitled to re- 
 cover upon the common counts for work 
 and lal)or, as upon a (pinatum meruit? 
 Ah to thematerials it is admitted he could 
 not, though contained in the same count; 
 as they still belonji'ed to i)lHintiff, and 
 were never delivered to defendants. 
 
 In the case of a conti'act for a certain 
 omoMMtof lal)or,orfor work for a specified 
 period — when the laboi- is to be perfornsed 
 on themiitcriaU or i)roperty, or in carrying 
 on the business, of llie defendant, or when 
 the defendant has otherwise accepted or 
 appropriated the labor performed, if thcde- 
 (endaiit prevent the plaintiff from per- 
 forniiuy: the whole, or wrongfully ilis- 
 tharne him from his employ lucnt. or order 
 him to stop the work, or refuse to pay 
 as he hns agreed (when pa.vments become 
 due In the progress of the work), or disa- 
 ble himself from performitijj;, or unquali- 
 fiedly refuse to perforin his part of the 
 contract, the iilaintiff may, without fur- 
 ther performance, elect to sue upon the 
 contract and recover damanes for the 
 breach, or treat the contract as at an 
 end, nnd sue in nener.'il assumpsit for the 
 work and labor act uallv iierforiued: Hall 
 V. ItupU'v. HI Itarr. l.':!l : Moulton v. Trask, 
 9 Mete, .■iT'.l; Derby v. .lohrson, 'Jl Vt..:.'!; 
 Caiiiida V. ("jiiuidn, (1 t'usli., 15; Draper v. 
 Hnnd(>lph,4 Iliirrinnton, 454; Webster v. 
 Kiifield. 5 (iilni.. L'ilS. 
 
 .\nd in snchcascs he may, it would seem, 
 un<ler the common itidebitatus count, re- 
 cover the contract pric, where the case is 
 such that the lalxir done can be measured 
 or apportioned by the contract rate; or 
 
 I whether It can be ho apportioned or not, 
 lie may under the quantum meruit recover 
 what it is reasonably worth. Hut in all 
 such cases, the [daintiff, hnunc appro- 
 priated anil rcceiveil the Iteiietit of the 
 labor (or, what is erjuivnlent. having In- 
 tluceil the plaintiff to e.\pend his labor for 
 j him, an<!, if properly [lerformed acconJiuK 
 to nis desii-e, the defendant beiiin estopped 
 to <leny the benefit), a dutv is iinposeil 
 upon the defendant to pay for the labor 
 thus performed. This duty the law en- 
 forces under the fiction of an implied con- 
 tract, nro'vinn out of the reception or aji- 
 pr,.priation of the plaintiff's labor. 
 
 It is therefore evident, l.st, that in all 
 the cases supposed, an implied contract 
 wouhl have arisen, and the plaintiff niinht 
 have recovered upon a quuntutn meruit, if 
 no B|iecinl contract had ever been made; 
 2d, that in the like cases (where the value 
 of the work done could not, as it probably 
 could not in the case before us, lie appor- 
 tioned l)y the contract price) the value or 
 fair price of the work done, woidd neceH- 
 sarily constitute the true measure of dum- 
 ancs. And in all such cases, ;ih first Hup- 
 poseil, either the contract price, or the 
 reasonable worth of the labor done, would 
 measure tlie damages. 
 
 Similar considerations and like rules 
 would, doulttlcHs. equally apply to con- 
 tracts for furnishing materials, and forthe 
 sale nnd delivery of pergonal property, 
 wlien, after part of the materials or prop- 
 erty hns been received ami appropriated 
 by, or v'ested in the defendiint. he has pre- 
 vented the i)l,iintiff from peiforminn, or 
 authorizing him to treat tlie contract as 
 at an end. on any of the grounds above 
 mentioned. 
 
 r.ut the case before us stands upon 
 very different irrounds. Mere the con- 
 ti'act, as cliiimed to have been proved, 
 was in no just sense a contract for work 
 and lal)or, nor could the plaintiff, while 
 at work upon the engine, be proi)erly said 
 to be enuaned in the business of the de- 
 fendants. It was substantially a contract 
 for the sale of an engine, to be made and 
 furnished by the )>laintiff, to the defend- 
 ants, from the shop, and, of course, from 
 the m.-iterials of the plaliitiff. The defend- 
 ants had no interest in the materials, nor 
 any concern with the amount of the labor. 
 They were to i)ay a certain price for the 
 engine when completeil. ICniiines, it Ir 
 true, are not constructed without labor; 
 the labor, therefore, constitutes part of 
 the value of the enjr'n«>. Itut this would 
 have been equally true if the contract in 
 this case had been for an enuini' already 
 completed. 
 
 The lalxir of the plaintiff was upon hia 
 own materials, to increase their value, for 
 the purpose of effeciiiiK r. sale (o defend- 
 ants when completed. No title in any 
 part of the n.aterlals was to vest In de- 
 fendants till the whole should be coin- 
 Iileted by pinintiff. and delivered to defend- 
 ants. The pliiinliif iniKht have sold any 
 of the ninterlals. after the work was per- 
 formed, or the whole engine when com- 
 pleteil. iit anytime liefore delivery to, or 
 acceptance by defendants. 
 
 Whether, therefore, the labor actually 
 performed on these niateriala, wbeo the
 
 43S 
 
 HOSMEU V. WII.SOX. 
 
 defendants refiiHed to go on with the pon- 
 tract, or prevented the fnither ptrl'orui- 
 aiice, had euhaneed (jr diminished the 
 value of the mnterialH. and liow uiiicli, 
 would be a necessary (luestion of faet, in 
 arriving at any proper measure of dam- 
 ages. Tlie value of the work and lahor 
 does not, therefore, in sueh a case, consti- 
 tnte the proper criterion or measure of 
 damages. If the value of the materials 
 has been enlianced bj- the labor, the plain- 
 tiff, still owning thematerials, has already 
 received compensation to the e.xtent of 
 the increased value; and to give him dam- 
 ages to the full value of the labor, would 
 give him n\ore than a coicpensation. If 
 the value of the materials has been diniiu- 
 ished, the value of the labor would not 
 make the comptMisatitin adeciuale to the 
 loss. It would beonl.vin the single case 
 wliere the materials have neither been in- 
 creased nor diminished liy the labor, that 
 the value of the labor would measure the 
 dainage.s. Such a case euuld seldom oc- 
 cur, and whether it could or not, it must 
 always be a (piestion of fact in the case, 
 whether the value of the materials dcjes 
 remain the same, or wiiether it has been 
 increased, or diminished, and to what ex- 
 tent. 
 
 Again, as the defendants never received 
 the engine, nor any of the materials, the 
 title and possession still remained in the 
 plaintiff, and the defendants never having 
 received or api)ropriateil the labor of the 
 plaintift, if the same work had been per- 
 formed under the like circumstances, with- 
 out any actual or special contract, the 
 law would have imposed no duty upon 
 the defendants, and therefore implies no 
 contract on their part to pay for the 
 work done: ] t'hit. PL, 3^1"; Atkinson v. 
 Bell,S B.&C.,277; Allen v..Jarvis,l'U <,'onn., 
 3S. 
 
 The only contract, therefore, upon which 
 the plaintiff can rely to pay him for the 
 labor, is the special contract. No duty is 
 imposed npon the defendants otherwise 
 than by this. This contract, therefore, 
 must form the t)asis of the plain tiff's ac- 
 tion. He must declare upon it, and claim 
 liis damages for the breach of it, or for 
 being wrongfull.v prevented from perform- 
 ing it. His damages will then he the ac- 
 tual damages which he has suffered from 
 the refusal of the defendants to accept the 
 articles, or in consequence of being pre- 
 vented from its performance; and these 
 damages may be more or less than the 
 value of the labor. This case, therefore, 
 in this respect, comes directly within the 
 principle recognized in the case of Atkin- 
 son V. P.ell, above cited, and in Allen v. 
 Jarvis, 1!0 Conn., 3S (a well reasoned case, 
 which we entirely approve I. And see 
 Moody v. Brown, 34 Me., 107, where the 
 same principle is recognized. 
 
 But it was claimed by plaintiff's counsel 
 that no action could have been main- 
 tained on the special contract until fully 
 performed, and the engine delivered or 
 tendered to the defendants; that the un- 
 qualified refusal of the defendants to take 
 the engine, when it should be completed, 
 was not a prevention of performance 
 which would authorize the plaintiff to sue 
 upon the contract on that ground. We 
 
 think it was, and that such absolute re- 
 fusal is to be considered in the same light, 
 as repects the plaintiff's remedy, as an ab- 
 solute, physical prevention by the defend- 
 ants, ibis view will be found fully sus- 
 tained bv the following cases: (,'ort v. 
 Amberga'te Railway Co., 6 E. L. & Eq.,230; 
 Derby v. Johnson, 21 Vt., 21; Clarke v. 
 iMarsiglia, 1 Denio, 317; Hochster v. De 
 Latour, 20 E. L. & E;i., l.")7. In the latter 
 case, it was held that a refusal of the 
 employer before the work commenced, to 
 allow it to be done, authorized an imme- 
 diate action upon the contract. 
 
 So, a I'efusal to make any jjai'ment, 
 which, by the contract, is to be made 
 during the progress of the work, has the 
 same effect: Draper v. Kandolpli, above 
 cited ; and see Hoagland v. Moore, 2 
 Klackf., 1()7; Webster v. Enfield, 5 Uilra.. 
 29S; Withers V. Reynolds, 2 13. & Ad., fi82. 
 See this whole subject ably discussed, and 
 the authorities cited, in 2 Smith's Lead. 
 Cas. (Amsr. Edit.), 22. to :!S; and tor what 
 will amount to prevention, see note of 
 Hare & vVallace to same, 40. As to mode 
 of declaring on the contract: Ibid., 41, 
 and 1 Chit. PI., 32G. 
 
 It would be unreasonable and unjust to 
 hold that the plaintiff, in this case, after 
 the pf)sitive countermand of the <lefend- 
 ants' order, was, nevertheless, bound to go 
 on and complete the engine, and thereby 
 increase the damages, before he could re- 
 cover for the work already done. The 
 defendants carmot complain that tha 
 plaintiff has given credit to their asser- 
 tion. The law will not require a vain 
 thing. And it is certainly, in such cases, 
 much better for both parties to hold the 
 party thus notified to be fully justified in 
 stopping the work, as it lessens the dam- 
 ages the other party has to pay, and re- 
 lieves the party who has to do the work 
 from expending further labor, for which 
 he has fair notice he is to expect no pay- 
 ment. And it is certainly very question- 
 able whether the party thus notified has a 
 right to go on after such notice, to in- 
 crease the amount of his own damages. 
 In Clarke v. Marsiglia, above cited, it was 
 held he had no such right, and that the 
 employer has a right (in a contract for 
 work and labor) to stop the work, if he 
 I choose, subjecting himself to the conse- 
 j quencesofa breach of hiscontract, and that 
 j the workman, after notice to quit work, 
 has no right to continue his labor, and 
 i recover pay for it. 'l^his doctrine is fully 
 approved in Derby v. .Tohnson, above 
 cited. This would seem to be good sense, 
 and, therefore, sound .aw. And it would 
 seem that any other rule must tend to the 
 injury, and, in many cases, to the ruin of 
 all parties. 
 
 It is unnecessar.v here to review the au- 
 thorities cited by the plaintiff's counsel. 
 Most, if not all of them, when carefully ex- 
 amined, will be found entirely in har- 
 mony with the views above expressed. 
 The result of them will be found well and 
 fairly stated, ami evidently form a careful 
 examination, in Allen v. Jarvis, above 
 cited. I have made the same examina- 
 tion, and come to the same result. 
 
 It may, however, be i)roper here to say, 
 that in the case of Planche v. Colburn, 8 
 
 i
 
 HOSMER V. WILSOX. 
 
 430 
 
 Bins;., 14, upon which mach reliance was 
 placed by the counsel for the rlcfenilant in 
 error, there was a npecial count upon the 
 contract, ns well ns the common counts, 
 and It may ho inferred from the opinion 
 that the plaintiff was allowed to retain 
 his verdict upon the special count. And 
 we Dave the hij^li authority of Lord Camp- 
 hell that such was the case. Sec Hocli- 
 sterv. De Latour, 20 E L. & Eq. 163, above 
 
 cited. As the conclusion at which wc 
 have arrived upon this point diKpi>HeM of 
 the whole case, it beconies unnecessary, 
 and even improper to discusH the other 
 quentiuils ralHed in the caMe. 
 
 And, as we do not conceive that under 
 a writ of error we have any power to 
 amend the declaration in this rcnpcct, the 
 judKoient must be reversed. 
 
 The other justices concurred.
 
 HOWE V. UAVAVAUD. 
 
 441 
 
 HOWE v. HAYWARD. 
 
 (108 Mass. 54.) 
 
 Supremo Judicial Court of Massachusetts. Wor- 
 cester. Oct. Term, 1871. 
 
 T. G. Kent, for plaiutilf. P. E. Aldrlcb, 
 f<ir (lofendant. 
 
 CHAPMAN, O. J. It appears by the 
 repiirt, that tlie parties made an oral con- 
 trart for tlie sale of property by tlie plain- 
 tiff to the defendant, anri that eaeli of them 
 deposited the sum of .fSOO In the hands of 
 one Taft. The plaintiff contendecl that 
 the money deposited by the defendant was 
 tjiven in earnest to bind tlio bargain, or 
 in part |>ayment. The defenilnnt con- 
 tended that it was under an aKreement 
 that the sum should be forfeited in ease he 
 refused without just eause to [lerform the 
 contract. The jury found that it was not 
 deposited in earnest or in part payment, 
 but was deposited "as a forfeiture, to be 
 paid over to the [)arty who was ready to 
 perform the contract, if the other i)arty 
 neftlected to do so;" and under the in- 
 struction of the court found for the defend 
 
 ant. The plaintiff contendB that the find- 
 ing should have been for the plaintiff, be- 
 cause, If the money was deposited as u for- 
 feiture, as stated, it amounted to "ear- 
 nest," within thenieaniuK of thestatuleof 
 frauds. Tills depends upon the pro|>er 
 definition of that term as used in the Htut- 
 ute. 
 
 The Idea of "earnest," In connection 
 with contracts, was taken from the civil 
 law. Uul(-rbock on I'.racton (.\m. transl.) 
 145. It Is not necessary t(j cunsider its 
 I)recise effect under that law. As used In 
 the sta t u te of frn uds, " ea rnes t " is re^a nled 
 as a part pnymentof theprice. '2 lil.Com. 
 447. Porda^e v. Cole, J .Saund. 3191. 
 LnuRfort v. Tiler, 1 Salk. 113. Morton v. 
 Tibbett. 1.0 II. n. 42H. Walker v. Nussey, 
 IC) .M. & W. WJ. 1 Dane Ab. i;:!."). The case 
 of MlenUinsop v. Clayton,? Taunt. o'.iT, cit- 
 ed by the plaintiff, turned on the question 
 of delivery. 
 
 The de|)oslt with Taft was not therefore 
 e()uivalent to an earnest to bind the bar- 
 train, or part payment, and there was not 
 a valiil sale within the statute ot frauds. 
 The rulinj; was correct. 
 
 Judgment on the verdict.
 
 lIUiMIiLE V. MITCIIKLL 
 
 •H:? 
 
 HUMBLE V. MITCHELL. 
 
 (11 Adol. & K. :205.) 
 
 tJiu'cii's Bench, Michaclniiis Vacation. Nov. 
 27, 18.'{9. 
 
 .VsHunipHit by the purcliaser of HhnroH in 
 a joint-.stock c(>ni|i;ui.v, called the North- 
 ern and reiitral I5uiik of Eii^lnnd, nt;ainHt 
 the vendor for refusiiifj to Ki«;n a notice o( 
 transfer tendered to him for Hjfinature, 
 and to deliver tliecertilicate.sof tlieshareH, 
 witlioiif. which the sliures could not be 
 transferred. 
 
 I'leaH. \. That the contract mentioned 
 in the declaration wan an entire contract 
 for the Kale of Kood.s, warei^, and mer- 
 chandiser, for a price exceedinp: £U>, and 
 that i)lMintiff had not accepted or received 
 the sail! goods, &c., or any part thereof, 
 and di<l not give any tliinsr in earnest to 
 bind the bargain or in part payment, and 
 that no note or memorandnni in writing 
 of the l)aru;ain was made and signed by 
 defendant or lii.s agent thereunto lawfully 
 authorii^ed. Verification. 
 
 2. That the contract was a contract 
 for the sale of, and relating to an interest 
 in and concerning land.-t, tenements, and 
 hereditaments of and belonging to the 
 said company, and that there was not in 
 respeft of, or relating to, thesaid contract, 
 an agreement or any memorandum or 
 note thereof in writing signed liy defend- 
 ant, or by any other person thereunto l)y 
 him lawfully authorized according to the 
 form of the statute etc. Verification. 
 
 Itcplication: to the first plea, ilenying 
 that the contract was tor the sale of 
 goods, wares, etc.: to the second, denying 
 that it was for the sale of an interest in 
 lands etc. Issues thereon. 
 
 At the trial of tlie cause before Colcriilge 
 J., at the Liverpool Spring assizes, ]s:(S. 
 it was proved that the company was in 
 possession of real estate; lint no title 
 deeds to the estate were produced; nor 
 was it sliewn what was the nature of the 
 
 property Itelonglng to the company, or 
 tli(r e.\tent of their inti-rcr^t llierciu. The 
 jury found a verdict for the plaintiff f)n 
 both issues, subject to a motion to enter 
 a verdict tor the defi-nilant. In thefollow- 
 ing Kaster term Alexander olitained u 
 rule nisi acconling to the leave rchcrved, 
 citing, on the llist [ilea. Ex parte Val- 
 lanre,' and, on the second plea, lix parte 
 The \'au.\liall Bridge Company,- anil Ex 
 parte lloriie.8 
 
 CresHwell ami ('rompton now shewed 
 cause. Alexander, contra. 
 
 Lord DK.VM.VN, ('. J. With respect to 
 the (piestinn arising on the second plea, 
 we have alreaily clisposed of it. The oth- 
 er i)oint Is whether the shares in this com- 
 pan.v are goods, wares, or merchandises, 
 within the meaning nf § 17 of the statute 
 of frnuds. It appears that no case has 
 been found direcll.v in p')int; but it is con- 
 tended that the decisions upon reputeil 
 ownership are apiilicable, and that tin-re 
 is no material distinction between the 
 woi'ds used in the statute of frauds, an<l 
 in the banKrupt act. I think that both 
 the language and the intention of the two 
 acts are distingui.-fhable, and tliat the de- 
 cisions ni>on the latter act cannot be rea- 
 sonably extended to the statute of frauds. 
 Shares in a joint-stock coni|iaiiy like this 
 are mete choses in action. inca|)able of 
 delivei'y, and not within the scope of the 
 17th section. A contract In writing was 
 therefore unnecessary. 
 
 PATTKSON, WILLIAMS, and COLK- 
 UIDCi:, .I.I., c<»ncurred. 
 Hule discharged. 
 
 .\ (nio.stion also arose as to the projjcr mode 
 of estimatinK the damages in this action; but 
 on this point the parties eventually agreed. 
 
 ' 2 Pencon. B. C. .''.54. 
 '1 Glyn. & .T. 101. 
 ■ 7 B. & C. 032.
 
 HUTHMACHEI! r. HARRIS'S ADM'RS. 
 
 445 
 
 HT'TIIMACHER v. HAJIRISS AD.M'HS. 
 
 (38 Pa. St. 491.) 
 
 Siiprfine Court of Pennsylvania. March 2,'5, 
 18G1. 
 
 Triiver by RoHniiiin Gardner, iitliiiiiilH- 
 tratrix, ami Silas Suttun and retor II. 
 Seovill, ailiiiinistra tijiH of EliMtia HarriH, 
 (H'ceaHeil, ajiainst David M. llii thniaclii-r. 
 .ludAnient for plaintiffs, and defendant 
 hrinjis error. Aflirmed. 
 
 'riio property in controversy, eonsistint; 
 of proniiKsory notes and two watelies, 
 was found l)y defendant in a square hloek 
 of -.vodd, <>» tlie top of wliirli was a liori- 
 zontal wlicel with a perpendicular iron 
 siiindle, called in ttie vendue list a "drill 
 machine,"' which wa.s hoiiKht liy him at a 
 sale of the effects of the said Harris. 
 
 Ilendrick B. Wright, forplaintiff inerror. 
 E. L. Uuna, tor defendants in error. 
 
 WOODWARD, J. The irround on which 
 weallirui thisjndKment is, that there was 
 no sale of the valualiles contained in the 
 l)lock of svood, which Is called, in virtue 
 of its horizontal wheel and upright spindle, 
 "a drill machine." Sale, said Mr. .Justice 
 Wayne, in Williamson v. I'.erry, >S How. 
 "44, is n wor<l of i)reciHe lej^al import, hoth 
 at law and inequity, jt means at all 
 times a contract between itarlies to pass 
 rights of property for money which the 
 buyer pays, or promises to pay, to the 
 seller for the thing bought and sold. 
 
 That no such contract was made by 
 these parties in respect to the conterils of 
 the drill marliine, we deduce from the 
 agi'ced facts of the case. The miichine it- 
 self, and every essential part and constit- 
 uent element of it, were well sold. The 
 consideration paid, though only lifteen 
 cents, was in law a (|uid pr<j nuo, aixl the 
 sale, unaffected by fraud or ndsrepreseii- 
 tation, passed to the purchaser an inde- 
 feasible right to the machine anil all the 
 uses and purposes to which it coulil l)e 
 applied, lint the contents of the machine 
 are to be distinguislied from its constitu- 
 ent parts. They were uuKnown to the 
 administrators, were not inventoried, 
 were not exi)osed to auction, were not 
 sold. Of course they were not bought. 
 .Ml that was sold was fairly bought, and 
 may be held by the purchasers. The title 
 to what was not sold retiiains uncliangcd. 
 A sale of a coat does not give title to the 
 DocUet-liook which may happen to be 
 temporarily deposited in it. nor the sale 
 of a chest of drawers a title to the de- 
 |)osits therein. In these caseji, and maii.v 
 others tliat are easily Imagined, the con- 
 tents are not essential to the existence or 
 usefulness of the thing contracted for, and 
 not being within the contemplation or in- 
 tention of the contracting parties, do not 
 pass by the sale. The contract of sale, 
 like all other contracts, is to be controlled 
 by the clearly ascertained intention of the 
 I)arties. 
 
 The argument proceeded very much on 
 the doctrine that equity will, in certain 
 eases, relieve against mistakes of fact as 
 well as of law; but if there was no con- 
 
 ' tract of sale, there could he no mistake 
 of fact to vitiate it. anil therefore that 
 doctrinehas no possible a|)pllcalion. Mis- 
 take is sometimes a ground of relief in 
 e(|uity ; but a man who puts ui) his wares 
 at auction ami sells them to the highest 
 bidder, has [io right to relief on the ground 
 that he was ignorant of the value of that 
 which hesidd. Such a mistake comes of 
 his own negligence, for it Is Ids duty to 
 liossess all necessary knowledge of " the 
 value of that which he brings to market, 
 and the rule is general that if a paity lie- 
 comes remedile.-iH at law by his own negli- 
 gence, equity will leave him to bear the 
 conseiiuences. 
 
 Noi- could these administrators, had 
 tliiy sold the contents, have pleaded, in 
 addition to their ignorance, their fiduciary 
 character. a[id their jiossible liability for 
 a ilevastavit, in defeat of the vested 
 rights of the i)urchaser; for, in respect to 
 the personalty of the dei-edent, they stood 
 in the ilead man's shoes, and were in fact, 
 as they are coinmoidy called in law, his 
 personal representntives. The law cast 
 the personal estate upon them for pur- 
 poses of nilministration, atid a fair sale 
 made in pursuit of ihat purpose, would 
 confer as perfect a title as if made liy a llv- 
 ingowner. Tlie.v.no more than any other 
 vendor, could set nsiile such a sale to 
 avert the conse(|Ucnces of their own neg- 
 ligence. 
 
 Hut inasmuch as they did not, In point 
 of fact, sell the valuables which are In dis- 
 pute, these principles, and all the argu- 
 ments drawn from the law of mistake, are 
 outside of the case. 
 
 If, then, there was no sale and purchase 
 of the contents of the block or inachine, 
 how did Hutlimaclier. when he diwccjvered 
 his unsuspected wealth, hold it'.' ICvi- 
 dently as treasure trove, which, though 
 comnioaly deliaed as g(dd or silver hidden 
 in the ground, may. in our commercial 
 day, be taken to include the paper rejire- 
 sentatives of gold and silver, especially 
 when they are found hidden with both of 
 these precious metals. And it is not nec- 
 essary that the hiding should he in the 
 ground, for we are told In ;! Inst. 1:!J. thot 
 it is not '■ material wlu-ther it be of ancient 
 time hidden in the ground, or in tin- roof, 
 or walls, or other part of a castle, house, 
 building, ruins or otherwise. " 
 
 The certain rule of the common law, in 
 regard to treasure trove, as laid down by 
 Hracton, lib. ;!. cap. It, and as (|Uoted in 
 Viner's.Abriilgement. is," that he to whom 
 the property is. shall have treasure trove, 
 and if he dies la-fore It be found, his exec- 
 utors shall have it, for nothing accrues to 
 the king uidess when no one knows who 
 hid that treasure. " The civil law gave It 
 to the Under; according to the law of na- 
 ture, and we suppose it >viis this principle 
 <»f natural law that was referred to in 
 what was saiil of treasure hid in a (kid, in 
 .Matthew's tiospei. xill. 44. 
 
 ISut the common law, which we admin- 
 ister, gave it always to the owner if ho 
 coidil be found, and if he could not be. 
 then to the king, as wrecks, strays, and 
 other goods are given." whereof no person 
 can claim property:" 3 Inst. l:iL'. llulh-
 
 446 
 
 HUTHMACHER v. HARRIS'S ADM'RS. 
 
 iiiHclicr, tlioreforo, held tlie uusuld valiia- 
 hlesfor tlic personal rcpresecta lives of the 
 (leceaHod owner. 
 
 Several sporadic cases, some of which 
 were liishly aixicryphal, were mentioned 
 in the argument as affording analogies 
 
 more or less appropriate to this case, but 
 it i.s quite unnecessary to discuss them, 
 because if they touch, they do not encum- 
 ber the clear ground whereon, as aliove 
 indicated, we rest our judgment. 
 Tlie judgment is affirmed.
 
 ILSLEY 0. STUBBS. 
 
 449 
 
 TI.SLEY et al. v. STUBBS. 
 
 (9 Mass. C5.) 
 
 Supreme Judicial Court of M.-isB.n(husett8. 
 Cumhorland. May Term, 1S12. 
 
 TliJH ttOH a replevin of a qinititity of 
 Halt and conlH. Issue lieio^t taken upon 
 the (iiie.stion of the property of the plain- 
 tiffs in tlie artir-les replevied, the Hame wan 
 tried at tlio last Octolier term in this 
 county Ijefnro Thatcher, .1., and a verdict 
 found by coiiHent for the defenilant, huIj- 
 ject to the opinion of the court u|)on the 
 evidence reported tiy the judge who sat in 
 the trial. 
 
 To maintain the issue on their part, the 
 plaintiffs relied on a hill of sale from Lens- 
 uel VVeeUs and W. C. Weeks his son, dated 
 tin- Nth of .January ISO.S at I'ortland, ex- 
 pressed to be for the consideration of yOOD 
 didlars and purport iiiy; to con vej' to the 
 plaintiffs, "all and singular the contents 
 of the carn'o now on board of the ship 
 l^Ienry of I'ortland, Joseph Weeks maslei-, 
 now on a voyage to Liverpool, and back 
 to the l,'nite(i States,"— and also on a tiill 
 of lading executed by the said Joseiih 
 Weeks, as master of the ship Henry, at 
 Ijiverpool on tlie 27tli of January isus; 
 by wliich he acknowledges the shipment 
 and receipt of the salt and coals in ques- 
 tion on board the said ship, to be deliv- 
 ered at Portland unto Mess. Weeks & Son, 
 or their assigns; and which bill of lading 
 wns endorsed l)y Mess. Weeks & Son to 
 the rilaintiffs on'the L"2d of March ISoS. 
 
 Tlie plaintiffs also produced in evidence 
 an agreement made between Logan, 
 Lenox & Co. and Weeks iV Son, dated the 
 4th of November ISO", stating the terms 
 on which the former receive e<msignments 
 anil make insurance wlicn directed by 
 their corresponilcnts : and limiting the 
 draughts of the latter to the estimated 
 value of their consignments. — Also a let- 
 ter from Logan, Lenox iS: Co. to Weeks & 
 Son, ilated at Liverpool December 2Sth 
 ISO", announcing the arrival of the sliip 
 Henry, and undertaking to procure em- 
 ployment for her, if practicable; and if 
 not, to dispatch her immediately with a 
 cargo of salt. — Likewise the copy of an 
 account current of Logan. Lenox & Co. 
 with Weeks and .'^on, in which, undei' date 
 of January L'Otli ls(,'s, the former charge 
 the latter with a cargo of salt and coals 
 shippel by the Henry, and credit them 
 with the proceeds of tlie outward cargo 
 of the same ship: which account had been 
 produced before certain arbitrators be- 
 tween Logan, Lenox «.*c Co. and n Mr. 
 M'Lellan, but. as one of the arbitrators 
 testitied. not as sliewing the stale of the 
 existing demands between the parties to 
 tlie account: ii()rdi<l it ai)pear that it had 
 ever been rendered as such to Weeks Jt 
 Son. 
 
 On the other hand, the defendant relied 
 on an.ither bill of lading affirmed to by 
 the same master of the sl.ip Henry at 
 IJverpool, on the 10th of I-Vliriiary ISOS; 
 by which the same shipment of the salt 
 and coals is stated to be "on the proper 
 account and risk of citizens of the I'nlteil 
 States, to he delivered at lloslon unln 
 
 LAW SALKS — 29 
 
 Mr. Peter Stiihbs or his asRlgns, freight for 
 the same being paid."— 
 
 The shi[)ment In question Is in both In- 
 ptances stated to have been mudo by 
 Logan, Lenox & Co.: and the origin of 
 these contradictory bills of lading was ex- 
 (iluined by the testimn(]y of Joseph Weeks, 
 the master of the ship. In his clepoMition 
 lit relates his voyage in the Henry for ac- 
 count of his owners Weeks & Son, from 
 Bath to Liverpool, consigneil to Logan, 
 Lenox c& Co. with a cargo, which he de- 
 livered there;— their shipment afterwards 
 of the salt and coals for the account of Ids 
 owners, and consigned to them, tor which 
 he aflirmed to the first bills of lading;— 
 and that during a detention at Liverpool 
 by contrary win<ls, n requisition was 
 made upon him by Logan, Lenox & Co. 
 in consequence of intelligence they had 
 received of the failure of his owners, to 
 have those bills of lading given up and 
 others substituted, threatening to detain 
 tlie ship, if this was refused. With this 
 requisition he thought himself under a ne- 
 cessity of complying, and accordingly 
 signed the second liills of lading; and re- 
 ceived Mr. Stnbbs. the present defendant, 
 the consignee named in the second bills, 
 anil one of the firm of Logan, Lenox & 
 Co. as a passenger; who came out for the 
 purpose of having the possession and 
 controiil of the cargo. — After their arrival 
 at Portland, Joseph Weeks the master 
 gave one of the bills of the tirst set, which 
 he had retained, to Weeks & .Son his own- 
 ers, who endorsed it to the plaintiffs as 
 aforesaid. 
 
 Whitman, for plaintiffs. Mellen and Km- 
 ery, for defendant. 
 
 SEWALL, J. The general question to 
 be decided in this case is, does tlie evi- 
 dence establish the property of this cargJi 
 in tlie plaintiffs, claiming it under the bill 
 of sale executed at Portland on the Stb of 
 January ISOS? 
 
 .\s to the effect of the bill of sale, re- 
 stricting its operation to the words of It, 
 there would tie no question. For litprally 
 taken, the cargo claimed under It hail no 
 existence at the time of the bargain and 
 transfer, under which the plaintiffs claim. 
 Hut this is not tlie construction to be put 
 upon a contract of this kin<l. .\b between 
 Weeks & Son and the plaintiffs, the bill 
 of sale undoubtedly gave the lattera right 
 to tak> to their own use whatever ar- 
 ticles did or should constitute the home- 
 ward cargo of the ship Henry, wlien slio 
 should return from the voyage, in which 
 she wns then engaged; that is.siicli Inding 
 as she shoulil have, which, independently 
 of the bill of sale, woiilil have been tlio 
 property of the owners of the vessel; a 
 sense latterly and not incorrectly given to 
 the term cargo, as exclusive of any other 
 lading, "r gooils taken on freight. The 
 bill of sale may be considered as establish- 
 ing an uiKpiestlonnble claim ami right 
 against them, or any intere.-it they might 
 have in a cargo nflerwarcls arriving In 
 the sliip Henry, from Liverpool. 
 
 When however the question of property 
 Is with third persons. It may bo uecc»»-
 
 450 
 
 ILSLET ». STUBBS. 
 
 sary to examine the case with more strict- 
 ness. And in dcrnding l)et\veen parties, 
 wliose interests are not distinguishable in 
 equity, the question may ultimately turn 
 upon the nicest formalities of Icsal title. 
 
 Strictly speakinf? tlien, the contract lie- 
 tween Weeks & Sou and the plaintifi's 
 gave them Ijiit a cliose in action, and was 
 rather a covenant than a sale. As 
 transferring an expectation or demand 
 against tlie correspondents of Weeks & 
 Son, their factors at Liverpool, the ven- 
 dors of the carso to be sliipped tliere, the 
 liill of sale must be considered subject to 
 all the rights and duties of tlie ori^jinal 
 parties to the shipment, when it should 
 be made; tlie shippers and master acting 
 without notice of the transfer at Port- 
 land. The ritihts of the shii)perH or ven- 
 dors of the carKo are not to be affected by 
 the bill of sale: and the property acquired 
 by it is not to be carried beyond the legal 
 demands of Weeks & Son, or their rights 
 in the property in qup.stion, against the 
 firm of Logan, Lenox & Co. The defend- 
 ant in this action reijresents them; and 
 all their rights, opposed to the claim of 
 the plaintiffs, are to be allowed to him. 
 
 In this view of the case, the other cir- 
 cumstances and facts in evidence became 
 material to the decision. 
 
 The agreement made for Logan", Lenox 
 & Co. with Weeks & Son, dated November 
 4th l.SCiT, which may be considered as re- 
 Bulling in the consignment of the ship 
 Henry to them, if relied on for the plain- 
 tiffs as evilence of any contract to send 
 them return cargoes for vessels consigned 
 to the house of Logan, Lenox & Co. is 
 very defieient in that i-espect, and not at 
 all suitable to the purpose. It not only 
 expressly negatives any intention of ad- 
 vancing for consignments, but it contains 
 no stipulation, engaging them absolutel.y 
 to the purchase of return cargoes, even 
 when 8U|)plied with funds. But what is 
 more material, the Henry was not con- 
 signed to them for the purpose of obtain- 
 ing a return cargo. To the extent of her 
 outward cargo, or as it proved, much ex- 
 ceeding the proceeds of it, had been drawn 
 and accepted; and the vessel was placed 
 entirely in the contrnul of Logan, Lenox 
 & Co. to be employed b.y them on a freight 
 or charter party, if to be obtained; and 
 cargo of salt was onl.v to be resorted to, 
 if nothing better could be done. 
 
 The testimony of the master was, that 
 he had no power to dispose of either ship 
 or cargo, but was to follow the orders of 
 Logan, Lenox & Co. in all things concern- 
 ing the voyage: and in their letter under 
 date of December liSth ISO", after the ar- 
 rival of the Henry at Liverpool, they un- 
 dertake to get a charter for the vessel if 
 possible, and onl.v to send a cargo of salt, 
 if nothing better could be done. Until 
 the departure of the vessel therefore, slie 
 continued under their controul, and the 
 cargo was subject to their orders. And 
 their power was not determined by aship- 
 ment intended for Weeks & Son, if after- 
 wards a shipment for someother account, 
 or u[)on a charter or freight, appeared to 
 them advisable. The first bills of lading 
 were evidence of an intention, which, un- 
 
 til the departure of the vessel, Logan, 
 Lenox & Co. had authority to reconsider 
 and reverse: and this authority they ex- 
 ercised in cancelling them, and substitu- 
 ting other bills of lading, which placed the 
 articles of the cargo on freight, instead of 
 lieing on account of the owners of the 
 ship. Their authority in this respect was 
 not impaired, nor was the determination 
 on their jjart unjust or improper; because 
 it became necessary as a measure for their 
 own securit.v upon an intended advance- 
 ment, after the credit of Weeks & Son had 
 become doubtful. 
 
 Besides, the first bills were cancelled 
 with the consent of the master; a con- 
 sent in which he was entirely justified, be- 
 ing conformable to the duties of his own- 
 ers and employers. This was a restora- 
 tion of propert.y, which they could not, 
 with any sense of justice, insist upon re- 
 taining, at the certain expense and los.^ of 
 j their correspondents. 
 
 j If under similar circumstances, and at 
 the instance of Logan, Lenox & Co. and 
 their threatening to stop the vessel by vir- 
 tue of their controul and authority over 
 the voyage, the master had relanded his 
 cai'go and returned empty, is it possible 
 to conceive that the bill of sale at Port- 
 land would have given a right of action 
 to the plaintiffs against Logan, Lenox & 
 Co. for the value of the cargo shipped or 
 intended to be shipped, but finally re- 
 stored, for the best of all reasons, viz. that 
 the purchasers, those to whom it was go- 
 ing on credit, had no ability of paying for 
 it, if the.v should fake it?— And how does 
 the reversal of the bills of lading differ 
 materially from the case supposed? 
 
 If this reasoning is correct, tliere is no 
 occasion of resorting in this case to the 
 doctrine of stoppage in transitu. For 
 Weeks & Son as consignees, or for their 
 assigns under the hill of lading, there 
 never was a cargo in the ship Henry ia 
 transitu: the authority of Logan, Lenox 
 & Co. to reverse their intention, and tlieir 
 doing this, and substituting the second 
 bills of lading, was tantamount to a re- 
 storation of the property intended to he 
 shipped for Weeks & Son ; and it must be 
 considered as shiyiped from the beginning 
 for another account. Their authority to 
 demand a restoration, and that of the 
 master to consent to it, were not restrict- 
 ed by the contract with the plaintiffs, un- 
 known to those who were acting at Liv- 
 erpool under an ajiprehension of an im- 
 portant change in the circumstances of 
 Weeks & Son, which proved to be well 
 founded. This becoming known to their 
 correspondents, seasonably to enable 
 them to provide for their own security, 
 the provision was made, and was justi- 
 fialile upon the principles of good faith 
 and nipi-cantile honour; and was, I think, 
 legally effectual against the claim of the 
 plaintiffs. 
 
 As a question of fact upon the whole evi- 
 dence, whether the shipment for the ac- 
 count of Weeks & Son had been finally 
 cancelled, or was r)nl.vcolourably changed, 
 some doubt might be excited from the cir- 
 cumstance of tlie account produced by 
 one of the firm of Logan, Lenox & Co. at
 
 ILSLEY V. ST I BUS. 
 
 451 
 
 the ri'fcreticc botwci'ii tliciii uiid ii tliiril 
 pnrty, contaiiiliiir tlic clinrKCH of thoHiilt 
 aixl coiiIh to W'ccUrt & Son. Hut tliiH 
 doubt Ih rcniovcil liy the tust iinon.v of the 
 HUiiiu witiicHM, of the iiiMiincr in which tiuit 
 account wiih ohtiiincil. nnd the iictnni 
 HtiitK of it )IH u incnioi'iinduni only ; anil 
 that it liad never constitiilc'd an account 
 rendered, and liad never lieen offered aH 
 an exiHtliiK demand. Atid altliouirh tliis 
 nii^ht be a (lUCHtion ratlier for tlie jury 
 tlian the court, yet in tlie actual Htate of 
 the evidence, a ccMicluHion upon it for 
 tlie defendant niuMt he the only correct 
 renult, HO far a.s the case is affected by 
 that circiinistance. 
 
 W'itli the aid however of the doctrine of 
 stoppay;c In trauHitu, the (inestion in tlus 
 cane may l)e more conclusively, and with 
 some, more satisfactorily decided. Ae- 
 eordiiiK to this rule of the law rn<'rchant, 
 which has become ingrafted with the 
 common law, the shipper or consiunor of 
 i;oods, sent u[)on a general or particular 
 credit, as niion an order for a return 
 carno, wIk'U there is no specification, or 
 a specific order and |)urcliase of the ar- 
 ticles sliii)ped, has a riuht, in the event of 
 an actual failure of (he c.nsijjnee or pur- 
 chaser, to coiiutermand the (leliver.v, and 
 cause them to be delivere<l to himself or 
 to some ot her for his use: and this rinht 
 ceases only with the transitus or passage 
 of the soo'lw. upon an actual or construct- 
 ive delivery thereof to the consignee him- 
 self. 
 
 A foreiKn merchant, who for a commis- 
 sion only to himself, pui'chases upon his 
 own credit, and ships upon the credit 
 which he <.;ives to his employer, is a con- 
 signor or vendor enl itled to the benedt of 
 this rule. Nor is the application of the 
 rule to be restricted to those cases, where 
 the contract of sale, as between the eon- 
 signor and consignee, is to he considered 
 executory; as where the coiisi^jnee or 
 vendee has not obtained upon t heoredil af- 
 forded him, what is by the principles of the 
 common law, a vested property. On the 
 contrary this is supposed : and Iherestric- 
 tions upon the e.xerciseof this rlK'Ht, estab- 
 lished by KuKlish decisions, have been de- 
 rive<i from mercantile usnjjtes sanctioned 
 by their expedienc.v, anil by principles of 
 public policy, or l).v the precautions sut;- 
 jiested by the system of the t)nnl«rupt 
 laws. In itself, and as determining n 
 qtipstion of rijrht between the parties to 
 thecontract of sale, the rule is perfectly 
 eiiuitable and j'nst, in every case of tlie 
 actual insolvency of the consifinee: and 
 It has been allowed to be exercised, even 
 where a part of the price had been paid, 
 or a bill of exchange for It accepted and 
 end( rred over to a third person.' 
 
 Whenit is that the transitus isat anend, 
 and a delivery has taken place, has been 
 a question of some ditliculty in particular 
 cases. By one decision, goods have been 
 
 ' Abbott on Shipping, c. 0, page ;?57, (Amor. 
 Rdit.); Feiso v. Wray, 3 East, 93; Mason v. 
 Licklmrrow. 1 H. BlacU. MH, note a: Newsom 
 V. TliDriitoii, (5 Kast, 27, 28; Hodgson v. Loy, 
 7 D. & E. 440. 
 
 considered In transitu, notwlthBtnndlne 
 a delivery to the master of n ship char- 
 tered solely by the consignee. In another 
 case, where the goods attempted to bo 
 reclaimed had been delivered to the mas- 
 ter of a sliip chartei-ed solely by the ven- 
 ilee for a terra of years, and were put on 
 board thereof destined by him on a par- 
 ticular adventure, for which they had been 
 purchased, it was hidden that the vendor 
 could not stop them. The distinction In 
 these two cases, upon which these differ- 
 ent decisions rest, is, as 1 apprehend, the 
 eircumst!uico of tlie ultimate dcstinntion 
 of the consignment : for in both cases the 
 consignee was the owner of the vessel; in 
 one case for the term of years; In the 
 other case for the voyaire:" so that tliix 
 was not the ground of decisiini, as .\b- 
 bott in citing the cases seems to suppose: 
 but in the one case the goods liad reached 
 the constructive possession of the owner, 
 the transitUB was at an end. ami the fur- 
 ther diiection of the goods, had been de- 
 termined tiy the vendee: wiiereas in the 
 other case, the transitus continued, the 
 goods lind not arrived to the posuessioii 
 of the owner, actual or constructive, con- 
 sidered as a termination of their pasHage 
 from the vendor to the vendee. - 
 
 In the case at bar the consignee was the 
 ( wner of the vessel, on Imanl of which 
 the articles, the pri>|)erty whereof is in 
 ()ueKtion, were laden. .And it is to l>e sup- 
 posed in making this i|uchtion, that they 
 liaii been delivered to the agent of the 
 consignee for his account and risk; but 
 tlic delivery was for the purpose of car- 
 riage to liim, and the vessel itself ami the 
 iiiiister, at the time the delivery was coun- 
 termanded, were still under the direction 
 of the consignor. The goods constituted 
 a cargo :>n its passage to the vendee, to 
 give the fullest effect to the first bills of 
 lading, that can be contended for. The 
 right to stop them therefore, proving the 
 actual failure of the consignee, ^eeins to 
 result from a reasonable construction and 
 application of the rule on this subject, and 
 both the right and the exercise of it are. 
 in our opinion, established by the whole 
 evidence, not only against any claim of 
 the consignee, but also against the claim 
 of his assigns, under the dei'd to them, 
 made nrospectively and in tact liefore the 
 shipment: for which the consignor was 
 not eniraged by any previous promise or 
 consideratiim. The assignment relied on 
 for the plaintiffs is not of a bill of lading In 
 the possession of tlie consignee: and the 
 case is not therefore to be decided by the 
 usage found by the jury in the ultininte 
 decision of the case of I.lckbnrrow v. 
 Mason," if indi'ed a similar usage witblo 
 tills state is proveal>le In any case. 
 
 I'pon the whole, the opinion of the court 
 is ill favour of the dcfi'udant ; an.l Judg- 
 inent is to be entered upon the venllct 
 taken for him, for a return of the articles 
 replevied, with his damages and costs. 
 
 ' Stiibbs V. Lund, 7 Ma.ss. 4r>3. 
 •5 D. & E. CSG. Ilaillo v. Smith, 1 B. & V 
 563.
 
 INGALLS 0. nERIUCK. 
 
 453 
 
 1NGA1.LS V. HEURICIC 
 
 (108 Mass. 351.) 
 
 Supreme Judicial Court of Massachusetts. 
 Essex. Nov. Term. 1871. 
 
 Tort for the converHion of 21 bales of 
 flockH of wool, attached by a deputy of 
 defendant sheriff aa property of Willinni 
 II. Loujcee. in a suit against LouKee by 
 one of liiH creditorw. The plninliff intro- 
 duced eviilence that on Decemlier IG, isos, 
 he bargained with Lou^ee's a);ent, Lewi.j 
 U. Bos worth, at an aprreed prioe, to cell 
 a^ain ; that the bales were numbered and 
 marked, and were stored in Loutree's fac- 
 tory ; that ho told Bosworth that he 
 wished to have them remain where they 
 were for a while, and \Vf)uld pay storajje 
 on them, to which Bosworth agreed; 
 that he also tolil Bosworth that he was 
 {joing to New York the next day, and 
 wislied some samples to take with him; 
 that the same day. at LouKce's countinK 
 room, he received a l)ill ot the flocks, dat- 
 ed that day, and signed by Lougee, speci- 
 fying the numbers, murks, and weights 
 of the bales, and acknowledging the re- 
 ceipt of the price; tliat the flocks were of 
 two qualities, and at the same time Bos- 
 worth gave him samples of each ; and 
 that he saw the flocks at the factory 
 about Ueeember, but did not see tliem on 
 the day of the sale nor afterwards, until 
 they were attached by the defendant's 
 deputy. Bosworth testified "tliat, after 
 the bargain was made, he went to the fac- 
 tory, and examined the bales to gft the 
 niin)bers and weights, and wrote the liill 
 which l.ongee signed 'Lougee,' anil deliv- 
 ered it to the plaintiff; that he took out 
 the samples, which the iilaintlff wanted, 
 and then sewed up the bales; that he met 
 the plaintiff in the afternoon, and lold 
 him th:it the bill and the samples would 
 be ready for him that evening, at hongee's 
 counting room; and that he gave the 
 samples to the plaintiff at the time of the 
 delivery of the bill of sale. " The court 
 ruled that there was not snilicicnt evi- 
 denceof thedelivery of thegoods as against 
 the jiltaching creditor of the seller, and 
 directed a verdict for the defendants. The 
 plaintiff alleged excepti(ms. 
 
 J. K. Tarbox, for plaintiff. S. B. Ives, 
 Jr., and S. Lincoln, Jr., for defendant. 
 
 COiyr, J. It was ruled as matter of la w. 
 In this case, that the jury would not be 
 authorized upon this evidence to finil a 
 delivery of the baled flocks, suthcient to 
 pass a title valid as against creditors of 
 the seller. There was evidence tending to 
 show that the bargain for the sale was 
 made with one Bosworth. an agent of 
 the seller. A receipted bill of parcels, 
 signed l)y the seller liimself, which con- 
 tained a description of the bales by num- 
 ber, mark and weight, was afterwards de- 
 livered by the agent to the plaintiff. The 
 subject matter of the sale was all thebaled 
 flocks then stored in the seller's factory. 
 It was thus a completed contract of sale, 
 and as between the parties tlie title passed 
 to the plni[itil'f. Was there evidence to 
 go to the jury of a delivery sullicient as to 
 
 creditors? This Is the only question, and 
 In disposing of it we must take the sale 
 to have been made in good faith and for 
 a valuable consideration. 
 
 Ujion this iiuestion, there was evidence 
 tending to show that the flocks were 
 bought for resale; that the bales were 
 large, not easily moved, and reijulrlDK 
 room for storage; that the plaintiff, hav- 
 ing no convenient place, agreed with Dom- 
 worth, at the time of the bargain, to let 
 them remain where they were, and pu.v 
 storage, and directed hini to obtain sani- 
 ples of the flocks, which he, the [)lalntlff, 
 could take with him to New York to sell 
 by: and that Bosworth accordingly 
 o|)ened the bales, took out saniplesof two 
 kln<ls of flocks, sewed up the l)ales, and 
 gave the samples to the plaintiff at the 
 time he delivered the bill of paicels. The 
 plaintiff bought upon his own previous 
 knowledge of the article, ha ving seen the 
 flocks at the store-room of the factory a 
 week or two before. The samples were 
 not required or used by him in reference 
 to his own purchase, and Bosworth, in 
 taking tliem from the bales, acted unrler 
 the directions and as the agent of the 
 plaintiff, and with reference to future 
 sales by hin?. It was a signilicant act of 
 ownership anil possession on the part of 
 the plaintiff, after the sale was agreed on, 
 through Bosworth, acting In this respect 
 as Ills agent. There is something more, 
 therefore, here disclosed, than a mere con- 
 tract of sale without delivery or posses- 
 sion under it. .\nd we are of opinion, un- 
 der tli(> la w heretofore laid down by the 
 court, that the casi? should have been sub- 
 mitted, with proper instructions, to the 
 j u ry . 
 
 It was early held that the possession of 
 personal chattels by the vendor after un 
 alleged sale is not conclusive eviilence of 
 fraud. Upon iiroof that the sale was 
 made in good faith and for a valuablecon- 
 siderntion, and that the possession alter 
 the sale was in imrsuancc of some agree- 
 ment not inconsistent with honesty in 
 the trans.nction. the vendee miuht hold 
 against cre.litors. Brooks v. Powers, l.'i 
 Mass. '2M. It was declared by Morton. J., 
 in .Shnrtleff v. Willnrd. I'.t IMck. LML', I'll, 
 that, whatever the rule upon this point 
 may be in Kngland or elsewhere, it Is per- 
 fectly well settled In a series of cases here, 
 that" the possession of the vendor Is only 
 oviderce ot fraud, which, with the man- 
 ner of tile occupation, the conduct of the 
 parties, and all othi-r evidence beorlng up- 
 on tile question of fraud, is for the consid- 
 eration of the jury. It is certain that 
 slight evidence of delivery Is sntflrient; 
 and if the buyer with the consent of the 
 seller obtains possession liefore any at- 
 tachment or secoml sale, the transfer is 
 compli'te without formal delivery. Sliuin- 
 way V. Huller, s I'irk. 44:!. A dellverv of 
 a I'lortion in token of the whole Is a suiJl- 
 cient constructive deliveiy as against 
 creditors, altlioui;h the gomls are in the 
 ))ossession of various persons. I.egg v. 
 Willard. 17 I'ick. Hii. In Hardy v. Pot- 
 ter, 10 tiray. v.". the jury were told that, 
 although the plaintiff only took u Idll of 
 sale. vet. if prior to the attachment he 
 had iiccii to the place where the lumber
 
 454 
 
 INGALLS V. HERRICK. 
 
 was, and had exercised acts of ownerslii]) 
 over it. by virtue of his purcliase, tliat 
 would constitute a delivery of it good 
 against a subseiiuent attachment. And 
 tliis instruction was held not open to e.\- 
 ception. altlioush the evidence was that 
 the purcliaser had only been to Beverly 
 and seen the lumber there. See, also, 
 Phelps V. Cutler, 4 Gray, 137; Tu.xworth 
 V. Moore, 9 Pick. 347: BuUard v. Wait, K! 
 Gray, .w; Ropes v. Lane, 9 Allen, 502, and 
 11 Allen, 591. 
 
 The fact that the possession of the prop- 
 erty is retained by the vendor l)y agree- 
 ment, and does not follow the bill of sale, 
 is held by this court to lie in most of tlie 
 cases, evidence of fraud, to go to tlie jury. 
 In many of the states, the fraud is held to 
 
 be an inference of law resulting inevitably 
 from the possession. And such was sup- 
 posed to be the earlier English rule, as 
 laid down in Edwards v. Harben, 2 T. 
 1!. '>S7 ; but the only point there decided 
 was, that an absolute conveyance with- 
 out possession, if there be nothing but 
 that, is in ])oint of law fraudulent. In the 
 more recent cases, it has been declared 
 tiiat the continued possession by the ven- 
 dor, of goods sold, is a fact to he consid- 
 eied by the jury, as evidence of fraud, and 
 is not in law a fraud in itself. Martin- 
 dale v. Booth, 3 B. & Ad. 498. Benjamin 
 on Sales, 3()3. 
 
 There was evidence here of delivery, 
 which should have been submitted to the 
 jury. Exceptions sustained.
 
 INGLIS V. STOCK. 
 
 457 
 
 INGI-IS V. STOCK. 
 
 (10 App. Cas. 2C3.) 
 
 English House of Lords. March 'M. 18So. 
 
 .Vppcnl trotn nn order of the court of 
 appeal (lirott M. I!. BnKKf<.llny iukI Liiid- 
 le.v I>. .I.l.,)' rovi-rsiim n (IcciMjot) of I-'ield 
 .].- Tlic factM are MtiUed in tli(; ri'ixtrtH of 
 tho dcc'iHioiiH tic'low, and in the jud>;tnent 
 of tlie lord chancellor In IIiIh house. 
 
 Sir F. Herschell, 8. (J.. and A. Cohen, Q. 
 C, (.J. Goroll Harn(!S, with thcMii.) for ap- 
 pellant. C. KiisHt'll, (.J. ('., K. T. Iteid.Q.C, 
 and Danck wert.s.for ri'Hpondont, were not 
 heard. 
 
 Earl of SKM'.OIt.N'lC, L. C. My IohIh, 
 tho (incstioii in Huh caHe is whether the 
 pliiintifl' had, at the tiiiie of the Iohh of the 
 Mteanier City of Dulilin in the lUver liihe, 
 on the 4th of February IMsl. an int^urahle 
 interest in :!!)l)0 baffs (or ;!'.)() tonH weight) 
 of sn(j;ar, part of that veKBel's cargo '.' Tho 
 court of appeal. revevHinjr a judgment of 
 Fielil .1., decided in the plaintiff'H favour. 
 
 I?y two contracts ilated repectively the 
 7th and iL'tli of .lanuary issl, which werc^ 
 (except as to dates anil parties) identical 
 in their terms, .Messis. Itrake & Co. mer- 
 chants of London, asireed to sell to one 
 Beloe and to the plaintiff respectively, L'OO 
 tons each of (ierman I)ee1root sugar to he 
 shipped fron) llamliurg. The material 
 terms of the contract lpet\vcen Drake and 
 Keloe are these: — "London, "tli .laiinary 
 IWl, .Messrs. \V. I'.eloe i^ Co. A\'e have this 
 da.v sold to you for your account -dO tons 
 (ierman hect sugar of the crop isMi-Sl, at 
 'ils. l)d. per cwt. of 5(1-^; kilos, net f. o. h. 
 Haml)iii-g for ss degrees net saccharine 
 contents." I need not reail all thedctaiis. 
 '"The sugar shall analyse between ^.'I'.fi net 
 both inclusive; six-pence jier cwt. to lie 
 paid or allowed for each ilegree above or 
 below ss, fractions in proportion; but 
 anything above ;i2 not to be paid for. 
 fshould the average analysis of whole con- 
 tract exceed !)(!, such ex;'ess is not to lie 
 paid for. Tlie analysis is to be effect.-d by 
 a pulilic German chemist." Then, omit- 
 ting some immaterial points, it goes <in : 
 "For .I.'iuuary delivery at Hamburg. 
 Payment liy cash in London in exch;inge 
 for bill of lading le."s two months" intt-r- 
 est at ■) per cent. |)er .Mniium. .\ny dis- 
 pute arising out of this contract to be set- 
 tled by arbitration of two London brokers 
 In the usual way."' 
 
 I?y another contract, dated the 7th of 
 January, the plaintiff bouglit from Beloe 
 the sugar which I!eloe hail contracted to 
 bu.v from Drake & Co., upon sulistanliall.v 
 the same terms, except that the price to 
 be paid tor it to I'.eloe was to be Jls. lu'i,il. 
 per cwt., subject to like variations lie- 
 tweeu tlie same limits ; and that the aver- 
 age analysis of the whole contract was 
 "not to exceed !1(l." The price, therefore. 
 In each case was to be variable, according 
 to the percentagi> of saccharine matter 
 In the sugar; the good.^were,in each case, 
 to be delivet-eil nt Hamburg free on board, 
 
 'V2 Q. R. n. .-(U. 
 !) Q. n. D. 70S. 
 
 and (consequently) were, after Mhlpn;ent, 
 to be at the imrchaser's risk; and the 
 bills of lading were to be retained by the 
 vendors till the purchase-nioneyM were 
 paid. 
 
 The plaintiff and ISeloe at I'-ristoI and 
 the agents of Drake & Co. at Hamburg 
 engage,! space (or tliese sugars in a gen- 
 eral ship, the City of Duldin, one ol a line 
 of steamers trading between Itristol and 
 Hamburg. Tl>e shipping agents at ISris- 
 tol, being informed by the plaintiff of IiIh 
 two purchases fi-oni ISeloo and Drake & 
 Co , and learning from Ueloe that Drake 
 & Co. weri- his vendors, advised their cor- 
 responik-nts at Hamburg that 4(iO tons of 
 sugar wonhl be coming for that ship's 
 cargo from Drake. I do not think it mate- 
 rial, but it is proper to notice that the 
 plaintiff did not know frcjiu whom Ueio"; 
 had bought, and Drake & Co. did not 
 know that lieloe had sold to the plaintiff, 
 till after the lo»s. 
 
 The iiuanf ity actually put on board the 
 City oi Dublin at Haniliurg was only ^'J«0 
 bags, or ."!'.m tons. As to this, I think It 
 enough to say, that If the plaintiff would 
 have li;id an insurable interest in 4(100 
 bags, under the circumstances of the case, 
 he had, in my opinion, such an interest 
 though the quantity was short by ten 
 tons. 
 
 No other sugar belonging to Drake & 
 ('<». was put on lioard this ship. The Ulioi) 
 liags were, therefore, specifically separated 
 from the bulk of the vendor"s own sugar; 
 anil they were shipped under Drake & 
 Co. "s contracts with Beloe and the plain- 
 tiff, witli a vi(!W to and in (ultilment of the 
 agreement of Drake & Co., as vendors, to 
 |iut the purchased sugar8"free on board." 
 The present controversy arises out of the 
 manner in which this was done. Facli bOK 
 was distinguished by a mark denoting its 
 jiercentage (according tocertilied analysis) 
 of saccharine matter; and ten liills of lad- 
 ing, for |ia reels liearing marks correspond- 
 ing will) those on the bags, were madeoiit 
 in an ini|iersonalfi>rm,iind sent (according 
 to the contracts) to Drake & ("o., to lie 
 retained by tlieni till the time of payment 
 sliould arrive. The aggiegate consign- 
 ment (except as to the deliciency of 100 
 bags) was proper and suitable to fullill 
 the two contracts, without exceeding, as 
 toeith.Tof tliem, the average o( '.Hi per 
 cent, of saccharine matter; and (accord- 
 ing to the evidence of Mr. Hales, a partner 
 in the linn of Drake & Co.) it was made 
 up and ■"ordered forwanl" as being ""mo 
 livislble." I'.nt no particular bags were 
 then set apart or marked as appli-able to 
 the one coalract more than the other; It 
 was thought sutlicient by Drake \- Co.. or 
 their agents, to leave this to be done 
 when tlie bills ol lading came forwaril. 
 Tliere would be no practical dilliculty In 
 doing it in a proper and reasonalile way, 
 even if the plaintiff had not purchased 
 Heine's contract, inasmuch as neither pur- 
 chaser could cbilin, and Drake A: Co. were 
 not to be p.'iid tor, any excess bi'vond 'JO 
 per cent, of the average nnalvsis of the 
 whole contract ; though It was conceiva- 
 bly possible that it mitht have been dune 
 porversciv and nnreasoiialily. The divi- 
 sion was" in fact made by Drake & Co..
 
 458 
 
 INGLIS V. STOCK. 
 
 who forwardefl invoices of the parcels at- 
 tributed to each purchaser on the evening; 
 of the 4th of Feliruary, after they hail re- 
 ceived notice of the Iosh. In the division 
 HO made the deficiency of ten tons vras as- 
 cribed to the plaintiff's contract, being 
 the later in date. No question was 
 raised by the plaintiff or by Helue; and 
 the purchase-moneys were paid by the 
 plaintiff according to the contracts and 
 invoices. But by this, which was done 
 after the loss, the underwriters were (of 
 course) not bound. 
 
 Jt is contended, on the part of the ap- 
 pellant, thai, under these circumstances, 
 and for want of a proper division before 
 the loss, the shipment had not the effect 
 of divesting the prior title of Drake & (^>., 
 the vendors, or of passing any interest in 
 these sugars to the plaintiff. This argu- 
 ment appears to me to confound two very 
 different things; the appropriation neces- 
 sary as between vendor and purchaser, 
 and the division, as Itetween purchaser! 
 and purchaser, of specilic goods, actually | 
 appropriated to the aj-gregate of the two 
 contracts. I do not think it follows that 
 there could be no appropriation by the 
 vendor of which the purchasers might 
 take the lienetit, merely because the par- 
 cels of goods appropriated were mixed, in 
 the act of appropriation, so as to re()uire 
 some subsequent division or apportion- 
 ment. Whether this may have happened 
 by previous agreement or course of deal- 
 ing between all the parties (in which case 
 there could be no serious doubt), or by 
 accident, error, or want of proper care on 
 the vendor's part, appears to me to make 
 no difference in principle. The purchasers 
 might possibly be entitled to reject, but 
 the vendors could not, in my opinion, 
 without their consent retract the appro- 
 priation. 
 
 In the present case, I see no reason to 
 doubt that the difficulty arising from the 
 confusion of parcels — material only to the 
 settlement of the amounts payable by the 
 plaintiff to his two vendors— if not solved 
 by consent (or by arbitration, for which 
 each contract provided) would have been 
 soluble by principles of law,api)lied to the 
 facts and the terms of the contracts. The 
 necessity for doing this, and the fact that 
 it had not been done at the time of the 
 loss, do not, in my opinion, suHicientlv dis- 
 tinguish this case from Browne v. HareS 
 and earlier authorities to the same effect. 
 The goods were, by the act of the vendors, 
 8ei)a rated from the bulk of all other goods 
 belonging to them; they were shipped 
 "free on board" in what (for that i)ur- 
 pose) was the purchaser's ship, under two 
 contracts so to deliver them ; in both 
 which contracts (subject to the payments 
 to be made by him to Drake & Co. and 
 Reloel the plaintiff was then (although 
 Drake & Co. did not know it) solely inter- 
 ested. I cannot infer from any part of the 
 evidence that, in so shipping them indis- 
 criminately, the vendors intended to 
 break, instead of fulfilling, their contracts, 
 and to take upon themselves ('-ontrary to 
 those contracts) the subsequent risk of 
 loss, and the liability to freight. Yet this 
 
 (as it seems to me) would be the necessary 
 consequence of the appellant's argument. 
 I think the order api)caled from is right, 
 and I move your Lordships to aftirm it, 
 and to dismiss the ajipeal with costs. 
 
 Lord Br^.4CKBURN:-My lords, 1 also 
 agree that there is no occasion to bear 
 the counsel for the respondent. 
 
 The respondent (plaintiff below) had in- 
 sured himself by Moating policies to the 
 extent of, as I understand, £.50U0. One of 
 the policies is set out as a sample policy. 
 It is a policy for £4000, part of £ftO()0,and is 
 marked on the margin No. 4;;47. By it 
 the respondent caused himself to be in- 
 sured in respect of goods conveyed in a 
 steamer "from the continent of Europe be- 
 tween Havre and Hamburg, both ports 
 
 included, ^"r' Kouen "„"/ Nantes to Bristol 
 upon any kind of goods and merchan- 
 dises, "" beginning the adventure upon the 
 said goods and merchandises from the 
 loading thereof aboard the said ship at as 
 above upon the said ship etc., including 
 all risks of craft, and so shall continue and 
 endure during her abode there upon the 
 said shii) etc. And further until the said 
 ship with all her ordnance, tackle, ap- 
 parel etc. and goods and merchandises 
 whatsoever, shall be arrived at as above 
 upon the said ship etc. until she hath 
 moored at anchor twenty-four hours in 
 good safety and upon the goods and mer- 
 chandises until the same be there dis- 
 charged and safely landed. " Then I pass 
 over a sentence which is immaterial for 
 the present purpose. "The said ship etc., 
 goods and merchandises etc., for so much 
 as concerns the assured by agreement be- 
 tween the assured and assurers in this i)ol- 
 icy are and shall be valued at £4000, part 
 of £5000, on sugar to be hereafter valued 
 and declared. To follow policy for £4000 
 No. j:i^ dated Cth of December 1880." The 
 
 meaning of to be "hereafter valued and 
 declared " is, that if the insured has sev- 
 eral adventures, all within the description 
 in the policy, out, he may select at his 
 pleasure which is to be protected l)y the 
 policy; and, on his giving notice of such 
 a selection to the insurers, the policy is as 
 if it had named that adventure from the 
 beginning. Of course, if adventures have 
 been previously named, these come first, 
 and whether those prior subjects of insur- 
 ance are lost or not, the; policy is equally 
 pro tanto functus officio. And I believe 
 the practice is if there is nothing to shew 
 that the first adventure which came in 
 safe was selected not to be under the pol- 
 icy, it is taken to be so, though there is 
 no <leclaration. 
 The meaning of "To follow policy for 
 
 £4000 No. 
 
 is, that there being consec- 
 
 ' 3 H. & N. 484: 4 H. & N. 822. 
 
 utive policies any loss declared is to be 
 borne first by the earlier policies, and that 
 
 it is not till after the policy No. fqjMs ex- 
 hausted, either by losses or declared ad- 
 ventures wliich have come iusafe.that the 
 underwriters on the policy wh'ch follows 
 are to bear the balance of the loss if any. 
 There is not, as far as I remember, any 
 
 A
 
 INf;[,I.S 0. STOfK. 459 
 
 othor ilifferenpo between a policy in the ; though the excRHB wns not to be pn id for 
 
 IitcHcnt lorin with a (leflaintlon that it is No portion of tlie HiiKar now in (Jlnnuto 
 
 on HUfjrar valued at tisoo loaded in tlie wuh either liclow s.') or al)ove irj ho that 
 
 City of Diihlin Hteaincr Hailed froni Hutu- tliiH term doin n<jt come in to opera lion 
 
 buPK to lliiMtoi on tlic :!r(l of Kelnuary | Tlie Hunar was to lie "net fiee on hoard 
 
 18S1, and an ordinary policy for thowanio IlnmliurK ' and it whh for January dellv- 
 
 Hun"'" valued at the Hanie Butn on IheHunio ery at Iluinliur){. Tlie price wan to de- 
 
 Hleamer on the wanie voyaKe. |iend on the "averau" analVHlH of the 
 
 The defendant below iH an underwriter wholecontraet." "Should llieu verncean- 
 
 for tino on eacli of these conHecutive tloot- nlysis of tlie wliole contract exceed !M)Much 
 
 injr policieH. excess is not to he paid for. " T!:es«j|lcitor- 
 
 There is no dispute, at least now. that Rcneral raised an argument on this clause 
 
 the City of Duldin is sucli a Hteanier, which I shall notice hy-and hve. The 
 
 and the voyage such a voyage as was price was to be paid In London in exclinnKo 
 
 witliin the terms of the policies, nor tiiat for l)ill of ladinj;. 
 
 the values and declarations were prop- N'ow under this contract the first thing 
 eriy jriven, nor that tliere was enough left to be done was by lieloe (the buyer). He 
 une.xhaustr'il on the policies to enable the must let Drake the seller, or rather sup- 
 underwriters to pay a total loss. Hut it plier, liuow in due time on what slilp the 
 was said tliat the situation of tlie plain- Koods were to be shipped free on board, 
 tiff with rctiard to tlie suf^urs was not for till he knew that, Urake could not put 
 sucli as to Kive him an insurable interest, tlie >j;oods on board. Meloe mi^'lit las in 
 And I have no doiitit that in order to re- fuel he did), eiinaKe to put su«ar on 
 cover auairist an underwriter the assured bonrd several steamers liouiid to Itrlstol, 
 must show tliat he suffers loss in respect but lie midht have made an enKiiKenient 
 of the thint; insured. In case of an insur- to ship su;;arfor Leitli and wish to have 
 ance on gooils if lie shews that he had at the suuar put on board the Leilh steamer, 
 the time of tlie loss the whole legal i)rop- Ur he miulit (thouKh that was less likely) 
 erty in the goods which were lost, he iin- have charlereil a steamer for I^ondon, or 
 donble<lly does shew it. But I do not any other port, and wish the sugar to be 
 agree that this is the only way in whicli put on board tliat. As soon as he had 
 he can sliew an insurableinterest in goods, securei] ro<»in in the steamer he diil select, 
 or that any relation to goods such that if and let Drake & Co. know in good time 
 the goods perish on the voyage the (ler- on what steamer they were to ship them, 
 son will lose the wlnde, and if they arrive Drake & Co.'s part of the contract begins; 
 safe will have all or iiart of the goods, they are bound to have there at Ham- 
 will not give an interest which may be burg, and to ship free on hoard that ship, 
 aptly descrilied as goods. l L'OO tons of sugar answering in all respects 
 
 In the present case there has been a the descriiition in the contract. I'rovlded 
 
 good deal of ext raucous matter brought the sugar of the proper quantity and de- 
 
 iiito the diKciissioii. I tliiiik if it had been scription was put on board that ship it 
 
 remembered that the three contracts, viz. was no concern of Beloe's where or how 
 
 that of the 7th of .January, between Drake Drake & Co. got it. So soon as they had 
 
 and lU'loe, that of the same date between done that they had fullill''(l their part of 
 
 Ueloe and the plaintiff, and the contract the contract so far liut the price was to 
 
 of tlie I'JtIi of .January between Drake and bo jwiid in London in exchange for bill 
 
 the plaintiff, were all in writing; an<I it of holing. .\nd no doubt from that it Is 
 
 had been seen that they are so expresseil to be implieil that Drake & Co. were to 
 
 that, as In ni.v ojiinion, there is no doubt take a bill or hills of lading for the sugar 
 
 as to their construction, the objection they put on board and, were in due time 
 
 would have been much more clearly to be ready and willing to give the bills of 
 
 raised, not I think for its benelit. lading in London in exchange for the price. 
 
 Drake iSc Co, of London, who were largo If Drake & Co. did this Heloe was bound 
 
 importers of beet sugar manufactured in to pay the price. 
 
 • Jerniany, m-ido a contract with lieloe of Now Hcloe had on the same day, hut 
 liristol, who sonietiiues, as we liiid, whetlicr bi'fore or iifter he had made the 
 bought to sell again. Tliere are, I gather cimtract witli Drake & Co. does not a|i- 
 from a let ter of the ..".th of .January from pear, niaile a contract with the plaintiff to 
 Ilcrmaiiu of llaiiibiirgto Drake, trading supply liim with L'dU tons ofsugaratl^d 
 lines of steiiiiicrs running twice a month a cwt. higher price tlian tluit at whi(di 
 from llamhurg to Liver|)ool, Leith, and Drake hinl ag.-ced to su|iply Iteloe. .\8 
 Bristol, and it maybe other jilaces; but the plaintiff knew where he wauled the 
 to J.,on(lon, and it may be other places, if sugar tliis was to be sliiiiped "free on 
 a steamer is wanted from Hamburg it board .\. 1 steamer to Bristol." The do- 
 must be chartered, but of course it may scription of the sugar was the same hh 
 be diartered. that in the contract between Drake and 
 
 And now by the contract Drake & Co. Beloe except tluit it was sai^l "average 
 bound themselves to Beloe to sup|ily U'lM) analysis not to exceed 00." The solicitor- 
 tons of (lerinan lieet sugar of tliecr<ip of general said that if tlie average analysis 
 ISSO-sl. It was not only to beOerinan beet i-xceeded ltd. lieloe was bound to take It 
 HUgarlMit it was toanalyse between S.'iand from Driike. but not to pay the excess In 
 9".' "l)ut anything above !12 not to be pnid price; lint tlie plaintiff was not bound to 
 for;" so that it would seem that sugiir take this more valuable lot at all; but 
 below s.'i would not fuUil the description would be in his right If he rejected It. 
 In the contract, but sugar above 9'-' might What would have ln'cn the case if that 
 be given in fiillilmeiit of the contract, point was raised by the facts, we iietd
 
 460 
 
 INGLTS V. STOCK. 
 
 not inquire, though I have a strong sus- 
 picion that a jury would not much fa- 
 vour it. 
 
 But on looking at the documents it ap- 
 pears that not only were The averages un- 
 der 91), but that by no possible slinffling of 
 the oDOO bags actually put (Jii board the 
 <:ity of Dublin could 2000 bags have been 
 selected the average ot which would ex- 
 ceed 90. The plaintiff did not luiow, and 
 liad no reason to inquire, where Beloe was 
 to get the sugar with which he was to 
 supply him. The plaintiff savv Edward 
 Stock (his nephew as it happens, l)ut that 
 is immaterial), the agent for the Bristol 
 line of steamers, and according to the evi- 
 dence of both the Stocks, the plaintiff's 
 directions were to secure room for the iOO 
 tons in the steamer, which would leave 
 at the end of the month; and on the 11th 
 of January Edward Stock & Son, the 
 Bristol agents for the steamers, wrote to 
 Nisstle & Gunther the following letter: — 
 "There are 200 tons of sugar sold for ship- 
 ment the second half of this month, hut 
 we have not yet ascertained the names of 
 the shippers. There are also further par- 
 cels in treaty," and so f<jrth. This, it 
 must be noticed, was belore the contract 
 between Drake and the plaintiff on the 
 12th of January, and how there canbe any 
 doubt raised "that the plaintiff did his 
 best as far as regards securing room on 
 that steamer to take on iKjard the sugar 
 which Beloe was to ship or cause to be 
 shipped, I am unable to conceive. He had 
 to advise Beloe of this, and it is sworn 
 that he did so, and I see no possible rea- 
 son for doubting that he did. 
 
 The position of things then as between 
 Beloe and the plaintiff was this, —The 
 plaintiff had done his part, and unless 
 Beloe, by himself or Drake, or any one 
 else, put the proper quantity of sugar of 
 the proper description on hoard the 
 steamer the plaintiff had a cause of action 
 against Beloe. If Beloedid i)ut the projier 
 quantity on board he was entitled to re- 
 cover tlie price in exchange for l)ill8 of 
 lading, and it was no answer that the 
 goods had perished at sea before the bill of 
 lading was offered. He did send an in- 
 voice specifi'ing themarks and numbers of 
 2000 bags, undoubtedly put on board, 
 which Beloe alleged had been shipi)ed on 
 plaintiff's account. 
 
 If these were proper bills of lading for 
 the sugar shipped it is diflicult to imagine 
 a clearer case of a loss of sugar. Jt is 
 said the bills of lading which he offered to 
 give in exchange for tlie cash were not the 
 bills of lading of goods shipped for him on 
 the City of Dublin, and therefore he was 
 not bound to pay in exchange for such 
 bills of lading; instead of being liable to 
 pay Beloe the price he had an action 
 against him for breach of contract in not 
 shipping as he ought to have done. This 
 requires us to notice some more of the evi- 
 dence. When on the 12th of January the 
 plaintiff had made hiscontract with Drake 
 he at once proceeded to Edward Stock & 
 Sons, who on that very day advised Niss- 
 tle & Co. that the 200 tons were coming, 
 so that plaintiff had done his part in se- 
 curing room for that 200 tons, and if Drake 
 
 & Co. have not shipped them, he has a 
 cause of action against them. They did 
 not ship the whole 200 tons, hut only i;i i 
 tons— ten tons or 100 bags meant to be 
 shipped having been delayed — for that 
 Drake & Co. sent an invoice and received 
 payment. And as I said about Beloe, if 
 Drake &("o. have offered the plaintiff bills of 
 lading for goods which were not shipi)ed 
 for him he has a cause of action against 
 Orake & Co., and was not bounil to pjiy. 
 But if Drake & Co. have fultilled their con- 
 tract and the bills of lading are those 
 referring to the 1900 bags, then the subse- 
 quent lossby perils of the sea is noanswer. 
 The plaintiff must pay the price, and has 
 lost it, and that is as clear a loss as can 
 well be. 
 
 When Drake& Co., or rathertheir agents 
 at Hamburg, were shipping thesugar and 
 held the mate's notes, it was no floubt 
 their busin^•ss to see that a proper hill 
 of lading for each separate shipment 
 was signed; and if at any time before the 
 bills of lading left Hamburg they had been 
 allocated to each shipment, no objection, 
 not even an idle one, could have been 
 raised. But instead of doing so the whole 
 of the bills were sent in a lump to London 
 that they might be allocated there. This 
 was perfectly bona fide. Drake & Co. had 
 no interest in favoui'ing one more than 
 the other, and were to be paid exactly the 
 same price per bag, whether they allocat- 
 ed it to the one or to the other. And if 
 they had done this before the loss, I do 
 not see%vhat dam age either Reloeor Stock 
 could have sustained by the allocation be- 
 ing made in London instead of in Ham- 
 burg. 
 
 Now, I have been quite unable to see, 
 even if the i)lnintiff had sustained some 
 damage, that it could have been damage 
 going to the whole root of the matter, so 
 as to form a defence for the plaintiff 
 against an action by either Drake & Co. or 
 Beloe for not paying tor the goods in ex- 
 change for the bills of lading; that is, sup- 
 posing the plaintiff (because prices had 
 greatly fallen, or from any other un- 
 worthy motive) had wished to get off. 
 
 And if it were so, I think the case would 
 fall entirely within what Lord Hatherley, 
 in Anderson v. Morice,* says is the princi- 
 ple of Sparkes v. Marshall. ^ The insurers 
 have no right tf) call upon the insured 
 to exercise a possible option to he released 
 from their contract. But the loss having 
 happened before the actual allocation, 
 the plaintiff's loss, when it happened, was 
 a loss not of 200 tons, but of 200 tons par- 
 cel of 890 tons, so that the loss, though ex- 
 actly the same, is said not to be the same 
 in description, because it is the loss of an 
 undivided i)ortion of the goods, instead 
 of being the loss of the goods themselves. 
 I am quite unable myself to perceive why 
 that should make the slightest diffei'ence. 
 In the merits, certainly it does not. 1 am 
 quite unable to perceive why an undivided 
 interest in a parcel of goods on board a 
 ship may not be described as an interest 
 
 ' 1 Apn. Cns. 73.5. 
 ' 2 Bing X. C. 7G1.
 
 JNGI-IS V. STOCK. 
 
 401 
 
 in RoorlBjiiHt nsmuch oh if it wore an inter- 
 C'Ht In every portion of the koocIh. N(» ihi- 
 tliority WHS elteil in order to shew tlint it 
 WiiH not HO, and I oais wee no reason for it. 
 Tiien, tiiat lieinj; no, of e<)nrHe it follows 
 lliat tlieie is no defence at all, and this is 
 my opiniun. 
 
 'I'IdH, liowever, is not the ground on 
 wldcl) the court of appeal decided. Tiicy 
 thouKlit tliat there was Hhewn to lieacns- 
 (oiii (»r eonrse of dealing wliieh rendired 
 Drake i*i C'o.'s conduct a literal fnllilnient 
 of the contract. I Mm not entislied that 
 on the evidence such a custuui or course 
 
 of trade is «hewn. I do not nny It Ih not, 
 Imt I would at least wish to hear the re 
 Hpon<1ent's counsel lieftireclecidinK on that 
 Kround. On the other, uh 1 liuve nlrcudy 
 intimated, I have no diiuht at all. 
 
 L<ird WAT.SON: My lords,! concur lu 
 the judKuientH delivered, and hove noth- 
 ing to add. 
 
 Lord FITZtiERALD: My lonls. I olso 
 concur. 
 
 Order appealed from alltrnied, and ap 
 ' peal distnlHsed u ith co8tt).
 
 TROX CLIFF CO. c. HUIIL. 
 
 4C3 
 
 IRON CLIFF CO. V. BUIIL et al. 
 (3 N. W. Uep. 209. 42 Mich. 80.) 
 Suprome Court of Michigan. Oct. 30, 1S70. 
 Error to Marquette. 
 \V. P. Ileuly, ti)r plaintiff in error. Dan. 
 H. Hall, lor defendants in error. 
 
 (JHAVES, J. In 1S71 defendants in 
 crroi'. with one JanieH Westernian, wer^ 
 pur.suiii;' the furnafc hurtlneHH at Sliaron, 
 inthcKtiite of I'cnii.si'lvania, aw copart- 
 nerH, under the luiinc of the WcKtcrnian 
 Iron CoMipany, and the plain! iffs in error 
 were a mining corporation underthe laws 
 of Michif-an, and enKaued in mining iron 
 ore at NeRaiinee, in our northern peninsula. 
 Tlie eor|)oration were from time to time 
 Kliip|)in;;: t heir ore to Krie, I'ennKylvania. 
 and th" Westernian company were in the 
 way of receiving ore from that point, by 
 rail, foi- their liusiness. 
 
 .\t this time Hlioden & Co., of Cleveland, 
 Ohio, wern airentsfor the corporation in 
 contractiii}; sales of their ore, and on the 
 lirHt day of August of that year they eon- 
 traeteil on lieh;!lf of the (,'liff compau.y 
 with tli(! Wcsterman company for the Hale 
 of a (jnaiitity of ore. 
 
 The agreement was written, and In these 
 tei'ms: ".V^ieement between the Iron 
 Cliffs Iron Company, of Nesaunee. Lalie 
 Superior, by its ajj;ents, Hliodes & Co., of 
 Cleveland, Ohio, and Westernian Iron Co., 
 of Sharon, I'.i, made at Cleveland, Ohio, 
 August I, I'vTl : Witnessetli, that tin; said 
 Iron Clilfs Iron Comi)any,for the consider- 
 .-itions hereinafter named, hercljy ajrree to 
 sell to the H.ild U'csterman Iron Co. two 
 tliDUsand uross tons of I'.arnuni iron ore, 
 of itSHtandanl qualily, deliverable at Krie, 
 I'a., during the season of IsTl, afloat at 
 the docks of the Krie & Pitts. 1;. U. Co., 
 and as near .'lOD tons per month as prac- 
 ticalile, but with the ajjcreement that if ore 
 is lost by disasters of navi;i;ition too lute 
 to be replaced, said Iron Cliffs Iron Com- 
 pany shall not be held accountable for 
 non-delivery thereby occasioneil. Said 
 ore is to be paid for by the said Wester- 
 nian Iron Co. at the rate of s.ao dollars 
 
 per ton, in e(|ual iiayments of .If each. 
 
 payable on the first days of Aujiust, Sep- 
 tember, Octot)er and Nc^vember next, re- 
 spectively, each of which payments is to 
 consist of thenoteof said Wesrerman Iron 
 Company for WM) per ton dollars at four 
 months, payable ut Cleveland, Oliio, ami 
 L'..'!(> dollars in cash, all in funds par at 
 Cleveland. Said Westernian Iron Co., for 
 the above-named considerations, hereby 
 BRree to bu.v, receive and pay for said ore 
 us above mentioned." 
 
 The Westerman company paid in full for 
 the amount of orecontracted for, but some 
 3110 tons out of the 2,1)01) airreed for failed 
 to reach the works of the Westerman com- 
 pany at Sharon, and Westernian having 
 retired ami assigned his interest to defend- 
 ants in error, they proceeded, after n lapse 
 of nearly si.'i years, to bring this action on 
 account of the minin); ore. 
 
 They were allowed to recover, and the 
 corporation has brou;xl''t error. The 
 pointa agitated are numerous, but the 
 
 I case depends on one or two main codrIc]- 
 
 I crntions. 
 
 I The plaintlffh In error nctnally Hhlppcd 
 
 ' to the railroaci dock at Idle n conHldern- 
 bly lar;^er ((uanlity than was buri:ulned 
 to till' Wi'sterman coinpanv. and tliey In- 
 tended 2,(100 tons o( it for them. 
 
 .\s no tjiie appc'iied to accept It nflont 
 it was landed mi the dock in charge of the 
 railroad ((iinpaiiy for the bi n.llt of the 
 liuyers. Tins was the only course fairly 
 practicable, and it was the coursi" the 
 Westernian company expectPil \voul<I he 
 taken, and the course which received their 
 subsei|u>'nt sanction. The position of de- 
 lendanls in error that the ore was to Ite- 
 conie the lunperly of the Westernian com- 
 pany only as it was delivered to them nt 
 .Sharon, and that durini; its rlcposit on 
 the dock in a laruer [lile It remained the 
 property of plainliffs in error, cannot l>c 
 s.istaiiied. I'.otli parties understood that 
 it should be left anil was left for the rail- 
 road company to hold and carry for the 
 buyers. 
 
 The circumstnncethat the lulecontaincd 
 more than was barg.iined t(j the Wester- 
 nian company is of no importance under 
 the facts in tliis record. It was all of the 
 same kiinl and (luality, and there was 
 notliing to do except to taki- away from 
 the c<>miiion mass the reciuired ipiantlty, 
 and tliecase iscertaiii that it was fiill.v con- 
 templated that the railrcad company 
 should attiMicl to that business. Khodea 
 & Co. notitied the agent of the railroad 
 company that 2.iiOO tons of the ore be- 
 longed to the Westr-rman com|ianj, :ind 
 
 ! he forwarded over I, (iOO tons which they 
 received , and in the course of the fall, and 
 
 i whilst he was sending the ore forward, 
 they interposed and re(|uired him to cease 
 for awhile. The explanation given is that 
 
 1 they lacked room, and that the riiilroail 
 company would charge them for the use 
 of the cars if left nnloailed at Shiiron. 
 
 Here was a clear exercise of dominion 
 over the ore, and an act inconsistent with 
 the notion that it was not sutiject to their 
 contr(d, jind that delivery was to be made 
 l)V plaintiffs in error at Snaron. 
 
 According to the evidence the failure of 
 tl-o Westernian comiiany to receive the 
 missing ore at Sharon was owing to a 
 miscarriage liy the railroad company, and 
 it aiipears tliat sor)n after discovery of 
 the loss they sued the railroad company 
 to recover for the ore as their iiroperty. 
 This was an uneciuivocal assertion of their 
 understanding that the ore was umler 
 thelrcontrol as their property when piled 
 upon the dock and ready for removal to 
 
 [Sharon by the railroad company, and by 
 
 I them known to be sutiject thereto. 
 
 ThecliTUit judgeallowed thejury to llnd, 
 however, that of the ore in that situation 
 the portion whidi was taken by the rail- 
 road coinpanv and liy them miscarried 
 was not at the risk of the Westernian 
 conipanv, I'r their proiierty, but was still 
 the propertv of the Cliff coriioratlon. In 
 the hands of the railroad company as the 
 agents of the Cliff corporation. We think 
 this was contrary to uiniuestioiiable 
 facts. , . _, 
 
 The refusal to permit certain adjudiicd
 
 464 
 
 IRON CLIFF CO. IK nVUh. 
 
 cases in Pennsylvania to be read to the 
 jury from tlie books of reports was not 
 error. Tbelawof Pennsylvania was not 
 in dispute. The claim was that there ex- 
 isted at Erie a particular custom or usacre 
 in rcRard to the mode of handling and de- 
 liverins ore, and this, if true, was a local 
 fact, not necessarily stable, but subject to 
 bechangeilas experience and altered cir- 
 cumstances might dictate, and it was not 
 
 a matter to be proved by law books. 
 Much, however, of the way in wliicli 
 tilings were done there, and all of im- 
 portance, was matter of necessity and of 
 understanding rather than of custom. 
 Further discussion does not appear neces- 
 sary. 
 
 The judgment must be reversed, with 
 costs, and a new trial granted. 
 
 The other justices concurred. 
 
 I
 
 .JACKSON c. ITPI'EK. 
 
 407 
 
 JAfKSO.N et al. v. Tri'I'HU .-t al. 
 
 (5 N. E. Rep. 05, 101 N. Y. 515.) 
 
 Court of Appeals of New York. March 2, 
 ISSO. 
 
 ThiK action was hroiicht to recover 
 daiiiaReH for an alle^fd breach of warran- 
 ty in a contract of Bale. The facts are 
 stated in the cawe an follows: Thedefend- 
 nntH, lit West Tro.\ , N. Y., on the 28th day 
 of Fehrnnry, ISKd, orally sold to the 
 lilaintiffs about ei^lit hundred tons o( ice, 
 which was licinii cut at Hound pond, near 
 <jlenH Kails, N. Y., and agreed to place the 
 same in a Iioiihc which they warranted 
 Hhould be a>;ood, HubMtantial house, which 
 Hhould stand a year. Thei)laintiffs orally 
 atrrecd to ])ay for said ice tiiesum of eighty 
 cents a ton. No ineinoranduni was made 
 in wiitiuK of this contract, and no money 
 was paid at that time. Some time after 
 this, said ice was received and accepted 
 by the plaintiffs in said house built by the 
 licfcndants. .\fter this, about -May 1, IssO, 
 the plaintiffs f.jave the defendants ¥lil5. in 
 full for said ice, by creditinK said amount 
 on an iccount Wight had against Tupper. 
 \Ylien said credit was jiiven, tiothint; was 
 said liy either party about said contract 
 or its "terms. About May 10, Isso, the 
 house fell. It was not jtroperly construct- 
 ed ; It was neither j;oo(l nor substantial ; 
 its deffcts were latent. 'I'hey were not dis- 
 covered b.v the plaintiffs before said house 
 fell, and coiild not have l)een discovered 
 by an inspection of the building liefore it 
 fell. Its defects were known to the defend- 
 ants. The plaintiffs suffered daniaires to 
 the amount of f4.l.'JI. The comiilaint 
 was ordered amended to deniund as dam- 
 fl^cs the amount proved. The defendants 
 on the trial introduced no evidence. At 
 the close of the plaintiffs' case the defend 
 ants' counsel moved for a nonsuit. 
 
 N. P. Ilinman, for appellants. G. B. 
 WelliiiBton, for respondents. 
 
 AXDIJEW.S, ,1. It Is c<inceded that the 
 oral contract of February L'S, lisso, for the 
 sale and storage of the ice, was, when 
 made, void, under tliestatuteof frauils. It 
 must also be conceded, under the decisions 
 Id this state, that it was not valiilated by 
 the payment made in May, ISso. By our 
 statute, payment operates to take an 
 oral contract for tbe sale of goods for the 
 price of f.')0 or more, out of tlie statute. 
 
 only when It Is made at the time of the 
 contract. 2 Rev. St. 130, § i. The deci- 
 sions have construed this iirovlslon of the 
 statiit4- with great strictness. Hunter v. 
 \Vetsell,57 N, Y 375, s4 N. Y. :A'.): AIIIs v. 
 Read, 45 N. Y. 14J. It is in substance held 
 that payment subsei|uently made, al- 
 thouKh conforminic to theoral agreement, 
 is insufficient of itself to make the prior 
 oral aKreetjient valid. TIhii' must be 
 enough, in arldition to the act of pay ment, 
 to show that the terms of the prior oral 
 contract were then in the miii<ls of the 
 parties, ami were reallirmeil by them, 
 and this being shon-n a cause of action 
 arises, not on the prior oral contract, but 
 on the new contract made at the time of 
 the payment. The plaintiffs did not bring 
 their case within this principle. There 
 was no restatement of the terms (jf the 
 prior oral agreement when the payment 
 of May 1, iNsi). was made, and no exprexs 
 re<(>gnition tlx-reof. nor was the payment 
 maile for the avoweil purpose of binding 
 the prior bargain. It is expressly found 
 that nothing was said at the time by 
 either partj" about the contract of Febru- 
 ary L's, INso, or its terms. But a prior 
 void contract may be valjclated by a sub- 
 sequent receipt and acceptance by the 
 buyer, pursuant thereto, of the goods, or 
 part of them, which are the subject of the 
 contract. 2 Rev. SI. l:Mi, § :{; .McKnlght 
 V. Dunlop, 5 N. \. 5:17. Where this has 
 been clone, the cnuse of action arises on 
 the original oral agreement, authenticated 
 by the act of acceptance. Thi're is no stat- 
 iitediflicidty, as in the caseof a snbse()uent 
 I)n.vment, because the statute ib^es not, 
 as in that case, re<piire that the accept- 
 ance must be at the time of the making of 
 the oral agreement. 
 
 It was found in this case that, after the 
 oral agreement of February I's, IS-HI, was 
 maile, "the said Ice was nreived ami ac- 
 cepted by the plaintiffs." It is impossible 
 to construe the finding except as referrinR 
 to the Ice which was the subject of the 
 oral agreement of that date, and as n'fer- 
 ring to an acceptance thereunder. This 
 relieved the contract from the ban of the 
 statute. 
 
 No question is presented as to the right 
 of the plaintiffs to the judgmentrecovered, 
 assuming that the contract of February 
 28, IJSSO, was validated. 
 
 The judgiuent should be allirmed. 
 
 All concur.
 
 JAMES 0. PATTKX. 
 
 469 
 
 JAMES T. PATTEN. 
 
 (6 N. Y. 9.) 
 
 Court of Appeals of New York. 18.51. 
 
 This action whh upon a contract, i)f 
 wiilcli a nienidrandura wan given, in ttie 
 followiut; wordK: 
 
 ".Vlbuny, .Marcli 12, 1S47. Mr. TlioraaH 
 .laincH, bon^lit iif M. & S. Patten, for tlie 
 relief committee, three tliouKatid biiHlieJH 
 yellow corn (fifty-si.v pounds per l)ushel), 
 to be delivered at the opening of the Hud- 
 son river navijiation. at oar store in Al- 
 lianv, at eighty -one centH per husliel, $2,- 
 i:iO. " 
 
 Tills iiieniorandnm was admitted to l)e 
 in the hnndwritinff of one of the defend- 
 ants. The plaintiff tendered the price and 
 ileniamled the corn, whicli the defendants 
 rehiseil. The price had risen from eighty- 
 one to ninety-seven cents per bushel. The 
 <li'fendant moved for a nonsuit on the fol- 
 low ing grounds: First, that thecontract 
 was nol subscribed by them; and second, 
 tliat lh(! contract was not made with the 
 plaintiff, but with the relief comniitlee. 
 The motion was denied, and the defend- 
 ants excepted. The defendants then 
 offered to prove that the plaintiff |)ur- 
 chased a large (juantity of corn as agent 
 of a committee, known as the Irish relief 
 committee, and that tin* <lerendant8, on 
 tlse opening of the navigation in lS-17, 
 tendered to said conimittee the three 
 thousand bushels of corn mentioned in the 
 above memorandum or bill of Kal(^ The 
 court o.Ncluded this evidence, and the de- 
 fendants excepted. Judgment wasdirect- 
 eil In favor of the plaintiff for l$.")41.4.'). 
 The case was tried by the court without 
 a jury. The judgment was alhrmed at 
 the general term of the supreme court, 
 and the defendants aiipeaied. 
 
 0. -M. .lenkins, for appellants. S. H. 
 Hammond, for resiMindents. 
 
 FAKilO, J. The principal question to be 
 decided in tliis case is wliuther the memo- 
 randum of the contract entered into be- 
 tween the parties was a valid note or 
 memorandum of such contract within the 
 Btatute of frauds. The obj"ction made to 
 It is that it was not subscribed by the de- 
 fendants, the p.'irties to be charged there- : 
 by. The section of the chapter of frauds 
 contained in the Hevised Statutes relative 
 to contracts for the sale of goods and 
 chattels, (Icrlarcs that every contract for 
 the sale of goods, etc., for the price of ?.")0, 1 
 or more, shall be void; unless, I, a notej 
 or memoranduin of such contract be niadei 
 In wiitiiig, anil be subscril ed by tlie par- 
 ties to be ''harged thereby; or 2, unless 
 the buyer shall accept and receive part of! 
 such goiids, etc.; or. :!, unless the buyer' 
 shall at the time pay some part of the pur- j 
 chase-money. (2 H. S. l-it!, § :i.) The old I 
 Btatute of frauds, passed February 2i>, ' 
 17>*7, as well as the IJritish statute of 2*.) ; 
 Charles II, chap. ."!, were substantially in I 
 the same words, with Hie exception of' the! 
 word "subscrihed." (1 Uev. ],. of ISKi, 
 p. 79, § lij; 1 Chit, on Cont. .'is^.l Those 
 statutes required thenotcor memorandum 
 of the contract to be signed l)y the parties 
 Instead of being subscribed by them. Un- 
 
 der the juillcial construction of our old 
 statute and of the IJritish statute, it was 
 not necessary to the voiidlty of the con- 
 tract, or of the note or memnrandum 
 thereof, that it should be signed under- 
 neath or at the end. It was held t<» be a 
 compliance with the statute. If the name 
 of till! party tobe charged aiipeared in any 
 part of the instrument, either at tlie top, 
 in the niiildle, or at the bottom, provided 
 it was placeil there by the party liinis'.lf, 
 or by his authority, and was applicable to 
 the whole substance of thi- writing. (Cln- 
 son v. Bailey, 14 Johns. 4sr>; .Merrilt r. Cl«- 
 son, 12 id. lU(i, 1(17.) Thus tin- law stood 
 at the time of the revision. The revisers, 
 in their notes t<> the SHi section of the 1st 
 title of the chapter of frauds as reported 
 by them, say it had been hehl, under the 
 former statute of frauds, " that the literal 
 act of signing is not necessary, althougb 
 the statute speaks of 'signinn.' After set- 
 ting out with this principle, the courts 
 found themselves perfectly at large ns to 
 what should be considered a sigiiin)2. To 
 prevent dilticulties of this sort hereafter, 
 the revisers propose to require that these 
 agreements shall be subscribed." The re- 
 visers, at the end of the :5il section of the 
 2d title, which relates to contracts for 
 the sale of goods, and in which they also 
 substituteil the word "subscribed " for the 
 word "signed." refer to their notes to the 
 preceding sections. The note to the Nth 
 section of the 1st title is a plain e.xpres- 
 sion of their understanding of the mean- 
 ing of the word "subscribed;" and a ch'sr 
 manifestation of their intention in recom- 
 mending its substitution for the word 
 "signed," It is perfectly clear from the 
 note of Hie revisers, that they Inteinled by 
 the word "subscribed," to reipiire the 
 manual signing of the agreement at the 
 end thereof, by the party to be charged. 
 When the members of the legislature 
 passed upon the sections of the chapter of 
 frauils as rejiorted by the revisers, they 
 liad their notes before them, detlning the 
 meaning of the word "subscribed." and in 
 substance declaring that the adi^ption of 
 that word would require an actual, man- 
 ual, subscription nt the end of the note or 
 memoranduin of the contract. The legls- 
 latureuniler these circumstances retainbiK 
 the word "suliscribed, "as (iroposed by the 
 revisers, must be understood to have done 
 so, for the purpose of requiring an actual 
 signing in writing of the agreement or 
 memorandum thereof, underneath the 
 same. We cannot now so construe these 
 sections of tlie chapter of frauds, as to 
 dispense with the necessity of an actual 
 subscription, without disregarding tho 
 plainly declared will of the legislature. 
 It is tiie olllce of the courts to administer 
 the law as the legisbiture has (b-clareU 
 it; not to alter the la w by means of con- 
 struction. In order to remedy an evil or In- 
 convenience resulting from a fair Inter- 
 pretation of the law. The etymology and 
 delinition of the word subscribe, as given 
 by lexicographers, show that its meanins 
 w-lieii a|iplied to the signature to an In- 
 strument In writing, ns understood by 
 men of letters, is tlie signature or wrltlnji 
 of one's name lieneath or at the end of 'he 
 Instrument. This i.s also its iiopiilnr slg-
 
 470 
 
 JAMES V. PATTEN. 
 
 nification. I am aware that the popular 
 meaning of the word "signed," when ap- 
 plied to a contract or other instrument, 
 is generally writing one's name at the 
 bottom; and tliat tliis is sometimes its 
 literar.v meaning. lUit this is not so em- 
 phatically and universally its meaning, as 
 it is the meaning of the word "subscril)ed. " 
 The derivation of that word from the Lat- 
 in word subscribo, shows that literally 
 Hud according to its derivation its mean- 
 ing is " to write under." or "underneatli." 
 But this is not the primary or derivative 
 meaning of the vert> "to sign." Such 
 meaning is, to write one's name on paper 
 or to show or declare assent or attesta- 
 tion b.v some sign or mark. 
 
 I concede we are not always in the con- 
 struction of a statute to be controlled b.v 
 the literary signification of words, or their 
 primar.v or derivative sense; and that 
 w here they have not by long habitual con- 
 struction received a peculiar or technical 
 meaning, they are t(> receive their natural 
 and ordinary signification. (Wain v. 
 VVarlters, 5 East. 10.) 
 
 In all cases, tlie intention of the law- 
 maker in using the words is to be sought 
 after, and when that is ascertained, it 
 must be followed with reason and discre- 
 tion in the construction of the statute. 
 Wherever any words are obscure or 
 doubtful, the intention of the legislature 
 must be resorted to, in order to find their 
 meaning. ( Bac. .\br., Stat. 1, 5.) In 
 the revision of the statute of frauds, no 
 motive can be assigned for rejecting a 
 word, the legal meaning of wliich had been 
 established by a long lineof adjndications, 
 and substituting another, which had nev- 
 er received a judicial interpretation, but 
 which had a known limited meaning; un- 
 less it was to change the law or the con- 
 struction of the statute, so as to require 
 an actual signing of the name of the par- 
 ty at the end of the contract or of the 
 memorandum thereof, although in com- 
 mon parlance the word "signed" in refer- 
 ence to a contract or other instrument in 
 writing is generall.v understood as a writ- 
 ing of the name at the bottom ; yet now, 
 neither in its ordinary orlegal use is itcon- 
 fined to that office; but the word "sub- 
 scribed, " in its habitual use, and accord- 
 ing to both its popular and literary sig- 
 nification, is limited to a signature at the 
 end of a printed or written instrument. It 
 has a secondary meaning, but that is 
 purely metaphorical, denoting assent, 
 without reference to any mode of express- 
 ing it by actual writing. It seems to me, 
 therefore, that the legislature, by the sub- 
 stitution of the word "subscribed " for the 
 word "signed," intended a change in sub- 
 stance of the statute of frauds, and to at- 
 tain a greater degree of certainty in con- 
 tracts, b.v requiring an authentication, by 
 an actual subscription of the contract or 
 of the memorandum thereof, by the party 
 to be charged or liis lawful agent. This 
 alteration is more than a verbal one, or a 
 mere change of phraseology. It is an al- 
 teration in substance; the rejection of a 
 word, which by u'.eaiis of judicial inter- 
 pretation, had an extensive legal signifi- 
 cation; and the adoption of anotherin its 
 place niiicli had iu its (lopular and litera- 
 
 ry use, and according to the general pop- 
 ular understanding, a known limited 
 meaning. According to the familiar rules 
 of construction, this substituted woi'd 
 must receive its natural and ordinary sig- 
 nification. (.5 East, 17; Bac. Abr., Stat. 1, 
 2.) And if that is accorded to it, the con- 
 tract or memorandum must now be au- 
 thenticated by a manual signature at the 
 end. In neither a popular, literary or le- 
 gal sense, are the wonls "signed" and 
 "subscribed" synonymous, or of equiva- 
 lent meaning. In the case of Merritt v. 
 Clason (12 .lolins. 102), it was conceded by 
 the eminent counsel who argued that case, 
 that there was a plain distinction between 
 signing and subscribing. 
 
 Mr. Wells sa.vs "signing does not ex vi 
 termini mean that the name of the party 
 should be subscribed." Mr. D. B. Ogden 
 replies, "I do not sa.v that the agreement 
 must be subscribed, but that it must be 
 signed in some part of the contract." 
 
 I do not think that all the foregoing ar- 
 guments can be overthi'own by the mere 
 circuin>^tance that the legislature in the 
 chapter in relation to wills, from abundant 
 and unnecessar.v caution, added to the 
 provision requiring the will to he suh- 
 scribel by tlie testator, the words, "at the 
 end of the will." The chapter in relation 
 to wills was acted upon previous to the 
 enactment of the chapter in relation to 
 fraudulent conve.vances and contracts. 
 When the latter chapter was examined 
 and passed, the legislature had the uotcs 
 of the revisers before them which ex- 
 plained the distinction between the words 
 signed and subscribed ; and. I think, we 
 must presume that the word "subscribed" 
 was adopted in reference to its meaning 
 as defined by the revisers. 
 
 This question was expressl.v determined 
 by the court of errors iu Davis v. Shields 
 (20 Wend. 311), and is, therefore, no long- 
 er open for debate. In that case it was 
 elaborately and learnedl.v discussed by 
 the late chancellor and by Senator Ver- 
 planck, and both of them came to (hecon- 
 clusion that the word "subscrilied," as 
 i used in the statute of frauds, requires an 
 actual signing in writing of the name ol 
 I the i)arty who is to make a sale of an in- 
 ' terest in lands or to be charged by a con- 
 tract for the sale of goods, at the end of 
 the contract or of the memorandum there- 
 of. The ground on which the binding 
 force of this <lecision is sought to be evad- 
 ed or overthrown is, in my judgment, un- 
 sound. The argument is, that inasmuch 
 j as ('hancellor Walworth and Senator Ver- 
 planck examined two questions in that 
 cause: 1. Whether as the memorandum 
 of the broker, varied from the contract 
 j made by the parties, there was a contract 
 1 liinding on either party; and 2. Whether 
 I the word "subscribed" retpiired an actu- 
 al signing of the name of the party tcj he 
 charged at the end of the contract or 
 memorandum; and as all the other mem- 
 bers of the court with one exception voted 
 silently with them to reverse thejudgment 
 I of the supreme court, that it is impossible 
 to discover on which of the two questicms 
 a majorit.v of the court voted for such re- 
 versal; although Chancellor Walworth 
 ! and Senator Verplanck agreed that both 
 
 i
 
 JAMES o. PATTEN. 
 
 471 
 
 of the questionB were erroneously decided 
 by the Hupreme court. 
 
 If this arKumeiit is to prevuil, it will un- 
 settle a great portion of our law, which, 
 by universal c.msent.haH lieen retjarded as 
 definitely e.stalilished. If in a caHe like 
 that of Davis V. Shields.it is held that 
 no point of law was decided, then no case 
 id authority for any purpose which is 
 decided by a court consistint; of more than 
 one judge, where one inemtjer of the court 
 only delivers a written opinion, disposing 
 of several questions il is tinctly arising in tile 
 cause, the decision of each of which is fatal 
 to the recovery or defense, and the other 
 memhers of the court concur without re- 
 spectively declaring their individual views 
 in regard to any of tlie questions discussed 
 in such opinion. Such a doctrine is op- 
 posed to the general understanding of the 
 bar, and to the uniform practice of the 
 courts in recognizing such cases as binding 
 authority as to all the questions which 
 legitimately arose in the cause, and were | 
 passed upon l)y the judge who delivered 
 the written opinion. Where a c(jurt con- 
 sists of several judges two or more of 
 wlioai deliver opinions, and all arrive at 
 the same general result in the cause, but 
 for different reasons, and the residue of 
 the judges give a silent vote of concurrence 
 with tliera, in a decision for the one par- 
 ty or the other; there, as it does not ap- 
 pear that a majority of the court agreed 
 as to any one question in particular as 
 the ground of tlie decision, thecasecannot 
 be considered as authority on any of the 
 questions which arose in the cause. But 
 where several questions arise in the cause, 
 and the opinions delivered agree in regard 
 to all of them, and the other meml)ers of 
 the court give a silent vote of concurrence, 
 there all the questions will be deemed to 
 
 have been determined by a majority of the 
 court, and the case will be reganled and 
 respected as an authoritative adjudica- 
 tion <jf ull such questions. 
 
 It has been In-ld by several of the coortH 
 of this state that the case of Davis v. 
 Shields (20 Wend. 3J1), expressly deter- 
 mined that the word "Buliscribed " In the 
 chapter of the Revised Statutesln relation 
 to fraudulent conveyances and contriicts, 
 called for an actual subscription of the 
 name of the party at the end of the con- 
 tract. Chancellor W'alworth so held In 
 Coles v. Bowne (10 I'alge. ."k!?), and in 
 Champlin v. Parish (11 id. 410, 411), and a 
 like decision was made by the supreme 
 court for the fourth district in Viele v. 
 Osgood (8 Barb. 134). As a member of 
 the senate, I took a part In the decision of 
 the case of Davis v. Shields, and, at the 
 time that cause was decided, I had no 
 doubt, nor have I any now, that a major- 
 ity of the court, in voting for a reversal of 
 the judgment of the supreme court, con- 
 curred with Chancellor Walworth and 
 Senator Verplanck, as to both of the ques- 
 tions discussed in their opinions. I dis- 
 sented from the opinion of the majority of 
 the court on the ground that the legisla- 
 ture, by substituting the word "sul)- 
 scribed" for the word "signed," useil In 
 the former statute of frauils, did not in- 
 tend to change the la w. From my pres- 
 ent examination of this question. 1 am 
 satisfied that I was mistaken In the opin- 
 ion 1 then expressed. 
 
 I am of opinion thatthe judgment of the 
 supreme court should be reversed and a 
 new trial granted. 
 
 (lARDINER, .T., also deliverid an opin- 
 ion in favor of reversing the judgment. 
 .Tudgment reversed.
 
 JENXEFt V. SMITH. 
 
 473 
 
 JENNER V. SMITH. 
 
 (L. R. 4 C. P. 270.) 
 
 Common Pleas. April 30, 1869. 
 
 Action for koucIh bar;>:iiinpil imd Hold 
 and goods sold nnd delivered. Fledw: 
 Never inilelited, pu.vnieiit, and payment 
 ofSH. 2d. into c(»urf. lU'ijlicatioii, taking 
 is.Hiie, and daniageH nltra. 
 
 TliecauHe waw trieil before Brett, J., at 
 the Kittingn at WestmiiiHter after lai^t 
 Michaelniii.s term. The facts were an fol- 
 lows: On the Nth of C>cti)l)er. lsc,7, the 
 plaintiff, who is a liop-nierchant in Lon- 
 don, in'.'t the defendant, a maltster of De- 
 vizes, at We.vhill Fair, Hants. The de- 
 fendant wished to bny of the plaintiff four 
 pocl<ets of Carpenter's Siisse.v hoi)s which, 
 the plaintiff had there; Imt, as the i»laln- 
 tiff had already sold two of them, he pro- 
 posed to sell the defendant in lieu of tlieni 
 two pockets of Thorpe's, of which he 
 showed him a sample, offering to let the 
 defendant have the two pockets of Car- 
 penter's at £9 [ler c\\ t. (the |)rice of that 
 day's fair lieiiig £'.> Ds.), if he would take 
 two pockets of Thorpe's at £7 l.")s. per 
 cwt. The iilaintiff at the same time or 
 shortly jifter informed the defendant that 
 the last-MientiiMied two pockets were ly- 
 ing at Prid iV: Sou's warehouse, Kentish 
 ISnildings, .Sontluvark, aijil agreed that 
 he should have them upon the same terms 
 as if they had been in linlk at the fair, that 
 is, that lie should he at no e.xpense for 
 wareliousiiig or carriage. The defendant 
 consented to purchase tlie four pockets 
 upon these terms, and took away with 
 him the t%vo pockets of (Jarpeuter's, but 
 reipiested that thetwopocketsof Thorpe's 
 should not be sent until he wrote for them. 
 
 The plaintiff had at this tinicthree pock- 
 ets of Thorpe's hops at the warehouse of 
 Prid & Son. On the 'Jlst of October, the 
 plaintiff's son went to the warehonse,and 
 insti'ucted the warehouseman to set 
 apart two of the three pockets of Thorpe's 
 for the defendant; and the warehouse- 
 man thereupon placed on two of them, 
 numbered respectively one and three, 
 what is called a " wait order card," that 
 is, a card upon which was written, "To 
 wait orders." and the name of the ven- 
 dee. No alteration, however, was made 
 in the warehousebooks : ;ind the plaintiff, 
 the original depositor, still remained lia- 
 ble for the rent. 
 
 On (he 4th of November, the plaintiff 
 sent the defendant an invoice as follows, 
 at the same time inclosing a draft for ac- 
 ceptance: — 
 
 Mr. S. .><mllh. nouKht olCtinrleB Jennen 
 2 pockets SnsHi'T Imps (CnrpiMiter, ISii7), 
 No. 2 ... 1 cwt. 2 qrs. 2li Urn. 
 4 ... 1 cwt. 2 qrs. l;l lbs. 
 
 Scwt.lqr. II 11)8. «i)X9 percwt. MO 2s. 8(1. 
 } pockots Sussi'X hops (Thorpo, IS67), 
 No.l . . . 1 cwt.2 qr«.271bs. 
 8 ... 1 i-wt ciqr. 21 lbs. 
 
 2 cwt . 3 qrs. 20 lbs. 6i f 713a. percw t. £22 13a. lod. 
 
 I.VJ IGa. 8(1. 
 The two Inst pockets of hops are I.vinff to your order. 
 
 OntheSth of November the defendant 
 wrote to the plaintiff as follows:— 
 
 Sir,— 1 have returned your bill unsigned; 
 but. as I have never received the two 
 pockets of hops or heard any thing about 
 them, 1 crjnrluded you had not thought of 
 Keniling them, and have made an exchange 
 for some malt, nnd shall not re(|uire them. 
 As 1 will never sign a bill. I will pay, as 
 was agreed, in February, the welghtof the 
 two Carpenter's. 
 
 The defendant subsequently pniil the 
 price of the two jjockcts which he had re- 
 ceived, all but a small balance which was 
 covered by the payment into court. 
 
 It was (jbjcctcd on the part of the de- 
 fendant tliat, as to the two pockets of 
 Thorpe's h(»ps, there was no contract 
 binding within the statute of frauds, no 
 delivery or acceptance, or part payment, 
 and no evidence of goods bargained and 
 sold. 
 
 For the plaintiff it was insisted that the 
 whole was one bargain, and consequently 
 that there had been a part delivery and 
 p.-irt payment, and that the properly In 
 the wlnde four pockets passed by the con- 
 tract. 
 
 The learned judge ruled that It was one 
 entire contraci, and that, therefore, there 
 had been a part delivery so as to make n 
 contract binding within the statute of 
 frauds, that the plaintiff could not rely 
 upon the [lart |iayment, liecause the ite- 
 fendant, at the lime of making the pay- 
 ment. re|)U(liated the bargain as to the 
 two pockets in (|uestion; that, though 
 there was a binding contract, the prop- 
 erty did not pass thereby, inasmuch as the 
 contract was to deliver two out of a 
 larger numberof pockets of Thorpe's hops 
 equal to sample, the [irice to be deter- 
 mined according to the weight; and that 
 there had been no siillicient appropriation 
 afterwards to pass the property, because 
 Prid & .Son never bound themselves to 
 hold for the defendant instead of for the 
 plaintiff. lie t!u'reiii)on nonsuited the 
 Iilaintiff, reserving liim leave to move to 
 enter a verdict for £'J2 Ills. lOd., the court 
 to draw inferences of fact. 
 
 Morgan Lloyd, in Hilary term last, ob- 
 tained a rule nisi accordingly. H.T. Cole, 
 (J. C, and Bromley showed cause. .Mor- 
 gan Lloyd, in suiiport of the rule. 
 
 KEATING, .1. I am of opinion that 
 this rule should be discharged. The ac- 
 tion is brought to recover the price of 
 two pockets of hops as sold and ilelivereil 
 and bargained and sold. It appears that 
 the iiarties met in October, lsc.7, at Wey- 
 liill Fair, and that it was orally agreed 
 between them that the defendant should 
 purchase of the plaintiff twi> pockets of 
 Carpenter's Sussex Imps, which were then 
 in the fair, and had l>een Inspecli'd liy the 
 defendant, at £!• per cwt., and >ilso two 
 pockets of Thorpe's hops, of which a sam- 
 ple was shown, at £7 l.')s. per cwt. After 
 the purchase had lieeii agreed on, the de- 
 fendant was informed that thelatler were 
 Iviiig in a warehouse in London, and he 
 reiiiiesteil that I hey might be left therw 
 until he sent word that he was ready to 
 receive them. On the 4th of November the 
 [)laintiff sent an invoice describing the
 
 474 
 
 JENNER 0. SMITH. 
 
 numbers, weight, and price of the four 
 pockets, with an intimation that the two 
 pockets of Thorpe's were l.ving at the 
 wareliouse to the defendant's orders. The 
 plaintiff had tliree jjockets of Thorpe's 
 hops nt tlie warehouse; and lie had in tlie 
 mean time gone to the wareliouse and 
 directed the wareliouse keeper to put cer- 
 tain marks upon two of them, to indicate 
 that they were sold and were to wait the 
 orders of the purchaser. No alteration, 
 however, was made in the books of the 
 warehouse-keeper; nor was any intima- 
 tion of this appropriation of tlie two 
 pockets Kiven to the defendant until the 
 4th of Novenilier, when the invoice was 
 forwarded to liim. The defendant declined 
 to accejjt the two pockets. At the trial 
 various objections were urged. It was 
 BHid, amongst other things, that there 
 was no contract as to the two pockets of 
 Thorpe's hops to hind the defendant with- 
 in § 17 of the statute of frauds; that the 
 contracts for the purchase of the two pock- 
 ets oi Carpenter's hops and for the two 
 pockets of Thorpe's were di.stinct con- 
 tracts; and that, consequently, there had 
 been no delivery or part-payment to take 
 the case out of the statute. My brother 
 Brett ruled that the contract was entire, 
 and the olijection founded upon the 
 statute of frauds was thus got rid of. 
 Then came the question whether the 
 count for goods sold and delivered or 
 goods bargained and sold could be main- 
 tained, the property in thegoods not hav- 
 ing passed. Upon this my brother Brett 
 noiisuited the plaintiff, but gave leave to 
 move to enter a verdict for the jjlaintitf 
 lor the price of the two pockets in dis- 
 pute, reserving power to the court to 
 draw such inferences as a jury might 
 draw. The question before ns, therefore 
 is, whether, ui)on the facts proved, we can 
 see that the property in the hops passed 
 to the defendant so as to make him liable 
 in this action. The general rule of law 
 was not contested on the part of the 
 plaintiff, that, where an article (not spe- 
 cific) is sold, but something remains to be 
 d»)ne by the vendor before it is despatched 
 to the vendee, no projierty passes by the 
 contract of sale. It was contended on 
 the part of the defendant that much re- 
 mained to be done here before the prop- 
 erty could pass, — that, the hops having 
 lieen sold by samjile, they would require 
 to be inspected, and to be weighed, in or- 
 der to ascertain the price. On the other 
 hand it was urged that, though that may 
 be so as a general rule, Aldridge v. John- 
 Koni and other cases show that, if it ap- 
 pears from the contract that the vendee 
 has made the vendor his agent for the 
 purpose of weighing and doing all the 
 other acts necessary to be done to pass 
 the property, the property in the goods 
 will pass so soon as those acts are done. 
 It is, however, observalde that in Al- 
 dridge V. .lohnson the bulk of the barley 
 had been inspected and approved, and 
 all that remained to he done was to sever 
 and measure the portion to be appro- 
 priated to the vendee: and that the ven- 
 
 dor had filled a number of sacks which had 
 been sent by the vendee, thereby measur- 
 ing it. The barley which was to be ap- 
 propriated to the fultilineiit of the con- 
 tract was therefore severed from the bulk 
 and measured with the assent of both 
 parties. There could be no doubt that 
 the property in the l)ailcy so dealt with 
 passed. Mr. Lloyd sought to bring the 
 present case within that l>y saying that a 
 similar extensive auchorify was conferred 
 by the defendant on the plaintiff in this 
 case. I cannot draw any such inference 
 from the facts proved here: on the con- 
 trary, I think they negative it. I cannot 
 suppose that the defendant meant to part 
 witli tiie right of objecting to the corre- 
 spondence of the hops with the sample, 
 or of insisting on the weight being ascer- 
 tained, before the pro|)erty passed. It is 
 true, there was an intimation tothe ware- 
 house-keeper that the two pockets num- 
 bered one and three liad tieen sold to the i 
 defendant; but no transfer was made in 
 his books, and he still held them at the! 
 charge and at the risk of the vendor. I 
 think it is impossible for the court to) 
 draw the inference that an authority! 
 such as was given in Aldridge v. .Johnson* I 
 was given here; and if no such authority ■ 
 was given, the case is brought within the] 
 multitude of authorities in which it haa •• 
 been held that, where there is a sale of'| 
 unascertained goods with reference to 
 which something remains to be done by 
 the vendor before delivery to the \endee, 
 no property passes until that has been 
 done. 
 
 BRETT, .T. At the trial 1 proposed to 
 nonsuit the plaintiff, on the ground that 
 there was no evidence to go to the jury in 
 supp(jrt of the count for goods l)argained 
 and sold. It was not then suggested that | 
 there was any authority from the defend- 
 ant to the plaintiff to select the two pock- I 
 ets for him. If it had l)een, I should not ' 
 have nonsuited the plaintiff, but would 
 have left that question to the jury. The-] 
 question now is, not whether there was 
 any evidence for the jury, but whether the 
 court can infer from the facts proved, 
 that the propert.v in the two pockets ofj 
 Thorpe's passed. It is clear that no prop- 
 erty passed by the contract itself. The | 
 contract was for a sale bj' sample of unas- 
 certained hops, the price depending on the , 
 weight. Then comes the case put by my | 
 brother Blackburn in the passage at p. 
 127, to which I referred in the course of the I 
 argument. Here there was no previous I 
 authoritj' given to the plaintiff to appro-] 
 priate; and. if not, what evidence was 
 there to show that the appropriation of | 
 the two pockets in Prid & Son's ware- 
 house was ever assented to by the defend- 
 ant'? The defendant's assent might liave] 
 been given in eitheroftwo ways, — by him- 
 self, or by an authorized agent. I!y him- 
 self, after the receipt of the letter contain-] 
 ing the invoice; or by the warehouse- 
 keepers, if there had been any evidence ofj 
 agency or autliority in them to accept, ! 
 and assent liy tliem to hold ihe hops fori 
 
 I 
 
 >7 K. & K. hsr); 26 I.. J. (Q. li.) iOfi. 
 
 I '7 E. & li. !>»5: aO L. J. (Q. B.; 296.
 
 JEXXER V. SMITH 
 
 475 
 
 liitn. I tliink tlie di'fendant'H Iptter refuH- 
 iiiK to (i''<'<'i)t till' ilrnft WHS Htroiig, if not 
 cKiicliiHivp, to hIiow that there had heeii 
 no such awHeTit l».v tlic defcrulaiit. And. nn 
 to I'rid iV Son, the evidence failn on Itoth 
 pointH. They never nj;i-eed to h<j|d tlie 
 two poeketH on lielialf of tlio purehnHer ; 
 and, if tliey (li<l, tlieie Ih no evidence of 
 any autliority from liiin that they iniKlic 
 do HO. Mr. I^loyd lia.s stronsly |)ut for- 
 ward a point wliicli waH not made at tlie 
 trial, viz., tlial tlieie wasevidence tlia t, l)y 
 agreement between tlie parties, the pnr- 
 cliawer }j;ave aiithoi-ity to the Heller to He- 
 lect the two pocketH for him. If he did 80, 
 
 he Kave u|) liin power to object to the 
 weiKliInK anil to the koihIh not corre- 
 MpondluK with tlie Nainiile; for he c«)iilil 
 not tive huiIi anthority and renerve liiH 
 ri^ht HO to ohjei't : and itiileeil It huH not 
 been contendi'd that hi' nave up tliime 
 ri^htH. That kcciiih to me to he conelu- 
 Hive to Hhow that the ilelendant never 
 Kave the plaintiff aiitlioilty to niiike the 
 Ki'lection HO aH to hind him. t'lider the 
 eirciiniHtanceH, therefore, it Ih inipoHHilde 
 to Ha.v that the property panHcd ; conMe- 
 qiiently the t>laintlff cannot recover oh for 
 ^ooiIh harKained and Hold. 
 Rule dlHciiargeU. 
 
 \
 
 JOHNSTON V. TRASK. 
 
 477 
 
 JOHNSTON V. TRASK et al. 
 
 (22 N. E, Rep. 877, 116 N. Y. 136.) 
 
 Court of Appeals of New York, Second Division. 
 Oct. 8, 18S9. 
 
 Appeal from a judgment of the general 
 term of the su|iienie court in the third juili- 
 cial department, entered on an order made 
 January 2(i, lK8t), which allirnied a judg- 
 ment in favor of plaintiff, entered upon a 
 vpidict directed at circuit. 
 
 This was an action for a breach of con- 
 tract. Since January, 1882, the defend- 
 ants have heen bankers and brokers, doing 
 busini'ss as partners under a firm name. On 
 the trial of the issues, the plaintiff testilied 
 that on the 18th day of January, 1882, the 
 nian.iging piirlner of the firm, at its place of 
 business, orally agreed with the plaintiff to 
 purchase for him, if they could be bought in 
 the market, income mortgage bonds of the 
 Ohio f'entral Uailroml iif the par value of 
 810,000, "and, (giving the language of said 
 partner) any time you want to get rid of 
 them, we will take them off of your hands al 
 what they cost you." Later in the day, tlie 
 defendants reported to the plaintilf that they 
 had purchased the bonds for §4,800, and 
 their commissions were §12.50; and there- 
 upon the plaintitf paid .?1,000 towards the 
 purchase price. The bonds were retained by 
 the defendants as security for the sums due 
 from the plaintiff to them until November 
 16, 1882, when the plaintiff paid the f idl pur- 
 chase price for the bonds, commissions, and 
 interest, and took them into his possession. 
 The market price of the bonds declined until 
 April 28, 1884, when they were selling for 
 about 10 cents on a dollar. On this date the 
 plaintiff tendered the bonds to the defendants, 
 and demanded that tliey should pay him $4,- 
 812.50, which tliey refused to do; and .\pril 30, 
 1884, this action was brought, on contract, to 
 recover that sum. The defendants did not 
 contradict the plaintilf's evidence, which was 
 corroborated by three witnesses; but at the 
 close of his case they moved for a nonsuit on 
 the grounds— ^'i'/s?. That the oral contract 
 was void for not comi)lyiiig with the follow- 
 ing section of the statute of frauds: "Sec. 3. 
 Kvery contract for the sale of any goods, 
 chattels, or things in action, for the price of 
 fifty dollars or more, shall be void, unless 
 (1) a note or memorandum of such contract 
 be made in writing, and be subscribed by the 
 parties to be charged thereby; or (2) unless 
 tlie buyer shall accept and receive part of 
 such goods, or the evidences, or some of 
 them, of such things in action; or (3) unless 
 the buyer shall, at the time, pay some part 
 of the jiurchase money." Secuml. That the 
 evidence was insullicient to sustain the con- 
 clusion that the managing partner had au- 
 thority to bind the firm by such a contract. 
 Third. That the plaintiff did not tender the 
 bonds, and demand the repayment of the 
 price, within a reasonable time, and thereby 
 lost his right of action. The motion was de- 
 
 nied, and, the defendant not asking to have 
 any question submitted to the jury, a verdict 
 was directed in favor of the plaintiff for 
 $4,800, with interest tbereon from April 28, 
 
 1884. 
 
 Horace E. Smith, for appellants. John if. 
 Carroll, for respondent. 
 
 FoLLETT, C. J., (after stating the factt 
 as above.) An oral contract by which a per- 
 «on sells his own chattels or choses in action 
 for more than S50, payment and delivery be- 
 ing made, and agrees to take tliem back 
 from, and rei)ay the purcha.se price to, the 
 purchaser on demand, is an entire contract; 
 and the promise to take back the proi)erty, 
 and repay the purchase price, is not void by 
 the third section of the statute of frauds. 
 Wooster v. Sage, 67 N. Y. 07; Kit/patrick 
 V. Woodruff, 90 N. Y. 5G1; White v. Knapp, 
 47 IJarh. .'549; Williams v. Burgess, 10 Adol. 
 & K. 499; Fay v. Wheeler. 44 Vt. 292; Dick- 
 inson v. Dickinson, 29 Conn. 600; 1 Uenj. 
 Sales, (Corliin's Ed.) § 169. Executed con- 
 tracts of sale, embracing a promise by ven- 
 dors of chattels that in case they do not suit 
 the purchaser, or do not possess certain speci- 
 fied qualities, the vendor will repay to the 
 vendee the purchivse price upon their return, 
 have been frequently cunsidcred by the courts, 
 (Towers v. IJanctti 1 Term K. 133; Thorn- 
 ton v. W\vnn, 12 Wheat. 183;) but no case 
 has been cited holding that such a promise 
 on the part of a vendor is an independent 
 contract. When an agent, by an oral con- 
 tract, sells anil delivers the gootis of a dis- 
 closed princi|ial, his personal oral warranty 
 of quality is not a contract independent of 
 the contract of sale, but is a part of it, and 
 one consideration is sutlicient to support the 
 sale and warranty. The oral contract of the 
 defendants that they would purchase for the 
 plaintiff in the market, at marki t rates, the 
 bonds, for the usual compensation, and, in 
 case he should thereafter become dissatislled 
 with the bonds, that they would, on demand, 
 take them off his hands at what they cost 
 him, was a single contract. Under this con- 
 tract, the bonds were purchaseil and held by 
 the defendants until the purchiise price and 
 their commissions were paid, and then they 
 delivered the bonds to the plaintiff. The 
 promise of the defendants that they would 
 take the bonds off the plaintiffs li.-tnds at 
 what they cost him, upon request, is not a 
 contract for the sale of goods, chattels, or 
 things in action, within the third section of 
 the statute of frauds, but is a provision for 
 the rescission of the entire contract, and Is 
 valid. The learned counsel for the appellant, 
 in support of his contention, cites Hagar v. 
 King. 38 liarb. 200. In that case a firm was 
 iiulebted to the plaintiffs in the action for 
 woik performed in constructing pnrt of a 
 railroad. The defendant, who was one of 
 the firm, asked the plaintiffs to take from thi» 
 railroad corporation its bonds in payment of 
 the debt, orally agreeing with the plaintiffs.
 
 478 
 
 JOHNSTON V. TRASK. 
 
 for himself, that, if they would so take the 
 bonds, he (not the firm) would, within 10 
 days, take the bonds from and pay to the 
 plaintiffs the amount of tlie lirm's debt. The 
 plaintiffs assented to the proposal. After- 
 wards they accepted from the corporation its 
 due-bill for the amount due them for their 
 work, payable in the bonds of the corpora- 
 tion, and gave a receipt for all of their de- 
 mands for work done on the road. The 
 plaintiffs then indorsed the due-bill, deliv- 
 ered it to the corporation, and received the 
 boi Is. Within 10 days the plaintiffs ten- 
 dered the bonds to the defendant, and de- 
 manded the amount for which they were 
 taken in payment. It was held that the oral 
 agreement embraced two contracts, — one to 
 accept the bonds in payment of the debt, 
 and another to purchase the bonds at a future 
 day at a given price, — and that the latter 
 contract was within the third section of the 
 statute of frauds, and void. That case is 
 easily distinguishable from the one at bar. 
 The defendant in that case, as an individual, 
 was not indebted to the plaintiffs, and his 
 individual contract to take back the bonds 
 was held to be distinct from the contract by 
 which the firm's debt was paid in the manner 
 described. 
 
 Was the evidence sufficient to sustain the 
 conclusion that the managing partner was 
 authorized to make the contract in behalf of 
 the firm? The defendants admitted, m their 
 answer, that they were bankers and brokers, 
 and that they entered into that part of the 
 contract by which they agreed to purchase 
 the bonds for the plaintiff, which, by their 
 concession, was within the ordinary business 
 of the firm. But they neither averred in 
 their answer, nor gave evidence tending to 
 show, that the promise to take back the 
 
 bonds was beyond the scope of their business. 
 There being no evidence which shows that 
 the transaction was actually beyond the 
 scope of the business of the firm, the ques- 
 tion arises whether it was apparently beyond 
 the scope of its business. 15ank v. Under- 
 bill, 102 N. Y. 336, 7 N. E. Rep. 293. The 
 case shows that, in addition to the business 
 usually done by bankers and brokers, the de- 
 fendants were accustomed to purchase and 
 carry securities on margins for their custom- 
 ers. The undisputed evidence is that the 
 managing partner did make the promise up- 
 on which the plaintiff recovered; thus assert- 
 ing his authority to make it in the name and 
 in behalf of the firm. No evidence is found 
 in the record which would justify the court 
 in holding, as a matter of law, that the 
 promise upon which the action was brought 
 was so far beyond the scope of the business 
 of the firm that the plaintiff had no right to 
 rely upon it. The evidence was sufficient to 
 cast upon the defendants the burden of re- 
 butting the presumption arising from the 
 evidence and the pleadings, and, they having 
 failed to do this, no error was committed in 
 refusing to nonsuit on the ground that the 
 managing partner had no authority to bind 
 the firm by this contract. 
 
 The third ground upon which a nonsuit 
 was asked for is not supported by the evi- 
 dence. The undisputed evidence is that the 
 managing partner of the firm, on several oc- 
 casions, advised the plaintiff not to part with 
 the bonds, assured him that they were good, 
 and would ultimately advance in the market. 
 Under these circumstances the plaintiff was 
 not guilty of laches in not earlier returning 
 the bonds, and demanding the price paid. 
 Wooster v. Sage, supra. The judgment 
 should be affirmed, with costs. All concur.
 
 n
 
 JONES c. EARL. 
 
 481 
 
 JONES V. EAUL. 
 
 (37 Cal. 030.) 
 
 Supreme Court of California. July, 1869. 
 
 Appeul from the district court, Bixtl) 
 Juiii<'ial (liHtrict, Sicrameiitti county. 
 
 Tlic jjctiiiii WMg njjaiii.st a torwunlcr for 
 the conviTHion of ko<)<Ih. The roll()\vin<; ' 
 Is a copy of the letter wliich is ;eferre(I to i 
 in tlie opinion r)f the court : 
 
 "San F"raucisco, Noveniher 18tli, lS(i7. 
 MesHTM. I). W. Earl & Co.: Cents— On the 
 el?ventli in'<tant we Hliipped to your care 
 the rollowiuK jjoods. viz.: Two liarrcls 
 whi.il\y. Two ca.sli.s ale. Two caeks por- 
 ter. Four liasketH clianipa;rne. Four 
 casoH Hostetter'H bitterw. .Marked: F. 
 M. .\.. Viruinia City, (are 'Karl,' (Mmco. 
 
 " If the >;o()(la have not been forwarded 
 yet ironi Cisco, please hold on to them till 
 you hear from us aK»in, as the party to 
 wlicMn they were consij^ned at VirKinia 
 has been attached, anil we want to save 
 tlic uoods. If they have been forwanii-rl 
 from (i.sco, please instruct your agent at 
 Virginia to deliver the froods to no one 
 ])Ut our agent, Mr. J. A. livers, who will 
 be at Virginia on the lookout for the 
 goods. Please write us immediately 
 whether the goods have been sent; if not, 
 Mr. Hyers will call for tliein at Cisco. 
 Very respectfully. Biggs & ,Jones." 
 
 Coffroth & .Spf.ulding.for appellant. M. 
 A. Whuaton. for respondent. 
 
 SANDER.SON, .1. StopP'ige in transitu 
 is n right which the vendor of goods upon 
 creilit has to recall them, or retake them, 
 upon the discovery of the insolvency of 
 the vendee, before the goods havecome In- 
 to his possession, or any third party has 
 nc(|Uired liona fide rights in them. It con- 
 tinues HO long as the carrier remainsin the 
 possession and control of the goods, or 
 until there has been an actual orconstruc- 
 tive delivery to the vendee, or eome third 
 I'lTson has acquired a bona fide right to 
 tlu'in. Upon demand by the vendor, 
 while the right of stop|>age in transitu 
 continueK, the carrier will l)ec<irao lial)le 
 for a conversion of the goods, if he decline 
 to redeliver them to the vendor, or deliv- 
 ers them to the vendee. (MarkwalU v. 
 His Creditors. 7 Cal. l.'l:!: HlacUman v. 
 I'ierce, i':! Cal. ,5l)s: O'Neil v. (Jarrett, fi 
 Iowa. 4n0; IJeynolds v. Railroad, 43 N. H. 
 LAW SALES — 31 
 
 5S0.) And a notice l)y the vendor, wlthoot 
 an express demand to leileliver the gnoda, 
 is sufficient to charge the carrier. lithe 
 carrier is clearly informed that It Is the in- 
 tention and desiri' ol the vendor to exer- 
 cise his right ol stoppage in transitu, the- 
 notice is sntlicient. (licyu<dds v. HallroaiU 
 supra; Eitt v. Cowley", 7 Taunton, KiU; 
 Whitehead V. AmIersou.O .M. &\V..-)1K; Bell 
 V. .Moss, 5 Wharton, l*-!).) .And notice U^ 
 the agent of the carrier, wIkj in the regu- 
 lar course of his agency is in the actual 
 custody ol the goods at the time the no- 
 tice is given, is notice to the carrier. 
 (Bierce v. Bed Bluff Hotel Co., 31 Cal. IfiO.) 
 
 The case made by the record shows that 
 the goods in question were consigned to- 
 the care of the defendant at Cisco, to be 
 forwarded liy him in the usual course of 
 busines< to the vendee at VirL'lnia City. 
 That the defendant was engaged in the- 
 forwarding business at Sacramento, and 
 had an agent at Cisco whose business it 
 was to receive all gooils shipped to the 
 care ol defendant, and deliver them to the 
 order of the vendee u[ion payment or 
 charges and commissions. 'I'liat, while 
 the goods were at Cisco and in the custo- 
 dy of the defendant's agent, who had full 
 charge of the forwarding busin-ss at that 
 place, a letter from the plaintiff, ad- 
 dressed to the defendant at Cisco, con- 
 taining a bid of the goods, and informing 
 the defendant that the vendee hail been at- 
 tached, and that he wanted to save the 
 goods, and <lirecting the defendant not to 
 deliver the goods to any one except his 
 (tlie plaintiff's) agent at Virginia, who 
 ivouM be l(»oking out for theiu, was re- 
 ceived by the defenilant's agent at Cisco. 
 That the defenilant, by his ageut. ac- 
 knowledged the receipt of the letter, and 
 stated that the goods were "in store and 
 he woulil hold them sul>ject to the order 
 of Byers" (plaintiff's acentl. That after- 
 wards the vendee of tlie goods came to 
 the agent of defendant and, tendering 
 charges and commissions, demanded the 
 goods, and that the demand was comfdieil 
 with. That the vendee was insolvent at 
 the date of the notice to defendant's agent 
 that the plaintiff desired to stop the 
 goods in his hands. 
 
 In view of these facts, and the law as 
 above declared, the defendant Is clearly 
 liable for a conversion of the goods. 
 
 Judgment and order atUrmed.
 
 I
 
 JONES V. PADGETT. 
 
 483 
 
 JONES V. PADGETT. 
 (84 Q. B. Div. 650.) 
 
 Queen's Bench Division. March 27, 1890. 
 
 ApponI from the WoKtiiilnster couritv 
 court. ■' 
 
 Tlie plaintiff cnrried on tho ImsinesH of a 
 woolen niercliant «t on(> ndilreHH, and of a 
 tailor lit (in<jtlu'r. Ah a woolen nierchnnt 
 he ordered of the deieiidun ts, who were 
 woolen ninnufactiirers, a (inantity of "in- 
 dipo hluo cloth," to he inacje aecordin" to 
 Huniple. He intnnded to use the elotli in 
 his husinesH as a tailor for the purpose of 
 iiiHkinK it into servantH' liveries ; hut the 
 fact that he was a tailor as well hh a 
 woolen merchant was unknown to tho 
 defendants, and he did not coniniunicnte 
 to them the i)articular purpose for which 
 he wanted the cloth. The defendantH 
 made and supplied to the plaintiff cloth 
 which wan of the description ordered and 
 which corresponded with the sample i 
 The plaintiff made the cloth into liveries 
 which he supplied to a London club for 
 the use of its servants. Alter tlie liveries 
 had been In use for a few weeks, they 
 Hhowed si^ns of wear, the surface of the 
 cloth came off, and the dve came out It I 
 was admitte<l that the cloth was not 
 strong enoiitth in te.xture for the liard 
 usase to which servants' liveries are sub- 
 Jected, aiKl that it was altoKether unsuit- 
 able for that purpose. There was evi- 
 dence that one of the ordinary uses to 
 winch indiiro blue cloth was aprilied was 
 the makiiif? of servants' liverlos, tliouKh it 
 was also freijuently used for other pur- 
 poses, such as carriage lininRS, caps and 
 boots. There was no evidence that the 
 cloth supplied by the ilefendants was un- 
 suitable for these latter imrposes. lie- 
 fore or.|erin« the cloth the plaintiff sub- 
 jected (he samiile to the ordinary tests for 
 the purpose of a.scertaininj: whether it 
 was suitable for liveries, and failed to 
 discover that it was not so. The plain- 
 tiff having sued the defi-ndants for breach 
 of an iin[)lied warranty that the cloth 
 was inerchnntable, the judRe left to the 
 jury the (juestion whether it was mer- 
 chantable as supplied to woolen mer- 1 
 chants, ami refused to leave to them the 
 question whether an ordinary and usual 
 use of cloth of the description ordered 
 was the making of it into liveries The 
 verdict havins passed for the defendants 
 tho plaintiff moveil for a new trial on the 
 ground of misdirection. 
 
 Danckwerts, for plaintiff. Ciuiry, for 
 defendants, was not called upon. I 
 
 Lord COIJCfUIHJK, C. .J. I am of opin- ! 
 Ion that in this case the direction of the 
 cpiiMty court jiidue to the jury was 
 rlKht and that there was not aiiv such 
 non-direction as made his direction 
 amount to a misdirection. There is no 
 oouhtthatifa manufacturer sells an ar- 
 ticle which he knows is bouirht for a par- 
 t ciilar purpose, he impliedly warrants 
 ti at It IS ht for that |)articnlar purpose, 
 innt IS a principle which was established 
 some sixty years ago in the case of Jones 
 
 Jlncp'^.WA^r'"'"''^*'^" "«*'"' upon ever 
 fh„f ,""ft''« present case Is not within 
 ;„»,/■",•. '"■'^"""t' "•'tl'i"K was mentioned 
 to the seller as to the particular purpose 
 'for which this cloth was bouKht, and there 
 was nothing to llx him with knowlellKe 
 
 was that the seller on the one sl.le woH 
 a manufacturer, and the buyer on the 
 ..o""/','" ""'" " "'""li'" merchant. No 
 miKhthelthe Roods to some person or 
 ther who miKht use them tor a purpose 
 for winch they were not ht. and I nav 
 assume that the Roods here were unlit for 
 the particular purj.ose to which tli.- plain- 
 tiff applied them. Hut there was nothlne 
 beyond the position of the parties, to 
 show that the seller knew thespecltic pur- 
 pose for which they were bought, and It 
 I could not be ilenied tliat they mJKht have 
 been used for a variety of other i)urpose8 
 for which they were fitted. The plaintiff 
 misht liave sold them to lie used for niir- 
 poses for which they were applicalde. 
 Hut then it is said tliat the case of Drum- 
 mond V. Van Iurcu- in the house of lords 
 carries the law farther than .Jones v 
 liriKht.'i In my opinion that is not so. 
 1 here was no intention on the part of the 
 lords to extend the old rule. L.ird .Mac- 
 naKhten exi>ressly said that he did not ro 
 beyond it; so also did Lord .Selborne 
 .\nd Lord Herscliell, on whose judgment 
 Hliecial reliance has liecn placed, was par- 
 ticiilarly careful to ex|)lain that he did 
 not intoiKl to carry the doctrin.- farther 
 lie said: "It was ur^ed for the appellants 
 by the attorney-Reiieial, In his able arsu- 
 ment at the bar, that it would be unrea- 
 sonable to reipiire that a manufacturer 
 should be cognizant of all the purposes to 
 'which the article he niaiiiifartures inb'ht 
 be applied, and that he should be ac- 
 quainted with all the trades in which It 
 may be use<l. 1 asrree. Where the article 
 I may l)e used as one of the elements in n 
 I variety of other manufactures. I tliink it 
 j may be too iiiiich to impute to the maker 
 <)f this ci>iiiinon article a knowledge of 
 the details of every manufacture Into 
 I which it may enter in conil)inatii>n with 
 [Other materials." If the plaintiff is to 
 succeed, it must 1)0 on the ground of the 
 reasonableness of Imputing such knowl- 
 edge to the manufacturer. I do not see 
 that there was any evidence that the mak- 
 iiiR of liveries was the only purpose, or 
 oven the most usual purpiise. for which 
 this particular kind of cloth was ordi- 
 narily used, and uiil.ss that is so, there Is 
 nothinu: to Hx the manufacturer with 
 knowledse which would brinjj the case 
 within the rule. 
 
 Lord KSIlKri,M.R. Thequostioii which 
 w lis left by the judne to the jury, and the 
 Hulliciency of which is now complained of, 
 was whether the cloth supplied by the de- 
 fenilants to tin- plaintiff was merchant- 
 able as su|iplied to woolen inen-hantR. 
 The cloth in cpiestion was ordered uniler 
 
 •5 Bing. 5.11. 
 
 « 13 A pp. Ciis. 2S4. 
 
 •5 Bing. 533.
 
 484 
 
 JOXES V. PADGETT. 
 
 a particular name, namely, "indigt) blue 
 cloth," by a wooUeu merchant of a wool- 
 len cloth manufacturer, to be made accord- 
 ins to sample. It waa not denied that 
 the cloth supplied anHwered the name, 
 nor was it disputed that it agreed with the 
 sample. But it was said that there was 
 a breach of an implied warranty that it 
 should be fit for the particular purpose 
 of being made into liveries. Now the rule 
 with regard to the imitlied warranty of 
 fitness which arises in the case of a sale of 
 goods is that which is laid down in Jones 
 V. Just'* in the fourth of the five classes of 
 cases there enumerated : "Where a manu- 
 facturer or a dealer contracts tosupplyan 
 article which he manufactures, or produces, 
 or in which he deals, to be api)lied to a 
 particular purpose, so that the buyer nec- 
 essarily trusts to the judgment or skill of 
 the manuf.-icturer or dealer, there is in 
 that case an imi)lied term or warranty 
 that it shall be reasonably fit for the pur- 
 pose to which it is to be applied." Those 
 are the limits of the warranty. Here the 
 goods were ordered by a woollen mer- 
 chant. He no doubt happened also to be 
 a tailor; but that fact was unknown to 
 the defendant. The purpose for which a 
 woollen merchant buys cloth is to sell it 
 again to others. There was indeed evi- 
 dence that sucii cloth as this, if sold to a 
 tailor, was not fit for one of tlie purposes 
 to which a tailor might apply it. But 
 there was no evidence that it was not fit 
 for other of the purposes even of a tailor. 
 Moreover, the cloth might have been sold 
 by woollen merchants to fifty other classes 
 of persons besides tailors. There was no 
 evidence that wool manufacturers know 
 that woollen merchants sell to tailors at 
 all. The manufacturer here was not told, 
 either expressly or by implication, that 
 the goods were ordered that they might 
 be sold to tailors. Then is there any au- 
 thority which establishes that where 
 goods are ordered by a woollen merchant 
 of a cloth manufacturer the latter must 
 be taken to know that they may he or- 
 dered to be sold to tailors? The case re- 
 ferred to in the house of lords is nu au- 
 thority for such a proposition, for there 
 the goods were ordered under the desig- 
 
 <L. R. 3 Q. B. 197. 
 
 nation of "coatings," which necessarily 
 imported that they were intended to be 
 made uo into coats, and therefore the 
 facts of that case came within the precise 
 terms of the fourth rule in .lones v. Just. 6 
 it is suggested that every wool manufac- 
 turer is bound to know all the ordinary 
 purposes to which a woollen merchant 
 may put the cloth which he buys — that is 
 to say, he is bound to be acquainted with 
 all the trades to which the woollen mer- 
 chant may re-sell it; but that is the very 
 proposition which L.ord Herschell ex- 
 pressly denies. •'It would be unreason- 
 at)lR, " he says, " to re(iuir3 that a manu- 
 facturer should becognizant of all the pur- 
 poses to which the article he nianufac- 
 tui'es might be applied, and that heshould 
 be acquainted with all the trades in which 
 it may be used." Though he adds that 
 "There seems nothing unreasonable in ex- 
 pecting that the maker of 'coatings' 
 should know that they are to be turned 
 into coats." And Lord Selborne says, 
 that although, "if the goods being of a 
 class known and understood, between 
 merchant and manufacturer, as in demand 
 for a parti<Milar trade or business, and be- 
 ing ordered with a view to that market, 
 are found to have in them, when sup- 
 plied, a defect jjractically new, not dis- 
 closed by the samples, but depending on 
 the method of manufacture, which ren- 
 ders them unfit for the market for which 
 they were intended," the doctrine nf im- 
 plied warranty applies; yet that doctrine 
 "ought not to be unreasonably extended, 
 so as to require manufacturers to be con- 
 versant with all the specialties of all 
 trades and businesses which they do not 
 carry on, liut for the purposes of vchich 
 goods may be ordered from them." The 
 lords decided that case on tlieground that 
 it came within the fourth proposition in 
 Jones V. Just, 6 which proposition they 
 held to be applicable to a case in which 
 the goods were bought by sample. But 
 here there is no evidence to bring the case 
 within that proposition. Thedirection of 
 the county court judge was right, and 
 this appeal must be dismissed. 
 Appeal dismissed. 
 
 »L. R. 3Q. B. 197. 
 •L. R. 3Q. B. 197.
 
 JONES V. UNITED STATES. 
 
 487 
 
 JONES V. UNITED STATES. 
 
 (96 U. S. 24.) 
 
 Supreme Court of the United States. Oct. 
 Term, 1877. 
 
 Appeal from the court of claims. 
 
 Mr. James I.owndes, forappeliiint. The 
 Solicitor-General, contra. 
 
 Mr. Justice CLIFFOUD delivered the 
 opIiiiiMi of tlie court. 
 
 Time is usually of the essence of nn exec- 
 utory contract for the saleandKulisequent 
 delivery of ^ood.s, where no ri;;ht of prop- 
 erty in the same |)aHHe8 by tlx- hart^ain 
 from the vendor to the purchaser; and 
 the rule in such a case is, tliat the|)UrchaH- 
 er is not hound to accept and pay for the 
 Koods, unless the same are delivered or 
 tenderefl on the day specilied in the con- 
 tract. Addison, Contr. Is."): (iath v. Lees, 
 3 H. & C. 5."i8; Coddington v. I'aleolojjo, 
 Law Kcp. 2 E.xch. 1!J(!. 
 
 Articles of aRreenient were made June 1, 
 ]N(;4. Iietween an asHislaiit-(|uarterniaster 
 of the army and the petitioner, who con- 
 tracti'd to man.ifacture and deliver at the 
 clothing; ilepot of the army in I'incinnati, 
 hy or liefore the 15th of Dccemher then 
 ne.xt, two hundred thousand yards of 
 darli-hlue uuiforni-cloth ; and it was 
 aRreed that deliveries under the contract 
 should he nia<le as follows: five thousand 
 yards In June, twenty-five thousand yards 
 in .luly twenty-five thousand yard'* in 
 August, thirty-live th<)usand yards in 
 Septeiuher, fifty thousand yards in l)cto- 
 her. fifty thousand yards in November, 
 and ten thousand yards on or liefore the 
 15th of l)eceiul)er in the same year. 
 
 Other persons were interest.'il with him 
 in the contract at the time it was made; 
 bu^^ one after another retired, until the 
 petitioner is the only one that ret.-iins any 
 interest. His claim is fully set forth in his 
 petiti<ui. 
 
 Certain instalments of the cloth were 
 delivered, for which the I'nited States paid 
 the contract price, excepting ten percent 
 reserved hy the United States, pursuant 
 to the written contract. .Neither party 
 complains of any default jirior to August 
 of that year, when the mill in which the 
 cloths wc^re manufactured was destroyed 
 by fire, and the petitioner, in couseciuence 
 of the loss, failed to make the deliveries 
 of the cloth as the contract required ; and 
 the assistant-quartermaster called his at- 
 tention to the fact, and notified the sure- 
 ties that he should proceed airainst their 
 principal for his delint|uenc,v. 
 
 Unable to fuHil the terms of thecontract, 
 he applied by letter to the person in 
 chnrjie of the depot to be released from the 
 obligation, and for the payment of the 
 reserved ten per cent. Beini; nnsuccessful 
 In that application, he visited Washing- 
 ton, for the purpose of applyinnto thede- 
 partinent tobe released from the unfinished 
 part of his contract; and with that view 
 sought an interview with the (piarter- 
 master general, who referred him to the 
 heud uf tlie bureau of clotliing, wliere he 
 
 was told that there was no power out of 
 congress to release him, and that he ninst 
 furnish theKoods. Had the conversation 
 between the parties stopiied there, tlif» 
 case would be destitute of any color of 
 equity; but the lindinj? of the court below 
 shows that the head of the bureau re- 
 nisrked, that, upon application to the 
 assistant. (piartermaster, sufficient time- 
 
 I would lie allowed to deliver the^coods. 
 Thouiih told that there was no power 
 
 ' out of couKress to release him from hi» 
 contract, he (irocured the necessary quan- 
 
 I tity of such cloth to be manufactured, and 
 aiiplied by letter to the aHsistant-qnarter- 
 master for leave to complete thecontract, 
 who referred the letter to the quartermas- 
 ter-Kcneral for decision; and his reply to 
 the petitioner, as Riven in the finilincs. 
 was, that he could not authorize tlie re- 
 ieasi' from contracts, nor the exiension of 
 time for the delivery of articles under a 
 contract, nor any action whatever not 
 in accordance with their terms and con- 
 ditions. 
 
 I Prices in the market fell one-half; but 
 the petitioner tenrlered the cloths to the 
 
 I asslstant-(|uartermaster, wIkj refused to 
 receive the same, liecause the time for de- 
 liveries under the contract had passed. 
 
 Damaues are claimed l>y the petitioner, 
 upon the cround that the time for the de- 
 livery of the cloths, as specilied In the 
 contract, was e.xtenderl : but the court of 
 claims decided that the theory of fact in- 
 v(dved in the defence was not proved; 
 that the remarks of the head of the bu- 
 reau ol clothing were not sutlicient to su|>- 
 port that theory, as they miRlit not im|ily 
 any thinR more than the <qiinion of that 
 olli.-er as to what the assistant-quarter- 
 n. aster would do. 
 
 The petition havinjj; been dismissed, due 
 appeal was taken by the petitioner; and 
 he assigns the follou ini; errors: I. That 
 the court erreil in holding that time was 
 of the essence of the written contract. 2. 
 That the court erred in decidini; that there 
 
 . was not a valid e.-ctension as to the time 
 for deliveriiiir the cloths. :i. That the 
 court erred in overruling the proposition 
 of the petitioner, that the United States 
 were estopped from ilenyinR the existence 
 of thecontract when the Roods wen^ ten- 
 dered. 4. That the court erred in hiddlnic 
 that there was not a new contract, and 
 that such new contract was void because 
 not in writinir. 
 
 Whi'ther one promise Im the considera- 
 tion for another, or whether the perform- 
 ance, and not the mere promise, be the 
 
 'consideration, is to be iletermiued by the 
 
 ; intention pnd meaninRof the parties, as col- 
 lected from the instrument, and the appli- 
 cation of Rood sense and riRht reason to 
 eaih particularcase. Instructive rules for 
 the accomplishment of that purpose have 
 been stated in various deci.-^iuns of the 
 court and in treatises of liiRli authority, 
 some few of which may be consulted in 
 
 I this case to advantaRC. ("hltty, Contr. 
 (ids. 
 
 Where an act is to be performed by the 
 
 ' plaintiff before the accrulnii of tlie defend- 
 ant's liability under his contract, the 
 plaintiff must prove eithorlils perloruiunce
 
 488 
 
 JONES V. UNITED STATES. 
 
 «f Ruch condition precedent, or an offer to 
 perform it wliich tlie defendnnt rejected, 
 •or liis rea<lines8 to fultil tliecondition niitil 
 the defcndiiiit diHcli!ir;;ed liiiu from k(j do- 
 ing', or prevented tlie execution of tlie 
 matter whicli the contract required liiin 
 to perform. For, wliere the riprlit to de- 
 mand the iierformanre of a certain act de- 
 pends on tlie execution by tlie promisee of 
 a condition precedent or prior act, it is 
 clear that the ivadiness and offer of the 
 latter to fulfil the condition, and the liin- 
 <lranceofitH performance b.v the promisor, 
 are in law eijuivalent to the completion of 
 the condition precedent, and will render 
 the promiHor liable upon his contract. 
 Graves v. Lei!};,'.) Kxch. 709; Morton v. 
 liamb, 7 Term. IL'5; Peeters v. Opie, 2 
 Wins. Saund. .'luUb ; Cutter v. Powell, 2 
 Xmith, Lead. Cas. lo. 
 
 Well-considered anthoritie."^ everywhere 
 agree that a contract may be ro framed 
 that the promises upon one side may be 
 -dependent npon the promises upon the 
 other; so that no action can be main- 
 tained, founded on the written contract, 
 ■without showing that the plaintiff has 
 performed, or nt least has been read.v, if 
 allowed by the other part.v, to perform, his 
 own stipulations, which are a condition 
 precedent lo his right of action : nor is it 
 necessary to enter into much discussion in 
 this case to prove tliat the described in- 
 stalments of clothing were required, by the 
 true intent and meaning of the parties, as 
 expressed in the written contract, to be 
 •delivered at the time and place therein 
 specified and set forth, as the manifest 
 purijose and oliject of the contract was 
 to procure necessar.v supplies of clothing 
 for an arm.v in the field. 
 
 None will pretend that any right of 
 property in the clothing passed to the 
 United States by the bargain between 
 the parties; and the rule In such cases is, 
 that time is anri will be of the essence of 
 the ct)ntract, so long as the contract re- 
 mains executory, and that the purcliaser 
 will not be bound to accept and pay for 
 the goods, if they are not delivered or ten- 
 dered on the day specified In the contract. 
 Addison, Contr. ls.">. 
 
 Suppose that is so, still it is contended 
 by the petitioner that the time of perform- 
 ance wasextendeil by the remarks of the 
 head of the bureau of clothing when the 
 contractor applied to be released froin 
 the obligation to complete the unfinished 
 part of his contract ; butthecourt is un- 
 able to concur in that proposition. The 
 finding of the court below shows that no 
 such extension was ever made. 
 
 Conditions precedent may doubtless be 
 waived by the party In whose favor they 
 «re made; but the findings of the court 
 below do not afford an.v ground to sup- 
 port any such theory. Cases arise where 
 •either i)art.y, in case of a breach of thecon- 
 trnct. may be compensated in damages; 
 and In such cases it is usually held that 
 the conditions are mutual and inileiiend- 
 ent: but where the conditions are depend- 
 ent and of the essence of the contract, it 
 is ever.vwhere held that the performance 
 of one depends on the performance of an- 
 other, in which case the rule is universal, 
 
 that, until the prior condition is per- 
 formed, the other i)arty is nnt liable to an 
 action on the contract. Addison, Contr. 
 !)!'.■■). 
 
 Whore time is of the essence of the con- 
 tract, there can be no reco\er,v at law in 
 case of failure to perform within the time 
 stipulated. Slater v. Emerson, 19 How. 
 •22i. 
 
 Additional authorities to show that a 
 party bound to iierform a condition pre- 
 cedent cannot sue on the contract with- 
 out proof that he has performed that con- 
 dition, is scarcely necessary, as the jirinci- 
 ple hasbecomeeleinentary. Gouverneurv. 
 Tillotson. .3 Edw. (N. Y.) Ch. H4S. 
 
 Conditions, says Story, may be either 
 precedent or subseiiuent, liut a condition 
 precedent isone which must happen tiefore 
 either party becomes bound by the con- 
 tract. Thus, if a person agrees to pur- 
 chase a cargo of a certain ship at sea, pro- 
 vided the cargo proves to be of a particu- 
 lar qualit.v, or provided the ship arrives 
 before a certain time, or at a particular 
 port, each proviso is a condition prece- 
 dent to the i)erformance of such a con- 
 tract; and unless the cargo proves to beot 
 the stipulated ((uality, or the ship arrives 
 within the agreed time or at the specified 
 port, no contract can possibly arise. Sto- 
 ry, Contr. 33. 
 
 Impossible conditions cannot be per- 
 formed; and If a person contracts to do 
 what at the time is atisolutely impossible, 
 the contract will not bind him, because no 
 man can be obliged to i)erforni au impos- 
 sibility ; but where the contract is to do 
 a thing which is jjossible in itself, the per- 
 formance is not excused by the occurrence 
 of an inevitable accident or other contin- 
 genc.v, although it was not foreseen by 
 the part.v, nor was within liis control. 
 Chitty, Contr. 663; Jervis v. Tompkinson, 
 1 H. & N. 208. 
 
 Other defences failing, the petitioner in- 
 sists that the United States are estopiied 
 to deny that the time of performance was 
 extended, as set up in his second assign- 
 ment of error; but the court Is unable to 
 sustain that proposition, as the remark 
 of the head of the bureau does not amount 
 to a contract for such an extension, being 
 nothing more than the expression of an 
 opinion that the a8Sistant-()uartermaster 
 would grant the applicant some indul- 
 gence. 
 
 Viewed in that light, it Is clear that the 
 United States did not do an.v thing to 
 warrant the contractor in changing his 
 [)ositlon, and, if not, then it is settled law 
 that the principle of estoppel does not aji- 
 ply. Pickai'd v. Sears, 6 Ad. & K. 474; 
 Freeman v. ('ooke, 2 Excli. 6.j4; Foster v. 
 Dawber, 6 1d. So4; Edwards v. (,'hapman, 
 1 Mee. & W.231; Swain v. Seamens.y Wall. 
 2.'>4. 
 
 Estoppel do#i not arise in such a case, 
 unless the [larty for whom the service is 
 to be ])erforii;ed indtced the otiier party 
 by some means to change his position and 
 act to his prejudice in consequence of the 
 inducement; but in the case before the 
 court, the remark made by the head of the 
 bureau was not of achar.icter to warr;int 
 the petitioner to assume tliut it waa
 
 JONES 0. UNITED STATES. 
 
 489 
 
 OKreed thnt any such Indulgence would ho 
 tt\vpn. Benjamin, Sules, 45; United StntoH 
 
 V. si)aw, 1 (;iifr. ;ji7. 
 
 Coni'luHivo evidence tlint the time of per- 
 formance had expired Ih found In the tind- 
 
 InRH of the court, and the petitioner fnll- 
 inn to eHtnhlJHh I)Ih tlieory that tlie time 
 of pciforindnce had been extended. It Is 
 cl«;ar tliat tliere iHno error In the record. 
 Judgment alllnned.
 
 KIMHKIiLV V. I'ATCIIIX. 
 
 491 
 
 KIMUEnLY et al. v. PATCIIIN. 
 
 (ION. Y. 330.) 
 
 Court of Appealsof New York. JuneTcrm, 
 1><5!». 
 
 Appeal from the Hii|)r('iiip court. Action 
 to rofovi'r (li<> viiliic of CidOli IjiihIk-Ih o( 
 wlu'Mt, ullcijcil to liiive been tlif property 
 of llie pluiiitiffH, hikI to have lieen con- 
 verted hy the defeiidant. I'lion the trial 
 before .Mr. .liiKtice (ircene. at the JCiie cir- 
 cuit, it wiiH proved tliat one UickiiiHon 
 had in warehou.se, at Liitlefort, in WiH- 
 consiti, two piles of wheat, nmountinK to 
 <iVlV.) ImimBi'Is. .IoImi Sliultleworlh i)ro- 
 poHed to i)urchaHc (illOU huKJielK of wheat. 
 Upon l)eiiiK whown tlie pileB, he expresweil 
 a iloul)t wlietlier they contained that 
 quantity. DickiuHon declared IiIh oi)inion 
 that tliey did. and a»{r(ed t(j make up the 
 quantity if tliey tell short. A wale wan 
 then made nt seventy centM per bushel, 
 Dickinson si^^uinn "'"I deliveriiiK to Sliut- 
 tleworth a memorandum, as IoHowh: — 
 
 "Littlefort, February 17, 1S48. 
 "John Sliuttleworth bou^'it of D. O. Dick- 
 inson. 
 COOO l.ushol.s of wheat, (lolivered on 
 
 board. 70 cents $4,200 
 
 Ueceivf<l his draft upon John 
 Shtitllcworlh, of BulTalo, for.. $2,100 
 
 To remit nie 1,(H>0 
 
 Five drafts of .?100 each 500 
 
 4,200 
 
 "D. O. Dickinson." 
 
 He also sifined and delivered to Shuttle- 
 worth, this pa|)er, viz. :— 
 
 " I.ittlefort, Ket)ruary IS, 1S4S. fiOOO 
 busliels wheat. Ileceived in store (lOUO 
 bushels of wheat, subject to the order of 
 John Slinttleworth, free of all chartres, on 
 board. !).(>. Dickinson." 
 
 Tile wheat was I'lc undisturbed in the 
 wareliouse. Slinttleworth sold the wheat 
 to the defendant, assiKniiic to him the bdl 
 of s'lle and warehouse receipt. Dickinson, 
 shortly afterwards, sold the whole quan- 
 tity of wheat in the two piles to a person 
 uniler wliom the i)laintiffs derived title. 
 The delendant ha vinj; obtained tliei)Gsses- 
 sion of the wheat, this action was 
 liroii^ht. The juil;ie, un<ler exception by 
 the dcfendiint. ilirccted a verdict for the 
 plainiiffs, which was rendered, and the 
 jnilKUient thereon havinjr licen allirme() nt 
 Keneral term, in the eit:luli district, the 
 delendant appealed to this court. 
 
 John II. Ueynolils, for appellant. John 
 L. Talcott, for respondents. 
 
 rOMSTOCK, J. Koth p.-irties trace their 
 title to the wheat in controversy t<. D. (). 
 Dickinson, wlio was the former owner, 
 and held it in store at Littlefort, Wiscon- 
 sin. The defendant claims thr<)Ui;l> a sale 
 made by Dickinson to <jne .shiittlewi.rth 
 on the'lSth of I'ehrnarv. IM^. If that 
 sale was effectual to pass the title, it is 
 not now pietended that there is nny 
 ground on which the plaintiffs can recover 
 in this suit. The sale to tlie person under 
 whom tliey claim, was about two and u 
 half inonlliH junior in point of time. 
 
 The sale to Shuttleworth was by n wrlN 
 Int: in tlie form of a present transferof (KKX) 
 bushelH of wheat, at seventy cents per 
 bushel. M(, manual delivery was then 
 made, lint Instead thereof the" vendor exe- 
 cuted and delivered to the vendee another 
 Instrument, di-clarint; that he had rei-eiveil 
 
 i ill store the (imitt bushelssubject to the ven- 
 (lee's onler; of llie price *-Ji; ID was paid 
 
 [down, and the residue $l(iiM), which was 
 to be paid at a future day, the purchiiHer 
 nftei wards offered to pay, accordiiiK to 
 
 j tli(,' aurcement. So far the contract had 
 all the requisites of a perfect sale. The 
 Sinn to be paid by the piirclmHer wan as- 
 
 i certaiiicil, because tlie niiiiiber of bushels 
 and the price per bushel were speritied in 
 the contract. .XlthonKli the articie was 
 
 ! not deliverej into the actual possession of 
 the purchaser, yet the s»ller, by the plain 
 terms of his nKreement, consMtnted him- 
 self the liailee, and henceforth stood in 
 that relation to the purcliaser and to tlie 
 liropcrty. Tiiat was eipial in its results 
 
 1 to the most formal delivery, and no ar;;u 
 tnent is required to show" tliat the title 
 wascompletely divested, unless a ditliculty 
 
 1 exists yet to be considered. 
 
 The quantity of wheat in store towhich 
 the contract related, was pstiniateU l).V 
 the parties at about iiniKI liusliels. Hut 
 
 I subsei|uently, after Dicixinson made an- 
 other sale ol the same wheat to the party 
 
 I under whom tlie itlaintiffs claiiu.it ap- 
 peared on measurement tliat the niinitier 
 
 j of bushels was (i.'-llt, lieiiiK an exo. ss of I'l'.t 
 
 I bushels. When Shuttleworth boimht tliu 
 0000 bushels, that quantity was mixed in 
 
 I the storehouse with the excess, and no 
 measurement or separation was iiiude. 
 'I'besale was not in bulk, but pn-ci-iely of 
 the lllllio bnslK'Is. On this mound it is 
 claimed. on the part of tlie plaintiffs, that 
 in ieiral effect the contract was executory, 
 in otlier worils a mere aitreeiiieiit to sell 
 and deliver llie spi^ciliiMl i|iiiinlity, so that 
 no title passed by the transaction. It Ik 
 not denied, liowever. nor does it admit of 
 denial, that the par ties intenl, d a transfer 
 of the title. The .•irmiiiieii t is, and it is the 
 only one which is even plausible, that the 
 law overrules that intenliiin, nItlioUKh 
 expressed in pljiin written laiiKnaKe, en- 
 tirely appropriate to the put pose. 
 
 It is a rule asserted in many ieiinl au- 
 thorities, but wliicli may be quite as fitly 
 called a rule of reason and loi-'ic as of iaw, 
 tliat in order to an executed sale, so as 
 to transfer a title from one party to an- 
 other, the tliini;sold must be ascertained. 
 This is a self-evident triilli. when applied 
 to those sul«jects <if property which are 
 distiiiKUisliableby their physical at tributes 
 from all other things, and. I herefore. are 
 capable of exact identillcalion. .\o person 
 can be said to own a horse or a picliin-, 
 unless he is able to identify the ihattel or 
 S|iecily wlial liorse or wliat picliir" it is 
 that lieloiius to him. It is not only legal- 
 ly, but logically. Imiiosslble to hoi. I pruii- 
 ertv in siicli tliiiiits. unless they are asrer- 
 taiiied and distinguished froi:i all other 
 Illinois; and this, I apprehend, is the foun- 
 dation of the rule that, on a sale of chat^ 
 teis, ill order to pass the title, the nrticlen 
 must, if not delivered, be desiyiiatod, su
 
 492 
 
 KIMBEULY V. PATCIIIN. 
 
 tliat possession can betaken by the pur- 
 chaser witliout any further act on the part 
 of the seller. 
 
 Uiit property can be acquired nntl helil 
 in many thiiiira wliich are incapat)le of 
 Kucli an iilentilici'tioii. Articles of this 
 nature a re sol il, not by a descriptioti wliich 
 refers to and distiniiuishes the particular 
 tliinfi, but in quantities, which are ascer- 
 tained by v^'eight. measure, or count; the 
 constituent uarts wliich make up the 
 mass being undistinguishable from each 
 other by any physical difference in size, 
 shape, texture, or quality. (Jf this nature 
 are wine, oil, wheat, and the other cereal 
 grains, and the flour manufactured from 
 them. These can be Identified only in 
 masses or quantities, and in that mode, 
 therefore, they are viewed in the contracts 
 and dealinjj;s of men. In re.-fpect to such 
 tliinas, the rule above mentioned must be 
 applied accordinf? tothe natureof the sub- 
 ject. In an executed and perfect sale, the 
 thini;s sold, it is true, must be ascertained. 
 Hut as it is not possible in reason and 
 philosophy to identify each constituent 
 particle composing a quantity, so the law 
 does not require such an identification. 
 Where the (juantity and the general mass 
 from which it is to be taken are specified, 
 the suliject of the contract is thus ascer- 
 tained, and it becomes a possible result 
 for the title tn pass, if the sale is complete 
 in all its other circumstances. An actual 
 delivery indeed cannot be made unless the 
 whole is transferred to th" possession of 
 the purchaser, or unless the particular 
 quantity si'ld is separated from the resi- 
 due. But actual delivery is not indispen- 
 sable in any case in order to pass a title, if 
 the thing to be delivered is ascertained, if 
 the price is paid or a credit given, and if 
 nothing further remains to be done in re- 
 gard to it. 
 
 it appears to me that a very simple and 
 elementary inquiry lies at the foundation 
 of the present case. A quantity of wheat 
 being in store, is it possible in reason and 
 in law for one man to own a given portion 
 of it and for another man to own the resi- 
 due without a separation of the parts? 
 To bring tlie inquiry to the farts of the 
 case: in tlie storehouse of Dickinson tliere 
 was a quantity not precisely known. In 
 any conceivable circumstances could Sliut- 
 tleworth become owner of 60(10 bushels, 
 and Dickinson of the residue, which turned 
 out to be -40 bushels, without the portion 
 of either being divided from tlie other? 
 The answer to this inquiry is plain. Sup- 
 pose a third person, lieing the prior owner 
 of the whole, had given to S. a bill of sale 
 of (iOI)O bushels, and then one to D. for the 
 residue more or less, intending to pass to 
 eacli the title, and expressing that inten- 
 ti(m in plain words, what would have 
 been the result? The former owner most 
 certainly would have parted with all his 
 title. If, then, the two purchasers did not 
 acquire it, no one could own the wheat, 
 and the title would be lost. This would 
 bean absurdity. But if the parties thus 
 purchasing could and would he the own- 
 ers, how would they hold it? Plainly ac- 
 cording to their contracts. On? would be 
 entitled to (iOOO bushels, and the other to 
 
 what remained after that quantity was 
 subtracted. 
 
 Again suppose, Dickinson having in 
 store and owning '2-ii) bushels, Sliuftlo- 
 wortli had deposited with him 0000 bushels 
 for storage merely, both parties agreeing 
 that the quantities might be mixed. This 
 would be a case of confusion of property 
 where neither would lose his title. In the 
 law of bailments it is entirely settled that 
 S., being the bailor of the 0000 bushels, 
 would lose nothing by the mixture, and, 
 it being done by consent, it is also clear 
 that the bailee would lose nothing. Story 
 on Bailments, § 40; -J Bl. Com. 40.'5. 
 
 These and other illustratioBs which 
 might be suggested, demonstrate the pos- 
 sibility of a divided ownershiii in the 6".'40 
 bushels of wheat. If, then, the law ad- 
 mits that the projiert.v, while in mass, 
 could exist under that condition, it was 
 plainly competent for the parties to the 
 sale in question, so to deal with each 
 other as to effectuate that, result. One of 
 them being the owner of the whole, he 
 could stipulate and agree that the other 
 should thenceforth own GOOd bushels with- 
 out a separation from the residue. And 
 this, I think, is precisely wh<jt was done. 
 The 0000 bushels n.ight have been uieas- 
 ured and delivered to the purchaser, and 
 then the same wheat might have been re- 
 delivered to the seller under a contract of 
 bailment. In that case the seller would 
 have given his storehouse receipt in the 
 very terms of the one which he actually 
 gave; and he might, moreover, have 
 mixed the wheat thus redeliverfd with his 
 own, thereby reducing the quantity sold 
 and tlie quantity unsold again to one 
 common mass. Now the contract of sale 
 and of liailuient, both made at the same 
 time, iiroiluced this very result. The 
 formalities of measurement and deliver.v 
 pursuant to the sale, and of redelivery 
 according to the bailment— resulting in 
 the same mixture as before— most as- 
 suredly were not necessary in order to 
 pass the title, because these formalities 
 would leave the property in the very same 
 condition under which it was in fact left; 
 that is to say, in the actual custody of 
 the vendor, and blended together in a 
 comnum mass. Those formal and cere- 
 monial acts were dispensed with by the 
 contract of the parties. They went di- 
 rectly to the result without the jierform- 
 ance of any useless ceremouies, and it 
 would be strange, indeed, if the law denied 
 their power to do so. 
 
 There are in the books a considerable 
 number of cases having a real or some 
 apparent bearing upon the question un- 
 der consideration. Some of them very un- 
 equivoc«lly supjiort the defendant's title 
 under the sale to Sliuttleworth. A few 
 only of these will be cited. In Wliitehouse 
 V. Frost, 12 East, 014, the vendors owned 
 forty tons of oil secured in one cistern, 
 and they sold ten tons out of the forty, 
 but the quantity sold was not measured 
 or delivered. Tlie jiurchaser sold the 
 same ten tons tn another person, and 
 gave a written order on the original ven- 
 dors, which, on lieing presenteil, they ac- 
 cepted, by writing the word "accepted"
 
 KIMBERLY v. PATCIIIX. 
 
 493 
 
 oM tlie face of the order, and HisninK their 
 iiiiJiieH. It was held l)y the ICiiKlisli ciiin- 
 iiiuii pleaH that the title t'a«se<l ; cotiHider- 
 ahle HtresH Ix'iii;; laiil on the nceeptanee of 
 tlie order, whiili. it was Haid, placed the 
 vendors In the relation of l)nileeH to ihe 
 (piantitj Kold. 'I'hin was in IslO, In the 
 foljowinj:; .year the case of.lfKrkHon v. An- 
 derson, 4 Taunt. l!4, was decided in the 
 kiim'K bench. That was an action of tro- 
 ver for r.M'ill pieces of coin called Spanisli 
 dollars. Mr. Fielding, at Buenos A.vres, 
 ren)itted to Laycock & Co.. at l..ondon. 
 Ji47iiii, and advised the plaintiffs that l!)(iu 
 of the nuinl)er were desimied for them in 
 payment for r;oods lion^ht of them. Lay- 
 cock & ("o. received the 4700 pieces, and 
 pledired the whule of them to the defend- 
 ant, who sold them to the I>aiik of I'npr- 
 lund. It was held: 1. Thai the letter of 
 advice was a sulliiient approjiriation of 
 $l'.)(iO to the plaintiffs. :.'. Thaf the plain- 
 tiffs and defendant did not hecoine joint- 
 tenants or tenants iti common of the ilol- 
 lars. 3. That altlioufili no specific dollars 
 were separated from the residue fur the 
 jilaintiffs, yet as the defendant hail con- 
 verted the whole, trover would lie for the 
 plaintiffs' share. Of course the action in 
 its nature directly involved the plaintiffs' 
 title, and it was held thnt the sale or ap- 
 propriation of a part without atiysepara- 
 lion was a perfect sal>'. In I'lejisants v. 
 Pendleton, (i Uaml. 4":!, the sale (omit- 
 ting iuimaterial circumstances) was of 
 11!) out of 123 barrels of Hour, situated in 
 a warehousi', all of the same brand and 
 (luality. It was held by the Viry;iriia 
 court of appeals, upon very elaborate 
 consid'Tation, and after .-i review of all 
 the cases, that tlie title was transferred 
 by the sale. .See also Damon v. Osliorn, 
 1 Pick. 477; t'rotoot v. Itennett, 2 Couist. 
 2.")S. In the last mentioned, which was 
 decided in this c(/urt, the sale was of 43.(JU0 
 bricks in an unfinished kiln rontainin;? a 
 lartc( r ipiantity. A formal possession of 
 the whole biick-.vard was taken by the 
 purchaser. It was held that he ac(iuired 
 title to tlie 4:!,0h0, altliuii^h no separation 
 was made. In the opinion of .Jiidtfc 
 Strontt, thecasewns made to tiiin mainly 
 on a supposed delivery of tlie whole ((uaii- 
 tity. Put, with deference, that circum- 
 stancedoes not appear to meto liave been 
 the material one, inasmuch as all the 
 bricks confessedly were not sold. The de- 
 livery, therefore, did not make the sale. 
 antl "if part could not be sold without be- 
 iuK separated, I do not see how a formal 
 delivery of the whole brick-yard could 
 cure tiie dithcul'y The learned jud;;e 
 speaks of the tr;insaction as a ilelivery of 
 the whole (piantity "with tlie privileee 
 of selection." But assuming, as he did, 
 that tlie want of selection or separation 
 was the precise ditticnity to be overcome. 
 It is not easy to see how n privileae to se- 
 lect could chanire the title before the selec- 
 tion was actually made. The case, there- 
 fore, it seems to me, can onl.v stand on 
 the Eround that tlie sale was, in its na- 
 ture, con:|)lete: the formal delivery of the 
 whole bcinir doul)tlesK a circumstance en- 
 titled to wei;iht In arriving at the inten- 
 tion of the parties. The case is, in short. 
 
 a HtronK authority to prove that. In saleH 
 by weight, meiisiire, or count, u Hepara- 
 tion of the part sold from the iuuhh In not 
 in all cases a fund.'imentiil reiiulsitp. 
 
 BeferriiiK now to cases where it has been 
 held that sales of this nencral nature were 
 incomplete, it will be fo.ind that they are 
 not essentially and necessarily oppoMod to 
 the conclusion tht>t, in the instance before 
 us. the title was changed, in White. aH- 
 simiee. &c.. V. Wilks, ,'> Taunt. 17(i, a mer- 
 chant sold twenty tons of oil out of a 
 stock consisting of different birtte <|uantl- 
 ties In different ciHterns, and at vnrluuH 
 warehouses. The note of sale did not ex- 
 press the quality or kind of oil sold, or the 
 cistern or warehouse? from which it was 
 to be taken, and the purchaser did not 
 even know wliere the particular oil lay 
 which was to satisfy the contract. Very 
 clearly the title could not pass ui>ijn such 
 a sale; and so ir was held, aithouKh the 
 seller was entitled by the contract to 
 charge "Is. per ton per week rent," for 
 keepii.fj the oil. A very different (juestion 
 would have been presenteil if the cistern 
 from which the twenty tjns were to be 
 taken had been specified. The ninss and 
 quality would then have been ascertained. 
 •is it was, the subject of the contract wnH 
 not identilied in an.v manner. The re- 
 marks of the judire, evidently not made 
 with much deliberation, must be con- 
 strued with reference to the particular 
 facts of the case. 
 
 In Austen v. Craven, 4 Taunt. 044, there 
 was a contract to sell 20(» hocslieads of 
 sujrar, to be of four d'fferent kinds and 
 qualities wliicli were specilicd. It did not 
 : appear that the seller, at tie time of the 
 contract, had tlie su;;ar on hand, or any 
 part of it, and the fact was assumed to be 
 otherwise. Tlie sale was, moreover, at 
 so much percn t., requiriim tliat the siiKiir 
 should be weighed in order to ascertain 
 the price. In these circumstances the case 
 was coiisi<lered jilninly distinuulshuhle 
 from WliiteliouKe v. Frost, sn|>ra. and It 
 I was held that the title iliil not pass. 1 
 do not see tlie sli-ilitest urounil for qucH- 
 tioniiiE tlie decision, ailhoiiuli, perhnpH, 
 one or two remarks of Chief J ustice Mann- 
 held ate capable of a wider application 
 than the facts of the case would justily. 
 ; Tlie two cases last mentioned have been 
 not uiifn'iiuently cited in various later 
 Kiitflish and .\nierlcan authorities, which 
 need not be particularly referred to. Some 
 of tliese authorities m»iy suCH:est n doubt 
 whether the title passes on a nieresnle noto 
 by measure or weight out<if a lari:eri|uan- 
 tity of the sanie kind and ipiality. thers 
 beiiiK no separation and no otiier circnm- 
 Htances clearly evincinc an Intention to 
 vest the title In the purchaser. It ih nn- 
 ne.-essnry now to solve that ilonlit, be- 
 caiise none of the decisions announce the 
 extreme <Io(trine, that where, in snch 
 leases, the parlies ex iiressly declare an tn- 
 I tention to chnniie the title, there Is any 
 ! lesal impossiltility In the way of that de 
 siun. Uiion a simple bill of sale of callims 
 of oil or bushels of wheat, nilxetl with an 
 ascertained and dellned larjier quantily.lt 
 mavormnvnot be considered that the 
 parties intend that the portion sold shall
 
 494 
 
 KIMIJEP.LY V. PATCHIK. 
 
 be tncaHiirecl before the purchaser becomes 
 invested with the title. 'I'hiit may be rn- 
 gartled as an act remaininjr to be done, in 
 which l)()th parties liave a rifrht to partic- 
 ipate, liut it is surely competent for the 
 vendor to say in terms, that he waives 
 that rif;ht, and that the purchaser shall 
 become at once the lesal owner of the 
 number of fiallons or bushels embraced in 
 the sale. It he cannot say this effectually, 
 then the reason must be that two men 
 cannot he owners of separate (juautities 
 or proportions of an luiilistinHuishable 
 mass. That conclusion would be a naked 
 absurdity, and I have shown tliat such is 
 not the law. In the case before us the 
 vendor not only executed nis bill of sale 
 professing to transfer UDOO bushels of 
 wheat, but, waiving all further acts to be 
 done, in order to complete the transac- 
 tion, he acknowledged himself, by another 
 instrument, to hold the same wheat in 
 store as the bailee thereof for the pur- 
 chaser. If his obligations from that time 
 were not simply and precisely those of a 
 bailee, it is because the law would not suf- 
 fer hitn to stand in that relation to the 
 property tor the reason that it was mixed 
 with his own. But no one will contend 
 for such a doctrine. 
 
 1 repeat it is unnecessary to refer to all 
 the cases, or to determine between such 
 as may api)ear to be in contiict with each 
 other. None of them go to the extent of 
 holding that a man c.innot, if he wishes 
 and intends so to do, make a perfect sale 
 of part of a ()uantity without actual sep- 
 aration, where the mass is ascertained by 
 the contract and all parts are of the siame 
 value and undistinguishable from each 
 other. 
 
 One of the cases, however, not yet cited, 
 deserves a brief consideration, because it 
 wasdetermined in this court, and has been 
 much relieil on by the plaintiffs' cminsel. 
 I refer to Gardiner v. Snydam, H Seld. ool. 
 The owner of Hour dilivered it in various 
 parcels to a wareluiusenian, and from 
 time to time took I'eceipts from him. One 
 of these receipts was helil by the defend- 
 ants and others hy the |)laintiffs, both par- 
 ties having accepted and paid drafts on 
 the faith thereof. The defendants' receipt 
 was the first in point of time, and was for 
 536 barrels, being given at a time when in 
 fact there were but 2(ll barrels in the 
 warehouse, so that it covered l-iS.o nr.ore 
 than were then on hand. Rut oth<?r()uan- 
 tities were sulisequently delivered at the 
 warehouse, all of the same kind and qual- 
 ity, and the defendants, in fact, received 
 by shipment to them, .500 barrels. For 
 the conversion of this qnantitj' they were 
 sued l)y the plaintiffs, who had failed to 
 receive the flour which their receipts called 
 for. It cannot fail to be seen from this 
 statement that the defendants, having the 
 first receipt and receiving no more Hour 
 than it specified, were entitled to judg- 
 ment by reason of the |)riority of their ti- 
 tle; and this ground ot decision is very 
 clearly stated in the opinion of the chief 
 judge. He thought if the transfer of the 
 receipts could pass the title to the flour. 
 
 notwithstanding the mixture of all the 
 quantities together, that the one held by 
 the defendants entitled them not only to 
 the 201 barrels in store when it was given, 
 liut also to so many barrels delivered in 
 store afterwards as were necessary to 
 make up their number. This view, which 
 ai)i)ears to me correct, was fatal to the 
 IJlaintiffs' case, liut in another aspect of 
 the controversy, the learned chief judge 
 was of ojiinion that the transfer to the 
 plaintiffs of the receipts held by them 
 passed no title, on the ground that the 
 quantities which tliey respectively covered 
 were all mixed together in the storehouse. 
 Assuming the correctness of that view — 
 wliidi 1 am constrained to question — the 
 case is still nniiUe the present one. The 
 transfer of a warehouseman's receipt, 
 given to the owner, was certainly no more 
 than a simple sale note of the specified 
 number ot barrels; and where, in such 
 cases, that is the whcde transaction Ite- 
 tween vendor and vendee I have already 
 admitted a doubt, suggested by conflict- 
 ing cases, whether the title passes. If the 
 owner of the flour had held it in his own 
 wari'liouse, and liad not only given a bill 
 of sale of a portion of it, l>ut had himself 
 executed to the purchaser another instru- 
 ment declaring that he held the ((uantity 
 sold as bailee and subject to order, then 
 the case would have resembled the one 
 now to be determined. 
 
 We are of o|>inion, therefore, both upon 
 authority and clearly upon the principle 
 and reason of the thing, that the defendant, 
 under the sale to Shut tleworth, acquired 
 a perfect title to thetiOOO bushels of wheat. 
 Of that quantity he took possession at 
 Buffalo, by a writ of replevin against the 
 master of the vessel in which the whole 
 had been transported to that place. For 
 that taking the suit was brought, and it 
 results that the plaintiff cannot recover. 
 It is unnecessary to decide whetlier the 
 parties to the original sale became ten- 
 ants in common. If a tenancy in common 
 arises in such cases, it must be with some 
 peculiar incidents not usually belonging to 
 that species of ownership. I tliink each 
 party would have the right of severing the 
 tenancy by his own act; that is, the right 
 of taking ithe portion of the mass which 
 belonged to liim, being accountable only if 
 he invaded the quantity which l)elonged 
 to the other. But assuming that the case 
 is one of strict tenancy in common, the de- 
 fendant became the owner of (iOOO and the 
 plaintiffs of 2-10 parts of the wliole. As 
 neither could maintain an action against 
 the other for taking possession merely of 
 the whole, more clearly he cannot if the 
 other takes only the quantity which be- 
 longs to him. 
 
 The judgment must be reversed and a 
 new trial granted. 
 
 CRAY and GROVER, J J., dissented; 
 .STRONG, J., expressed himself as inclined 
 to concur, if necessar.y to a decision, but 
 it l)eing unnecessary, he reserved his judg- 
 ment. 
 
 .ludgnient reversed and new trial or- 
 dered.
 
 n
 
 KINGMAN V. DENISON. 
 
 497 
 
 KINGMAN et al., a Corporation, v. DENISON 
 ct al. 
 
 (48 N. W. Hep. 2», »4 Mich. 608.) 
 
 Supreme Court of Michigan. Fob. 37, 1891. 
 
 Error to circuit court, Kent county; 
 Wii-r.iA.M E. (jiii)Vi:, Ju(1k«. 
 
 Rc[)lcviii l).v Kiiifjiiiaii & f'o. aKuiiiBt 
 William C. Dciiisoii and the .McCoriiiick 
 Harvesting Miicliiiie ('()iui)jiii.v. There 
 was u jvKljri'ient in defcuduntH' favor, and 
 plaintiffH bi-iiig error. 
 
 Tnfiii.irt & Dpnisnn, for appellants. 
 Sweet it- J'erkins, for appellee.s. 
 
 EoNO, J. On July S, l.SSO, defendant 
 PeniKon wrote Hie plaintiffs at Peoria, 
 111., orderinfr .^i.iKIO ixiunds of twine. No 
 (leiiliiiyiH liad ever licen had between the 
 parties prior to that time. The plaintiffs 
 receive<l the letter next day, and at once 
 wrote Denisoti : "We have entered your 
 order, an<l twine will ;;;(> forward to-mor- 
 row." On.July 11th the twinewas nhipiied 
 to \V. C. Denison, firand Kapid.^. Mich., 
 plaintiffH taliinj; shipping hill from the 
 railroad company there, and on same day 
 Bent it to Denison, with statement of ac- 
 count for value of the twine. The twine 
 was received at (Jrand Kapids hy the 
 Grand liapids & Indiana Itailroad Com- 
 pany,. July 17th. ami on theisth they tiirneil 
 it over to a teamster, who delivered it at 
 tlie store which was occui)ie(l by Denison 
 at the time the order was made. It aii- 
 pears that on .July '.)th the (irand Hapids 
 Savinsrs Bank caused an attachment to 
 be levied upon Denison's property. On 
 that eveniii;; Denison jjave the bank a 
 chattel mortsaKe on all the Roods in the 
 store and at a warehouse there. !ind a 
 store situate at another place outside of 
 (irand Kapids. .luly luth. Uth, and l-'tli 
 he Knve niorttrn^res on the same prop- 
 erty to se\eral other creditors, two of 
 them beins niven to tlie defendant the 
 McCormick llarve.-.tin}r Machine Com- 
 pany. 'J'lie soods mortj;:aKed were held in 
 the store by the ajjents of the b.nnk until 
 they were sold under one of the mort- 
 Kases, wliich was about July ISth, at 
 which time the defendant the McCormick 
 Ilarve-stiiiK Macliine (.'ompany bid the 
 Kocxls in. an;l continuefl to occupy the 
 Store, puttinjT Mr. ' Denison in as its 
 asent. The McCormick llarvestin;r .Ma- 
 chine Company uiortsraKe contained a 
 clause, after a description of the prop- 
 erly mortfrased, as follows: ".And all 
 additions to and sulistitutes for any 
 and all the above-described i)roperty." 
 On September 7tli plaintiffs, wlio had no 
 notice or knowlcdtte of the chan^jed con- 
 dition of Mr. Denison's affiiirs, drew on 
 him at si;rlit for the amount of the bill. 
 This draft was not jiaid, and on Septeni- 
 lierHlh plaintiffs wrote him for i)ronipt 
 remittance, wlilcli was not made. On Sep- 
 tember I'.l, Iss;), plaintiffs brought replevin 
 against the defendants for the twine, lind- 
 hif? about t)ne-half of it ; the balance having 
 been sold out of the store by the McCor- 
 mick Harvesting; Machine Com])any. On 
 the trial of the cause the defendants 
 waived return of the property, and had 
 verdict and jndKUient against the plaintiff 
 
 LAW SALES — -"2 
 
 for $:!.")! .01, the value of the twine taken, 
 and costs, i'lalntiffs brlni^ error. 
 
 Tile plaintiffs askid the court toinstruct 
 the jury that plaintiffs were entitleil to u 
 verdict; and in the ninth reiiucHt asked un 
 instructionthat "if Mr. Denison did not in 
 fact receive the twine at his store, liut was 
 not there when it was diiiveriMl, and never 
 received and accepted it for his use in any 
 way, except that, lindinK it In thestore, liu 
 allowed tin- niortjrat;ees to assume con- 
 trol of it. pl.'iintiffs could retake it an 
 airainst him." And in the fourteenth re- 
 quest it was asked that the jury lie instruct- 
 ed that the .McCormick Com|iany,as niort- 
 Ka;;ee, is in no better piii-itiun than Mr. 
 Denison. Its morliraire does not cover 
 this twine, nor is it a b(jii;i t'nle purchaser. 
 Several requests were also asked for in- 
 structions to the jury relatinfi to the In- 
 solvency of Mr. Denison at the time of the 
 purchase, and his intent not to iiay for 
 tlie twine at the time of its purchase, or at 
 the time when it was reci-ived at the 
 store, on tlie istli of July. These last- 
 named re<|nests we do not deem it neces- 
 sary to set out here for an understanding 
 of the points involved. The re<iuest8 sot 
 out were refused by the trial court, and 
 upon such ruling the plaintiff assigns er- 
 ror. Thecoiirt.in its charge to the jury, 
 stated: " I'laintiff claims the ri;jlit to the 
 posscs.sion of these goods at the time this 
 suit was comnienceil — y'ir.vf, because as 
 counsel claims, the goods were ordered, 
 were purchased, by Mr. Denison at a lime 
 wlien he was insolvent, and knew that he 
 was insolvent, and hud no intention. or at 
 least no reasonable e.xpectation.of paying 
 for tliem acconling to the terms of the 
 contract; ond the plaintiff's counsel also 
 claims the right of stoiipage in transit. 
 All 1 need to say in regard to the latter 
 claim is that I think the right of stoppage 
 in transit, under tlic facts of this case as 
 shown by the evidence, lias no applica- 
 tion whatever; there is no such right e.\- 
 isting. " This part of the charge relating 
 to the right of stoppage in transit is as- 
 signed as error. The court was in error 
 in refusing these requests to charire and 
 in the charge as given. It is not seriously 
 contended here but that, umler the evi- 
 dence given on the trial, the defendant 
 Denison was insolvent at the time the 
 goods were ordered. At least this was a 
 (|Uestion of fact which should have been 
 submitted to tlie jury: and. if so found, 
 llie question of the riirht of stoppage In 
 transit was an imiiortant question in the 
 case. Tlie right of stopp.-ige in transit Is 
 a right possessed by tlie seller to rons- 
 sume the possession of goods not paid for 
 while on tluir wav to the vendee, in case 
 the vendee liecomes insolvent before he 
 has ac()uireil actual possession of them. 
 It is a privilege allowed to the seller for 
 the particular purpose of protecting lilm 
 from the insolvency of the consignee. 
 The right Is one highly fa vored in tlie law. 
 being based upon the plain rejison of jus- 
 tice and eipiitv that one mans property 
 shouhi not be applied to the payment 
 of another man's debts. Gibson v. 
 Carruthers, .S Mees. & W. 3;?7. Hut It is 
 iinqierlv exercised only upon goocis which 
 are in passage and are in tlie hands of
 
 498 
 
 KIXGMAN 0. DENISON. 
 
 some intermedinte person bolueen the 
 vendor and vendee in process, and for the 
 t)urpose of delivery, and this right may 
 be exercised wlu-tlier tlie insolvency exists 
 at the time of the sale or occurs at any 
 time l)eforo actual delivery of the goods, 
 without the Unowledfte of the consignor. 
 O'Brien v. Norris, 1(! Md. 122; Reynolds v. 
 Railway Co., 4:! N. H. 5S0; Rlurn v. Marks. 
 21 La. Ann. 2GS; Benedict v. Scaettle, 12 
 Ohio St. .'Jir). This right of stoppage in 
 transit will not be defeated by an ap- 
 parent sale, fraudulently made, without 
 (•ousideratiiin,for tlie purpose of defeating 
 the right. There must be a purchase for 
 value without fraud, to have this effect. 
 Harris v. Pratt, 17 N. Y. 249. In the pres- 
 ent case it appears that the goods ar- 
 rived in Grand Rapids July 17th, and 
 were taken to the store on the ISth. Mr. 
 Denison was not in the store at the time 
 they were taken in. Mr Talford was in 
 possession of all the goods and of the 
 store at this time for all the mortgagees, 
 and after the sale under the mortgage the 
 Mct'ormick Company took possession, and 
 was iu possession at tne time this re- 
 plevin suit was commenced. The testi- 
 mony tends to show tliat at the time de- 
 mand was made upon the McCormick 
 Company and Mr. Denison for the twine 
 Mr. Uenison stated that he thought the 
 plaintiff, having heard of his financial 
 affairs, would not ship the twine, and 
 that he did not kni)w it had liecn sliipped 
 until it was in the store; and he was ver> 
 sorry it had come, und(>r the circum- 
 stances. The McCormick Company 
 claimed that by the terms of their mortgage 
 they were entitled to hold tlie twine. The 
 court was in error in not submitting to 
 the jury the question wliether the goods 
 Imd come actually to the possession of 
 
 Mr. Denison. The circumstances tend 
 strongly to show that he never had act- 
 ual |)ossession of them, and never claimed 
 them as owner. He had made the order, 
 and was notified that thei* would be 
 shipped; Init from that time forward it 
 is evident that he made no claim to them. 
 The McCormick Comiuuiy claimed that 
 the.v passed to it under the tei-ms of its 
 mortgage. It however, stood in ni) bet- 
 ter position than Denison. If the goods 
 never actually came into the possession 
 of Denison as owner, the mortgage lien 
 would not attach, even under the clause 
 in the mortgage covering tifter-acnuired 
 property. It does not stand in the posi- 
 tion of a bomi tide purchaser of the prop- 
 erty. The right of stoppage could not 
 be divested by a jjurchase of the goods 
 under the mortgage sale. The transit 
 hail not ended unless there was actual 
 delivery to Mr. Denison. These were 
 questions of fact for the jury, which 
 the court refused to submit. If the jury 
 had found that Denison was insolvent at 
 the time the order was made, or became 
 insolvent at an.y time before the claimed 
 delivery of tlie goods, and that the goods 
 were nevei- actually delivered to tlie pos- 
 session of Mr. Denison, then the vendors' 
 rights would have been paramount to 
 any right which the McCormick Company 
 could iiave ac(iuired at the mortgage sale. 
 Underbill v. Booming Co., 40 Mich. CdO : 
 Lentz V. Railway Co., ,')?. Mich. 444,10 N. W. 
 Rep. 1.38; AVhite v. Mitchell, 38 Mich. 390; 
 James v.Grifiin,2 Mees.&W. 623. In the view 
 we have taken of the case, we think the 
 other questions raised are unimportant, 
 and we will notpass upon tliem. The judg- 
 ment of the court below must be reversed, 
 with costs, and a new trial ordered. The 
 other justices concurred.
 
 KIXNEY V. McDEKMOTT. 
 
 501 
 
 KINNEY V. McDERMOTT. 
 
 (8 N. W. Rep. 656, 55 Iowa, 074.) 
 
 Supreme Court of Iowa. April 20, ISsl. 
 
 Appeal from Buena Vista circuit court. 
 
 TliiH In nn nctioii of replevin, ami the 
 ainoiint in controvorHy Ih Icsh tlinn $10(1. 
 Tliero vv(\8 a trial by jury. There woh 
 no conflict in the evidence. The court 
 iiiwtnicted the jury to return a venliet for 
 the plaintiff. Defendant ap|>calH. 
 
 H. W. Weeden, VVni. Wart, and Rohin- 
 8on & MilcliriHt.for ap|>cllant. C. D. Uold- 
 aniith, for appellee. 
 
 ROTHKOCK. J. The trial jud^e made 
 the following certificate, upon which we 
 are authorized, under the statute, to en- 
 tertain the appeal : 
 
 "(1) On Sunday plaintiff agreed with 
 defendant, at the house of the latter, to {live 
 defendant a horHo and S$2'> in exchange for 
 a lioiHe of defendant. TIiIh was conHeiit- 
 ed to. and on theHame day, purHuant to 
 Haid agreement, plaintiff left his horse 
 witli defendant, and tooic the horse of the 
 latter away. The money wa.i to l)e paid 
 the fidlowing Sunday at the liouse of 
 plaintiff. On Tuesday, following the ex- 
 change, defendant, in the absence of i)lain- 
 tiff, and without his knowledge or con- 
 sent, returned to the stable of the latter 
 the horse received of him, and took the 
 borse he let plaintiff have away. A day 
 ortwo later plaintiff replevied thehorseso 
 taken, ami has since kept both horses, us- 
 inji the one returned by defendant, and 
 not offering to return either horse or 
 money. Under these facts can the plain- 
 tiff recover in his action of replevin? 
 
 "(2) Under thefncts hereinbefore staled, 
 can plaintiff recover in replevin when liis 
 allege<l right of possession, under the i.s- 
 sues made in tlie pleadings, depends upon 
 the ownership of the property? 
 
 "(3) Is the plaintiff entitled to recover 
 nnder the issues in this action, and the 
 facts n» stated above?" 
 
 A contract made and concluded on Sun- 
 day cannot be enforced by action. Pike 
 V. King, 10 Iowa, ^O. It is illegal, and 
 the law in such cases will leavethe parties 
 where it finds them, or rather where they 
 have placed themselves. If one party sells 
 property to another on Sunday, and de- 
 livers it, no action will lie for the price 
 agreed to be paid therefor. Pike v. King, 
 supra. If tlie defendant in the action 
 had broughtreplcvin for Hiehorse, Instead 
 of taking liim by force, he would have been 
 defeated, because he would have lieen ob- 
 liged to introduce evidence to overcome 
 the presumption arising from i)lnintiff'B 
 
 poBsesHion. By tlie acts of tlie parties in 
 violation of la w the plaintiri became en- 
 titled to the possession ol the horne. ThU 
 possession was such that the defendant 
 could not have recovered by action the 
 price, if H(dd anil not paid for, and coulil 
 not maintain an >iction of replevin. He, 
 however, wrongfully and by a trespasH, 
 de[)rived tlie plaintiff of the possession. 
 The qnestiijn is, will he be allowed tore- 
 cover liy force what the law woiiltl not 
 have aided him to recover peacealily? It 
 Is insisted by counsel for appellant that, 
 because the plaintiff claims title to the 
 horse, he was bound to Introduce evi- 
 dence of such title, and could only do ho 
 by showing the Sunday contract. But, 
 according to tlie certificate of tlie trial 
 juilge, the plaintiff was In poHsession, and 
 the defendant, by force, and without the 
 knowledge of the plaintiff, removed the 
 horse from plaintiff's stable. The ques- 
 tion is, by what right did the defendant 
 possess himself of the horse? The burden 
 was on him to show hi^ right. In iloing 
 so he would necessarily be compelled to 
 introduce thoSunday contract nsevidence. 
 
 In Smith v. Bean, 1.') .N. H. .")77, referring 
 to a contract of sale made on .Sunday, It 
 is said: "Tlie transaction lieing illegal, 
 the law leaves the parties to suffer the 
 consequences of their illegal acts. The 
 contract is void so far as it is attempted 
 to be made the foundation of legal pro- 
 ceedings. The law will not interfere to 
 assist the vendor to recover the price. 
 Tlie contract is void for any such purpose. 
 It will not sustain the vendee upon any 
 warranty or fraud in the sale. It is void 
 in that resi)ect. The principle sliows that 
 the law will not aid the vendor to re<'over 
 the possession of tlie property if he has 
 parted with it. The vendee has the posses- 
 sion as of ills own property by the assent 
 of the vendor, and the law leaves them 
 where it finds them. If the vendor shoulil 
 attempt to retake the (iropeity without 
 process, the law, flnding tliat the vendee 
 had a possession which could not be con- 
 troverted, would give a remedy for the 
 violation of tliat possession. " See, also. 
 2 Parsons on Contracts, TtU. and notes. 
 The author admits tliere Is soiiie conflict 
 of authority upon the question whether a 
 vendee willbe allowed to retain the prop- 
 erty without paying tlie price. In our 
 opinion lie should, on the ground that the 
 law will leave the parties where It Hnils 
 them. It was held In Pike v. King, su- 
 iira. that the plaintiff could not ri-cover 
 the value of the property aside from the 
 price agreed upon, or. In other words, 
 could not recover upon the (|uantum vale- 
 bant. 
 
 Aftirmed.
 
 KOUXTZ B. KIItKPATUICK. 
 
 503 
 
 KOUNTZ V. KIRKPATRICK et al. ] 
 
 (72 Pa. St. 370.) | 
 
 Supreme Court of Pennsylvania. Jan. 6, 1S73. [ 
 
 AKSumimit by Joseph Kirkpntrick and 
 JniiicH LyoriH, trailinir as Kirkputrick &' 
 lO'i'iiH. to tlic use of Freileriek Kislier find 
 otln-i-H, truiliiit; aa Fiwlier I'.ros., aKaiiiHt 
 William J. Koiintz, for failure to duliver a 
 certain iiuiintity of enide petroleum, wlieii 
 called upon to do so Deeeiuber 31, ls<>'.), in 
 compliance with his contract previously 
 made. Judnment forplaintiffa,aud defend- 
 ant brings error, iieversed. 
 
 Before THOMI'iSOX, C. J., and UKAl), 
 ACiNEW, SHAKSWOOU.and WILLIAMS, 
 J.- I 
 
 S. il. Geyer and (j. Slilras, .Jr., for plain- 
 tiff in error. M. W. Acheson, for defend- 
 auts in error. 
 
 AG.XE'.V, J. The second, third, fifth, 
 ei.\th, seventh, eif;hth, eleventh, twelfth, 
 thirteenth, fourteenth, filteenth and si.\- 
 leenth error.-s. are not well ai?si(;ned. for 
 all the un.'^wers of the court to the points 
 were omitted. Wheo u court simply re- 
 fuses a point, the eiror is well assijined 
 by reeitin;^ the point, and stating that it 
 was refused. But when the judt;e an- 
 swerji specially, in onler to introduce a 
 gualitiiation he deems necessary to make 
 his instruction correct, the answer must 
 lie recited as well as the point. We shall 
 not decline considerinK, however, all the 
 important questions; and in order to dis- 
 cuss them, we may state succinctly the 
 nature of the ca-^e. On the 7th of .Tune 
 isci'.l, Kountzsold to Kirkputrick & Lynn, 
 two thousand barrels of ci'ude petroleum, 
 to he delivere<l at his option, at any time 
 from tlie date, until the aist of December 
 iMi'.t, lor cash on delivery, at tliirteen and 
 a iialf cents a gallon. On the L'lth of .Inne 
 iMi'.i, Kirkiiatrick and Lyon assigned this 
 contract to Fisher & Brothers. Kount/. 
 failed to deliver the oil. He defends on 
 the ground that Kirkfiatrick & Lyons, 
 and others holding like contracts for de- 
 livery of oil, en tered into a comtnnntion 
 to raise the price, by buyin>^ uii lar^e 
 quantitii'S of oil. and holilin;^ it till the ex- 
 piration of the year l^(i9, and thus to com- 
 pel the sellers of oil on option contracts, 
 to pay a heavy difference for nondelivery. 
 Fisher & Brothers, the assij;nees of 
 Kountz"s contract, were not in the com- 
 bination, and the principal questions are 
 whether they are affected by the acts of 
 Kirki)Htrick &, Lyons, subsequent to the 
 assiuniiient ; whether notice ol the as- 
 Hii;nment to Kountz was necessary to 
 protect them, and what is the true meas- 
 ure of damages. The court below held 
 that Kisher & Brothers, as assiirnees of 
 the contract, were not affected by the acts 
 of Kirkpatrick «& Lyons, as niemliers of 
 the con\bination in the followin^i Octolier 
 and sulisei|uently, and that notice in this 
 case was not essential to the protection of 
 Kountz. 
 
 The common-la w rule as to the assign- 
 ability of clioses in action no lont^er pre- 
 vails, but in equil.v the assitrnce is looke<l 
 upon as the tiue owner of the chose. He 
 
 may sot off the demand nshjaown: Nfur- 
 ^an V. liaiik of .Ni>rlh Aii.erlcu, x S. & It. 
 7:i; I'.amsey'rt Appeal. 1! Watts '2'JH. The 
 assiiinee takes the chose subject to the 
 pxistin;; equities between the oriuinal par- 
 ties before assiLfnment, and also to pay- 
 ment and otherdefenees to the Instrument 
 itself, after the assitrnnient and In-fore no- 
 tice of it; but he cannot be affected by col- 
 lateral transactions, secret trusts, or acts 
 unconnected with the subject of the con- 
 tract: Davis v. I!arr, !l S. iSc I!. i:t7; tteck- 
 ley V. Erkert, 3 Barr L".c.>; Mott v. (lark, !» 
 Id. .•{!);»; Tay:or v. (litt. 10 Iil. JlN; North- 
 ampton Bank V. lialliel, K W. &. H. 31s; 
 Corser v. Craig,! Wash. (-'. C. K. 4-i; 1 
 Parsons on Cont. 1U:1, IOC; 2 Story on 
 t'jtnt., §:!9(;, n. 
 
 The act of Kirkpatriek & Lyons, rom- 
 (ilained of as members of an unluMful 
 combination to rai-se the price of oil, woH 
 loiiK suitsequent to their assignment of 
 Kountz's contract, and was a mere tort. 
 The contract was afli-cted only by its re- 
 sults as an independent act. It does not 
 seem just, therefore, to visit this effect 
 up<m Fisher & Brothers, the antecedent 
 assignees. The act is wholly rclluternl to 
 the ownershipof the chose iiself.and there 
 is nothing to link it to the chose, so as to 
 bind the nssi>?nors and assignees to- 
 fjelher. After the assiijnmeri t, there belnjt 
 no Kunranty, the assi;;nors had no inler- 
 est in the performance of this )iartlcular 
 contract, and no motive, therclore.arisinK 
 out of it to raise tlie priceon Kountz. The 
 acts of Kirkputrick & Lyons seem, 
 tlierefore, to have no greater or other 
 bearinj; on this contract than the acts of 
 any otiier members of the combination, 
 who were strangers to the contract. 
 
 In regard to notice of the assignment to 
 Kountz. it is argued, that having had no 
 notice of it, if lie knew of the consplrac.v 
 to raise the prii-e of <mI, anil tluis td oflect 
 his contract, and that Kirkpntrick & 
 Lyons were parties to it, he miglit have 
 relied on that fa;t as a defence, and refused 
 to deliver the oil. and claimed on the trial 
 a verdict for merely nominal damages for 
 his breach of his contract. Possibly lu 
 such a special case, want of notice might 
 have constituted an equity, but the an- 
 swer to this case is. that no such point 
 was mode in the court below, ami thero 
 iloes not seem to be aiy evidence that 
 Koiititz knew of the conspiracy, and Kirk- 
 patrick & Lyoiiss privity, and relying on 
 these facts, desisted from purchasing oil 
 to fulfil his contract with them. As the 
 case stood before tlieeourt below, we dis- 
 cover no error in the answers of the 
 learned judge on this |.art of It. 
 
 The next (luestion is upon the proper 
 measure tif damages. In the sale of chat- 
 tels, the general rule Is, that tlie inensHre 
 is the difference between tliecoiilract price 
 and the market value of the article at the 
 time and place of delivery under the con- 
 tract. It is unneres..ary to cite authority 
 for tills well est;iblislied rule, but as this 
 case ri Iscs a novel and ixtraordinary 
 question between the true ni;irkrt value of 
 the article, anil a stimulated market price. 
 Treated bv artilicial and fri.udul'nt prac- 
 tircs. it is" necessary to Mx the true inenn- 
 ing of the rule itself, before wo can ap-
 
 504 
 
 KOUNTZ V. KIRKPATRICK. 
 
 proficli the real question. Ordinnrily, 
 when an article of sale is in the market, 
 and has a market value, there is no dil't'er- 
 ence between its value and the market 
 price, and the law adopts the latter as the 
 proper evidence of the value. This is not, 
 howevtr, because value and price are 
 really convertible terms, but only because 
 they are ordinarily so in a fair market. 
 The primary mennins: of " vnlue"is worth, 
 and tliis worth is made up of the useful or 
 estimable qualities of the tliinu;: See Web- 1 
 ster's and Worcester's Dictionaries, i 
 "Price," on the other hand, is tlie sura! 
 in money or other equivalent set upon ] 
 an article b.v a seller, which he demands j 
 for it: Id. Value and price are, there- i 
 fore, not synon.vmes, or the necessary! 
 equivalents of each other, though com- j 
 mouly, market value and market price are i 
 legal equivalents. When we examine the j 
 authorities, we find also that the most ao | 
 curate writers use the phrase market' 
 value, not market price. Mr. Sedgwick, i 
 in his standard work on the Measure of i 
 Dama!^es,4th ed. p.2G0,says : " Where con- 
 tracts for the value of chattels are broken 1 
 by the vendors failing to deliver property I 
 accordinft to the terms of the bargain, it 
 seems to be well settled, as a jjeneral rule, [ 
 both in England and the United States, 
 that the measure of damages is the differ- 
 ence between the contract price and the 
 market value of the article at the time it 
 should bedelivered upon the ground ; that 
 this is the plaintiff's real loss, and tliat 
 with this sum, he can go into the market 
 and supiily himself with the same article 
 from another vendor." .Judge Rogers 
 uses the same term in Sinethurst v. Wool- 
 ston, .') W. & S. 109: "The value of the 
 article at or about the time it is to be de- 
 livered, is the measure of damages in a 
 suit by tlie vendee against tlie vendor for 
 a breach of the contract." So said C. J. 
 Tilghraan, in Girard v. Taggart, ,5 S. & K. 
 32. Judge Sergeant, also, in O'Conner v. 
 Forster, lU Watts 422, and in Mott v. Dan- 
 forth, 6 Id. 3(IS. But as eren accurate 
 writers do not alwaj's use words in a 
 precise sense, it wou'd be unsatisfactory 
 to rely on the common use of a word 
 only, in making a nice distinction between 
 terms. It is therefore proper to inquire 
 into the true legal idea of damages in or- 
 der to determine the proper definition of 
 the term value. Except in those cases 
 where oppression, fraud, malice or negli- 
 gence enter into the question," the declared 
 object (says Mr. Sedgwick, in his work on 
 Damages) is to give compensation to the 
 party injured for the actual loss sus- 
 tained." 4th ed., pp. 28, 29; also, pp. 3(i, 
 37. Among the many authorities hegives, 
 he quotes the language of C. J. Sliipt)en, 
 in Bussy v. Doualilson, 4 Dallas 20G. " .\s 
 to the assessment of damages (said he), 
 it is a rational and legal principle, that 
 the compensation should be equivalent to 
 the injury." "The rule," said C. J.Gibson, 
 "is to give actual compensation, bj" grad- 
 uating the amount of the damages exact- 
 ly to the extent of the loss. " "The meas- 
 ur J is the actual, not the speculative loss:" 
 Forsvth v. Palmer, 2 Harris, 97. Thus, com- 
 pensation being the true purpose of the 
 law, it is obvious that the means era- 
 
 ployed. In other words, the evidence to as- 
 certain compensation, must be such as 
 truly reaches this end. 
 
 It is equally obvious, when we consider 
 Its true nature, that as evidence, the 
 U'arket price of an article is onli- a means 
 of arriving at compenshtion ; it is not it- 
 self the value of the article, but is the evi- 
 dence of value. The law adopts it as a 
 natural inference of fact, but not as a con- 
 clusive legal presumption. It stands as a 
 criterion of value, btcause it is a con)mon 
 test of the ability to purchase the thing. 
 But to assert that the price asked in the 
 market for an article is the true and only 
 test of value, is to aliandon the proper 
 object of damaires, viz., compensation, in 
 all those cases wherethe market evidently 
 does not afford the true measure ot value. 
 This thought is well expressed by Lewis, 
 C. .1., in Bank of Montgomery v. Reese, 2 
 Casey !•!(>. "The paramount rule in as- 
 sessing damages (he says), is that every 
 person unjustly deprived of his rights, 
 .should at least be fully compensated for 
 the injury he sustained. Where articles 
 tiave a determinate valueand an unlimited 
 production, the general rule is to give their 
 value at the time the owner was dei)rived 
 of them, with interest to the time of ver- 
 dict. This rule has been adopted because 
 of its convenience, and because it in gen- 
 eral answers the object of the law, which 
 is to compensate for the injury. In rela- 
 tion to such articles, the supply usually 
 keeps pace with the demand, and the fluc- 
 tuations in the value are so incousideraiile 
 as to justify the courts in disregarding 
 them for the sake of convenience and uni- 
 formity. In these cases, the reason why 
 the value at the time of conversion, with 
 interest, generally reaches the justice of 
 the case, is that when the owner is de- 
 prived of the articles, he may purchase 
 others at that price. But it is manifest 
 that this would not remunerate him where 
 the article could not be obtained else- 
 where, or where from restrictions on its 
 production, or other cause's, its price is 
 necessarily subject to considerable fluctua- 
 tion." This shows that the market price 
 is not an invariable standard, and that 
 the converse of the case then before Judge 
 Lewis is equalli' true— that is to say- 
 when the market price is unnaturally in- 
 flated by unlawful and fra.udulent prac- 
 tices, it cannot be the true means of as- 
 certaining wliat is just compensation. 
 It U as unjust to the seller to give the 
 purchaser more than just compensation, 
 as it is to the purchaser to give him less. 
 Right upon this point, we have the lan- 
 guage of this court in (he case of a refusal 
 bv a purchaser to accept: Andrews v. 
 Hoover, S Watts 240. It is said: "The 
 jury is bound by a measure of damages 
 where there is one, but not always by a 
 particular means for its ascertainment. 
 Now the measure in a case like the pres- 
 ent, is the difference between the price con- 
 tracted to be paid and the value of the 
 thing when itought to have been accepted ; 
 and though a resale is a convenient and 
 often satisfactory means, it does not fol- 
 low that it is, nor was it saii in Girard v. 
 Taggart, to be the only one. On the con- 
 trary, the propriety of the direction thej-e.
 
 KOUXTZ 0. KIltKPATRICK. 
 
 505 
 
 that the jury wero not hound liy it, if they 
 could find another more in accordance 
 Willi tlic justice of llie cawe, HCfiiiH to have 
 liecn adinilti'd ; the very tiling coniplairied 
 of here." Judfje Stronjr took the Hame 
 view in Trout v. ICunncdy, 11 Wright 3'J3. 
 That WMH the cane <>{ a trcspaHHiT, and 
 the jury had been told that the plaintiff 
 was entitled to the just and full value of 
 the property, and if at the time of (he 
 tresiiass the tiinrket was depressed, too 
 much importance was not to he ;jiven to 
 that fact. "If (says JudKC Strong) at 
 any particular time, there he no market 
 demand for aiiartii-le.it Is not of ccjurse 
 on that account of no value. What a 
 thiuK will hrjiijj in the market at a K'^en 
 time, is perhaps the mcHsurc of its value 
 then; hut it Is not the only one. " These 
 cases plainly teach that value and market 
 price are not always convertihle terms; 
 and certainly there can l)e no difference in 
 justice or law, in an unnatural depression 
 and an unnatural exaltation in the market 
 price — neither is the true and only meas- 
 ure of value. 
 
 These Reneral principles in the doctrine 
 of damaiies and authorities, prove that 
 an inflated speculative innrket price, not 
 the result of natural causes, hut of artifi- 
 cial means to stimulate prices liy unlawful 
 corabinntions for the pur(»oses of ;tain, 
 cannot he a leKititiiate means of estiinat- 
 ing just compensation. It nives to the 
 purchaser more than he ou^lit to have. 
 and compels theseller to pay more than ho 
 ought to give, and it is therefore not a 
 just criterion. There is a case in our 
 own state, hearing strongly on this 
 |)oint: Blydenhurgh ct al. v. Welsh, Hald- 
 win's lU'p. 331. .Judge lialdwin had 
 charged the jury in these words: " If yo-j 
 are satlsMed from the evidence, that there 
 was on that day a fi.\ed price in the 
 market, you must he governed hyit; if 
 the evidence is doulitful as to the (irice, 
 and witnesses vary in their statements, 
 you must adopt that which you think 
 best accords with the proof in the case." 
 In granting n new trial..Iudge Ilopklnsou 
 said: "It is the prici — the market price— 
 of the article that is to furnish the measure 
 of damages. Now what is the price of a 
 thing, particularly the market price? We 
 consider it to be the value, the rate at 
 which the thing Is sold. To make a 
 market, there must he buying and selling, 
 purchase and sale. If the owner of an 
 article holds it at a jirice which nobody 
 will give for it, can that he said to be lis 
 market value? -Men sometimes put fan- 
 tastical prices upon their piopeity. For 
 reasons personal ami peculiar, they luay 
 rate it n.uch jihove what any one would 
 give for it. Is that the value? Kurther, 
 the holders of an article, Hour, for In- 
 stance, nnler a falsi' rumor, which, if true, 
 woiilil augment its value, may suspend 
 tlieii- sales, or put n price upon it, not nc- 
 rording to Its value in the actual state of 
 the market, tint according to what in 
 their opinion will be its market price or 
 value, provided the rumor shall |irove 
 to be true. In such a case, it is clear, that 
 the asking price is not the worth of the 
 thing on (he given day. lint what it is 
 Biipposed it will be worth at a future day, 
 
 if the contingency shall happen which Ih 
 to give It this additional value. To take 
 such a price at the rule of dHmoges, is (o 
 make the d. fenduiit pay what in truth 
 never was the value of the article, ami to 
 give to the plaintiff n profit l)y a breach 
 of the contract, whhh he never would 
 have made hy its performance." 
 
 The case of suspended sales upon a 
 rumor tending to enhance the price, put 
 oy Judge liopkinson, hears no compari- 
 son to the case alleged here, where a com- 
 bination is intentionally formed to liuy 
 up oil, hold It till the year Is out, and thus 
 force the market price up purposely to 
 affect e.xlHting contracts, and comi>el the 
 sellers to pay heavy dnmnges for non- 
 fulfilment of their l)argalns. In tha same 
 case. Judge liopkinson further said: "We 
 did not intend that they (the jury) should 
 g<j out of the limits of the market iirice, 
 nor to take as that price whatever the 
 holders of the coffee might choo.<<e to ask 
 for it; substituting a fictitious, unreal 
 value, which nobody would give, for that 
 at wliich the article might be bought or 
 sold." "In determining," says an emi 
 nent writer on contracts, "what is the 
 market value of property at any particu- 
 lar time, the jury may sometimes take a 
 wiile range; for this Is not always ascer- 
 tainable by precise facts, but must Home- 
 times rest on opinion; and it would seem 
 that neither party ought to gain or lose 
 by a mere fancy price, or an inflated and 
 accidental value, sudilenly |)ut in force by 
 some speculative movenient, and as sud- 
 denly jtassing away. The (|uestion of 
 damages l>y a market value is pirullurly 
 one for a jury:" I'arsons on Contracts, 
 vol. 2. (1. 4SJ, ed. ls.'>7. In Smith v. lirlf- 
 fith, :! Hill 3:!7-s. C. J. Nelson said : " I ad- 
 mit that a mere speculating price of the 
 article, got up liy the contrivance of a few 
 interested dealers, is not the true test. 
 The law, in regulating the measure of 
 damages, c<intemplates a range of the 
 entire cnarket, and the average of prices, 
 as thus found, running through a reason- 
 able period of time. Neither a sudden and 
 transient inflation, nor a depression of 
 (irices. should control the question. These 
 are often accidental, promoteil hyinteivst- 
 ed and illegitimate combinations, for te'u- 
 porary, special and sellish oliji-cts, inile- 
 pendent of the objects of lawful com- 
 merce; a forced and violent perversion <if 
 the laws of trade, not within the contem- 
 plation of the regular dealer, and not de- 
 serving to he regarded as a iiroper Imsis 
 i:poii which to deteriuine the valne. when 
 the fact becomes niateriul in the ndniii.is- 
 tration of justice." I may dose the»e 
 sayings of eminent jurists with the lan- 
 guage of Chief .lustice (ilbson, upon stock- 
 jobbing contracts; Wilson V. Davis, fi \V. 
 &S. r>l':!: "To have stipulated. " says he. 
 "for n right to recrulton seiiarateaccount, 
 would have given to the agn-ement iia 
 appearance of trick, like those of stock- 
 jobbing contrac(H, to deliver n given num- 
 ber of shares at a certain day. In which 
 the seller's performance has het'n fore- 
 stalled hy what is called cornering; In 
 other words, buying up all the (Linting 
 shares in the market. Th-se contracts, 
 like other stock-jobbing transactions, lo
 
 506 
 
 KOUNTZ V. KiniCPATRICK. 
 
 which parties deal upon honor, are seldom 
 subjected to the test of judicial experi- 
 iiieut, but tliey would necessarily be de- 
 clared fraudulent." 
 
 Without adding more, 1 think it is con- 
 clusively shown that what is called the 
 inarlvet price, or tlifi quotations of the 
 articles for a given day, is not always 
 tlie only evidence of actual value, but that 
 tlie true value may be drawn from othei 
 sources, when it is shown that tlie price 
 for tlie iiarticular day liad been unnat- 
 urally inflated. It remains only to ascer- 
 tain whether the defendant gave such ev- 
 idence as to require thecourt to submit to 
 tlie jury to ascertain and determine the 
 fair market value of crude oil per gallon, 
 on the Hist of December INf!!!, as demand- 
 ed by the defendant in his fifteenth point. 
 There was evidence from whicli the jury 
 might have adduced the following facts, 
 viz.: That in the month of October l^iOH, 
 a number of persons of large capital, and 
 amongthem Kirkpatrick & Lyons, com- 
 bined together to purchase crude oil, and 
 hold it uutil the close of the year 1869; 
 that these persons were the holders, as 
 purchasers, of a large number of sellers' 
 option contracts, similar to the one in 
 suit, that they bought cdl largel.v, and 
 determined to hold it from the market uu- 
 til the year 1870 before selling: that oil, in 
 consequence of this combination, ran up 
 in price, in the face of an increased sup- 
 ply, until the 31st day of December ISGlt, 
 reaching the price of seventeen to eighteen 
 cents per gallon, and then suddenly 
 dropped as soon as theyearclosed. Major 
 Frew, one of the number, says : "It was 
 our purpose to take the oil, pay for it, 
 and keep it until January 1st 1870, other- 
 wise we would have been heading the 
 market on ourselve.s. Mr. Long says 
 that on the 3d of January 1870 he sold oil 
 to Fi"her & Brother (the plaintiffs) at 
 thirteen cents a gallon, and could And no 
 othe'" purchaser at that price. Several 
 witnesses, dealers in oil, testify that 
 they knew of no natural cause to create 
 9uch a rise in price, or to make the dif- 
 ference in price from December to Jan- 
 uary. It was testified, on the contrary, 
 
 that the winter production of oil was 
 gre.'iter in Deceml)er 1809 than in former 
 years liy several thousand barrels per day, 
 a fact tending to reduce the price, when 
 not sustained by other means. Mr. Benn 
 says he knew no cause for the sudden fall 
 in iirice on the 1st January 1870, except 
 tliat tlie so-called combination ceased to 
 buy at the last of December ISGD. 
 
 It was, therefore, a fair question for the 
 jury to determine whether the price which 
 was <lenianded for oil on the last day of 
 December 18()'J was not a fictitious, unnat- 
 ural, inflated and temporarj- price, the 
 result of a combination to "bull the 
 market," as it is termed, and to compel 
 sellers to pay a false and swcdien jirice in 
 order to fulfil their contracts. If so, then 
 sucli price was not a fair test of the value 
 of the oil, and the jury would be at libert.v 
 to determine, from the iirices before and 
 after the day, and from other sources of 
 information, the actual market value of 
 the oil on the Slst of December ISU'J. Any 
 other cause would be unjust and injurious 
 to fair dealers, and would enable gam- 
 blers in the article to avail themselves of 
 their own wrong, and to wrest from hon- 
 est dealers the fruits of their business. It 
 cannot be possible that a "corner," such 
 as took place a few weeks since in the 
 market for the stock of a western railroad 
 company, where shares, worth in the or- 
 dinary market about sixty dollars each, 
 were by the secret operations of two or 
 three large capitalists, forced up in a few 
 days to a price over two hundred dollars 
 a share, can be a lawful measure of dam- 
 ages. Men are not to be stripped of their 
 e^itates by such cruel and wrongful prac- 
 tices; and courts of justice cannot so 
 wholly ignore justice as to assume such a 
 false standard of compensation. Our 
 views upon the effect of the attidavit of 
 defence, on which the learned judge in a 
 great measure rules the question of dam- 
 ages, will be expressed in the case of 
 Kountz V. The Citizens' Oil Refining Co., 
 [72 Pa. St. 302.] in an opinion to be read 
 immediately. 
 
 Judgment reversed, and a venire facias 
 de novo awarded.
 
 i
 
 LEE c. GRIFFIN. 
 
 509 
 
 LEE V. GUIFFIN. 
 
 (1 Best & S. 272.) 
 
 Queen's Bench. May 9, ISCl. 
 
 Declaration at;ai"st the defendant, as 
 the executor of one FranceM 1'., for t;oodH 
 barKained anil Hold, KoodH Hold and de- 
 livered, and for work and laltor dune and 
 materials iirovidcd l).v the i)laiiitiff a8 a 
 Kurneoii-dentlHt for the Haid FraneeM P. 
 
 I'k'ii, that theHaid Franeee I'.neverwuH 
 indelited as allesi-Ml. 
 
 The action was hroiight to reeovcr the 
 Huin of £-1 for two nets of artificial teeth 
 ordered by the deceased. 
 
 At the trial, before Crompton, .1., at the 
 BittlnuH for MiddleHex after Michaelmas 
 term, IfSdU, it was proved by the plaintiff 
 that he had, in [tiirsuance of an or<ler fioni 
 the deceased, prepared a model of her 
 mouth, and made two sets of artilicial 
 teeth; as HO(»n as they were ready he 
 wrote a letter to the deceased, requestin}? 
 her to niipoint a day when he could see 
 her for the purpose of fittinj" them. To 
 this conimiinication the deceased replied 
 as folio wk: — 
 
 "My Dear Sir, — I regret, after your kind 
 effort to oblige me, my health will prevent 
 my taking advantage of the early day. I 
 fear I may not be able for some days. 
 Yours, .»ic.. Frances I*." 
 
 Shortly after writinir the above letter 
 Frances P. died. On these fa<'ts the de- 
 fendant'scounselcontended that the plain- 
 tiff ought to be nonsuited, on the ground 
 that there was no evidence of a delivery 
 and acceptance of the goods by the de- 
 ceased, nor any memoiandUMi iti writing 
 of a contract within the meaning of the 
 17th section of the statute of frauds, l'!) 
 ( ar. 2, c. o, and the learned judge was of 
 that opinion. The plaintiffs counsel 
 then contended that, on the authority of 
 Clay v. Yates.' the [jlaintiff conhl recover 
 in the action on the count for work and 
 labor done, and materials provided. The 
 learned judge declined to nonsuit, and 
 ilirected a verdict for the amount claimed 
 tobeentereil for the plaintiff, with leave 
 to the defendant to move to enter a non- 
 suit or verdict. 
 
 In Hilary term following a rule nisi hav- 
 ing been obtained accordingly, 
 
 Patchett now shewed cause. (Jriflits, in 
 support of the rule, was not called upon 
 to argue. 
 
 CHOMPTOX, .1. I think that Ibis rule 
 ought to be made absolute. On the sec- 
 ond point I am of the same opitiion as I 
 was at the trial. There is not an.v suffl- 
 eient memorandum in writing of n con- 
 tract to satisfy the statute of frauds. The 
 case decided In the ho ise of lords, to 
 which reference has been made during the 
 argument, is clearly distinguishable. 
 That case oidy decideil that if a ducument, 
 which is silent as to the particulars of a 
 contract, refers to another document 
 which contains sucli |)articulars, parol 
 evidence is admissible for the purpose of 
 shewing what ilocuiueut is referred to. 
 
 AssMming, in this case, that the two doc- 
 uments were sufllciently connected, still 
 there would not be any sulllcient evidence 
 of the contract. The contract in quention 
 was to deliver some |)articular t<'etl. to 
 be made in a partii-ular way, but these 
 letters dli not refer to any particular 
 bargain, nor In any inauoer discloHC ItM 
 terms. 
 
 The main question which arose at the 
 trial was, whether the ccntract in the 
 seconil c(jutit could l)e treateil ns one for 
 I work and labor, or whether it was a con- 
 j tract for goods sold and delivered. The 
 distinction betwe<'n these two causett of 
 . action is sometimes very line; but where 
 j the contract is for a chattel to be made 
 and delivered, it clearly Is a contract for 
 the sale of goods. There are some cases 
 in which the supply of the materials is 
 aiii'illi»ry to the contract, as In the case 
 of a printer supplying the pnper on which 
 a book is printed. In such a case an ac- 
 tion might perhaps be brought for work 
 and labor done and materials provided, 
 as it could hardly be said thatthesub- 
 jcct-mat ter of the contract was the sale 
 of a chattel: perhaps It is more in the 
 nature "f n coiitract merely to exercise 
 skill and labor. Clay v. Ynles- turned on 
 Its own pcruliar circumstances. I enter- 
 tain some doubt as to the correctness of 
 that decision; but I certainly do not 
 ngrw to the proposition that the value 
 of (he skill and labor, as compared 
 to that of the material sup(ilied. is a 
 criterion bj- which to ilecide whether the 
 contract be for work and labor, or for 
 j the sale of a chattel. Here, however, the 
 subject-matter of the contract whs the 
 sup])ly of goods. The case bears a strong 
 resemblance to that of a tailor supplying 
 a coat, tlie measurement of the mouth 
 and fitting of the teeth being analogous 
 to the measurement and fitting of the 
 garment. 
 
 lULh.J. 1 am of the same opinion. I 
 think that the decision in Clay v. Yates' 
 is perfectly right. That was not n case In 
 which a i)arty ordered a chattel of an- 
 other which was afterwards to lie made 
 land delivered, but a case In which the 
 I subject-matter of the contract was the 
 j exercise of skill anil labor. Wherever a 
 [contract is entered into for the manufac- 
 ture of n chattel, there the subject-mat- 
 ter of the contract is the sale and deliv- 
 ery of the chattel, and the (larty supply- 
 ing it cannot r(M.-iiver for work and labor. 
 .■\tkinKon v. Bell* is, in my opinion, good 
 law, with the exception of the dictum of 
 I'.avliy, .T., whlcii is reinidiated by Mnule, 
 .1., in Cirafton v. .-Xmiitage.^ where he 
 savs: "InordiT to sustain n count for 
 work and labor. It is not necessary that 
 the work and labor should be performed 
 upon materials that are the property of 
 the plaintiff." And Tlnilnl, ('. .).. In his 
 judgment in the same case, page 3tO, 
 ] points out that In the application of the 
 'observations of Bnyley, J., regard must 
 
 ' 1 H. & X. 73. 
 
 '1 IT. & X. 7 
 '1 II. & X. 7: 
 ' S B. .V: C. 27 
 ' 2 C. B. X!0.
 
 510 
 
 LEE V. GRIFFIN. 
 
 be had to tlie particular facts of the case. 
 In every other respuct, therefore, the case 
 of Atkinsou v. Bells is law. I think that 
 these authorities are a complete answer 
 to the point taken at the trial ou behalf 
 of the plaintiff. 
 
 When, however, the facts of this case 
 are looked at, I cannot see how, wholly 
 Irrespective of the question arising under 
 the statute of frauds, tliis action can be 
 maintained. The contract entered into 
 by tlie plaintiff with the deceased was to 
 supi)ly two sets of teeth, which were to be 
 made for lier and fitted to her nioiitli, 
 and then to be paid for. Throus'i no de- 
 fault on her part, she havins died, they 
 never were fitted; no action can therefore 
 be brought by the plaintiff. 
 
 BLACKBURN, J. On the second point, 
 1 am of opinion that the letter is not a 
 sufficient memorandum in writing to take 
 the case out of tlie statute of frauds. 
 
 On the t)ther point, tlie ()uestion is 
 whether the cc^ntract was one for the sale 
 of goods or for work and labor. I think 
 that in all cases, in order to ascertain 
 whether the action ought to be brought 
 for goods sold and delivered, or for work 
 and labor done and materials provided, 
 we must look at the i)articular contract 
 entered into between the [jarties. If the 
 contract be such that, when carried out, 
 it would result in the sale of a chattel, 
 the party cannot sue for work and labor; 
 l)ut if the result of the contract is that 
 the party has done work and labor which 
 ends in nothing that can become the sub- 
 ject of a sale, the party cannot sue for 
 goods sold and delivered. The case of an 
 attorney employed to prepare a deed is 
 
 ' 8 B. & O. 277. 
 
 an illustration of this latter proposition. 
 It cannot be said that the paper and ink 
 he uses in th3 preparation of the deed are 
 goods sold and delivered. The case of a 
 printer printing a book would most prob- 
 ably fall within the same category. In 
 Atkinson v. BellT the contract, if carried 
 out, would have resulted in the sale of 
 a chattel. In Grafton v. Armitage.s Tin- 
 dal, C. .!., lays down this very principle. 
 He draws a distinction between the cases 
 of Atkinson v. Belio and that befoj-e him. 
 The reason he gives is that, in the former 
 case "the substance of the contract was 
 goods to be sold and delivered by the one 
 party to the other;" in the latter, "there 
 never was any intention to make any 
 thing that could properly become the sub- 
 ject of an action for goods sold and deliv- 
 ered." I think that distinction reconciles 
 those two cases, and the decision of Clay 
 V. Yates 10 jg pot inconsistent with them. 
 In the present cas? the contract was to 
 deliver a thing which, when completed, 
 would have resulted in the sale of a chat- 
 tel ; in other words, the substance of the 
 contract was forgoodssold and delivered. 
 I do not think that the test to apply to 
 these cases is whetlier the value of the 
 vfork exceeds that of the materials used 
 in its execution; for, if a sculptor were 
 employed to execute a work of art, great- 
 ly as his skill and labor, supposing it to 
 be of the highest description, might exceed 
 the value of the marble on which he 
 worked, the contract would, in my opin- 
 ion, nevertheless be a contract for the sale 
 of a chattel. Rule absolute. 
 
 ' 8 B. & C. 277. 
 ■2 0. B. 340. 
 ' 8 B. & C. 277. 
 "> 1 H. & N. 73.
 
 LIXCOLN c. GALL.VOHEH. 
 
 513 
 
 LINCOLN V. GALLAGHER. 
 
 (8 Atl. Hep. 8s:{, 79 >Ie. 189.) 
 
 Supreme Judicial Court of Maine. Feb. 28, 
 1SS7. 
 
 On exceptions by tlefciiflatit from su- 
 preme judicial court, Wusliington county. 
 
 AHHumpsit for ilanuiKC.s on a breacii of 
 eotitract for tlie [lurcliaKe and Kale of a 
 veMHcl. The defenKe was that the vessel 
 was not dcliveieil by plaintiff within a 
 reasonable tinie, and that the defendant 
 had no opportunity to e.xamine the vessel 
 in order to see tliat she was in >;ood or- 
 der, as stipulated in the contract. A ver- 
 dict was rendered for the plaintiff, and 
 the defendant alleged exceptions. 
 
 Thomas L. Talhot. for plaintiff. John 
 F. Lynch, for defendant. 
 
 PETERS, C. J. It was said in Howard 
 V. Miner, '.'0 Me. 330, that, on a contract 
 for the delivery of spec-ific articles which 1 
 are ponderous or cumbrous, when it is ' 
 not de.sijinatcd in the contract, and there j 
 is nothing; in the condition and situation 
 of the parties to determine the i)lace of I 
 dellverj', it is the privilese of the creditor] 
 (o name a reasonable and suitable one; i 
 Ihat the debtor should request the cred- 
 itor to select the jilace; and, if the creditor' 
 falls to do so, the debtor may appoint 
 the place. In the ease at bar a ves.sei was 
 purchaseil on the eastern coast some- 
 where, tc) be delivered to the buyer in 
 Portland. Had the defendant provided a 
 suitable place at some dock or wharf 
 which could have been reached by the u.se 
 LAW SALES — 33 
 
 of reasonable exertion, the delivery should 
 have been made there. The purchoser, 
 after notice, falling trj provide a place, we 
 think the seller woulil bejuKtilled in ten- 
 ilerinK a delivery at safe anchoraKe in the 
 harbor, lie should not be reijuired to go 
 to special expenses to hitnself to obtain a 
 place at the wharf or up<in the shore. B.v 
 the hill of e.xceptions examined with the 
 judite's charRe we fiml that a controversy 
 arose between the parties over the require- 
 ment of the purchaser that the seller 
 should Ko to the e.xiiense himself of plas- 
 inK the vessel in a dry-dock in order that 
 the seller could there examine her. There 
 was some reason to suspect that the ves- 
 sel had been ashore on her voyage to 
 Portland, and tlie purchaser desired an 
 lnsi)ection to see whether she had es- 
 caped injury or not. 'I'hore can be no 
 doubt that. In ofterinR delivery, the seller 
 was under oblijiation to afford an op- 
 I)ortunity to the purchaser to make the 
 examination. Hut any expenses to he 
 incurred thereby, beyond what would be 
 necessary in putting the vessel in a proper 
 place for delivery, would fall upon the 
 buyer and not upon him. The seller was 
 uniler no obligation to incur any unusual 
 expense. He could not be called upon to 
 place the vessel in u dry-dock. He tenders 
 the property as sound accordliic; to the 
 agreeinent under which he acted. The 
 buyer must accept or reject it at his risk. 
 Renj. Sales, § i\'.)b: Croninger v. ("rocker, fiJ 
 N. Y. l.-d. 
 
 Exceptions overruletl. 
 
 WALTON. D.ANFORTH, E.MEKY. FOS- 
 TER, and HASKELL. .IJ.. concurred.
 
 LITCHFIELD v. HUTCHINSON. 
 
 515 
 
 LITCHFIELD v. HUTCHINSON. 
 
 (117 Mass. 195.) 
 
 Supreme Judicial Court of Massachusetts. Mid- 
 dlesex. February 1, 1&75. 
 
 Tort for deceit in the sale of a hoi'He. 
 The decluralioii alleged tliat the defeml- 
 Miit Hold [)luiiitit( a linrHe f'lr $;{L';J; that 
 defendant I'alHely reprewented that the 
 horse was Hound in every way, to induce, 
 plaintiff to huy; tliat the plaintiff, believ- 
 ing that naid representation wbh true, 
 vvaH thereby induced to buy the horse, but 
 the liorHe whh not wound in every way, but 
 waH lame and foundered, and lame in the 
 fore le«H and KhoulderH, and was unsound 
 and of little value, an defendant well knew. 
 .\nHwer a general denial. The court al- 
 lowed a bill of exceptions totheeffect that 
 there was evidence that the defendant 
 made the representations an alleged ; that 
 tliey were false, and known by defendant 
 to be false; that the plaintiff, relyiuR 
 tliei'con, wuH induced to purchase the 
 horse as allejicd; and that the lior.se was 
 then in fact lame and unsound. The evi- 
 <lence was conflictiuK on all these points, 
 i'laintiff puid defendant l5;J2o for the horse, 
 aTid there was evidence that he waH not 
 worth at the time of the sale over §100. 
 The defendant testified that he maiie no 
 representations whatever, and that Ik^ 
 had worked the horse almost every day 
 for three weeks, and did not observe any 
 lameness or that he was unsound. Upon 
 this evidence the plaintiff requested the 
 judge to charge that, if thedefendant made 
 a representation of the soundness of the 
 horse as of his own knowledge, ho might 
 have known by reasonable inquiry and 
 examination whether he was sound or 
 not, and the horse was not sound, and if 
 the plaintiff relied on such representations, 
 and was induced thereby to purchase the 
 horse, and thereby sustained damage, the 
 defendant was liable. If the defendant 
 represented that the hor.-ie was sound, 
 wiien he was unsound, and the |>Iaintiff 
 was thereby indnrod to buy thehorse.and 
 was then^by injured, then the defendant 
 was liable. If the defendant knew the 
 horse was unsound, and did not make 
 such fact known to the plaintiff, but al- 
 lowed him to purchase the same at a fair 
 market price as a sound horse, then th? 
 defendant \>as guilty of fraud, and was 
 liable. If the defendant had no knowledge 
 one way or the other as to the soundness 
 <if the horse, but represented to the plain- 
 tiff that he was sound, and he was in fact 
 unsound, it would su|i|iort the allegation 
 that he made to the plaintiff' a false alle- 
 gation knowingly. If the defendant made 
 the represen tat ions to the plaintiff wit ho lit 
 any knowledge, information, or ground of 
 belief, and they were in fact fnlse.it would 
 not differ legally from a representation 
 known by the defendant to be false. The 
 judge, instead, iiistnictpd the jury that if 
 the defendant iiiaile the reiiresentatioiiH 
 alleged, as matter of fact within his own 
 knowledge, and the representations in nn.v 
 material respect were not true, and the 
 defendant knew they were false, or he diil 
 not honestly believe them to be true, and 
 
 [the plaintiff, relying upon them as true, 
 was induced to purchase the horse and 
 pay therefor, the defemlant was liable, 
 liut that the action could n(it be main- 
 tained by merely proving that the ilefend- 
 ant had reasonable cause to believe the 
 reiiresentatlons were untrue; the di-clara- 
 tlon alleging that they were frauilulently 
 made, and that the defc^ndant knew them 
 to be false, and that a false representation 
 is knowingly made wlicn a party, for a 
 fraudulent purpose, states what he does 
 not believe to be true, even though he may 
 have no knowledge on the subjeit. The 
 jury returned a verdict for the defendant, 
 aud the plaintiff alleged e.xccptioDH. 
 
 D. S. RichardHon, |(j. V. Hichnrdson, 
 with him. J for jdaintiff. W. 8. Gardner, 
 for defendant. 
 
 MOKTO.X, J. This is nn action of tort, 
 in which the plaintiff alleges that he was 
 induced to buy a horse of the defendant 
 by reiiresenfations made by liim lh;it the 
 horse was sound, and that the horse was, 
 in fjict, unsound and lame, all of which 
 the defendant well knew . 
 
 Tosustain smh an action It is necessnry 
 for the [ilaintiff to prove that the defend- 
 ant made false reprrsentations, which were 
 material, with a view to Iniluee the plain- 
 tiff to purchase, and that the ]iliiiritirr 
 was thereby induced lo purchase, lint it 
 is not always necessary to prove that the 
 defendant knew that the facts stated by 
 him were false. If he states, as of his own 
 knowlrdge, material facts snsci-ptible of 
 kiicwledge, which are faNe, it is a fraud 
 wliich renders him liable to the party 
 who relies and acts ujion the statement as 
 true, and it is no defence that he believed 
 the facts to be true. The falsity and fraud 
 consists in representing that he knows the 
 facts to be true, of his own knowledge, 
 when he has not such knowledge. I'age 
 V. lient. 2 .Met. :i7l. Stiuie v. Dennv, 4 .Met. 
 l.'il. -Milliken v. Thorndike. 103 Mass. ;;si>. 
 Fisher v. Mellen, KK! .Mass. .■|0:I. 
 
 In the case at bar the plaintiff asked the 
 court to instruct the jury "that if thede- 
 fendant made a representation of the 
 soundness of the horse, as of his own 
 knowledge, and the jury aresatistied that 
 he might have known by reasonable in- 
 quiry and examination whether he was 
 soiiiid or not, anil the horse was not sound 
 as a matter of tact, and If the plaintiff re- 
 lied on such re|>resentation8. ami was in- 
 djceil thPieby to purchase the horse, and 
 thereby sustained damage, then the de- 
 fendant is lialile. " We are of oiiinlon that 
 this instruction should have lieen given In 
 substance. If the defect In the horse was 
 one wjich might have been known t>y ren- 
 sonable examination. It was a matter sus- 
 ceptible of knowledge, and a re|iri>seiita- 
 tion by the defendant made as of his own 
 knowledge that such defect did not exist, 
 would, if false, lie a fraud for which ho 
 would be liable to the plaintiff, if maile 
 with a view to Iniluce hini to purclin8e, 
 and it relieil on by hlin. 
 
 A f.'ilse representation of this character 
 is sulllcieully set forth In the declaration 
 to constitute a cause of action, without 
 the further allegation that the defendant
 
 51G 
 
 LITCHFIELD V. HUTCHINSON. 
 
 well knew the representations to be false. 
 It is not necessary that all the allesatious 
 shoiilil he proved if enoiiffh are proved to 
 make out a cause of action. 
 
 The instructions given upon thesuhject 
 embraced in this prayer required the 
 plaintiff to prove, not <inly that the de- 
 fendant made the false representations al- 
 
 leged, as of his own knowledge, but also, 
 that the defendant knew that they were 
 false, or thiit he did not honestly Relieve 
 them to be true. In this res|)ect the in- 
 structions were erroneous. 
 Kxcc|)tions sustained. 
 
 AMES & ENDICOTT, .IJ., absent.
 
 LOKIi V. 1'ETEU.S. 
 
 il'J 
 
 LOEB et al. T. PETERS et al. 
 
 (1)3 Ala. 243.) 
 
 Supreme Court of Alabuma. Deo. Term, 1879. 
 
 Action hy J. M. Peters & Brnther 
 a^xiii'^t tlx' South & Nortti Alubuniii KmiI- 
 riiai] Coiiijiaiiy for certain cliiiltels. J. 
 Ijocb & I'rotliiT iiittTvciiccI a8 claiiD.-iiitK, 
 and olitai[K'(] poKKOKJsion iii the k<)o<ih on 
 makiiiK the proper attidavit and ;;ivinj; 
 bonil. From iijuiit;inent f(jr plaintiffs said 
 clainiantH appealed. Alllrnied. 
 
 Sayre & Graves, for appellants. L. A. 
 Shaver, contra. 
 
 MANNING, J.— Munter & Brother, be- 
 ln>r largely in debt, and insolvent, by an 
 order re(iuestiny: ehi!>nient to them, 
 bought of jilaiiitiffs. J. M. Peter.s & Broth- 
 er, of Virniiiia, twenty-live boxes of to- 
 bacco; which they accordinj-ly sent us 
 directed, to Munter & Brotlier, at Mont- 
 Koniery, Alabama, by railroad, forward- 
 ing to tiieni by mail a bill of ladins there- 
 for. On receipt of this, several days be- 
 fore the bo.xes arrived, .Munter & Brother 
 indorsed it, and transferred tlieir rij^ht to 
 the Koods to J. Loeb & Brother, who 
 nave them credit for the same, on a debt 
 past due, which .Munter & lirother owed 
 them. There was no other consideration 
 for this transfer. Soon afterwards, Pe- 
 ters A: Brother, being informed of the in- 
 solvency of Munter & Brother, and claim- 
 inn the rifilit to stop the tobacco in tran- 
 situ, demanded it of the carrier, the South 
 & .North Alabama P.ailroad Company, 
 and sued the same in detinue for it, hav- 
 ing lirst offered to pay the freinlit money. 
 Loeb & Brother intervened as claimants, 
 and thereby obtained possession of the 
 noods. Whereupon, the suit was prose- 
 secute<l acaiiist them, to a verdict and 
 judgment in favor of Peters & Brother, 
 from which Loeb & Brother have ap- 
 pealed to this court. 
 
 We do not concur in the opinion ex- 
 pressed in Kopers v. Thomas t^U t'onn. 
 54), that a vendor of poods, in transit to 
 an insolvent vendee, can not stop them 
 on tlie way, before delivery, unless the in- 
 solvency of the vendee occurred after the 
 sale to him of the kooiIs. We think, with 
 thesu[»reme court of Ohio, tliat the ven- 
 (k)r may stop theuoods u|ionu subsequent 
 mscovery of insolvency existinnat thetime 
 of the sale, as well as upon a subsequent 
 inscdveucy. If there be a want of ability 
 to pay, it can make no difference, in jus- 
 tice or Kood sense, whether it was pro- 
 duced by causes, or shown by acts, at a 
 period before or after the sale.— Benedict 
 V. Schaettle, 11.' Ohio St. 51."): Hevnolds v, 
 Boston^ M.R.U.('o.,4:! N.H..">y.t: O'Brien 
 v. Norris, It; Md. iL'J; Blum v. .Marks, L'l 
 La. Ann. 2(>.S. The best delinition of the 
 rijiht which we have seen, is that in Par- 
 sons's Mercantile Law, as lollows: "A 
 seller, who has sent noods to a buyer at 
 a distance, and, after sending tliem, linds 
 that the linyer is insolvent, may stop the 
 Koods at any time before they reacli the 
 buyer. His riKht to (U) this is called the 
 rinht of stoppage in transitu."— Chap. X, 
 p. GO. 
 
 j If, before this right lo exercised, the 
 buyer sells the goods, anil indorses theblll 
 of lading for them to a punliaser in good 
 
 I faith, and for value, the right of tlie first 
 
 j vendor to retake them is extinguished. — 
 
 jLickbarrow v. Mason, 1 ^>mltl^s lA'aii. 
 Cases, JiSS. Evidence, therefore, that Loeb 
 & Brother knew, when thev took a tranH- 
 fer of the bill of lading, tiiat Munter & 
 
 I Brother were innolvent. was relevant anil 
 proper to show, in connection with other 
 testimony, that Loeii & Brother were not 
 
 j bona tide purchasers. And there was no 
 error in permitting a witness to testify 
 
 I what one of that lirm had previously 
 said, tending to show such knowledge, 
 w-hen he was giving evidence in another 
 
 [cause. Statements and declarati<ms, rele- 
 
 i vant to the matter in hand, which have 
 been made by a party to u cause, may be 
 
 ] proved against him, witlioul his ail- 
 
 , versnry being compelled to use such party 
 as a witness in a suit in which he is Inter- 
 ested. 
 
 The two judgments against Munter & 
 Brother, in favor of creditors, confessed 
 D.v the former before the tobacco had 
 
 j reached its destination, and the seizure 
 upon execution the next day of property 
 
 I of Munter & lirother, by the sheriff, tenil- 
 ed to prove their insolvenc.v; tinil tlie evi- 
 dence of those facts was, therefore, prop- 
 
 I erly admitted. 
 
 The transfer of a bill of lading, as a col- 
 lateral to previous iddigations, without 
 anything advanced, given up, or lost on 
 
 I the part of the transferee, does not consti- 
 tute such an assignment as will preclude 
 the vendor from exercising the right of 
 sto[ipage in transitu. Said Bradley. Clr- 
 
 jcuit .lustice. in Lesossier v. The .South- 
 
 I western, 2 Woods, :!.">: "Nothing short «if 
 
 j a bona lide sale of the jroods for value, or 
 the possession of them by the vendee, can 
 defeat the vendor's right of stoppage in 
 
 i transitu: and hence it has been held, that 
 an assignee iu trust for creditors of the 
 insolvent vendee is not a purchaser for 
 value, and, conseoiiently. takes subject 
 to the exercise of any right of stoppage 
 in transitu which may exist airaitist the 
 assignor. — Harris v. Pratt, 17 N. Y. 241)." 
 
 I Wherefore, it was held in the latter case. 
 
 |tliatun attachment in the suit of the 
 vendee's creditor, of goods landed by the 
 carrier upou a wharf boat at the place 
 of delivery, did not prevent the vendor 
 from stopping them in transitu.— See. 
 also, O'Brien v. Norris, Id .Md. 122; Nay- 
 lor v. Dennie. S Pick. l'.»ii; Nicliolls v. 
 LeFeiivre, 2 Bingh. (.V. C.) S;{. The doe- 
 trine is based upon the plain reason of 
 justice and equity, enunciated in D'.VgulIa 
 
 ' V. Lambert (2 Eden's Ch. 77). that "one 
 mail's property should not be apiilled to 
 tlie payment of another man's dclit." 
 The light itself is regarded as niiextentlon 
 
 .merely of the lien for the price, which the 
 seller "of goods has on them while remain- 
 ing in his possession; which lien the 
 courts will nut permit to be siipersede<l. 
 before the vendee, who has become insol- 
 vent, obtains possession, unless, in the 
 
 ' nieantiiue. the goods have been sold to a 
 person « lio, in good faith, has paid value 
 
 . for them, and so would be a loser by his 
 
 I purchase, if that were beld invalid. A|>-
 
 520 
 
 LOEB V. PETEKS. 
 
 pelliinlH bavins only crodited Miinter & 
 Brother on a dobt previously due fi-oni 
 tlieni, witii the pru:e of the tobacco, liHve 
 notlilng iiioie to do, in order to net even, 
 than to dehit llieni with the same sum, 
 for the uon-delivery of the Roods in con- 
 sequence of tlie defect in Munter & Broth- 
 er's title. 
 
 The case of Crawford v. Kirksey (55 
 Ala. 'JS2), so much relied on by a[ipel- 
 lants, is wliolly unlike tliis. Tlie (jnestion 
 of stoppage in transitu was in no Tv:iy 
 involved in it. The controversy tliere 
 
 was, whether a conveyance by a debtor 
 in a failins condition, of pro[)erty which 
 was indisputably and entii'ely liis, in pay- 
 ment of a debt to one of his creditors, 
 was not void as to the otliers; and tliis 
 court decided, that the law permitted 
 such a preference, and that t!;e transac- 
 tion was n(jt fraudulent in fact. 
 
 It results from what wo liave said, that 
 tliere was no error in tlie cliarges to the 
 jury. 
 
 Let the judgment of the circuit court be 
 affirmed.
 
 LUPIX V. MAUIE. 
 
 r.2.T 
 
 LIJI'IN ct al. V. MAIUK ct al. 
 
 CO Wend. 77.) 
 
 Court of Errors of New York. Ucccmber, 1S30. 
 
 Appoal from clinncory. On tlieHltli Aii- 
 fjnHt. lKL'(i, Marie Ixumlit of an UKCit <if tin; 
 coriiplaiiuuits in tliu i-ity of Now Ytii'U, IS 
 pai-kai;eM of kooiI.s, amounting tofT.'JiKi.'iM, 
 for which lie agreed to nivf IiIm own not(-H, 
 pa.valiliMM ."iciina! [iroportionH, at 0, 7, S, 
 ;> anil 10 niontliH ; the Roods were Hold at 
 14 cciitH per franc, short price, when KoodH 
 of the Hanic (luallly were publicly Helling 
 at from I'O to L'2 cents per franc, and not 
 at a lurner credit than hI.x tnontliH. On 
 the L'.')tli AiiKU.Ht the Koods were delis'ered 
 to Marie, who represented to the anent of 
 the coinplainantH tli..t he intended to Bhip 
 them to Havana forHalcHand returns ; and 
 on the next day did ship them on hoard a 
 vesHcl, which shortly thevafter set sail 
 from New York, hound to Havana. 'l"he 
 notes which Marie was to fj;ive were not [ 
 made or delivered to the atjent of theconi- 
 plainants at the time of thedeliver.v of the 
 •rcMids. On the fonrth Septemher, IM'd, ' 
 Marie, by an aceiimnlation of disastrons i 
 circnnistances, and in conse.inenre of ad- 
 vices received by him from Vera Cruz and 
 from Knrope. was compelled to suspend 
 payment, and suffer his bunds and notes ' 
 to be dishonored. At the time of the pui-- 
 cliase of the jioods, Marie enjoyed a liij;li 
 (•(Miimercial credit and stnndinii iu the city : 
 of .New York, was reputed and considered 
 himself perfectly solvent and amply jililo ; 
 to pay all his del)ts and responsibilities, 
 and not until one o'clock in the afternoon I 
 of t he fourth of September did he perceive ' 
 that he would be comiielled to suspend i 
 payments; anil so unconsciou» was he of 
 Ills situation, that after the purchase of. 
 the Roods from the complainants, and i)ro- 1 
 vious to his failure, he niade [lavments to 
 the amount of about .fls.doil. On the fifth , 
 of September, the insolvency of .Marie ha v- ] 
 iiiK liecome notorious, the asjent of the 
 complainants requested him to re-deliver 
 the Roods by RivinR an orrler for the same 
 upon the captain of the vessel in wliich 
 they were shipped. Marie refused to dive 
 such order, and on the ninth of Se|)tember 
 executed an asslRnment tc» Varet. the oth- 
 er <lefendant, of four several shipments of 
 Roods, incluilinR the merchandise pur- 
 chased of the complainants, to secure him 
 nearly :tf7(),(IOI), for which lie was responsi- 
 ble as the endorser of Marie, and as liis 
 Huret.v on custom-house lionds. 'I'he ves- 
 sel in which the Roods were embarked met 
 with a disaster at sea, and was cdiliReil 
 to put into Norfolk, in VirRinia.foi' repairs. 
 Whilst she was there, and about the thii'- 
 tielh day of September, the aRent of the 
 coiiiplainaiits applied to Varet for permis- 
 sion that the Roods be delivered to him ; 
 Veret refused to Rive such consent, and 
 instructed his aRf nts at Norfidk to rc-ship i 
 the Roods to him at New York, where they | 
 accordiHRly arrived, and were disposed of 
 by him, some bel:iR sold at Now York, and 
 the residue beiuR shipped to Havana. 
 The net proceeds of the goods amounted 
 to .?(i,(i<,ll. :,".). After the return of the Roods 
 to New York, the complainants demaiuled 
 
 them of Varet, which demaiid was not 
 complied with. 
 
 The complainants filed their bill, rclvluR 
 upon the non-ileliveiy of the noteH,"on(l 
 the non-payment of the consideration 
 money us entltliiiR them to a decree In 
 their favor for the value of the Roods, and 
 also charRiriR the defendants with fraud. 
 In their answers the defendantM insisted 
 that the Roods had become absolutely the 
 Iiroperty of Marie; that ho had not been 
 reciuested to Rive the notes, and that In 
 conse(|uence of his failure. It was believed 
 that the complainaiiiH were unwillinR fo 
 receive them; that since the failure of 
 .Marie, the other defendant, \'aret, hail paid 
 aii<l satisfied all the cuslomhouse bonds 
 and notes for which he was responsible. 
 Var«-t denied all knowleilRe on his part of 
 the terms of the sale tci .Marie, that such 
 terms were not complied with, or that the 
 Roods were not paid for; and botlidefend- 
 aiits denieil all fraud, &c. 
 
 The cause was heard on bill and answer, 
 and the chancellor decreed that the bill lie 
 dismissed. For the reasons of his deci- 
 sion, see 2 PaiRe. IGl). The complainunts 
 apiiealed. 
 
 <". (Jraham and .1. TnllnindRe. for nppel- 
 lanls. (.". Baldwin, for respondents. 
 
 Mr. .Justice MAItCY. The <iuestlonB 
 presented by this case for our determlnn- 
 tion, are: 1. Wa.s there a sale of the IS 
 packaRcs of merchandise by the appellants 
 to Marie? 'J. Had the appellantsa lien on 
 the property when they demanded it at 
 Norfolk or New Y'ork? 
 
 The validity of the sale is iiuestioned up- 
 on twoRrounds: 1. The contract of sale 
 was never complete, it is sai<l, Ik cause t!ie 
 purchaser Marie did not comply with the 
 condition upon which its valiility depend- 
 ed. The position that where any thing 
 remains to be done to eoniplele a con- 
 tract of sale, the title of the iiroperty does 
 not pass to the purchaser, has had the 
 sanction of too many decisions, and is too 
 Renerally aciiniesceii in, to reijuire theclta- 
 tion »)f authorities to sustain it. Indeed 
 it was not (|ueslioned on the argiiinent. 
 l!y the terms of the sale, promissory notes 
 were to be Riven liy Marie for the Roods, 
 payable at six, seven, elRht, nine and ton 
 months. These notes have never been 
 Riven, and if the RiviuR of them has not 
 been waived by the appellants or their 
 aRcnt, the title "to the Roods has not vest- 
 eil in the piiiehaser. The Roods were de- 
 livered without re(|iiirinR the notes. .Marie 
 says the notes have nevi'r been demanded, 
 and he has been williiiR at all times to 
 Rive them, but believes the appellantsslnce 
 his failure are nnwilliuR to receive them. 
 It is contended that there has been n 
 waiver of this eoiidilion of the contract. 
 When- the ileliver.v is aosolule it is a waiv- 
 er of the condition of payment or civinR 
 security; ami we search this case In vain 
 for anv facts that can warrant an infer- 
 ence tfiat the delivi'ry of the Roods wils 
 not fair and unconditional. If the appel- 
 lants dill not intend that Marie slinuld he- 
 come vested with the absolute property 
 in the Roods. " they were liounil."as Ch. J. 
 Parsons said In the case of Hussey v.
 
 524 
 
 LUPIN V. MARIE. 
 
 Tliorntiin, 4 Mass. K. ■10."). "to recollect tlie 
 conililioiis they had tlieiusclve.s made, and 
 not to deliver the pacUasies till the condi- 
 tioiiH wore comiilled with." It has been 
 held, where goods weresold to be paid for 
 in ea.sli down, that the delivery, without 
 domandinff the money, vested the title of 
 them in t!ie purchaser. Haswell v. Hunt, 
 assiKuoe, &c., cited in 5 T. U. 2:i\. The de- 
 livery of the tliinssold, made uncondition- 
 ally, and not procured by fraud, vesta the 
 absolute propert^MU tbepurcha.ser. Chap- 
 man v. Lathrop, 6 Cowen, llo, and cases 
 cited, and note. 
 
 The second ground of objection to the 
 validity of the sale is mistake or error. 
 The alleged mistake was not in the article 
 sold, or in the identity of the person pur- 
 chasing, but in the ability of the purchaser 
 to pa.v. The appellants sold toone whom 
 they l.elicved to l>e solvent, but who was 
 not so in fact. The case sliows that there 
 was in this respect a mutual misapprehen- 
 sion. No objection can tlierefore be raised 
 to the contract on the ground of fraud. 
 Marie did believe and had good reason to 
 believe, that he was solvent when he en- 
 tered into the contract. To invalidate 
 contracts upon the ground that one of 
 the parties was mistaken in tlie ability of 
 the other to execute, would bj establish- 
 ing a doctrine unknown,] think, to any 
 code, and of the most dangerous conse- 
 quences. If the circumstances of the pur- 
 chaser may be inquired into %vhenever the 
 seller wisiies to disaffirm a contract, the 
 commercial world, by the e.vercise of this 
 right of inquiry, would Ije thrown into 
 the greatest confusion. I presume that 
 the appellants do not contend for an ap- 
 plication of this doctrine lieyond a case 
 like their own — a case where the insolven- 
 cy of the purchaser is notorious and ac- 
 knowledged: but if theprincii)leof thedoc- 
 trine is that the seller can disaffirm the 
 sale because the purchaser has Ijeen dealt 
 witl) as a solvent person, when he was in 
 fact insolvent, the mistake, whenever it 
 existed, would authorize theoriginalown- 
 er to reclaim tlie property the moment of 
 a default in the payment and perhaps an- 
 ticipation of it ; and he might allege tliis 
 insolvency and default to exist in any 
 case, and seek to enter upon an inquiry in- 
 to thecircurastaiicesof tliepurchaser while 
 he was in active business and his credit 
 unimpaired. I cannot consent to yield the 
 least countenance to such a doctrine. 
 
 The remaining question to be settled re- 
 lates to the lien which the appellants 
 claim to have had on the property. The 
 assignment of it to Varet was not in the 
 usual course of trade; it was voluntary 
 on the (lart of .Marie and for the purjiose 
 of indemnifying Varet against antecedent 
 resi)onsibilities. If there would have Iteen 
 a lien without tlie assignment, the assign- 
 ment did not operate to discharge it. The 
 rule of law in relation to real estate is, 
 that the vendor has without any express 
 agreement for that purpose, a lien on the 
 premises conveyed, even after j)ossession 
 thereof is delivered to the purchaser, for 
 the purchase money, provided lie has not 
 taken a distinct and independent security 
 therefor, and the land has not passed by 
 a bona fide sale to a third person. The 
 
 chancellorheld in this case that such a rule 
 does not exist in relation to personal prop- 
 erty. Whetiier it does oi not we arc no .\ 
 to determine. By the Roman law the 
 vendor could in such a case as this resort 
 to the property; and so, I think, he may 
 liy the civil code of France, notwithstand- 
 ing article 15!S3, which changes the civil 
 law and conforms to the common law, so 
 ifar as to vest the title in the purchaser 
 j without delivery or payment of the jirice. 
 j Code Napoleon, art. 16.j4, 11*<.3, 4. Dig. 
 Lib. LS, tit. 1, /. ID. All contracts of sale, 
 although positive in their terms, accord- 
 ing to these laws, have, it is said, this im- 
 plied condition; "provided the price is 
 paid." 7 Coursde Code Civil, 1.52, par Del- 
 vincourt. It was admitted on the argu- 
 ment by the counsel for the appellants, 
 that the decisions of the English courts 
 [fui'nished but little or no countenance to 
 [the doctrine they advanced; lint this was 
 i asci'ibed to a provision in the bankrupt 
 jlaw of that country, which declares that 
 I the goods found in the possession of the 
 j tiankrupt subject to his order or disposi- 
 I tion as owner, shall p.-iss to his assignee, 
 I though they be in fact the property of 
 i others. This statute would cut off this 
 i lien incases of bankruptcy where it would 
 j most frequently arise; but it would often 
 1 arise where there was no bankruptcy. If 
 iit is a rule of the common law, it must 
 I be shown to have existed at some period. 
 j This is not a matter confined exclusively 
 I to commercial dealings and to l)e settled 
 I by commercial usage. In France it is not 
 j a provision of the commercial code alone; 
 jit is founded in the Civil Code, and has a 
 ; general application to all sales. Are we 
 i then to recognine the rule as a part of the 
 |commonlaw? This, I think, we cannot 
 ] do unless we have some proof that it isso. 
 I We are asked to infer its existence in rela- 
 tion to personal property, because it ex- 
 j ists in the case of real property ; but even 
 in relation to real pro|)erty it does not ex- 
 [ ist as a rule of the ancient common law ; 
 I it is a doctrine of equity, and not of law. 
 iand was transplanted into equity from 
 'the civil law. Hut it may be said that if 
 ] ecjuity can adopt the rule of the civil law 
 1 as applicable to real estate, it may adopt 
 j it in extensn. If we tind it as it is claimed 
 : in this case in our system of eciuity, with- 
 i out inquiring liow or when it came there, 
 ' whether by a bold act of adoption or by 
 insinuation, whether it is to be reverenced 
 for its age or admired as a modern im- 
 provement, we ought to give the benefit 
 of it to the api)ellanfs. We are referred 
 to no case on the argument, and I think 
 the search would be in vain to find one, 
 wherein it has been decided in a court of 
 law or equity in this country or in Eng- 
 land, that after a sale of personal jiroper- 
 ty and a fair and alisolnte delivery to the 
 purchaser personally, the vendor can re- 
 claim the property because the considera- 
 tion has not l)een paid. 
 
 There is an intimation of Lord Hard- 
 wicke,in Snee v. Prescot,! Atk. 1'4.'), which 
 conveys his opinion of the reasonableness 
 of the doctrine, that the seller of goods 
 should have a right, in cases of insolvency, 
 to resort to the goods sold, even after 
 delivery, to secure himself for the pur-
 
 LUPIX V. MAIHE. 
 
 525 
 
 fliiiso motio.v; but tlio caHedid not prt-Hcnl 
 n Htato of fnctH on which Hiich a (|i)(.'Mtioii 
 could arise (or lii.s deU-i-rnina tioii ; it wan 
 a (di'ar case of HtoiipaKi'in transitu. .Soniii 
 expressions of Lord Loudllljoronuli, in the 
 ease of Mason v. Liclvl)arro\v, 1 II. I!lacl<. 
 :!(llp, wonid seem to place the rijilit of stop- 
 page in transitu n]ion the Rronnd that the 
 Kale is HO far incomplete, until theiMirch.ise 
 money Is paid, as to prevent the titlelrom 
 vesting absolutely in the purchaser. "The 
 admitted right of the conHij;iior, he says, 
 to stop the goods in transitu as against 
 the consignee, can only rest upon his orig- 
 inal title as owner not divested, or upon 
 a legal title to hold the possession of the 
 goods till the price is paid as a pleilge for 
 the price." I'utting the right upon the 
 latter nlternativ<', no inference can be 
 drawn from it to countenance the doc- 
 trine contended for in thiscnse. .Mtliongii 
 the cases in relation to the stoppage of 
 property in transitu were referred to on 
 the argument, and the d<JClrine discussed 
 somewhat at large, an examination of 
 these cases, or a particular consideration 
 of that doctrine, does not seem to me to 
 be called for to enalde ii« to come to a 
 right conclusion in this case. If there is 
 
 any r'rinci(de established In law, it Is that 
 the right to sto|) in trannitu exists only 
 during the transit of the property; when 
 that is coiiiplele. and the property has 
 come fairly ami fully to the possi-Kslon of 
 the purchaser, the right is at an enil. 
 
 It was urged on the argument, tliat Uio 
 doctrine lontended for on ti.e part of the 
 a[)pellants is so salutary, if wedid not find 
 it sanctioned by any other court, wo 
 ought to take this occasion to legitimatize 
 It. In reply to this suggestion, 1 will bor- 
 row the language of .Mr. .Inslice .Story, in 
 the casi! of Conyers v. Knnis, '2 .Mnson, 'SK, 
 in wliich <iueslionH, in all respects similar 
 in principle to those now under consider- 
 ation, were decided ns I propose to decide 
 these: "I clo not sit here to revise tlie 
 general judgment of the common law, ur 
 to establish new doctrines, merely l)PcaUBO 
 they seem to be more con venlent ore^iui- 
 table. My duty is to administer tlie law 
 as I lind it, and I have not the rashness 
 to attempt more than this humlde duty." 
 I am ofoplinon that the decreeof thcchan- 
 cellor ought to be nnirmed. 
 
 Tills being the unnnimouaopinlon of the 
 court, the decree of the chancellor was 
 thereupon ntUrmed, with costs.
 
 MACOMBER v. PARKER. 
 
 527 
 
 MACOMBER et aL v. PARKER. 
 
 (13 Pick. 175.) 
 
 Supreme Judicial Court of Massachusetts. Mid- 
 dlesex. Oct. 20, ls:i2. 
 
 Replevin for three kilns of bricks at- 
 tached \>y the defendant on several writs 
 aprainst Joseph Evans. Flea, property lu 
 Kvaiis. Hepiiention, property in theplain- 
 tiffs. Trial before Shaw, C. J. 
 
 It was proved that Hunting and I.,nw- 
 renre had a certain brickyard in Cam-' 
 bridge. orlu;iiinlly leased by A. liianey to .J. | 
 Wilson, who assigned the lease to Hunt- 1 
 inc & Lawrence. | 
 
 On the Ist of March 1S20, the followins ; 
 a};''cenient was made betwfcii Uuntin;;! 
 & Lawrence on one part and Kvnnson the ; 
 other: — "Memorandum of an agreement i 
 &c. shovveth, that said Evans has aftreod 1 
 to make or cause to be made from ei^rht ; 
 to ten hundred tliousaiid good niercliaut- ( 
 able brick in the brick-yard at CambridKo : 
 &c.; said Evans agrees to hire the men 
 and board to the best advantage, to per- 1 
 form the manufacturing of said brick, an<l i 
 said Evans agrees to give in his time and | 
 services in making said brick; and said i 
 Hunting & Lawrence agree to attend to 
 selling of brick, purchasing of wood and 
 all necessary materials for the raanufac- 
 Inring, collecting the bills &c. to the liestj 
 advantage, and after the l)rick are made, | 
 and the labor and board of the men are 
 paid, and all materials and tools of ever.v [ 
 kind are paid for, and the said Evans' 
 paying to said Hunting & Lawrence sixty | 
 cents per thousand for each and every 
 tlionsand brick made or claj- sold, as rent 
 therefor, then the parties agree to share 
 the profits or loss, as the ease may be, one 
 half each; said Evans agiees to pay every 
 attention to have the brick made in the 
 best manner and in good season for mak- 
 ing brick ; said Hunting & Lawrence shall 
 have full power to retain said Evans's 
 part of the brick or money collected or 
 delits due for brick &c.,in their possession, 
 to the amount of all sums of money now 
 due from said Evans and such other sums , 
 of money, goods &C., as they may from ' 
 time to time advance him ; all of which the 
 parti'^s agree to perform acconliiig to the , 
 true Intent and meaning." i 
 
 .\o lease of the yard was given to Evans, i 
 and Hunting testified that Hunting & 
 Lawrence expected to secure to them- 
 selves, by the foregoing contract, a ll"n on , 
 the bricks to be manufactnrCil in purwu- ; 
 ance tliereof, for the payment of any bal- 
 ance that might be due them. 
 
 The plaintiffs offered to prove, that un- ! 
 der such contracts for the manufacture 
 of Inicks, it is customar.v for the owners 
 of .yards to retain all in their liands and 
 account with the makers of bricks for their 
 share of the profits, after the sales are ' 
 rcnde and the proceeds collected. ThisI 
 evidi'ncp was rejected bv the Court. 1 
 
 On the 3d of Julv IM".). Hunting & Law- 
 rence stopped payment and assigned nil 
 their property, including the brick yard 
 and all their interest therein and proper- 
 ty thereon, to the plaintiffs, for the benelit 
 of the creditors ol the assignors, and on 
 
 the same day delivered poRHexRlon of the 
 yard and all the i)ro|.erty thereon to the 
 plaintiffs, in presence of Evans; and the 
 plaintiifs then and there a|)puinted Evaua 
 their agent, by a writing ns folhjws:— 
 "You will please take the charge anil care 
 of all the property and effcct.s in and about 
 the l)rick-yard &c., the said property hav- 
 iiig been this day asslgtied to us &c., you 
 will proceed to sell the same at retail until 
 further orders from us, for cash only, and 
 whenever :|f 100 is received, you will depos- 
 it the satne in the lirancli liank tr> our 
 credit. Please keep and render uh uu exact 
 account of your doings herein." 
 
 Hunting & Lawrence made larga ad- 
 vances for the yard in 1"<J'J. Evans as 
 agent of the |)laiatirfs, thus appointed, 
 sold bricks to (livers persons. 
 
 On Friday, February 2<J. ls:!0. the plain- 
 tiffs |iut a stop to sales l)y Evans, and di- 
 rected Hunting, who had been their agent 
 in the liuslners of the yard, to makea final 
 settlement with Evans; and Hunting and 
 Evans thereupon looked over the state- 
 ments and accounts aud cast them up (or- 
 that purpose. 
 
 Hunting testified that at this settle- 
 ment Evans agreed to cart all the bricks; 
 the common bricks, at live shillings per 
 thousand. No price was lixed forthe faced 
 bricks. I'poii the settlement, the witness, 
 in liehalf of the assignees, agreeil to take 
 all the bricks at certain estimated prices. 
 The assignees meant to take all the prop- 
 erty and allow Evans his half in account. 
 The bricks were estimated at .'ITD thou- 
 sand, and at the cslimateil priiesaniount- 
 ed to SPISUO; the lioiird &c. at $'^W: mak- 
 ing yi;(i:50. Taking the wliole to the ac- 
 count of the assignees and creiliting Evans 
 his part, there wiiuld still lie a balance 
 due to the assignees, which was to be 
 I)aid in carting. It was agreed, that if 
 the bricks overran the estimatol nuinber, 
 the assiirnces should account to Evans, 
 and if they fell short, he should account to 
 them, for the difference. They were to be 
 counted in the ctinise of the ensuing week. 
 It was agreed that this should be a ilelin- 
 itivesettlement, as Evans was not to take 
 tlieyard again. .Nothing remalueil but to 
 count the bricks, and make the allowance 
 on the one i-ide or the other, if the number 
 vnrieil from tlie estimate. Oncrossexam- 
 ination the witness testilled, that at this 
 settlement there was an express unil'.T- 
 standing with Evans, that the assignees 
 were to take the bricks to their own ac- 
 count; it was a sale of his half. Evans 
 stated expressly that the workmen had 
 all been iiaid. and that he had paid all 
 charges. Evans after this sctllemi-nt car- 
 ried one load of bricks to O. \V. lilake. 
 The assignees were to take Evans's half, 
 as they owned one half l)efore. The wit- 
 ness considered the bargain and sale com- 
 plete, except tliat the bricks were to be 
 counted. 1 hat was to be done the fort>- 
 part of the ensuing week. When the wit- 
 ness went over to take the count, he toiiml 
 the l)ricks had been attachcil as the prop- 
 erty of Evans. Had it not beenfor theiit- 
 tachmeut. a reguliir account current 
 would have been settled. The witness un- 
 derstood that ICvans was to proce»'d Im- 
 mediately to cart the bricks to Uoston,
 
 528 
 
 MACOMBER v. PARKER. 
 
 which he sulicilt-d, but the finalsettlenipnt 
 was not to wuit till the bricl<H were cart- 
 ed, hut was to be tinished as soon as they 
 were counted. 
 
 Tlie defendant was proceeding in his de- 
 fence, when a question arose, whetlier the 
 plaintiffs liad made out a prima faciecase. 
 It being necessary that they should show 
 that they were the sole owners of the 
 property in these bricks, two preliminary 
 questions arose, viz: — 
 
 1. Whetlier by the terms of the contract 
 Evans was interested in the bricks, as 
 joint tenant or tenant in common, when 
 they were made in pursuance of the con- 
 tra( t and were fit for market; — 
 
 2. If that were so, then whether upon 
 the facts stated, such a sale and delivery 
 had been niade by Evans before theattach- 
 ment, as to divest his interest. 
 
 A nonsuit was ordered, subject to the 
 opinion of the whole court. 
 
 D. A. Simmons and Gay, for plaintiffs. 
 Buttrick and Ashmun, for defendant. 
 
 WILDE .r. delivered the opinion of the 
 court. It was objected at the trial, that 
 the plaintiffs had not made out a prima 
 facie case, and two questions were there- 
 upon reserved for the consideration of the 
 whole court. 
 
 1. Whether by the terms of the contract 
 between Hunting & Lawrence and Evans, 
 the latter, under whom the defendant 
 claims, was interested in the bricks in 
 question as joint tenant or tenant in com- 
 mon, when they were made in pursuance 
 of that contract and were fit for market. 
 
 2. If that were so, then whether, upon 
 the facts proved, such a sale and delivery 
 had been made by Evans at the time of 
 the defendant's attachment, as to divest 
 his interest. 
 
 As to the first question, we are of opin- 
 ion, that by the terms of the contract, the 
 bricks when made were the joint property 
 of the contracting parties. By this con- 
 tract Hunting &Lawrence %vere to furnish 
 the materinls for raanuiacturing the 
 bricks, and to attend to tlie sale of them ; 
 Evans on his part undertook to manufac- 
 ture the bricks, to hire and board the la- 
 borers employed for that purpose, and to 
 allow Hunting & Lawrence sixty cents 
 per thousand for every thousand of bricks 
 nia<le or clay sold, as rent thereof; and 
 after all expenses should be paid, then the 
 parties agreed to share the profit and 
 loss, as the case might be. one half each. 
 That this amounts to a complete con- 
 tract of partnership, cannot, we think, 
 admit of a doubt. Partnership is defined 
 to be a voluntary contract between tw(. 
 or more persons, for joining together the'r 
 money, goods, labor.and skill. or either or 
 all of tlieni, upon an agreement, that 'he 
 gain or loss shall be divided proportiona- 
 bly between them. Gow, 2. With this 
 definition the contract in question fully 
 agrees. It contains every essential requi- 
 site in a contract of partnership, 'i he 
 parties agreed to join together their prop- 
 erty, skill and labor, for the purpose of ac- 
 complishing an enterprise, in wliich they 
 were to have a comm union of interest and 
 a communion of profit and loss. The 
 
 brifks, therefore, when made were their 
 joint property, and when the partnership 
 was dissolved, and Hunting «fe Lawrence 
 assigned their share to the plaintiffs, the 
 latter became tenants in common with 
 Evans. 
 
 The plaintiffs offered to prove, for the 
 purpose of showing that Evans had no 
 property in the bricks, and was only enti- 
 tled to a share of the jiroceeds of sale of 
 them when disposed of, that it was usual 
 and customary for the owners of yards, un- 
 der similar contracts, to retain all in their 
 hands, and account with the makers of the 
 bricksfor theirshareof the profits after the 
 sales were made and proceeds collected. 
 This evidence was rejected by the judge 
 who presided at the trial, and we think 
 very properly. The usages of trade may be 
 admitted to aid in tlie construction of 
 doubtful contracts; but the terms of the 
 present contract are by no meana doubtful. 
 So far as the question of partnership or of 
 the light of property is concerned, the con- 
 tract is clearly and explicitly expressed, 
 and the supposed usage, if admitted, could 
 not affect its construction. It would only 
 prove how other parties had considered 
 similar contracts. Indeed, it would hard- 
 ly prove so much, for if other owners of 
 yards had retained possession of the prop- 
 erty there manufactured, it might be by 
 consent, or for the convenience of the par- 
 ties, and not under the claim of any legal 
 right. Besides, the contract expiessly ad- 
 mits that Evans would be entitled to a 
 share of the bricks, and stipulates that 
 Hunting & Lawrence might retain the 
 same as security for an.v lialance which 
 was or might be due from him to them ; 
 BO that the evidence of usage, if it were 
 admissible, would be wholl.v immaterial. 
 
 The remaining question is. whether be- 
 fore the attachment by the defendant 
 there was a valid sale from Evans to the 
 plaintiffs. It is ol)jected in the first place, 
 that the contract of sale wasnot loraplet- 
 ed, because the bricks had not been count- 
 ed according to the stipulation lietween 
 the parties to that effect. Ari<l if the 
 counting was intended by the parties to 
 precede the completion of the sale, then 
 undoubtedly the objection must prevail. 
 The evidence, however, does not support 
 this objection, but rather shows that the 
 sale was considered as complete and ab- 
 solute at the time when the settlement 
 between Evans and the plaintiffs was 
 made; or at least the jury would he war- 
 ranted by the testimony of Hunting, to 
 find that such was the intention of the 
 contracting parties. Tlie whole bricks 
 'vere estimated at 370 thousand. Evans 
 sold his share in the whole and received 
 pay in account, and a balance was due to 
 the plaintiffs which was to be paid for in 
 carting the bricks, so far as that might 
 go. It is true the liricks were to be count- 
 ed, but that was to be done to enable the 
 parties to come to a settlement of their 
 accounts, and not for the purpose of com- 
 pleting the sale. Taking the whole of 
 Hunting's testimony together, this, we 
 think, is the reasonable inference to be 
 drawn from it. If the bricks had been ac- 
 tually delivered, there could have been no 
 question that the sale would have been
 
 MACOMBER o. PAUKER. 
 
 529 
 
 complete, notwithslniidinK the bricks 
 were to he afterwards cnunted. The Ken- 
 ertil iiriiiciple is. that where any operation 
 of wcislit, ineuHureuieiit. coiuititif; or tlie 
 lll<e, rcii.diim to lio performed, in nriler to 
 aHcertain tlie price, the (|uaiitity or the 
 particular ((itnmoility to l>e delivere(i,nn(l 
 to put it in adeliverablo Htate, the ccjn tract 
 is incomplete until such operation is per- 
 formed. Urown on .Sale.i, 44. Hut where 
 the (.rooils or commodities are actually 
 delivered, that shows the intent of the 
 parties to complete the sale liy the deliv- 
 ery, an<l the weishins or mensurinK or 
 counting afterwards would not he consid- 
 ered as any part of the contract of sale, 
 hut Would he taken to refer to the adjust- 
 ment of the final settlement as to the price. 
 The sale would he as complete as a sale 
 upon credit hefore the actual payment of 
 the price. Nothiufi can he f<iund in any 
 of the numerous cases on this point, whicii 
 militates a;;ainst this positiou. 
 
 U'e come, then, to the second objection 
 to the sale, namely, that there was no de- 
 livery. In answer to this objection it was 
 said, as Evans agreed to cart the bricks 
 and did actually cart one load after the 
 sale, this may be considered as a delivery 
 of a part umler an entire sale, and so ac- 
 cordiiiK to the authorities would amount 
 to a constructive delivery of the whole. 
 I'erhaps this may he so, hut we do not 
 think, under the circumstances of this case, 
 that any actual delivery was necessary. 
 The plaintiffs were in fact as much in pos- 
 LAW .SALhS — 34 
 
 Bession o( the bricks hh Evumh woh; he 
 was their aKent; the bricks were retiinln- 
 ins in their yard, and under the circum- 
 stances proveil, a delivery would he nlto- 
 Kether an unmeanin;; ceremony. The 
 plaintiffs aoceptefl the hrii-ks, i;ave ordeiv 
 t(j Evans to cart tiK'm, and in all respecls 
 treated them as their property. The sale, 
 tlieref(jre, amounleil to a transfer, aad 
 was so considered by the parties. 
 
 Then it was ol)jected, that the sale was 
 void liy the statute of frauils; hut as here 
 was a delivery of a part, that alone would 
 take the i-ase out of theslatute. But that 
 which took place was eijuivalent to a de- 
 livery of tlie wh<;le, and therelore theslat- 
 ute of frauds can have no application. 
 Whether this sale was void as against 
 creditors, is a (jucstion not now to be con- 
 sidered ; nor have we considered the ques- 
 tion, whether the plaintiffs, before the sale, 
 had a lien on the brick as security lor the 
 balance due them from Evans, since our 
 opinion as to the sale renders this (jues- 
 tion immaterial. These <|uestioDs may be 
 raised <in another trial, but at present wp 
 contine ourselves to the two questions 
 reserveil by the report. As to one of 
 these questions, n'\mely, that touching 
 the sale, evidence may be offered by the 
 defendant which may have a material 
 bearinjr; but as the evidence is reporfcfl. 
 we are all of ojiinion that the plaintiffs 
 have made out a [irima facie case, and the 
 nonsuit must be set aside and a new trial 
 . granted.
 
 McCONNELL v. HUGHES. 
 
 531 
 
 McCONNELL v. HUGHES. 
 (2!1 Wis. 537.) 
 Supremo Court of Wis 
 
 Wisconsin. January Term, 
 
 l!57J. 
 
 Appeal from circuit court, Ureeii Luke 
 county. 
 
 Ryan & Kirobnll, for af)pellnnt. A. B. 
 Hamilton and Butler & VVinl{ler, for re- 
 HI)oiii]unt. 
 
 LYON, .1. The bill of exceptions does 
 not |)urp()rt to contain all of the evl- 
 ilciife. 
 
 We cntinot, tluTcforc, review the evi- 
 dence, but luuHt preMunie that it HiiHtniuH 
 the lindintis of fact by the ciicnit court. 
 That court havini; found that then)aterial 
 nllfgntions of the complaint were |)roved, 
 it follows that if the complaint statcH a 
 valid cause of action, the plaintiff was en- 
 titled lo judKUient. 
 
 We think that the complaint does state 
 a valid cause of action. It avers that an 
 executory contract for the sale and iiur- 
 chase of wheat was made by the partii^s, 
 and that, in pursuance thereof, the plain- 
 tiff delivered to the defendants, and the 
 defendants acccpteil and received the 
 wlieat. It must lie true that by such de- 
 livery and acceiitanc(! the title to the 
 wheat became vested in the defendants, 
 and the ri^iht to have the price therefor, 
 when the same should be determined as 
 pr(»vided in the contract, in like manner 
 became vested in the plaintiff. 
 
 But it is ursed on benalf of the defend- 
 ants tliat the transaction was invalid as 
 a sale, l)ecause the contract did not lin)it 
 the plaintiff to the selection of any i)artic- 
 ularday,orof a day within a specilied 
 time, on which the market price of wheat 
 in Milwaukee should control the i)rice of 
 the wheat in (lucstion, but left him the 
 o|>ti()n to select any day in the future for 
 the purpose of fixinjr the price. 
 
 The contract furnishes a criterion for ns- 
 certainiuK the t)rice of wheat; leavini; 
 
 nothiiiK In relation thereto for further 
 negotiation between the parties. This in 
 all that the law re(|uiicM. .Story on Sales, 
 §220. No casB has been cited, and we are 
 unable to find one, which holds that It Is 
 essential to the validity of a sale in such 
 cases that the criterion agreed upon 
 should, by the terms of the contract nf 
 sale, be apidicd, and the price tlieieby de- 
 ternnned, on any specilied day or within 
 a specified time. ,Iuil};e Story, In the sec- 
 tion of his treatise above cited, evidently 
 does not intend to lay down any such 
 rule. It may be that, if the pliiint'iff had 
 delayed unreasonal>ly to make such selec- 
 tion after beins requested to make the 
 same, he noRht be comiiellod to do so. 
 But we do not decide this |)id:it. 
 
 It is further argued that, after a valid 
 sale and before payment of the jirice, there 
 must be a debt owinc by the vendee to the 
 vendor, while in this case, until the price 
 of the wheat was ascertained, there was 
 no indebtedness. The latter part of this 
 I)ro|)c)sition is erroneous. As soim as the 
 wheat was delivered, thedift-ndants owed 
 the iilainliff therefor. There was there- 
 fore a debt, but the nmo\int thereof was 
 not ascertuiucd. It remalnrd unliqui- 
 dated until the price of the wheat was de- 
 termined. 
 
 The cd)jectionR that the assessor couM 
 not list the claim for the price of the 
 wheat for taxation, and that the same 
 could not be reiiclieil by garnishee process 
 at the suit of a creditor of the plaintiff, 
 while such price remained und(tern)ined, 
 |)resent no practical dillicultles. The 
 assessor would fix the value of the deuiaml 
 according to his best judgment as in 
 other cases of the valuation of propert.v 
 and credits; and the creditor in the gar- 
 nishee proceeding would prol)ably be sub- 
 rogated to the rights of the plaintiff in 
 respect to determining the contract price 
 for the wheat. 
 
 BY THE COURT. The judRment of 
 the circuit court is atlirmed.
 
 McCRORY V. HAMILTON. 
 
 533 
 
 McCRORY V. HAMILTON. 
 
 (39 111. App. 490.) 
 
 Appellate Court of Illinois. Jan. 34, 1S91. 
 
 Action by JameH numilton aKoinHt 
 William K. McCrory. From a judgment 
 for plaintiff, (lefcnclant appealed. Re- 
 versed. 
 
 Fryer & NenI, for appellant. F. K. Dunn 
 and -laniea W. Craig, for appellee. 
 
 WALJy, .7. TliiH was an action of delit 
 on a replevin bond. Tlie replevin Huit 
 was brought Octob.-r 10, IfiS-l. by F. F. 
 Rand<ilpli ugainHt Robert Kanefor a ()ihiii- 
 tity o( barrel staves and .heading valued 
 at $400. The writ was executed by re- 
 |)!evying the property and delivering it to 
 the plaintiff. 
 
 The defendant died pending the suit and 
 his adniinisti-ntor was made a party in 
 his stead and at the Seiiteniher teiin, ISST, 
 the suit was disniisseil for want of pruse- 
 cution. The jjroperty not having been 
 returned the present action was brought, 
 resulting in a judgment of ?.">VJ 75 in favor 
 of the plaintiff therein, from which an ap- 
 peal is prosecuted to this court by defend- 
 ant McCrory, who was the surety on the 
 bond. Th(! tirst point niailein behalf of 
 the apiiellant is, that upon the death of 
 Kane the replevin suit abated and could 
 not be revived against his administrator. 
 
 By See. 123, Chap. ;{, R. .S., it is provided 
 that in addition to the actions which sur- 
 vive at common law the action of replevin 
 (and others named) shall survive. Hut 
 counsel urges that means merely that it 
 shall survive only in favor of the represent- 
 atives of the plaintiff, the injured party. 
 In Wehr v. Uroolvs, 21 111. App. ll.'>, we 
 held that the provision of the statute is 
 not HO limited and we see no occasion to 
 depart from that ruling. 
 
 It is next urged tliat the judgment in 
 the replevin suit is not suUiciently foiinal 
 and that it is not in terms u judirment 
 that the property be returned to the de- 
 fendant, a.s alleged in tlie declaration, but 
 merely that the defendant have a writ of 
 retorno habendo. 
 
 The objection is, as we think, not sub- 
 stantial. While the judgment Is some- 
 what informal. yet it is not so defective as 
 to he regarded as a nullity. In effect it 
 is an adjudication of cost against the 
 plaintiff and that theproiierty be returned 
 to the dcfendaL't. We are not inclined to 
 the very technical view suggested by ap- 
 pellant and must overrule tlie objection. 
 
 Certain objections to the action of the 
 court in admitting and excluiling evidence 
 are also considered not well taken, and as 
 we think they are not important in the 
 view we take of the merits of the case, 
 they need not be iliscussed. The main 
 question presented arises upon the evi- 
 dence and the conclusion tobedrn wn from 
 the stand |)oint of the appellee. The proof 
 shows that Kane was a cooper and that 
 Randolph was a miller; that Ranilolph 
 delivered a lot of the staves and heading, 
 of which the property replevied was a 
 part, to Kane, from which Kane mn<le 
 and was to make Hour barrels to be deliv- 
 ered to Randolph; that the material was 
 mostly worked u|) in this way when Ran- 
 
 dol;)li gave notice to Kane that he would 
 need no more barrels and ilemnnded the 
 staves and heading then on hand, which 
 demand not being compiled with the re- 
 I)k>vin suit was brought. The evidence la 
 contlicting as to the terms of the arrange- 
 ment, it being contended ou the part of 
 Randolph that the staves anil lieading 
 were always his property and that Kane 
 was to be paid for his wiirk at eighteen 
 cents per barrel; while, as Kane contends, 
 the staves and heading were sold to him 
 and became his nljHolute property nt cer- 
 tain rates named, and that he was to pay 
 for the same in barrels at certain i)riceH 
 named for liarrels of ten and twelve hoops 
 respectively. 
 
 It was evidently mn<Ie a question before 
 the jury upon which the case was sup- 
 l.iosed to hinge, whether the material was 
 sold to Kane or whether It always con. 
 tinned the property of Randolph. If the 
 latter, then it seems to be conceded that 
 no more could be recovere<l in this suit 
 than the amount of whatever was due to 
 Ivane for the work done by him when the 
 demand was made; l)ut if he purcliased 
 the property it is assumed that the value 
 of wliat was replevied may be recovered 
 without regard to the fact that it was 
 not fully paid for. 
 
 It seems quite clear that though the 
 form of the transaction may have been an 
 agreement to sell the materials to Kane 
 at certain rates and that he should sell 
 the barrels to be made out of It back to 
 Randol|)h at certain prices, yet it was not 
 in any proper sense a sale of properly on 
 either side as that term is usually under- 
 stood. 
 
 It was rather a delivery for the special 
 purpose of making up into barrels which 
 were to be delivered to Randolph. Had 
 Kane refused to do this or had he sold or 
 disposed of the propertj- in any other way 
 he would have broken his contract with 
 Randol|di. The mere fact that the wlt- 
 I newses may use the terms sell or sale or 
 that the parties may have used them, will 
 not make it a sale when, upon a consider- 
 ation of the whole matter, it ai)pears that 
 there was no sale. 
 
 We can not believe that it was intended 
 by the parties to change the general own- 
 ershi|> of the property, and whdo Kane 
 may have been and was invested with a 
 special ownership or interest. It was for 
 the puriiose and upon the express trust 
 that ho would do certain work upon it 
 and return it. He was to liecharged with 
 it at certiiin |)rires nnti was to be credited 
 with certain prices upon what lie was to 
 return. It is a misuseof terms to rail this 
 a sale on either side. 
 
 Kane had a lieu for any balance due hini 
 for the Work done, and If liandolpli ini- 
 prc>i(erly [irevented him frou) manulac- 
 turing the rest of the material, he was 
 also entitled to fair compensation for dam- 
 ages thereby sustained .-ind his lien woulil 
 include that item also; liuf we are of the 
 opiidon that this is the full extent of his 
 demand, in any event, even accepting the 
 testimony offered by the a |) pel lee as the 
 true version of the matter. The judgment 
 must therefore be reversed and the cause 
 remanded. 
 
 Reversed and remanded.
 
 MALLOKY V. WILLIS. 
 
 5:;5 
 
 MALLORY V. WILLIS. 
 
 (4 N. Y. 7«.) 
 
 Court of Appeals of New York. ISoO. 
 
 Rppleviii for sfvent.v-flvc burrclnof flour. 
 Tlu> pliiintiffs hiid contractPd with the 
 (Icft'tiilii II I. Christopher U'illiH. to di'liver ut 
 tlie Ho|ict()ii Mills a (|iiiiiitity of k'kxI 
 iiiL'U'h;iiit!il)li' wheat to lie niMiiiifaetureil 
 into flour on the following terniH: 
 For every four linslii'lK und fifteen pounds 
 of wheat, Cliiislopfier WilllH was to de- 
 liver one hnndred and ninety-wix poundn 
 of superfine flour, puckeil in liarrels to 
 be furiii-ihed by the plaintiffs. Said 
 Willis was to Kuarantee t!;e inspection of 
 the flour, anil if scratched, to pay nil 
 losses sustained therehy. Tlie plaintiffs 
 were to have all tl)e offals, or feed, etc.; 
 tlie suid Willis to store the saiiie until 
 sold. The plaintiffs were to i)ay si.xteen 
 cents for e;ich liarrel so manufactured, 
 and if tliey upkIc one shillinj; net profit on 
 every liarrel, they were to ])ay said Willis 
 two cents i)er liarrel extra. 
 
 The plaintiffs delivered thirty-two thou- 
 KOnil five luindred and eighty-six bushels 
 and four |)oiinds of wheat at the Hopeton 
 Wills, and received seven thousand six 
 hundred and sixty-seven barrels and one 
 hundreil and lifty-six pounds of flour, pur- 
 suant to the aureenient. The.v brought 
 this action of replevin aiiainst Christopher 
 Willis and Charles P.Willis, to recover the 
 surplus of seventy-five barrels still diie un- 
 d( r the c(jntract. The defendant Insisted 
 that the title to the wheat passed to Wil- 
 lis by force of the delivery uinler tiie con- 
 tract, and that, therefore, the plaintiffs 
 <-ould not recover the flour manufactured 
 from the same wheat. .lud^nieiit was 
 rendered in favorof the plaintiffs by Pratt, 
 .1.. anrl aflirrned by the jieneral term. 
 The defendants brouj;ht this appeal. 
 
 J. S. (Jlover, for appellants. 
 Wells, for regpondents. 
 
 S. H. 
 
 HURLBUT, J. If the contract was one 
 of fiailment, and if by a proper construc- 
 tion of it the defendants were entitled to 
 the surplus flour, I think Hiebunlen would 
 have rested on them of showing that the 
 article in f|UPstion was such^iurplus. after 
 the plaintiffs had established that it was 
 the produce of their wheat ; so that tnk- 
 iuK the most favorable view for the cie- 
 fendants, there was no error in point of 
 law ill this liranch of the decision at the 
 circuit, which would entitle them to ex- 
 cept, and t he only (|uestion for our deci- 
 sion is, whether tliecontra<-t and thedeliv- 
 ery under it amounted to a sale or a bail- 
 ment of the wheat? 
 
 The defendants refer us to that part of 
 the contract which binds them to deliver 
 a barrel <if superHne flour ami to iiuar- 
 nntee its inspection, for every four ami 
 one-fourth bushels of wheat, which it is 
 alleged, if the plaintiffs' construction is to 
 prevail, is not only an unreasonable and 
 hard contract for the defendants, but is 
 altoKether inconsistent with the notion 
 of a bailment ; fur it is asked, if it were 
 not a Hah', why shouhl the defendantH 
 
 Kuaranteo thRt the flour should bear In- 
 Mpectidii. or why sliould they acree for a 
 certain (|nantity of wheat to deliver a 
 barrel of (h.ur? It may be rein.irked In 
 answer to this, that the defendantM belntj 
 ex|ierienceil millers niust be deemed to 
 have contracted with a knowl'due of the 
 Muantily of wheat renuired to yield a 
 barrel of flour; and an the plaintiffs were 
 obliged by the contract to deliver uood 
 merchantable wheat, it seeniH but rea.-ton- 
 alile that the defendants hIiouIiI have been 
 required so to mannfucture It. us that the 
 flour would bear inspecliori; that iheHe 
 provisions must be viewed In the connec- 
 tion in which they stand, and rt>reive a 
 construction wliich shall make them liar- 
 tnonize with the whole expression of the 
 contract between the parties; and that 
 taking the whole UKreement into view, 
 they seem to have been inserted at the 
 8UK;je8tion of tlie plaintiffs, for the pur- 
 pose, in part, at least, of caiiHiiiK a skill- 
 ful and prudent manufacture of the wheat 
 into flour; and even if they were em- 
 ployed to define the quantify of flour to 
 be returned, they would not overlienr the 
 other provisions of the nt;r«'ement, which 
 import very clearly an underHtandinK 
 between the jiarties tliat the identical 
 wheat which whs delivered by the plain- 
 tiffs should be manufactured into flour (or 
 their beneflt; that they were to pay for 
 the work a stipulated prii-e in money, 
 anil to receive the manufactured article, 
 together with the offals or feed, which 
 should come from the wheat. The lan- 
 jruai^e of the ni;reement will hardly bear a 
 different construction. The plaintlffM by 
 its terms were to deliver wlii-at to he 
 manufactured into flour, which Willis 
 airreed to lio— i. e., he a^rreed to mniiu- 
 faclure the wheat so to be delivered into 
 flour. I5ut this provision would be en- 
 tirely oiitfif place in ane.vcliaime of wheat 
 lor flour. The jilaintiffs were t«) furnish 
 the liarrels in which it was to be packed; 
 thus providing every material forthecom- 
 pletion of the work, and leaving nothinK 
 for Willis to do but to perform the pro|ier 
 labor of a manufacturer. The plaintiffs 
 were moreover to have all the offals or 
 feed, etc.: not such a quantity of oifals as 
 would proceed from like quantity of other 
 wheat, but the offals or feed— i. e., such as 
 should come of };rindiuK the very wheat 
 ilelivered to the miller, who was also to 
 store the feed until the plaintiffs could sell 
 it. And in case Willis perfiiru:eil on his 
 part, i, e., in ease he mniiufartured the 
 wheat so delivereil into flour, with the re- 
 quisite skill anil jirudence. the plaintiffs 
 weiv to pay him at the rate of sixteen 
 cents, or in a certain contiuKi'ncy eight- 
 een cents per barrel, as .a cotnpensation 
 for the labor of mnnufacture. Proper 
 effect cannot be iriven to these provisions 
 of the agreement, without treating It as 
 a contract liy the defendants to inaniifar- 
 ture the plaintiffs" wheat Into flour, to de- 
 liver to them thesptvilic proceeds, at least 
 to the extent mentioned in tie contract, 
 and to receive in satisfaction for the work 
 the stipulated price per barrel. Contractu 
 of this sort, which have received a differ- 
 ent construction, will be found to have
 
 536 
 
 MALLORY V. WILLIS. 
 
 differed very niateriall.v from the present 
 in their terms, as will be seen by a l)riof 
 reference to the leading cases. 
 
 In Buffuni v. Merry (3 Mason, 478), the 
 plaintiff owned two thousand nine hun- 
 dred pounds of cotton yarn, and agreed 
 to let one Hutchinson take it at the price 
 of sixty-five cents per pound, and he was 
 to pay the plaintiff the amount in plaids, 
 at fifteen cents per yard. H. was to use 
 the plaintiff's yarn in making the warp of 
 the plaids, and to use for filling other 
 yarn of as good a quality. Under this 
 contract the yarn was delivered to H., 
 who failed without having manufactured 
 it into plaids, and assigned it with other 
 property for the benefit of his creditors. 
 The question was whether the property 
 in the yarn passed to H. by the delivery; 
 and Story, J., said that it did; holding 
 that it was not a contract whereby the 
 specific j'arn was to l)e manufactured into 
 cloth, wholly for the plaintiff's account 
 and at his expense, and nothing but his 
 yarn was to be used for the purpose. 
 That in such a case the projierty might 
 not have changed; Itut here the cloth was 
 to be made of other yarn as well as the 
 plaintiff's. The whole cloth when made 
 was not to be delivered to him, but so 
 much only as at fifteen cents per yard 
 would pay [or the plaintiff's yarn at sixty- 
 iive cents per pound. That this was a 
 sale of the j'urn at a specified price, to be 
 paid for in plaids at n specified price. (See, 
 also, Story on Bailments, § 283; Jones on 
 Bailments, p. 10:.'). 
 
 In Ewing v. French (1 Blackf. [Ind.] 
 353), the plaintiff delivered a quantity of 
 wheat to the defendants, at their mill, to 
 be exchanged for fiour. The wheat was 
 thrown by the defendants into their com- 
 mon stock, and the mill was subsequently 
 destroyed by fire. The court held this to 
 be a contract of exchange, or a sale of the 
 wheat to be paid for in flour ; that from 
 the moment the defendants received the 
 wheat they became lialile for the flour; 
 that the wheat itself was not to be re- 
 turned, nor the identical flour manufac- 
 tured from it. And this was very well, 
 for the contract was, by its express terras, 
 one of pxcliange. 
 
 In Smith v. Clark (21 Wend. S3), one 
 Hubl)ard owned a flouring-niill, and the 
 plaintiffs agreed with him to deliver 
 wheat at his mill, and he agreed that for 
 four hushelsand fifty-fivepounds of wheat 
 which should lie received, ho would de- 
 liver the plaintiffs one barrel of superfine 
 flour, warranted to bear inspection. Here 
 was nothing which imported a delivery 
 of wheat for the purpose of being manu- 
 
 factured, nor any agreement to make it 
 into flour and to receive a compensation 
 for so doing, at a certain price per barrel; 
 and it is obvious that Hubbard might 
 have delivered any flour of tlie quality 
 stipulated for, in satisfaction of the con- 
 tract. Hence it was held that the deliv- 
 ery of the wheat under this agreement 
 amounted to an exchange of the wheat 
 for flour, and that Hubbard on receiving 
 the wheat became indebted to the plain- 
 tiffs. 
 
 Jn Norton v. Woodruff (2 Comst. 153), 
 the defendant agreed to "take" wheat 
 and to "give" them one barrel of super- 
 fine flour for every four bushels and thirty- 
 six pounds of wheat; l)ut here also there 
 was the absence of a delivery for the pur- 
 pose of being numufactured, no compensa- 
 tion was agreed to be given to the miller 
 for his work, there was nothing about 
 offals, and nothing about the wheat-own- 
 er's furnishing barrels in which to pack 
 the flour. On the contrary, t/ie miller in 
 this case was to furnish the barrels. This 
 court gave proper effect to the language 
 of this contract by holding, that the mill- 
 er, by agreeing to take wheat and give 
 flour in return, had bargained for an ex- 
 change of wheat for flour; that any Hour 
 of the quality described in the contract 
 would have answered its requirements, 
 and that the property of the wheat passed 
 upon its delivery. 
 
 But in the case under review, Willis con- 
 tracted to manufacture the wheat deliv- 
 ered, and to receive compensation for his 
 labor. The flour, by whicli was intended 
 the produce of the manufacture, was to 
 be delivered to the plaintiffs in their own 
 barrels, and the offals were to be kept in 
 store as their jjroperty. These features 
 give a character to this contract so ma- 
 terially different from that which is borne 
 by the agreements wliicli have received a 
 judicial construction in the cases referred 
 to, that witli the fullest concurrence in 
 the justice of tliose decisions, it may be 
 held that the defendants were bailees and 
 not purchasers of the plaintiffs' wheat, 
 and b<fund to restore its proceeds to them. 
 I am, therefore, of opinion that the judg- 
 ment of the supreme court ought to be 
 affirmed. 
 
 JEWETT, .T., also delivered an opinion 
 in favor of afflrraing the judgment. 
 
 ROGGI.ES, GAKDINER, PRATT, and 
 TAYLOJ5, JJ., concurred. 
 
 BRONSON, C. J., and HARRIS, J, dis- 
 sented. 
 
 1
 
 MAKTINDALK c. SMITH. 
 
 539 
 
 MARTINDALE v. SMITH. 
 
 (1 Q. B. .■W!l.) 
 
 n. II. Krister Term, I\'. Vict. April 15, l-^ll. 
 
 Ti'dver for RoodH anil iihatteln, to wit, 
 Mi.\ HtJU'kM of oatH, etc., of wliieli piniiitiff 
 wii.s lawfully |ioMseHK('<! ii» of liin own 
 property, rieas: 1. Nol«Milly. 2. Tlmt 
 plaintiff was not posscsHcd of the koo<1h 
 and cliatlclH a.s of his own property, in 
 niaiiiicr an<l form etc. Iskiich thereon. 
 
 On the trial, l)efore Alder.son B., at the 
 Cnniherland Hprin;r aHhizen, 183!), it np- 
 I)eared that defendant, heiiin owner of six 
 HtaekH of ontH tlien Mtandiny; on his 
 around, sold them to the plaintiff, under 
 tlie following; written contract. 
 
 "April L':;d, ls:!S. Sold to .Mr. .lohn 
 Martindale of Catterlen six oat staeUH, for 
 .£S5. .loliii Smith ^iives .lohn .Martindale 
 lilierty to let the stacks stand, if he thinks 
 fit, nntil tlie middle of August next; and 
 .John Marlindale to pay ,lohn Smith tor 
 the .stacks in twelve weeks from the date 
 hereof." Sinned by the parties. 
 
 In the licKinnin); of .Inly, the defendant 
 told the plaintiff that, if lie. plaintiff, <lid 
 not pay on tlie Ititli of that month, de- 
 fendant would consider the contract at 
 un end. The plaintilf liid not pay on that 
 day, but afterwards reipiestiMl time, wliicli 
 the defendant refused to ;iive, addiiiy: that 
 plaintiff, as he had failed in i)aynieiit at 
 the time apl)ointed hy the contract, 
 should not have the stacks. Two or 
 three ilays afterwards, the plaintiff ten- 
 dered the money ; which the defeiiilant re- 
 fused to accept. On the 14tli of August, 
 the plaintiff served defendant with a writ- 
 ten notice, in which he reppate<l the ten- 
 der, and staled that he sliould attend to 
 remove the stacks on the next day at ten 
 in the inorninK, and demanded that he 
 should he then admitted to the held in 
 which the stacks were, re(iuiriii(; the de- 
 fendant not to sell thera. An actual ten- 
 der was then atrain made, and refused: 
 and defendant afterwards sold the stacks. 
 The defendant's counsel contended that 
 plaintiff, havlntt made default in payment 
 at the appointed day, was not entitled to 
 the possession. The learned judjie direct- 
 ed u verdict for the plaintiff, «ivin>r leave 
 to move to enter a verdict for the defend- 
 Hnt on the second issue. In Kaster term, 
 1S.'!!I, Dundas obtained n rule accordiii;cly. 
 
 Alexander and Knovvles shewed cause. 
 CresHwell, IJundas, and KamBhay, contra. 
 
 Lord DKNMAN, C. J. now delivered the 
 juilKinent of the court. After statiii« tlie 
 facts, his lordship proc<'edcd as follows: 
 
 UaviiiK taken time to consider of our 
 judt;nieiit, nwinu; to the doubts excited hy 
 a most iiiKcnious argument, whether the 
 vetKlor had not a riirht to treat the sale 
 as at an end and reinvest the property ill 
 
 liiinseir by reason ol the vendee's failure to 
 pay the price at the a|ipoiiited time, we 
 are clearly of opinion that he had no such 
 richt,aiid that the action is well brought 
 against him. F.ir the sale of u specilic 
 chattel on credit, thonuli that creilit miiy 
 be limited to a delinite period, traiisferH 
 the property in the >;oods to (he vendee, 
 KiviiiK the vendor a rinlit of actiiiii for 
 the iirice, and a lien upon tlie Koods, If 
 they remain in his possession, till tlial 
 price be [)aid. But that default of pay- 
 ment does not rescind the contract. .Such 
 is the doctrine cited by Hoiroyd .1. from 
 Com. Diir. Agreement. "(It. :!.),ln Tarlintj 
 V. Baxter'; and it will lie found consist- 
 ent with all the numerous cases referred 
 to in the course of the ar^ninent. In a 
 sale of chattels, time is not of tlie <"ssciice 
 of the contract, unless it is made so by 
 (■xpress aKreement, than which nothing; 
 can be more easy, by introilucinu condi- 
 tional (vords into the bargain. The late 
 case of Stead v. Da n her- does not apply, 
 depending; (as Parke B. truly observed In 
 Marshall v. Lynn, i'' not on the materiality 
 of the alteration in the contract, but on 
 the fact of the alteration only. 
 
 Pothier, in his Traile clu contrat de 
 vente, part. V. ch. 1'. s. (!,' rites tliefivil 
 Code for the firoposilion, that a purclias. 
 er's delay in paying the price does not 
 >;ive the vendor a rialit to reijuire a disso- 
 lution of the contract ; he can only exact 
 by le^al procedure the payment of the 
 price due to him. " Xon ex eo, ijuoil 
 emptor iion satis conventiimi fecit, con- 
 tractus irritns constitiiitur. "•'• lie adds, 
 however, that, from the dilliciilly of en- 
 forcing payment from debtors, tlie Krencli 
 law had departed from the riiiour of tlie.Ke 
 principles, perniittini; a suit for the disso- 
 lution of the contract for default of pay- 
 ment. Thejudse then appointed a more 
 distant day; which passed, and no pay- 
 ment made, the vendor was permitted to 
 resume possession of the tiling sold. But, 
 even after sentence of dissolution, the 
 purchaser may prevent that effect, niiil 
 keep what he has liou»<ht, by appealing, 
 and offering, on that appeal, the price 
 which he owes, with interest andexpeiises. 
 
 The vendor's right, therefore, to ilelnin 
 the thinn sold afj;ainst the purchaser must 
 t)e considered as a right of lien till the 
 price is paid, not a right to rescind the 
 bargain. And here the lien was gone hy 
 tender of the price. My brother .Mderson 
 directed the jury according to these prln- 
 ciiiles: and the rule for settint? aoiile the 
 verdict must be discharged. 
 
 lUile discharged. 
 
 ■ C B. & C. 3C.n, :!(52. 
 > 10 A. & E. 57. 
 'G M. & \V. 117. 
 •Art. ■17."'>. (Oriivres. I 
 "Cod. lih. iv. lit. 44, 5 14. 
 
 ■ 1 p. OIO. '.M IM.)
 
 MAUVIX SAFE UO. o. NORTON. 
 
 rAl 
 
 MAIIVIN SAFE CO. v. NORTON. | 
 
 (7 All. Rep. 418, 48 N. J. Uiw, 410.) 
 
 Siiiireiiiu Court of New .Jersey. Nov. 21), IS'nO. 
 
 On rertiornri to Mercer coininoii pious. 
 
 On May 1, lSS4,oiie Samuel N. Schwartz, 
 of UiKlitHtdWii, .Mercer couiily, New .ler- 
 ney, went to I'hilailelpliia, I'eniisylviniia, 
 and there, in tlie ollice of the pro.seculorH, 
 e.xeeiiled thefollowintj instrument : ".May 
 1, 1S.S4. .Marvin Safe Company: I'lease 
 send, as per mark ^iven below, one sec- 
 ond-hand safe, for wliieh the un<lersit;ned 
 ajirees to pay the sunt of eighty-four dol- 
 lars, (!ifs4, | seven dollars ca.sh, and halance 
 seven dollars per iiiontli. Terms cash, 
 dclivere<l on hoard at i'liila<lelphia or New ' 
 York, unless otherwise stated in writing. 
 It is agreed that Marvin Safe Company 
 stinll not relin<|uish its title to said safe, 
 hut shall remain the sole owners thereof 
 until aliove sum is fully paid in money. I 
 In event of failure to pay any of said in- j 
 stnllments or notes, when same shall be- 
 come duo, then all of sai<l installments I 
 or notes remaiuinn unpaid shall Imme-' 
 <liately become due. The Marvin Safe' 
 Company may, at their o|)tioii, remove' 
 said safe without lei;al process. It is ex- ■ 
 pressly iindeistood that there ore no con- 
 tlitions whatever not stated in this mem- 
 orandum, and the undiTsijined ay;i-ees to 
 accept and pay for safe in accordance 
 tlieri'with. Samuel N. Schwartz. .Mark: 
 Samuel N. .Schwartz. IliKhtatown, New 
 .lerse.v. Route, New .lersey. Not ac- 
 countal)le for damages after shipment." 
 Schwartz paid the first installment of 
 seven dollars. May 1, 1SS4, aiul the safe 
 was shipped to him the same day. lie 
 afterwards paid two installments of 
 seven dollars ouch, by remittance to I'hil- 
 ailelpliia by check. Nothing more was 
 paid. t)n .Inly 30, 1.SS4. Schwartz sold and ' 
 delivered the safe to Norton for $.V). 
 .Norton paid him the purchase money. 
 He hou>::ht and paid for the safe without 
 notice of Schwartz's asreemont with the 
 prosecutors. Norton took possession of 
 the safe, and removed it to his ollice. 
 Schwartz is insolvent and has absconded. 
 The prt)secutor brouftht trover against 
 Norton, and In the court below the do- ^ 
 fondant recovered judgment on the Kronnd : 
 that, the <le!eudant having bou;;ht and 
 linid for the safe bona tide, the title to j 
 the safe, by the law of ronnsylvania, was 
 transferred to him. 
 
 Ileforc .lustices DEPUE, UIXON, and 
 REED. 
 
 A. S. Apiiolset, for plaintiff in certiorari. 
 S. .M. Schanck, contra. 
 
 niCIH'E. J. The contract e.xpressed in 
 the written order of May 1, 1.SS4, signed 
 by Sell wartz, is for the sale of the prop- 
 erty to him conditioiiallv ; the vendor re- 
 servinjj; the title, notwithstanding deliv- 
 ery, until the contract price should be 
 paid. Tim courts of Pennsylvania make 
 a distinction between the bailment of a 
 chattel, with power in the bailee to be- 
 come tlie owner on payment of the price 
 atrreed upon, and the sale of a chattel, 
 with a stipulation that the title shall not 
 
 pass to the purchnsor until the contract 
 price shall be paid. On this distinction 
 the courts of that state hold that a bail- 
 ment of chattels, with an option In the 
 bailee to become the u wner on pa vment 
 of the price aKrecd upon. Is vallil, and 
 that the rlKlit of the bailor to reHuine 
 possession on Don-payment of the con- 
 tract price is secure a;;ainst creditors of 
 the bailee and bfina fide purchaHors from 
 him: but that, upon tlie delivery of per- 
 sonal pro|ierty to a purchaser under a 
 Contract of sale, the reservation of title 
 in the vendor until the contract price Irt 
 paiil is void as ntf.'iinst creditors of the 
 purchaser, or a bona llde |iurclia-ior from 
 him. Clow V. Woods. 5 SerR. & R. 275; 
 Eolow V. Klein, T'J Pa. St. 4hs; Ilnak v. 
 I-inderman, lU Fa. St. 4'.i!t; Stadtfeld v. 
 Huntsman, it:,' I'a. St. iVl: lirunswick, etc., 
 Co. V. Hoover, l)."> Fa. St. ."JOS ; 1 llenj. Sales. 
 (Corbin's Ed.) § 4J(;; 21 Amor. Law Rec 
 (N. S.) 224, note to Lewis v. McCabe. In 
 the most recent case In the sujireme court 
 of Pennsylvania, Mr. Justice Sterrett oald: 
 " .-V present sale and ilelivery of personal 
 propeity to the vendee, coupled with an 
 aereeinent that the title shall not vest in 
 the latter unless he pays the price a;?reed 
 upon at the time appointed therefor, and 
 that, in default of such payment, the ven- 
 dor may recover possession of the prop- 
 erty, is (juite different in its effect fr>»in 
 a bailment for use. or, as it is sometimeH 
 called, a lease of the propert.v, coupled 
 witli an afrreenient whereby the lessee 
 may subseiiuently become owner of the 
 jiroperty upon payment of a price agreed 
 upon. As between the parties to such 
 contracts, both are valid ami binilinK; 
 but. as to creditors, the latter Is ^food, 
 while the former is invalid." Forrest v. 
 Nelson, i;> Reporter, :!S, Ids Pa. St. 4S1. 
 The cases cited show that the Pennsyl- 
 vanin courts hold the same cloctrine with 
 respect to bona fide purcliascrs aa to 
 creditors. 
 
 In tliis state, and in nearly uU of our 
 sister states, c<mditlonal sales — that in, 
 sales of personal property on credit, with 
 delivery of possession to the purchaser, 
 and a stipulation that the title sludl re- 
 main in the vendoruntil theconlract price 
 is paid — have been held valid, not only 
 against the iinmeiliate purchaser, but also 
 against his creditors and bona tide pur- 
 chasers from him, unless the vendor h»8 
 conferred upon his vendee indicia of title 
 be.vond mere possession, or has forfeited 
 his rifiht in tlie[>ropprty by conduct which 
 tlio law rejrards as fraudulent. The cases 
 are cited in Cole V. Perry, 42 N. .i. Law, 
 :WS: .Midland R. Co. v Hitchcock, :J7 N. J. 
 E(I..-..-)(l, .".:.!); 1 Benj. Sales, (Corbin's Ed.)§$ 
 4:!7-4(;0; I Smith, L. C. (Sth E.l ) XWM\: 21 
 .\mer. Law Rok. (N. S.) 224, note to Lewis 
 V. McCabe; l.'> Anier. Law Rev. .'Wl, 
 "Conversion by Purchase." The iloctrlne 
 of the courts of Pennsylvania Is fonmled 
 niion the doctrineof Twyne's Case.S Coke, 
 so. and ICdwards v. Marben, 2 Term R. 
 .'iN". that the possession of chattels under 
 a con'rnct of sale without title is an In- 
 delible bailiie of fraud,— a doctrine repu- 
 diated qu'te ceneraliy by the conrts of 
 this country, and cspeclnlly In this Btnte. 
 Runvon v. (iroshon, 12 N. J. Eq. SG;
 
 542 
 
 MARVIN SAFE CO. v. NORTON. 
 
 Broadway Bank v. McElratli, 13 N. J. Eq. 
 24; Miller v. Pancoast, 2J N. J. Law, 25G. 
 The doctrine of the Peiiiisylvniiia courts 
 is disapproved by tlie Aincrican editors of 
 Sinith's Leading ('ases in the note to 
 Twyne's Case, 1 Smith, Lead. Cas. (Stli 
 Ed.) 33, .34; and by Mr. Landreth in his 
 note to Lewis v. McCabe, 21 Ainer. Law 
 Keg. (N. S.) 224; but, nevertheless, the 
 supreme court of that state, in the latest 
 case on the .suliject, — Forrest v. Nelson, de- 
 cided February Iti, I8S.5, — has adhered to 
 tlie doctrine. It must therefore be re- 
 garded as the law of Pennsylvania that, 
 upon a sale of personal property with de- 
 livery of possession to the i)uicliaser. an 
 agreement that title sliould not pass until 
 the contract price should be paid is valid 
 as between tlie original parties, bnt tliat 
 creilitors of the purchaser, or a purcliaser 
 from liim bona fide by a levy under exe- 
 cution or a bona fide piircliase, will ac- 
 quire a better title than the original pur- 
 chaser had,— a title superior to that re- 
 served by his vendor. So far as the law 
 of Pennsylvania is applicable to thetrans- 
 action, it must determine the rights of 
 these parties. 
 
 The contract of sale between the Marvin 
 Safe Comiiany and Schwartz was made 
 at tiie company's f)ffice in Philadelphia. 
 The contract contemplated i)erforniance 
 by the delivery of the safe in Philadelphia 
 to the carrier for tiansportation to 
 Hightstown. U lien the terms of sale are 
 agreed upon, and the vendor has done 
 everything that he has to do with the 
 goods, the contract of sale becomes abso- 
 lute. Leonard v. Davis, 1 Black, 47G; 1 
 Benj. Sales, § 31)8. Delivery of the safe to 
 the carrier in pursuance of the contract 
 was delivery to Schwartz, and was the 
 exccntidn of the contract of sale. His 
 title, such as it was, under the ti^rms of 
 the contract, was thereupon complete. 
 
 The validity, construction, and legal 
 effect of a contract may deiiend, either 
 upon the law of theplace where it is made, 
 or of the i)lace where it is to be per- 
 formed, or, if it relate to movable prop- 
 erty, upon thp law of the situs of the prop, 
 erty, according to circumstances; but, 
 when the place where the contract is 
 made is also the place of performance and 
 of the situs of the property, the law of 
 that place enters into and becomes part 
 of the contract, and determines the riglits 
 of the parties to it. Frazier v. Fredericlis, 
 24 N.. I. Law, 1(12; Dacosta v. Davis, Id. 
 319; Bulkley V. Hanold,19How..390; Scud- 
 (ler V. Union Nat. Bank, Ul IT. S. 406; 
 Pritchard v. Norton, lOG U. S. 124, 1 Sup. 
 <'t. Hep. 102; Morgan v. New Orleans, M. 
 & T. K. Co., 2 Wood. 244; Simpson v. 
 Fogo, 9 Jnr. (N. S.) 403; Whart. Confl. 
 Laws,?!) 341, 34.5, 401, 403, 41.s; Parr v. 
 Brady, 37 N. .1. Law, 201. The contract 
 between Schwartz and the company hav- 
 ing been irade and also executed in Penn- 
 sylvania by the delivery of the safe to 
 him. as between him and the company 
 Schwartz's title will be determined by the 
 law of Pennsylvania. By the law of that 
 state the condition expressed in the con- 
 tract of sale, that thesafecompany should 
 not relinquish title until the contract 
 price was paid, and that on the failure 
 
 to pay anj- of the installments of the price 
 the company might resume possession of 
 the property, was valid, as between 
 Sell wartz and tlie company. By his con- 
 tract, Schwartz obtained jiossession of 
 the safe, and a right to acquire title on 
 payment of the contract [nice; but until 
 that condition was performed the title 
 was in the company. In this situation 
 of affairs, the safe was brought into this 
 state, and the pro|)erty became subject to 
 our laws. 
 
 The contract of Norton, the defendant, 
 with Schwartz for the purchase of the 
 safe, was made at Hightstown, in this 
 state. The property was then in this 
 state, and the contract of piircl ase was 
 executed by delivery of possession iu this 
 state. The contract of purchase, the 
 domicile of the parties to it, and the situs 
 of the subject-matter of purchase were all 
 within this state. In every respect the 
 transaction between Norton and .St hwartz 
 was a New Jersey transaction, tinder 
 these circumstances, by princii)les of law 
 which are indisputable, the construction 
 and legal effect of the contract of pur- 
 chase, and the riglits of thapurchaser un- 
 der it, are determined liy the law of this 
 state. By the law of this state. Norton, 
 by his purchase, acquired only the title of 
 his vendor, — only such title as the vendor 
 had when the property was brouglit into 
 this state and became subject to our laws. 
 
 It is insisted that inasmuch as Norton's 
 purchase, if made in Pennsylvania, would 
 liave given him a title superior to that of 
 the safe company, that, therefore, his 
 purchase hei'e should have that effect, on 
 the theory that the law of Pennsylvania, 
 which subjected the title of the safe com- 
 pany to the rights of a bona tide pur- 
 chaser from Schwartz, was part of the 
 contract between the company and 
 Schwartz. There is no provision in the 
 contract between the safe company and 
 Schwartz that he should have power, 
 under any circumstances, tosell and make 
 title to a purchaser. .Schwartz's disposi- 
 tion of the property was not in conform- 
 ity with his contract, but in violation of 
 it. His contract, as construed by the 
 laws of Pennsylvania, gave him no title 
 which he could lawfully convey. To 
 maintain title against the safe company, 
 Norton must build up in himseli a letter 
 title than Schwartz had. He can accom- 
 plish that result only by virtue of the law 
 of the jurisdiction in which heacquireJ his 
 rights. 
 
 Thedoctrineof the Pennsylvania courts, 
 that a reservation of title in the vendor 
 upon a conditional sale is vt)id as against 
 creditors and bona fide purchasers, is not 
 a rule affixing a certain construction and 
 legal effect to a ccmtract made in that 
 state. The legal effect of such a contract 
 is conceded to he to leave property in the 
 vendor. The law acts upon the fact of 
 possession by the purchaser under such 
 an arrangement, and makes it an indel- 
 ible badge of fraud, and a forfeitui'e of the 
 vendor's reserved title as in favor of cred- 
 itors and bona tide purchasers. The doc- 
 trine is founded upon ctjusidera tion of 
 public policy adopted in that state, and 
 applies to the fact of possession and acts
 
 MARVIN SAFE CO. v. NORTON. 
 
 543 
 
 of ownership under such a contract, with- 
 out rpfianl to the plare where thecontrart 
 was made, or its ie^ai eflect considered as 
 a contraet. 
 
 In MacCabe v. Biymyre, 9 Thila. G15, the 
 controversy was witli respect to the 
 rights of a mortgagee under a chattei 
 mortgage. Tlie mortgage had been made 
 and recorded in Maryland, wliere tlie 
 chattel was when the mortgage was 
 given, and by the law of .Maryland was 
 valid, thougli the mortgagor retained 
 poNspKsion. Tlie chattel was afterwards 
 l)riiiiglit into Pennsylvania, and tlie 
 i'ennsylvaiiia court lield that the mort- 
 gage, though valid in the state wliere it 
 was made, would not l.e enforced by the 
 courts of I'ciiiisyivania as against a cred- 
 itor or piii-cliaser who liad ac(iuired 
 rights in the projierty after it had been 
 l)r()uglit to that state; that the niort- 
 ^ngecN by allowing the mortgagor to re- 
 tain possession of the property, and iiriiig 
 It into Pennsylvania, and exercise iiolo- 
 riouH acts of ownersliip, lost his right, un- 
 der the mortgage, as against an interven- 
 ing Pennsylvania creditor or purchaser, 
 on the ground that the contract was in 
 contravention of the law and policy of 
 that state. Under substantially tlie same 
 stale of facts this court sustained tlie 
 title of a mortgagee under a mortgage 
 maile in an<ither state, as against a bona 
 lido purchaser who had boiiglit the proii- 
 erty of the mortgagor in this -itate, for tlie 
 reason that the possession of the chattel 
 by the mortgagor was not In contraven- 
 tion of the iiuiilic policy of tills state. 
 Parr v. P.rady, 37 N. J. Law, '201. 
 
 The public policy whicli has given rise 
 to the doctrine of the Pennsylania courts 
 is local, and the law whicli gives effect to 
 it Is also local, and has no extraterritorial 
 I'lfect. In the case in hand, tlie safe was 
 removed to this state liy Schwartz as 
 soon as he became the purchaser. His 
 possession, under the contract, has been 
 exclusively in tiiis state. That jiossession 
 violated no public policy,— not the public 
 policy of Pennsylvania, for the possession 
 was not iu that state; nor the public pol- 
 icy of this state, for in this state posses- 
 
 slou under a conditional sale is regarded 
 as lawful, and does not invalidate the 
 vendor's title unless impeaclied for actual 
 fraud. If the right of a purihnhir, under 
 a purchase in this slate, to ovoid the re- 
 served title in tlie original vendor on such 
 grounils be conceded, the same right must 
 be extended to creditors buying under a 
 judgment and execution in this state; for 
 by the law of I'ennsylvnnla creditors and 
 liona tide purciinsers are put upon the 
 game footing. Neither on prim-iple, nor 
 on considerations o( convenience or pub- 
 lic policy, can such a right be conceded. 
 Umlcr such a condition of tlie law, confu- 
 sion and uncertainty in the title to prop- 
 erty would l)e introduced, an<l the Irans- 
 inission of the title to movable property, 
 the situs of which is in this state, would 
 depend, not ujion our laws, but upon the 
 laws and public policy ol sister states or 
 j'oreign countries. \ purchaser of chattels 
 in this state which Ills vendor had ob- 
 tained In New York, or in most of our 
 sister states, under a contract of condi- 
 tional sale, would take no title; if ob- 
 tained under a conditional sale in Penn- 
 sylvania, his title would bi- good ; and the 
 same uncertainty would exist in the title 
 of purchasers of property so circum- 
 stanced at a sale under judgment and ex- 
 ecution. 
 
 The title was in the safe company when 
 the property in dispute was removed from 
 the state of Pennsylvania. Whatever 
 might impair that title— the continued 
 liossession and exercise of acts of owner- 
 ship over it by Sell wartz.and the purchase 
 by Norton — occurred in this state. The 
 legal effect and consc(iuences of those acts 
 must be adjudged by thelaw of this s'ate. 
 Dy the law of this state it was not illegal 
 nor contrary to public policy for the com- 
 [lany to leave Schwartz In possession as 
 ostensible owner, and no forfeiture of tlie 
 comiiaiiy's title could result therefrom. 
 By thelaw of this state, Norton, by his 
 Iiuichase, acquired only such title as 
 Schwartz had under his contract with the 
 company. Nothing has ocruried which 
 by our law will give him a better title. 
 
 The judgment should be reversed.
 
 ■
 
 MELDRUM c. «NOW. 
 
 545 
 
 MELDRUM el al. v. SNOW. 
 
 (9 Pick. 441.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk and Nantucket. Murcli Term, 1S30. 
 
 Replevin lirouKbt liy tlie |)luin<iff8, who 
 lire briiWiTH iti the city of liostoii, to re- 
 cover of tlie (ii'fertiliiiit, u deputy of the 
 sheriff of Suffolk, eiKlileen beer barrels, 
 each containiii'; about tliirty ^allonM of 
 beer, with liieir contontH, bciuK in the 
 cellar recently occupied by <ino Klein, in 
 Market Htreel ; which the plaintiffs aver 
 to be their property, and that the defend- 
 ant took and unlawfully detained theaame 
 on the lirst day of Auy;uHt ISJS. 
 
 TluMklcndant pleaded as to the beer, 
 that it was the property of Klein, and 
 that he, the defendant. IhhI attached it 
 as such at the suit of Klein's creditors; 
 to which the i)laintiffH replied projierty in 
 themselves, trnversinjr Kein's ownership, 
 and issue was joined thereon. 
 
 At the trial before Wihle J. the plain- 
 tiffs proved that the beer was Bent to 
 Klein ill the spring, he beins; a retailer of 
 beer, and I'arryinK on lii.s business in the 
 cellar where the bocr was when it was at- 
 tached by the dofendiint. 
 
 The plaintiffs also [irovcd, that aceord- 
 inji to the universal usatie of trade here, 
 and in other jilaces in this country, the 
 foUowinji are the terms upon which re- 
 tailers are supijlied by the brewers. Jn 
 the spring, the brewersends to the retailer 
 such (iiiaiitity as the retailer exjiects to 
 vend, and at a stipulated price, and in 
 barrels belonKina: to the brewer, which are 
 returned to him when emptied. The re- 
 tailer pays for all that he vends in the 
 course of the season, at (he price at which 
 It was originally lurnished. If the beer I 
 hecomes sour or stale, or is l(i«t by the 
 bursting of the casks, or by fire or other 
 casualty, the loss falls on the brewer. If | 
 any beer remains unsold at the end of the 
 Beason, the retailer has a ri^lit to ivturn i 
 it to the brewer, but the brewer has no | 
 riKht to take it without hisconsent. Pay- i 
 meat is never made liy the retailer in aU- 1 
 Vance, but usually in annual or semian- 
 nual settlements, when what lias been sold 
 Is paid for and the residue is returned or 
 remains a subject for future adjustment. 
 The profits of retailinu beIou>;c exclusively 
 to the retailer, and all losses by bad debts 
 fall upon him. The brewer's price of beer 
 never varies. IJeer cannot be drawn off 
 nor removed in warm weather without 
 injury and y;rent daiiRer of ilestroyiuK it. 
 
 Sciwden, a brewer in lioston, who has 
 carried on the business for twenty-two 
 years, testifi>'d, that he nevci' considered 
 the sale absolute till the barrel was 
 emptied. 
 
 It was testified that the custom was 
 observed by the plaintiffs in theirdealinfis, 
 and that Klein was one of their custom- 
 ers. 
 
 The iilaintiffs also produced an Instru- 
 ment nuidc and delivered to llicm liy 
 Klein on the first day tif .\uKiist. iircvioiis- 
 ly to the service of the writ, as follows: — 
 " Whereas I have alwa.vs holden the beer, 
 now in the cellar recently occu|)icd by me, 
 LAW SALES — 35 
 
 in the casks furnished by MeUlram & Co., 
 as being of their [iroperty unlesH pnlrl for, 
 and the same beiiij; now" attached by my 
 ci'editors, ought of right, according to our 
 contract, to be delivered up to them; 
 therefore and for good and Tuliiuble con- 
 siderations Die thereto moving, I do here- 
 by assign and transfer all my right, title 
 and property therein, unto tlie said .Mel- 
 drum & Co., they crediting me io account 
 for what they thus receive." 
 
 Horton, the attesting witness to the nu- 
 sigiiment, testified that he went with the 
 plaintiffs' clerk to the defendant, and that 
 the clerk produced this instrument and 
 demanded the beer and barrels, but the 
 ilefendant refused to give tlieni up. 
 
 As to the (luestion, whether the prop- 
 erty in the beer was in Klein, the jury 
 were instructed, that if they believeil that 
 betook the beer of the plaintiffs on the 
 terms of the custom above staled, the 
 property became vested in him; that this 
 was in fact a conditional sale, and the 
 beer could be attached as belonging to 
 him, and the only remedy of the plaintlffH 
 would be to recover of him the price. 
 
 The jur.v found a verdict lor the defend- 
 ant. 
 
 The plaintiffs moved for a new trial, be- 
 cause the judge Instructed the jury, that 
 the delivery of the beer, upon the terms of 
 the custom proved, constituted a condi- 
 tional sale to Klein, and vested in him the 
 liroperty in the beer, subject to attach- 
 ment for his debts ; wliereas the plaintiffs 
 contended, that such delivery vested only 
 a special jiropertyin Klein for certain pnr- 
 p(jses; and that the genera) property re- 
 mained in the plaintiffs ; so tlial the beer 
 could not be iittached as the projierty of 
 Klein: and that by virtue of the assign- 
 ment to them of his special property, they 
 became entitled to the immediate posses- 
 sion, and acquired the whole title, so that 
 the detention by the defendant alter de- 
 mand made, was unlawful. 
 
 C. (i. lioring and E. O. Loring. for plain- 
 tiffs. S. I). Ward, for defendant. 
 # 
 
 PERCriUAM. The principal cjueBtion 
 in the case regards the ownership of the 
 beer. Evidence was given at the trial, of 
 a custom among brewtrs to supply re- 
 tailers with beer in the manner stated in 
 the re|)ort of the judge. It is argued that 
 this mode of dealing is necessary, and it 
 should seem tr# be so; for in general the 
 retailer would not be able to purchase a 
 large (luantily of beer at once, and it ap- 
 pears that beer must be supplied t.> him 
 in cold weather, as it cannot lie removed 
 in warm weather without Injury. The 
 (inestion is, whether the beer is liable to 
 attachment as theproi»erty of the retailer. 
 The contract is very similar to that of 
 sale or return in Euglainl ; and in the case 
 of some kinds of manufactures such a con- 
 tract is leviuired, owing to particular cir- 
 cumstances which take them tint of the 
 rules of ordinary sales. It is tni this 
 ground that conlracis of sale or return 
 are held valid ; and It is uniformly consid- 
 ered that in such contracts the properly 
 continues In the original owner; except in
 
 546 
 
 MELDRUM V. SNOW. 
 
 caRes undpr the statute of James, of bank- 
 ruptcj-, wliicli is not in force in this com- 
 monwealth. 
 
 It is ohjecterl, that in the contract of 
 sale or retarn.tlie article is to bereturni^d, 
 unless sold, but that by the custom under 
 consideration, it may or may not be re- 
 turned, at tlie election of the retailer. We 
 are not; clear that there is any such dis- 
 tinction; nor is there good reason for it. 
 It is consistent with the English law, that 
 the beer shall remain the i)roiierty of the 
 brewer until the election of the retailer 
 shall be made. 
 
 We place this contract on the same 
 ground as that of sale or return in Eng- 
 land, and we are glad to find authorities 
 whichsustain us; but without authorities 
 we should deem it proper tu uphold such 
 a contract. Retailers who take beer to 
 sell are often persons of very small prop- 
 erty, and thecustom appears to be so gen- 
 eral and well known, that the retailer 
 would not be supposed to be the owner of 
 
 the beer; no injury therefore can arise to 
 creilitors of the retailer. And it being 
 beneficial to the couiinunity to introduce 
 the use of beer, public policy would justifj- 
 us in favouring the custom. 
 
 Tt is asked, how shall the beer be at 
 tached; whether as the property of the 
 brewer, or of the retailer. It is not neces- 
 sary for us to answer this question. 
 There are many cases where chattels can- 
 not be attached as the property either of 
 the general or of the special owner. 
 
 An otijection is raised in regard to the 
 possession of the plaintiffs in replevin, 
 the possession and the right of possession 
 being here in the retailer. It is sufficient 
 to remark, that when the sale of beer is 
 stopped by the acts of the retailer, his 
 right to retain ceases; and further, in the 
 c.ise before us, the general property being 
 in the brewer, and the retailer having as- 
 signed all his right in the beer to him, the 
 action may well lie. 
 
 Xew trial granted.
 
 MKWS 0. CAUIi. 
 
 549 
 
 MEWS V. CAKR. 
 
 (1 Hurl. & N. 4»4.) 
 Exchciiuer. Nov. 20, 1856. 
 
 The declaration stated that the plain- 
 tiff put up (or 8)iIo by public auction in 
 lots a larfjc (juantity of timber of a cer- 
 tain descripf Ion, &c., unilcr and subject to 
 the following couditiouH of Hale. (Tlie 
 declaration set out theconilitions, of which 
 the followinK only are mjiterial): tii-Mt, 
 that the hitihest bidder sliDuld be deemed 
 the purchiiser, &c. ; fourthly, that the 
 gooils should he paid for and cleared 
 away within twcnty-eiKht days froir, the 
 day of sale; sixthly, that in default of 
 compliance with the aliove conditions 
 tlie deposit money received shall be forfeit- 
 ed, and the purchasers shall be liable for 
 all loss, charges, interest of money, or any 
 expenses whatever attendant on n re-sale 
 either by private contract or [lublic auc- 
 tion. Averments: that on the said ex- 
 posure to sale of the said timber the de- 
 fendant became the hichest bidder for ami 
 the |>urchaser of (to wit) twt) lots <jf the 
 same on the conditions aforesaid, at and 
 for a certain sum (to wit) of tls! (is., and 
 he a;:reed with tlie plaintiff to become the 
 purchaser thereof on the said conditions 
 and at and for the said price, and to com- 
 ply with the said conditions, and the 
 plaintiff accejited him as such purchaser; 
 and althou;j;h the plaintiff has at all 
 times been ready and willint; to do and 
 perform and has clime and peiformed all 
 thinus and all tiiinRs have happened to 
 entitle him to a performance by the de- 
 fendant of the said conditions of sale and 
 his said agreement, and althoH^ih the de- 
 fendant accordin;; to the said conditions 
 of sale and his said atrrecinent ou^ht to 
 have iiaid for ami cleared n way the said 
 lots within twenty-eljj;lit days from the 
 day of sale, yet the defemlant did not nor 
 would at any time within the said space 
 of twcnty-ely;ht <l«ys from the day of sale 
 pay for or clear away the said lots or any 
 part thereof; and thereupon, in accord- 
 ance with the said conditions of sale and 
 after the expiration of the said period of 
 twenty-eight il.-iys from the day of sale, 
 and in a reasonable time in that behalf, 
 the i)iaititiff did n'-sell the said lots by 
 public auction at and for a less sura thin 
 the amount so to ha re been paid for the 
 same by the defendant as aforesaiil, to 
 wit, at a loss of ,fj() ; and the plaintiff was 
 put to and incurred p;-eat expense, to wit, 
 n further sum of ,tL'(), for and in respect of 
 divers charges and expenses attendant on 
 such re-sale, &c.: of all which premises 
 the defe!idant afterwards and before the 
 conimencenient of this suit hail notice, 
 and was then recpiested by the plaintiff 
 to pay him the said several sums; but the 
 defendant has hitherto wholly neglected 
 and refused so to do. 
 
 Plea. Tliat the defendant did not be- 
 come the highest bidder for and the pur- 
 chaser of the said two lots on the suld 
 conditions, nor did he agree to becumi' the 
 purchaser thereof on the said coiidil ions at 
 and for the said price and to comply with 
 the said conditions; nor dill the plaintiff 
 necei)t lilm as such purchaser as alleged. 
 
 Ueplicatioa, taking Issue on the plea. 
 At the trial before Pollock, C. R.. at the 
 last Surrey assiies, It appeared that on 
 the L>(;th of ()ctol)er, 18.^1(5, one Churcldll on 
 behalf of the plaintiff put up for sale by 
 auction several lots of timber under tlie 
 conilitions of sale mentioned in the decln- 
 ration. All the lots were not sold; anil 
 on the following day the ilefendnnt called 
 at theolllee of Churchill and lni|Uired what 
 lots remained unsold. Churchill thereup- 
 on shewed him a catalogue, and he select- 
 erl two lots, which he agreed to purchase, 
 (.'hurchlll then wrote the defendant's name 
 in the cntnlogueopposite these lots. Two 
 or three days alter the defendant again 
 called and requested to know what fur- 
 ther lots remniiicd on hand. The cata- 
 logue was shewn to aim, and be selei-ted 
 
 jtwo other lots; and on t)elng informed 
 the terms he said he should consider 
 whether he would become the purchaser 
 of them. About the itth .Voveraber he 
 
 [again called, and on this occasion he 
 agreed to purchase these two lots. 
 Churchill then wrote in the derendnnt's 
 presence his name in the ratnlogue oppo- 
 site these lots, and also the agreed price, 
 £10 lOs. per standard. The defendant 
 then stated that as the prompt day fixi-d 
 by the conditions of sale at twenty-eight 
 days after the day of sale, viz., on the •J3il 
 Novemlier, was so near, he could not pay 
 for the lots then; and it was agreed that 
 the twenty-eight days should lie caii'ulal- 
 ed from thedtli November. Kvldence was 
 adduced to shew that by the custom of 
 the trade persons who purchased lots 
 from those remaining unsold at an auc- 
 tion were always considered as bounil by 
 tlie conditions of sale, the same as if they 
 had purchased at the auction. 
 
 It was objected on behalf of the defend- 
 ant, tir^t. that Cliurchill was not the 
 pgent of the defendant so as to bind him 
 by his signature, and conseiiuently that 
 there was no contract in writing as re- 
 nulred by the I'tli section of the statute 
 of frauds; secondly. that this, being a sale 
 by private contract, was not subject to 
 the conditions mentioned in the declara- 
 tion. The learned judgedirected a verdict 
 for the plaintiff, reserving leave to the de 
 fendant to moveto entera verdict for him. 
 
 Hawkins in the present term obtained 
 
 a rule nisi accordingly, against which 
 
 .Montagu Chambers and .\lathew now 
 
 ' sliewed cause. Hawkins appeared to sup- 
 
 I port the rule, hut was not called upon. 
 
 j POLLOCK. C. B. The rule must be ab- 
 solute. The sale in questlnn took place 
 some days after the auction was over: 
 and therefore, as regards the statute of 
 frauds, the ease must be determined ns 
 any other ordinary sale. The partlescan- 
 not set up a custom of trade to repeal the 
 j statute of frauds. No doubt an niirllon- 
 1 eer at the sale Is agent for both seller and 
 ' buyer, so as to bind them liy his slgiin- 
 ■ tnre: but the moment the sale Is over, the 
 'same principle does not ap|ily, and the 
 I auctioneer Is no longer the agent of both 
 parties, but of the seller only; and the 
 ' signatuie of the seller or his agent cnn- 
 j not Idnd the buyer. The nucstion Is,
 
 550 
 
 MEWS 0. CARK. 
 
 whether there is any evidence to take the 
 ease out of the statute of frauds; and I 
 think that there is none. 
 
 ALDERSON.B. 
 ion. 
 
 I am of the same opin- 
 
 BRAMWELL, B. The only reason why 
 I make any remark is, that the observa- 
 tions of the court in Graham v. Musson' 
 may not be misunderstood. Tliere the 
 court said that, if the traveler had signed 
 
 '5 Bias. N. C. 603. 
 
 the defeudant's name, and he had not ex- 
 pressed any dissent, tliat would linve 
 been a recognition of aaoncy. Here the 
 auctioneer eigned the defendant's name, 
 not purporting to act for him, but as the 
 person who sold the goods. It is now 
 established that an auctioneer at the time 
 of the sale is agent for both buyer and 
 seller; but as soon as the sale is over the 
 reason for the rule fails, and he iscertninly 
 not the agent of the buyer unless he has 
 some authority to act on his part. 
 
 WATSON, I?., concurred. Rule at)8olute. 
 
 J
 
 I
 
 MITCH EI>L V. GILK. 
 
 .153 
 
 MITCHELL V. GILE. 
 
 (13 N. H. 390.1 
 
 Superior Court of Judicature of New Hiimpshire. 
 Hillsborough. Dec. Term, 1S41. 
 
 .\HHUinpsit by one Mitchell aRniimt one 
 (iile, one of the cliuiKi'S licinju; for ti'ii cordH 
 of wood Hold anil delivfrud. It npinured 
 nil the triiil that pluintiff had on his land 
 a lot of seHHoned wood, of which dtfend- 
 ant wished to lioirow a |jorlion in order 
 to complete a boat load. Plaintiff nave 
 him pi-rmiHHlon to lake what he wanted 
 for the |iiir()Oi<i', and. UH defendant pro- 
 posed to cut Home wood from his land 
 near iJhiinllffH, it wan a^jreed thiil the lat- 
 ter Klionld have of it as nmcli aH defend- 
 ant lai^lit take of plaiiililf's wood. De- 
 fendant accorrliny;ly look ten cords of 
 plainliff'H wood, and plaintiff afterwards 
 demanded a like <|uantity of ilefendant, 
 which, however, the latter neglected to 
 deliver. Defendant objected that this evi- 
 dence did not Hiippi.rt the declHratiun, 
 and that plaint ii( niionld have declared 
 on the original contract. 
 
 15owiuan & Porter, for i)laintiff. S. D. 
 Bell, for defendant. 
 
 tJILCHRIST, .1. There is aclaHsofcases 
 where it i.s unnecfssar.v to declare upon 
 the Hpecial contract which the parties may 
 have made. Where on.^ party ajji-oes to 
 do a certain thing, and tlie other party 
 agrees to pa.v a sum of money, and the 
 thing or duty is nerfoniied, but the other 
 party refuses to pay the nione.v, an action 
 lies for the money, because a debt has ac- 
 crued, and nothing remains to beilonebut 
 to pay it. There seeing to be no reason in 
 such a case why a general count should not 
 be sulhcient for the recovery of the money 
 due. The plaintiff's claim does not then 
 Bound in ilaniages, but is for a ilelinlte 
 sum. .Such is ) he principle recognized in 
 the Bank of Colunibia vs. Patterson's 
 Adm'r, 7 Crancli :!0:!; Williams vs. .Sher- 
 man, 7 Wend. lOil; .Jewell vs. Schroeppel, 
 4 Cowen.'>(i4; Felton vs. DickiuHoii, 10. Mass. 
 287; Sheldon vs. Cos. 3 B. & V. -120, and in 
 the cases geiierully, whenever the point is 
 adverted to. 
 
 There is another class of cases, where 
 the only remedy for the plaintiff is l)y an 
 action on the spi'cial iigreemenl. because 
 It still remains open and nnresciiided. In 
 geneial, where goods are solil to be paid 
 for wholly or in pai'l b.v other goods, or 
 by the defendant's labor, or othei-wise 
 than in money, the a<-lion must be on the 
 ,agreemeiit, and for ii breach of it, and not 
 for goods sold and delivered. And this is 
 especially the case unless there be a suiii 
 of money due the pluintiff on the contract, 
 and that part of it which is forsoniething 
 else thiin money has been performed liy the 
 defendant, so that there is nothing to be 
 done which can be the sul)ject of future 
 litigation. In such case pcrh.ips theplain- 
 tiff mav declare that the defendant was 
 indebteil to him in a sum of mone.v for 
 goods sold and delivereil to him in ex- 
 change. But in a caHC tried before Mr. 
 .luslice Buller, where the deelfiratioii was 
 for goods sidd and delivered, anil the con- 
 
 tract proved was, that the goodn should 
 be paid for partly In money and partly In 
 buttons, the plaintiff was nonsuited, for 
 not declaiiiig on the s| eclal agreement. 
 Harris vs. Fowle.cited In the caseof Barbe 
 VH. Porker, 1 II. Bl. •.N7. There is also 
 an old case on this point In Palmer's He- 
 ports .304, Brigs' Case, where one in pos- 
 session of land rsroiiilHeil to make a lease 
 of it, and took a line for the lease, after 
 which, and before the lease was made, lie 
 was evicted from the land. It was held 
 that debt dhl not lie to recover the money 
 paid for the line; and the (irlnciple of the 
 decision seems to have bi'cn, that the con- 
 tract to niaki' the lease being still sub- 
 Bisting, the plaintiff should have sued up- 
 on that contract. And tlieaiithorities are 
 nearly uniform, thai where goods are de- 
 livered on a special agreement, a mere fail- 
 ure to perform, iiy the defenilant, does 
 not rescind tne agreement ; but it is still 
 executory and subsisting, and the ri-iin dy 
 is by an action upon It. Baymoiid vs. 
 Beurnanl. 12 .Jolins. '.74; .leiinin::s vs. 
 Camp, l:! Johns, '.if; Clark vs. Smith. 14 
 .Tohiis. :!2C,; Bobertson vs. Lynch, Is.Johns. 
 451; Dubois vs. Del. & Hudson Canal Co., 
 4 Wend. 2S!); Tiilver vs. West, Holt 17S. 
 And in Weston vs. Downes.I Dougl.23,lhe 
 court exiiressly held, that if a contract lie 
 rescinded, an action for money had and 
 received will lie for mone.v paid under it; 
 l)ut if the contract be broken, this action 
 will not lie, but an action for a breach of 
 the contract must be brought. This prin- 
 ciple is fully rec<>gnized in Towers vs. Bar- 
 rett, 1 T. B. 13:!, and In Davis vs. Street. 
 1 C. & P. 18. Opposed to the general cur- 
 rent both of the ICnglish and American au- 
 thorities on this point, are I heintimations 
 and the reasoning of Mr. Justice Coweii, 
 in the case of Clark vs. Kairlield, 22 Wend. 
 .522. Heexpresses theopinion that IhecascH 
 will justify the position, that lliough the 
 compensation for the goods, or other 
 thing advanced, is to be rendered in serv- 
 ices, or someotherBpecinc thing, if the par- 
 ty promising to render be in default, indeb- 
 itatus assumpsit will lie for the price of 
 the tiling advanced. lie admits that this 
 |;ositii>n goes beyond aiiv direct adjiidii-a- 
 tiori ill Knglanil, although he thinks it 
 may be maintained by the principle of 
 many cases there, and that it is just that 
 in si'icli a case a general count sluiiild be 
 maintained. He cites, with approbation, 
 the case of Way vs. Wakefield, 7 Vermont 
 K. 22;'. 22S, where Mr. .Iiistice Collamer 
 says, tliat " whenever there an- goods sold, 
 work done, or monev passed, whatever 
 stipulations may have been made about 
 the price, or mode, or time of payment. If 
 the terms have transpired so that money 
 has become due, the general count may 
 be maintained." Tlie action was for Iinr- 
 iiess sold. III be paid for in lumber at a 
 specHied time. There lieliig a default In 
 pavmeiit, the court allowed the general 
 count for harness sold. Mr. Justice Cow- 
 en admits that "the learned jiidi:e certain- 
 ly did not cite any .llrect anihoiity for 
 thus applylii;; the rule," and we are not 
 aware that any authority exists for such 
 an application of it. Tollie rule.asabove 
 stated, there may, perliaps, be no obj"c. 
 tlou. The niiesiion in cases of such a char-
 
 554 
 
 MITCJIKLL 0. GILE. 
 
 acter always is, whether the money lias 
 become (hie; aiiO if no more l)e meant thnn 
 tliat a jj;enerul count will lie, where a con- 
 tract has been performed, and has resulted 
 in an oblination to pay money, then we 
 assent to the correctness of the position. 
 Of the propriety of the a|)plication of the 
 rule to the facts in the case of Way vs. 
 Wakefield, we may be permitted, reKi)ect- 
 fully, to express a doubt. It is true that a 
 Reneral count may sometimes be main- 
 tained, where the goods were to be paid 
 for by other Koods. Of this character is 
 the case of Forsyth vs. .lervis, 1 StarUie's 
 Reports 437. The plaintiff sold thedefenil- 
 ant a fijun for forty-five guineas, and 
 af?reed to take of the defendant a ^un, in 
 part payment, at the i)rice of tliirty guin- 
 eas. Lord Ellenborough held that as here 
 wa-i a sale of uoods, to be paid for in part 
 by other goodsat a stipulated price, ui)on 
 the refusal of the purchaser to jiay for 
 them in that mode, a contract resulted to 
 pay for them in mi)ney, and that the for- 
 ty-five guineas might be recovered under 
 a count for goods sold. This case has 
 every characteristic of a sale. The plain- 
 tiff sold the gun for a specified price; the 
 defendant agreed to give, in (lart payment, 
 another gun for a stipulated price, and 
 was bound either to deliver the gun or 
 pay its price. As he refused to deliver the 
 gun, a decision that ho wasindebted tothe 
 plaintiff for its price accords with the gen- 
 eral tone of the authorities. In relation 
 to the case of Clark vs. Fairchild.it is also 
 to be remarked, that in the sulisequent 
 case of Ladue vs. Seymour, 24 Wend. 02, 
 Mr. .Justice Bronson says, that where 
 there is a subsisting special contract Ije- 
 tween the parties in relation to the thing 
 done, all the casts agree that the contract 
 must control, and that the remedy is, in 
 general, upon that, and not uponthecom- 
 nion counts in assumpsit. 
 
 But apart from authoiity, and from 
 technical reasoning depending upon au- 
 thority for much of its force, it is proper 
 that the form of the remedy should be 
 adapted to the actual state of facts. In 
 no other mode of declaring can the proper 
 rule of damages he applied, where there 
 has been a breach of a special contract. If 
 goods are sold and delivered, the price, 
 or value, at the time of the transaction, is 
 the measure of damages, unless there be 
 something showing a different intention 
 by the parties. The plaintiff is entitled to 
 the value of the goods he has parted with, 
 at the time, and to nothingmore; norcan 
 the defendant be compelled to pay more 
 than the value at the time he ri>ceived 
 them. Both parties act with reference to 
 the value at the time of the transaction. 
 But where a party agrees, but neglects to 
 deliver goods at a specified time, the dam- 
 ages for the non-fulfilment of such an 
 agreement are to be calculated according 
 to their value at the time they should ha ve 
 been delivered. If the articles have fallen 
 in price, the defendant will be entitled to 
 the benefit of such a changeinthe market; 
 if they had risen, the increase in value 
 will belong to the [jlaintiff. There is, 
 therefore, a substantial reason why tlie 
 
 rights of both parties can be better se- 
 cured, by declaring specially upon a breach 
 for the non-fulfilment of a contract to de- 
 liver goods, than by declaring upon the 
 general count; and this reason probably 
 has had its effect in causing the forms of 
 the remedy to be kept distinct. Leigh vs. 
 I Paterson, S 'i'aunt. 540; (Jainsford vs. 
 [Carroll, 2 B. & C. (i21; Shaw vs. Nudd, 8 
 I Pick. 9. 
 
 j If, where goods are sold to be paid for 
 otherwise than in money, and the vendee 
 ' neglects to perform, an action must be 
 ! brought on the si)eeial agreement, there is 
 j a still stronger reason for adopting the 
 i same form of the remedy where the goods 
 are not sold, but exchanged. In the for- 
 mer case, tlie goods are at least sohl ; and 
 I so far the evidence supports the declara- 
 [ tion. But the latter case has no feature in 
 [common with a contract, necessary to 
 support a count for goods sold and deliv- 
 ered. Now thetransaction between those 
 parties was, properly speaking, an agree- 
 ment for an exchange of goods, and not 
 for a sale. Blackstone says, 2 Coinm. 446, 
 "if it be a commutation of goods for 
 goods, it Is more properly an exchange; if 
 it be a transftrring of goods for money, it 
 is called a sale."' Here the defendant 
 agreed to deliver to the plaintiff as much 
 wood as he received of liiui. This agrje- 
 ment the defendant failed to perform. 
 There is, then, a breach of the ■special 
 agreement, and there isnotliingelse. The 
 injury sustained by the plaintiff is to be 
 compensated by a recovery of damages 
 for the breach. There is nothing in the 
 case that sliows a 9ale of the wood by ei- 
 ther party to the other; norcan thetrans- 
 action be considered a sale, without a dis- 
 regard of all the authorities wliich distiii- 
 j guish actions sounding in damages for a 
 I breach of contracts, from actions to recov- 
 er a definite sum as the purchase money 
 for goods sold. 
 
 ; Nor is the case altered by the fact that 
 I no suit could be maintained without a de- 
 imand. The wood was to be delivered to 
 : the plaintiff at such time as he should de- 
 ! sire it. The plaintiff would have a I'ight 
 j to the performance of the agreement when- 
 1 ever he should notify the defendant that 
 [he desired the wood. There could be no 
 ! breach of the agreement by the defendant 
 until after this notice; and a refusal to 
 deliver was a breach, for which an action 
 lis maintainalile. That a demand, in a 
 given case, is necessary beftjre a suit can 
 ; be niaintained on a special contract, by 
 no means proves that the demarid alters 
 I the form of the remedy to which theplain- 
 tiff is entitled. It might as well l)e said, 
 that because an action on a st)ecial con- 
 tract could not beiuaintained untilagiven 
 period had elapsed, therefore the lapse of 
 time altered the form of the remedy. Un- 
 doubtedly, a demand and refusal may, in 
 some cases, have this effect, hut tjie result 
 does not necessarily follow because the 
 demand must be made. 
 
 The opinion of the court is, that the 
 plain tifi has misconceived his remedy, and 
 that this action cannot be maintained. 
 Plaintiff nonsuit.
 
 MOOOY V. BROWN. 
 
 MOODY V. BROWN. 
 
 (34 Me. lOT.) 
 
 Supreme Judicial Court of Maine. 1S52. 
 
 On uxcoptions from the iliHtrict court; 
 llatliaw; ,v, J. 
 
 /^Hsiiin|iHit. on account for inateriiilH 
 and lalxir furnlHJied, anil ono on an ac- 
 count forartick'K Hold and delivered. The 
 accdunt waH tor Hlereotype platcH. $1K; 
 alteration of Haine, $4; and some inlercMt 
 and exprcKHaKe, making in .-ill $L'r>.((4. 
 
 A wItnesH lor the plaintiff tcKtilied that 
 in l]elialf of the plaintiff he prenented the 
 hill and reqaeHted payment, to which the 
 defendant re|)licd that he had ordered tlie 
 plateH, bnt did not feel ul)le to tal<e them ; 
 that then" waH a mistake in them, which 
 the plaintiff waw to correct at his own ex- 
 peiirte; that ho afterwards carried the 
 plates to tlie store of the defendant, who 
 refused to take tlieni ; that he left them 
 there, <iKainst the remonstrance of the de- 
 fendant; that the defendant afterwards 
 offered to pay $20 for the wiude liiU; that 
 at a still subsequent period, the witness 
 asked the defendant wlien lie woidd pay 
 the ?-M, who replied that he would do it 
 In a few flays; and that the defendant 
 nfterwarils repeatedly said ho would pay 
 the twenty dollars. 
 
 The jndKe instructed the jury, that, if 
 defendant contracted for the plates to be 
 made for liiin, and refused to accei)t them 
 when made, althouKli he in ifiht be liable 
 to plaintiff in an action for dnmaKes for 
 not fiilfillin;; liis contract, yet he would 
 not be liatile in this action for their value, 
 as for jioods sold and delivered; that if 
 they were left ;it defendant's storenKiiinst 
 his consent and remonstrance, such a i)ro- 
 ceeiliriK on the part of plaintiff could have 
 no effect to varv the liabilities of defend- 
 ant. 
 
 I!ut if afterwards defendant offered to 
 pay the twenty dollars in full for the liill, 
 and if that offer was accepted, tlie |)lain. 
 tiff would be entitled to recover the twen- 
 ty ilollars and Interest thereon from the 
 lime such offer was accepted, but that de- 
 feiulant would not 1)0 bound liy that offer, 
 unless it was ncce|>ted. 
 
 liefore SIIEPLKY, r, J., and WKLLS, 
 RUE, and APPLETON, J.I. 
 
 J. E, CJodfrey, for plaintiff. Simpson, 
 for the defendant, 
 
 SIIEPLEY, C, .1, There is not a perfect 
 agreement of the decided cases upon the 
 question iiresonted l)y the exceptions. 
 
 The \i\\\ apiiears to bo entirely settled 
 in lOnsland in accordance with the instruc- 
 tions. Atkinson v. ISell, 8 R. & C. 277; 
 
 Elliott V. PybuH. 10 Uinu ,'il2; Clarke v. 
 Spence, 4 Ad. & El. 44s. 
 
 Thecasc of IJement v. Smith, 15 Wend. 
 40:t, decides the law to be otherwise in the 
 stale of New York. The case of Towers 
 V. Osborne, iStra. ."iiHi, was reliTreil to as 
 an authority for It. The plaintiff In that 
 case does ajjpenr t<i have recovered for 
 the value of a chariot, which the <le- 
 fendant had rcfuHi'd to take. No question 
 appears to have been made reHpectlni; his 
 rinht to do so, if he was entitled to main, 
 tain an action. The only qiieHtion decided 
 was, whether the case was within the 
 statute ol frauds. 
 
 In the case of Dement v. Smith, C. J. 
 Sava.":e appears to have cunsidered tho 
 plaintiff entitled upon iiriiiciple to recover 
 for the value uf an article manufactured 
 according to order anil tendered to a cqb- 
 tonier refusinjy; to receive it. 
 
 This can only be correct upon the 
 Krouiid that by a tender the property 
 passes from the manufacturer to the cus- 
 tomer against his will. This Is not tlie or- 
 dinary effect of a teniler. It the property 
 does not pass, and the manufacturer muj' 
 commence an action and recover for itH 
 value, while hi.s action is pendinu it niuy 
 be seized and sold Ijy one of his creilltors. 
 and his lejral riRlits be thereliy varied, or 
 he may receive benellt of its value twice, 
 while the customer loses the value. Tlie 
 correct principle appears to have lieen 
 stated by Tindal, t'. .1., in the case of 
 Elliott V. Pybiis, that the mniiufucturer'H 
 rlKht to recover for the value ilepends 
 upon the <piestion, whether the property 
 has passed from him to the customer. 
 The value should not be recovered of the 
 customer, unless he has become the owner 
 of the property, and can protect it aftainst 
 any assignee or creditor of the manu- 
 facturer. 
 
 To effect a change in the property there 
 must he an assent of both parties. It Ib 
 admitted that the mere order given for 
 the manuiacture of the article does not 
 affect the title. It will continue to lie the 
 property of the manufacturer until com- 
 pleted and tendered. There is no axsent 
 of the iitlier party to a chaiiRc of the title 
 exhibited by a tender and refusal. There 
 must be proof of an acceptance or of actH 
 or worils respectinn It, from which an ac- 
 ceptance may be inferred, to pass tlie 
 property. 
 
 This a|>pearR to be the result of the best- 
 considered cases. 
 
 There is a particular class of rases to 
 Avhich this rule does not apply, where the 
 customer employs a snpeiintendent and 
 pays for the property manufactured by 
 installments us the work is performed. 
 
 Exceptions <iverruled.
 
 
 I
 
 MOOIJK V. McKINLAV. 
 
 559 
 
 MOORE V. McKINLAY r'l al. 
 
 (5 Cal. 471.) 
 
 Supreme Court of California. Oct. Term, 1855. 
 
 Appeal from the diHtrict court of the 
 twelfth judicial diHtrict, San FranciHco 
 county. 
 
 Houce & Wilson, and Cook & OldH, for I 
 appellanto. CharleH H. S. W'illinrnH, for 
 rcHpondent. 
 
 .MU!tl{j\ Y, ('. J. 'i'his wnH an action in 
 the court lielow, to recover the amount 
 paid hy the plaintiff to the defcnilanlH lor 
 the purchase of an invoice of (garden 
 BecdH. 
 
 It iH in evidence, that after the arrival 
 of the vcHsel, the plaintiffn were retiucKted 
 to open and inspect the Mceds, hut declined 
 to do so, and paiil for them. 'J'hey were 
 afterwards tested, and (ound to he almost 
 wholly worthless. In order t<j maintain 
 this action, the pluintifls must thowelther 
 an express or Implied warranty. The sale 
 note is as follows: " \V(^ have this day 
 sold you two shipments of seeds tor ar- 
 rival," &c. 
 
 The plaintiff maintains, that the word 
 "seeds" thus used, amounts to an express 
 warranty: that it has an express sisnlti- 
 cation, importing an article which will 
 Kerminate or y;row, and that it would he 
 error to apply this term to any seeds not 
 ponsessiiiK these properties. And secon<I, 
 tiiat if not an express warraitty, the law 
 will imply a warranty; or, in other words, 
 riiise the presumption, that the article 
 sold is mcrchantahlo, and tit for the use 
 for wliich it was sold. 
 
 At common law, the rule caveat emptor 
 applied to all sales of personal property, 
 except where the vendor H'lve a;i express 
 warranty, which is said to he such recom- 
 mendations or allirmations, at the time 
 of the sale, as are supposed to have in- 
 duced the purchase. To constitute a war- 
 ranty, no precise words are necessary; it 
 will 1)0 sullicient if the intention clearly 
 appear. 
 
 DuriuK the time of Lord Holt, the dec- 
 trine was estahlished, tliat to warrant, no 
 formal words were necessary, and there- 
 fore a warranty mi;;ht he imiilied, from 
 the nature and circumstfinccs of the case, 
 and the maxim was thus introduced, 
 that a sound iirice Imports a sound bar- 
 gain or warranty. 
 
 This doctritie was afterward exploded 
 by Lord iMaiislield, since which time It has 
 undi-rj^ono some modilications in the Kng- 
 
 lish and American courts, tendiiiK In the 
 former somewhat and In some of tlie 
 states (if the I'nion, to the rule of civil 
 law, widch implies that the i;oodH sold 
 are morchuntalde, and lit for tlie purpoHe 
 for wlncii they were bou^lit. 
 
 The lietter opinion, however, I lhlnl<, an 
 deduced from ICn^lish and .\miTican de- 
 cioions, is that a warranty will not he Im- 
 idicd, except in cases where ^oods ore Hold 
 at sea, whei-e the party has no i.pportuni- 
 ty to examine them, or in case of a sale by 
 sausple, <jr of [irovisions for domestic use. 
 
 In Hart v. Wri^'ht, 17 Wend., -yiT. ./udRe 
 ("owen reviews the former deciKinnH of 
 that state as well as the ICuKlish cnscB, 
 and urri.cs at the concluHJon which 1 
 hav(? staled. This case was afterwards 
 hrouKht before the court of errors ol New 
 York, and the doctrine approved. 
 
 Jn .Sloses v. Mea<l, 1 Di'iiio, .■('<.">, tlie ques- 
 tion a^ain came before the suiireme c<»urt 
 of New York. In commentinjj; on the de- 
 cisions on this subject, .ludKC Bronson 
 says, "iSome EiiKlish jndnes liave lately 
 shown a stronj; tendency towards the 
 doctrines of thecivil law, in relation tc» 
 sales, and have been disposed to imiily 
 warrantys wliere none exist. * • * I 
 do not regret to find, tliat there are men 
 in Great Itritain who can look beyond 
 the shoresof that island ; l)ut I feel no dis- 
 position to f(dlow them in their new zeni 
 for tile civil law, for the reason, that it is 
 not our law in relation to sales In the 
 best." 
 
 The same doctrine Is maintained in 
 Fraley v. Bispham, 10 Barr., :1lMI, and 
 many other .\merican decisions. There 
 liave been no departures from this rule in 
 the decisions of this court. In the case of 
 Flint V. Lyon, 4 Cal., 17. tlie Hour was 
 described as "Hnxall," and we held, that 
 tins amounted to a warranty, that tlie 
 article sold was " llaxall," and not a dif- 
 ferent brand or quality <>( Hour. In Kuiz 
 et al. V. Norton, 4 Cal., :!.'>'.), the sale note 
 described the rice as "sound rice." which 
 it was held amounted to a warranty. 
 
 Testinj? the present case by the rule 
 wliich we have deduced from the better 
 authority of courts, the pbilntltf cannot 
 recover. " The laiiKiiay:e useil In the sale 
 note cannot be tortured Into a warranty, 
 and the fact that the plaintiff had an op- 
 portiiiiity and declined to Inspect the 
 seeds before acceptiuK them, takes the 
 case from the operation of the rule of Im- 
 plied warranty. 
 
 Judgment reversed, with costs. 
 
 UEYDKNFELDT, J., concurred.
 
 MOIWE V. SIIAW. 
 
 561 
 
 MORSE et al. v. SHAW. 
 
 (134 Mass. 59.) 
 
 Supreme Judicial Court of Massachusetts. 
 Hampden. Feb. S, ISiS. 
 
 Replevin of wool. At the trijil in the Rii- 
 perlor court, hofore Kockwell, J., the jury 
 returned ii verdict for tlie pluiiitiffH; und 
 the defendant ulleKed e.xcepiiouH. 
 
 G. M. Stenrns nnc) N. A. Leonard, for 
 plaintiffH. G. F. Hoar, for defendant. 
 
 MORTON, J. The plaintiffs seek to a void 
 a Hale, upon the ground that the.v weie 
 induced to make it hy false and fraudulent 
 representations o( the defendant. The 
 burilen is upon them to show that the de- 
 fendant knowingly made false representa- 
 tions of matters of fact whirh are suscep- 
 tihleof knowledge. Rei)rosentation8 which 
 are mere expressions of opinion, judgnient 
 or estimate, or intended as e.xpressioHH of 
 helief only, are not sufficient to support 
 the action. They must be statements of 
 facts suscei)til)le of knowledf;e, as distin- 
 guished from matters of mere belief or 
 opinion. Safford v. Grout. 120 Ma.ss. 20. 
 Litchfield v. Hutchinson, 117 Mass. 1!).'>. 
 
 At the trial of this case, the presiding 
 justice st:i ted tliese principles of law with 
 substantial correctness, and thedefendant 
 d<ieH not coni|)lain of the rulings in this 
 respect. I'.iit he contends that the onl.v 
 representations proved in the case were 
 expressions of o|iinion or belief as to the 
 defendant's ability to pay his <lcbts, and 
 that, therefore, under rules of law adopt- 
 ed by the presiding judge, he should have 
 instructed the jury, as requested, that the 
 evidence would not warrant a verdict for 
 the plaintiffs. 
 
 The evid.nce tended to show that, in 
 January, isTG, the defendant went to the 
 plaintiffs to buy wool, and. after some 
 conversation as to his business condition 
 and credit, agreed to go home and pre- 
 pare a st.'itement of his aff.-iiis; that, in 
 the February following, he again called 
 upon the plaintiffs, took out n niemoran- 
 LAW SALES — 36 
 
 duin book, apparently rend It, and said: 
 "I want to tell ycHi how I stand. I could 
 pay every dollar of iiideliteilneHS of mine, 
 including the mortgages on my real es- 
 tate, and not owe on that real estate 
 more than $1."),000 to *20,()(H>. " It up- 
 I)enred that he had a large and valuable 
 real estate. The statement is ei|uivalent 
 to a ret)iesentation that he huil, imlepend- 
 entiy of his real estate, property enough 
 to pay all his debts except $20,000. 
 
 Such a representation may he suscepti- 
 lile of either of two interpretations. It 
 may hfl intended as a wilfidly false state- 
 ment of a fact, and may be understood us 
 a statement of a fact. Or it may lie In- 
 tendeil as the expression of the opinion or 
 estimnfcH whicli the owner has of the 
 value of Ills property, ann may Ijc ho un- 
 derstood. .Suppose, lor instance, that a 
 man who owns iiroperty worth ?bHio, for 
 the purpose of procuring credit, re|)resentB 
 that he is worth or that he has property 
 worth $100,000. It would be sell-evident 
 that lie intended to misrei)resent facts, 
 and such misreprfsentatinn would be a 
 frauil. I'.ut, if the same man shoulil repre- 
 sent that III' had property worth $1."jOO, It 
 might well be regarded as an expression 
 of his judgment or estimate of value, and 
 therefore not an acfionablefraod. In such 
 cases, it is for the jury to determine wheth- 
 er the representations were intended and 
 understooil as statements <if tacts, or 
 mere ex|>ressions of opinion or juilgment 
 In the case at bar, the court could not 
 .say, as matter of law, that tliestatements 
 made l)y the defendant as to his iiroperty 
 and del)ts were mere expressions of his 
 opinion or lielief, and not statements of 
 facts. All tiie evidence was before the ju- 
 ry, disclosing the circumstances and con- 
 dition of tlie ilefendant and his property, 
 and it was properly left to them to deciile 
 wliether the statemenls proved were false 
 and frjiudulent representatiousof material 
 facts. 
 
 Exceptions overruled. 
 
 I ENDICOTT and LORD. JJ.. olisent.
 
 I
 
 MOUSE 0. SIIEUMAN. 
 
 5C3 
 
 MORSE et al. v. SHERMAN. 
 
 (106 Mass. 430.) 
 
 Supromo Judicial Court of Massachusetts. Suf- 
 folk. March, 1S71. 
 
 Contract. The declurntion contained 
 two countH, — tlie (Irst on an account an- 
 nexed, tlie KL'conil for go<j(lM ho1<1, and re- 
 ferring til I lie account an u liill of purticu-' 
 larH. .lolin S. .Miuiny. one of tlie |)lain- 1 
 tills, testitii'd tlint plaintlffH, as «HHiy;nee.s 
 of tlie InvciilopK' Maiiufaclnrers' Com- 1 
 paui', in .Inly, ISO'J, took poMsesHion of 1 
 tlieir ;;oodH in a 8tore in lUiHton. The 
 Htock included "a lot of cutlery, plated 
 ware, ladien' travcllinji hagn, pocket- 
 bookH, pencils, and fancy iroodn." Th" 
 defendant proposed " to buy for cash ail I 
 the Koods in the 3lore of the description 
 named, at a certain discount from the 
 niaiiufacturers' list of prices," and the 
 plaintiffs accejited the offer. All tlienoods 
 of that description were then taken from i 
 the places where tliey had been Uei)t, and I 
 put by themselves, for d(dlvery, anil a 
 schedule was made, showins the amount 
 of )54,l(i:5.7S as their price under the con- 
 tract of sale. The defendant then said 
 that he could not pay for the whole of 
 them, but would like apart of them for 
 his customers, and was allowed to take 
 about $I,l'0O worth, pnyinj,' $1,(100 "on 
 account." The defendant at the time 
 promised to paj- the balance and take 
 away the rest of the Koods in a few days. 
 Thereat of the goods were kept at the 
 store for the defendant for some time, un- 
 til the plaintiffs were to vacate the store, 
 when plaintiffs asked thedefendnnt topa.v 
 the balance due and take thegoods away. 
 Plaintiffs refused to take defendant's iiot(> 
 for the balance, and notified iiim that, if 
 he did nut iiay the balance and take the 
 goods away before they vacated thestore. 
 they should store them at his risk and ex- 
 pense, and refused to let him have them 
 until he paid for them. When they va- 
 cated the store they packed and removed 
 them ti> the waiehouse of one of the plain- 
 tiffs. Tile defendant was present at the 
 time, and made no objection, iiromising 
 to pay for tliem in a few days and take| 
 them away. The defendant then offered 
 the plaintiff at whose warehouse they 
 were stored an assignment of certain 
 leases as security for the balance due, 
 which plaintiffs refused. The plaintiffs 
 then brought this action. The judge, be- 
 ing of opinion that the declaration was 
 insufruient for the goods not taken away 
 by the defendant, reported that c)iiesti(iii 
 before verdict, for the determination of 
 the court. 
 
 A. A. Ranney, (N. Morse, with him.) for 
 plaintiffs. J. D. lUcliardson, for defend- 
 ant. 
 
 CdLT, J. A count on an account nn- 
 noxed may be used under our statute, 
 "where the action is for one or more 
 Items, which v.'ould bo correctly described 
 by any one of the coinmon counts." Thi-s 
 includes an action for the price of goods 
 bargained and sold, as well as one tor 
 goods sold and delivered, because formerly 
 the price in such ease could be recovered 
 
 under an Indebltatua asHumpslt. Steams 
 V. Washburn, 7 (Jray, 1H7. Do thefactH 
 here reported justify the jury In llnding lor 
 the plaintiffs under a general count for 
 goods bargained and sold, or such a count 
 for goods sohl and delivered? If, so, then 
 the declaration on the account annexed is 
 sufTicient, and the case slionld have been 
 submitted to them. 
 
 The evidence reported tends to show a 
 completed contract of sale. .N'othing re- 
 mained to be done by cither party, in the 
 way of designating, or appropriating, or 
 accepting, the goods sold. 'I'hey were all 
 that were in the store of the description 
 named, and were taken from the shelves, 
 scheduled, and put by themselves. After 
 they were tiins set apart, the defendaat 
 took a portion of them, jiaying a part of 
 the price, and saying that he liu>l not 
 money to pay for the whole, but prom- 
 ising to pay the balance in few iliiys. 
 The goods have since been kept by the 
 plaintiffs ready to be surrendered to 
 the defendant upon payment of the 
 balance of the purchase money. The 
 purciiase was for cash; and the plain- 
 tiffs had a right to retain possession, by 
 virtue of their lien for the price. The con- 
 tract of sale was e.iecutod. 
 
 It is a familiar rule of pleading that, 
 wlieii the terms of a special contract have 
 licen so far performrd thai nothing re- 
 mains liut a mere duty to pay money, 
 tiieii the amount due may be recovered 
 under a general count. It is only neces- 
 sary to ileclare specially, when the agree- 
 ment remains executory. Tlius when the 
 contract of sale is ciinil)lete, and the ven- 
 dee does not take awa.v the goods, the 
 vendor may recover the price in indebitn- 
 tus assumpsit. Tlie law does not recjuire 
 tliat coniplete delivery, that actual re- 
 ceipt of the goods, which would be neces- 
 sary to defeat the vendor's li.-n for the 
 price, or his right of stoppage In transitu, 
 or which would be renuired to take l In- 
 case out of the statute of frauds. The 
 term "delivery" Is used in the law wf sales 
 in very different senses. It is used in turn 
 to denote transfer of title and transfer of 
 possession; anil where the parties have 
 agreed, and thespecilic articles are appro- 
 priated and accepted, then, Indeiiendently 
 of the statute of frauds, it is often said, 
 there is sullicient delivery to pass the 
 title, although there be no transfer of pos- 
 session. .\iid this must he so. In order to 
 bo consistent with the lien which remains 
 to the vendor for tlie price. - Kent Cora. 
 (t;th ed.) VX2. .Simmons v. Snift. .'> B. & C. 
 N.")7. In Dixon v. Yates, 5 H. & Ail. :!13, 
 Parke, J., said that when, by the contract 
 itself, the vendor appropriates to the ven- 
 dee a specific chattel, and the latter there- 
 by agrees to take the specific chattel and 
 pay the stipulated price, the parties are 
 then in the same situation as they would 
 be in after a delivery of goods in pursu- 
 ance of a general contract. The appro- 
 priation of the chattel Is equivalent to de- 
 livery by the vendor; and the assent of 
 the vendee, to take the specillc articles 
 and pay the jirice. Is equivalent to his (Ac- 
 cepting" possession. And It Is now well 
 settled that "by the law of England, by 
 a contract for the sale of spcclUc ascer-
 
 564 
 
 MOUSE V. SHERMAN. 
 
 tained goods, tlio property immediately 
 vests in the buyer, and a ris'it to the 
 I)rice in tlie seller, unless it can he shown 
 that such was not the intention of the 
 parties." Gilmour v. Supple, 11 Moore P. 
 C. 551, r^dfi. BlacklJurn, J., in Calcutta & 
 Burmah Steam Navigation Co. v. De Mat- 
 tos. 32 L. J.(N. S.) Q. B. 322, 328. See 
 also Damon v. Oshorn, 1 Pick. 47(5; Mid- 
 dlese.x Co. V. Osgood, 4 Gray, 447; Riddle 
 V. Varnum, 20 Pick. 280. 
 
 In At wood V. Lucas, 53 Maine, 508, cited 
 for tlie defendant, the action indeed was 
 upon an account anne.xed, which would, 
 as we have seen, have been maintained by 
 proof of goods bargained and sold mere- 
 ly, as well as by proof of goods sold and 
 delivered. But the facts of tlie case are 
 not fully stated in the report; the ques- 
 tion passer! upon, as appears both in the 
 opinion of the court ami the head note of 
 the reporter, was whether general indebi- 
 tatus assumpsit could be supported, with- 
 out proof of actual delivery and accept- 
 ance of the goods; and it was erroneously 
 assumed that goods bargained and sohl 
 required a special count, and could not be 
 recovered for under the common counts. 
 That case therefore is of no weight upon 
 the question what evidence is necessary 
 to maintain an action for goods bar- 
 gained and sold. 
 
 In Turley v. Bates, 2 H. & C. 200. the dec- 
 laration contained a special count, with 
 
 counts for goods bargained and sold, 
 goods sold and delivered, and on an ac- 
 count stated; the plaintiff sold the defend- 
 ant a quantity of clay at a certain price 
 per ton, to bo carted away by the defend- 
 ant and weighed at his own exjjense; it 
 appeared that it was the intention of the 
 parties that the property should pass to 
 the bcyer; and it was held that the plain- 
 tiff might recover the balance of the price 
 under a count for goods bargained and 
 sold, although the clay had never been all 
 carted away and weighed. 
 
 It is competent, of course, for the par- 
 ties expressly to agree, in the contract 
 of sale, that the title to the property shall 
 not pass except on the performance of a 
 precedent or concurrent condition, such 
 as the payment of the price. It is then a 
 conditional sale strictly ; and it isfamiliar 
 law that the title will remain in the seller. 
 It will not be a complete sale; it is then 
 an executory contract; and it may be 
 that the vendor's remedy is only upon a 
 special count. Thecaseshows no such ex- 
 press condition here; and there was evi- 
 dence enough, in the opinion of a majority 
 of the court, to warrant the jury in find- 
 ing that it was the intention of the par- 
 ties to make the sale complete and abso- 
 lute, subject only to the vendor's lien for 
 the price. Upon such a state of facts, as 
 we have seen, the declaration is sufficient. 
 
 Case to stand for trial. 
 
 fi
 
 ^
 
 MORTON 0. TIBBETT. 
 
 567 
 
 MOUTOX T. TIBBETT. 
 
 (15 Q. B. 428.) 
 
 Queen's Bench. May 31, 1850. 
 
 Debt for K'io(ls Hold and delivered, and 
 HoodH hurjiHiiied and Hiild. Plea, uun- 
 (|iiani indcliitatiiH. JwHue tliereoii. 
 
 On the trial Ijotore Polloeli. C. 15., at tlie 
 <'anil»ri(li;eHliire wprinn aHHizew, 1S49, it ap- 
 peared that the action wuh IjruiiKlit to re- 
 cover tlie price of lifty ijuarterH of wheat. 
 On 2.'>tli AuKUHt, l,s4«, the ])laintiff and de- 
 fendant heinu at March niaiket. Hold the 
 wheat to the defendant by sample. 1'he 
 defendant waid tliat he wouUl Heiid one 
 IOd;;lcy, n fjeneral earlier and liKhtermnn, 
 on the following morning to re(reive the 
 residue of the wheat in a llj.;hter for tlie 
 purpose of conveying it t)y water from 
 March, where it then was, to Wiwljeuch ; 
 and the defendant himself took the sam- 
 ple away with him. On 'JCith AuiinstEdu- 
 ley received the wiieat accordinj^ly. On 
 the same day thedefendant sold the wheat 
 at a profit, hy the same sani|ile, to one 
 IlampHonat Wislieach market. The wheat 
 ariiveil at Wislieach in due course on the 
 cveninj? of Monday the 2Sth Aujjust, and 
 was tendered hy Edcley to Hnmpson on 
 the followiuK morniiiK, when he refused 
 to take it, on the grounil that it did not 
 correspond witli the sample. Up to this 
 time the defendant hail not seen the 
 wheat: nor had anyone e.xamined it on 
 his behalf. Notice of Hanipson's repudia- 
 tion of his contract was jjiven to the ile- 
 fendant; and the defendant on Wednesday 
 thelJOth Aumist sent a letter to the plain- 
 tiff repudiatinf; his contract with the 
 plaintiff on the same ground. There was 
 no memorandum in writing of the barnain 
 within § 17 of the statute of frauds, l'!t 
 Car. 2, c. IS; and it was objected tor the 
 defendant that there was no evidence of 
 acceptance and receipt to satisfy the re- 
 (|uirpnientH of the same section. The lord 
 chief baron overruleil the objection ; and 
 the counsel (or the defendant addressed 
 the jury e.xclusiveiy on the question of 
 such acceptance and receipt. .\ verdict 
 was found for the plaintiff, and leavegiven 
 to move to enter a nonsuit, if the court 
 should think either that there was no ev- 
 idence of acceptance an<l receipt ornosuch 
 evidence as justilied the verdict. 
 
 Hefore CA.MIMSKl.L, C. J.. I'ATTE.SCN, 
 COLKHIIXii:, and EHLE, .J J. 
 
 Worllcdge in Ivister term.ls^i), obtained 
 a rule nisi accordingly. In this term (.May 
 22d) .\ndrew8 atid O'Mnlley shewed cause. 
 Worlledge and Couch, contra. 
 
 CAMfBELL, C..I. In this case the(|ues- 
 tion submitted to us is, whether there was 
 an.v evidence on which the jury could be 
 justilied in tindlng (hat the buyer acceiited 
 thegofids anil actiialiy received the same, 
 so as to render him liable as buyer, al- 
 though he did pot give any tiling in ear- 
 nest to bind the bargain or in part pay- j 
 nient, and there was no noteor memoran- 
 dum in writing of the bargain. 
 
 It would be very dilHcult to reconcile 
 the cases on this subject; and the differ- 
 ence between them ma.v be acconnted lor 
 
 hy the exact words of the 17th Hcctlon of 
 the statute of frauds nut having been al- 
 ways had in recollection. JudgeH as well 
 as (!<.unsel have supposed that, to tlls- 
 pense with a written meuioranilum of the 
 bargain, there must first have been a re- 
 ceipt (jf the goods by the buyer, anil after 
 that an actual acceptance of the same. 
 Hence perhaps has arisen the notion that 
 there must have been such an accefitance 
 as would preclude the l)uyer from (jiies- 
 tioning the quantity or quality of the 
 goods, or in any way disputing that the 
 contract has been fully performed by the 
 vendor. But thewordsof theact of parlia- 
 ment are: "No contract for the sale of 
 any goods, wares and merchandizes, f-ir 
 the i)rice of £10 sterling or upwards, shall 
 be allowed to be good, excejit the buyer 
 shall accept part of the goods so sold, 
 and actually receive the same, or give 
 something in eainest to bind the bargain, 
 or in riart of payment, or that soiiie note 
 or memorandum in writing of the said 
 bargain be made and signed by the par- 
 ties to be charged by such contract, or 
 their agents thereunto lawfully author- 
 ized." It is remarkable that, notwith- 
 standing the importance of having a writ- 
 ten memorandum of the bargain, tlie legis- 
 lature appears to have been willing that 
 this might be dispensed witli where by 
 mutual consent there has been part per- 
 formance. Hence the payment of any 
 sum in earnest to bind the bargain or In 
 part payment is sutlirient. This act on 
 the part of the buyer, if acceded to on the 
 part of the vendor, is suHicient. The same 
 effect is given to the corresponding act by 
 the vendor of delivering part of (he goods 
 sold to the buyer, if the liuyer shall accept 
 such part and actually receive the same. 
 .\H part payment however minute the sum 
 may be is sufficient, so part delivery how- 
 ever minute the portion may be is sulli- 
 cient. This shews conclusively that the 
 condition imposed was not the complete 
 fulfilment of the contract to the satisfac 
 tion of the buyer. In truth the effect of 
 fultilling tlie condition is merely to waive 
 written evidence of tlie contract and to 
 allow the contract to be estaldished by 
 |)arol as before the statute of frands 
 passed. The (juestion may then arise, 
 whether it has lieen performed either on 
 the one side or the other. The acceptance 
 is to be something wliicli is to precede or 
 at any rate to be contemrioraneius with 
 the actual receipt of the goiiclH. and is 
 not to be a subsequent act after the good? 
 have been actuiilly received, weighed, 
 measured, t>r examine<l. .-Vs the act of 
 parlianient expressly makes the accept- 
 ance and actual rtveipt of any part of the 
 goods sold BUlhcient, it must be open to 
 the buyer to objirt at all events to the 
 quantity and quality cf the residue, and 
 even where there is a sale by sample that 
 the residue offered docs not correspond 
 with the sample. We are therefore of 
 opinion that, whether or not a delivery of 
 tlie goods sold to a carrier or any agent 
 of the buyer is sullicient. sllll thire may 
 bean acceptance and receipt within the 
 meaning of the act without the buyer hav- 
 ing examined the goods or done any thing 
 to preclude hiui from contending that they
 
 568 
 
 MORTON V. TIBBETT. 
 
 do not correspond with the contract. 
 The acceptiuice to let in parol evidence of 
 the contract ap|)ear8 to us to be a differ- 
 ent acceptance from that which affords 
 conclusive evidence of the contract having 
 been fulfilled. 
 
 We are therefore of opinion in thin case 
 that, although tlie defendant had done 
 
 for, that there mu.st he an opportunity 
 for the vendor to inspect the (quality of 
 the thing sold; and Abliott, C. J., founds 
 hi.s juiiKment u[)on this consideration, that 
 the defendant had no rinht of property in 
 the horse till the price was paid, and could 
 not till then exercise any act of ownership 
 over l)im. Holroyd, J., says: "There is 
 
 I 
 
 nothing which would have precluded him i no evidence to shew that" the vendor 
 from objecting that the wheat delivered "had ever parted with the possession" of 
 to Edgley was not according to the con- 1 the horse. Next conies Hanson v. Arnii- 
 tract, there was evidence to justify the t tage.s Tliere the vendor, who resided in 
 jury in finding that the defendant accept- ■ London, having been in the habit of sell- 
 ed and received it. '"g goods to a customer in the country 
 
 We will now examine the eases which i and of delivering them to a wharfinger to 
 are supposed to prove the doctrine that j be forwarded by the first ship, in pursu- 
 thcre can be no acceptance within the ance of a verbal order from tlie customer 
 meaning of the statute of frauds unless (ieliveied a parcel of goods to the wharf- 
 the buyer is precluded from objecting that \ inger to be forwarded in the usual nian- 
 the vendor lias not fully performed the j ner. The customer had done nothing be- 
 contract on his part. The first of these yond givingthe verbal orderforthe goods, 
 was Howe v. I'almer.i which we clearly .Abbott, C. J., in a very few words deliv- 
 think was well decided, although we can- ^ ered the judgment of the court that an ac- 
 not concur in all the reasons given for the j tion could not be maintained for the price 
 decision. There the only evidence of ac- 1 of the goods, on the ground that the ac- 
 ceptance and receipt was that the agent ' ceptance in this case not Ijeing by the par- 
 of the vendor who had verbally sold to t^' himself was not sufficient, referring to 
 the defendant twelve bushels of tares, Howe v. Palmer,* where he says: "It was 
 part of a larger quantity in the vendor's I held that there could no actual acceptance 
 possession, had measured off twelve bush- 1 so long as the buyer continued to liave a 
 els of the tares, and set them apart for the i right to object either to the quantum or 
 purchaser. According to the contract I quality of the goods." Rut the decision 
 they were to renrain in the possession of inay well stand on other grounds; and 
 the vendor till calleil for. The purchaser | we may observe that it is an actual re- 
 therefore neither had a(cei)ted nor received i eeipt of the goods which the statute re- 
 the goods. Abbott, C. J., does say: "Iflquires, and not an actual acceptance, 
 he had once accepted he could not after- ^ Carter v. Toussaint^ was llKewise relied 
 wards make any objection, even it it j upon, but it was merely (like Tempest v. 
 turned out that the tares did not corre- I<"itzgpraliH) a case of a sale by pnr(d of a 
 
 spond with the sample." But this obser- 
 vation was quite unnecessary for the de- 
 termination of the case; and, with the 
 
 horse that remained always in the pos- 
 session and under the control of the ven- 
 dor, so that he could not have been ac- 
 
 rcost sincere respect to the great ju<lge j cepted and received by the purchaser, 
 from whom it fell, we do not think that i Abbott, C. J., .-"ays: "The plaintiff's char- 
 it is applicable. Tiie proper ratio deci- ' acter of owner remained unchanged from 
 dendi seems to us to be given by Holroyd, j first to last." The next case is Smith v. 
 J., where he says: "In this case there has i Surman,'^ and there after a sale of timber 
 been no actual receipt of any part of the [ by parol the purchaser had offered to sell 
 goods sold within the usual meaning of | the Ijutts. and had given some directions 
 the term, and 1 think that what has been about crosscutting the timber: but the 
 
 done ought not to be considered in point 
 of la was an acceptance. For supposing 
 that it was made part of the contract in 
 this case that the seller should set ariart 
 
 evidence clearly proved that the whole 
 continued to remain in the possession of 
 the vendor. The court, as might have 
 been expected, held that there could be no 
 
 and measure the thing scdd, that would receipt b.y the purchaser while the posses- 
 not make tlie act of measuring amount to sion of the goods remained with the ven- 
 a virtual acceptance or receipt of the dor. Avery learned judge, my Brother 
 goods by the buyer." The next case relied Parke, does unnecessarily add :§ "That the 
 upon is Tempest v. Fitzgerald, 2 where in [later cases have established that, uiness 
 an action for the price of a horse that had 1 there has been such a dealing on the jiart 
 died after the time when he was sold by of the purchaser as to deprive him of any 
 parol and before he was delivered or paid j right to object to the quantity or quality 
 for, the question arose upon whom the , of tlie goods, or to deprive the seller of hia 
 loss should fall. The only evidence of ac- [ right of lien, there cannot be any part ac- 
 ceptance and receipt was that, while the 1 ceptance. " That thete can be no accept- 
 horse remained in the possession of tlie [ ance and recei|)t by the purchaser while 
 vendor, the purchaser made his servant [ the lien of the vendor remains is clear 
 gallop the horse and gave some directions j enough, for the vendor's lien necessarily 
 about his treatment, requesting that he supposes tnat he retains the possession of 
 might be kejit by the vendor a week 
 longer. The court held that there had 
 been no ai'ceptance and receipt of the horse 
 by the purchaser. But the case has little 
 connection with the doctrine contended 
 
 ^3 B. & Aid. 321. 
 '3 B. & Aid. 6S0. 
 
 ' 5 B. & Aid. 5.57. 
 
 '3 B. & Aid. 3-21. 
 
 ' 5 B. & Aid. 855. 
 
 = 3 B. & Aid. 680. 
 
 '9 B. & C 561. 
 
 "9 B. & C. 57T.
 
 MORTOX V. TIBBETT. 
 
 GO'J 
 
 the poods; but I muHt be perniittcfl to | 
 doubt whether the caHos roturred to hnve 
 OHtnblJHhed the residue of the rule. Tlie 
 la«t ciiHc cited on behalf of tl)e defendant 
 KUH Norman V. Pliilli|)H.>' This cawe very 
 much resembled Hanson v. ArmitaKO,!" i 
 and presented no stronjier evidencj of a'j- 
 ceptance and reroii)t. The defendant iiv- 1 
 ing at WolliuKford fruve the plaintiff, u 
 timber merchant in London, a verbal or- 
 der for timber, dirictiuK it to be sent to 
 the PaddinRton station of the Great West-' 
 ern Railway so that It niiKht be forward- 
 er! to him at \ValliiiKf<»r(l. The timber 
 was accnrdinKly forwarded to the Wal- 
 lin^ford station ; but the defendant beiiiK , 
 informed of its arrival refused to have any 
 tiling to ilo with it. The court held that 
 althouKJi there mif^ht be a scintillu of evi- { 
 deuce fcjr the jury of an acce|)tance of the 
 timber within the statute of frauds, yet 
 there was not sufficient to warrant them 
 in finding that there was sucli an accept- 
 ance; and the court set aside a verdict for 
 the plaintiff as not warranted by the evi- 
 dence. Aldersnii. B.,8ays: "The true rule 
 api)ears to me to be that acceptance and 
 delivery under the statute of frauds means 
 such an acceptance ns j)recludes the pur- 
 chaser from objecting to the (juality of 
 the goods." He adds what, with great 
 deference, is a better reason: "The carrier 
 is only an ogent for the purpose of carry- 
 ing, and here the purchaser liimHelf Imme- 
 diately refused to take the goods." It 
 was upon this reason that the rest of the 
 court appears to have proceeded. 
 
 If there were such a rule as is contende<l 
 for it would be decisive against the plain- 
 tiff in this case, for the defendant never 
 had an opportunity of examining the 
 goods sold: there is no evidence that 
 Kdgley was bis agent for that pur[)ose; 
 and he had done nothing to preclude him 
 from objecting to the quality of the 
 wheat. I'.ut if there l)e no such rule, then 
 surely there was evidence to submit to 
 the jury and to justify them in finding an 
 acceptance and receipt. He S|)ecially sent 
 Kilgley to receive the wheat after the de- 
 livery of the wheat to his agent and when 
 it was no longer in the possession of the 
 vendor, instead of rejecting it as in other 
 cases, he e.Kercised an act of ownership 
 over it by re-selllng it at a firofit, and al- 
 tering its destination by sending it to an- 
 other wharf, there to l)e delivered to his 
 vendee. The wheat was then construct- 
 ively in his own i)ossessiou ; and could 
 such a re-sale and order take place without 
 his having acce])ted ami received tliecom- 
 mctdity'.' Does it lie in his mouth to say 
 that he has not acce|>ted tliat which ho 
 has re-sold and sent on to be deliverefl to 
 another? At any rale Is not this evidence 
 from which such an acceptance and receipt 
 may be inferred by the jur.v? Upon sim- 
 ilar evidence the finding of an acceptance 
 and receipt has lieen sanctioned by very 
 eminent judges. In Hart v. Sattley,!' 
 where goods had been verbally ordered to 
 be sent from London to Dartnunith, and 
 were sent by a carrier employed by the 
 
 defendant, and were not proved to have 
 been rejecteil by hira, although there was 
 no proof that they had conn- to Ills hands, 
 (.'ha mbre, .J., is reported to havesaid: "I 
 think under the clrcumstani'eH of this case 
 the defendant must be consideri'd as hav- 
 ing constituted the master of the ship his 
 agent to accept and receive the goods." 
 The plaintiff recovered a verdict which 
 was not disturbed. In Chaplin v. Rog- 
 ers, i- where a stack of hay being sold by 
 jiarol to the detendiint he, without pay- 
 ing for it or removing it, re-sold a part of 
 it to another person who took it away, 
 and tlie jury found that the defendant hud 
 accepted and received the stack of hay. 
 Lord Kenyon sold: "The question was 
 specifically left to the jury whether or not 
 there were an acceptance of the hay by the 
 defendant, and they have found that "there 
 was, which puts an end to any ijuestlon 
 of law." "Here the defemlant dealt with 
 this commodity afterwards as If it were 
 in his actual possession ; for be sold part 
 of It to another person." "The other 
 judges agree<l that there was sulliclent 
 evidence of a delivery to and acceptance 
 by the defendant to leave to the jury." 
 And the verdict for the plaintiff was con- 
 firmed. .So In Blenkinsop v. Clayton,'-'' 
 (jibbs, C. J., anrl the whole court of cora- 
 mon pleus. agreed that If a person who 
 has contracted for the i>urchase of gooda 
 offers to re-sell them as his own, whether 
 this be proof of an acceptance and receipt 
 of the goods by himself is a (juestion for 
 the jury. I will only further nu-ntlon the 
 well-considered caseot Bushel v. Whei'ler." 
 decided in this court. The dofendant re- 
 siiling in Herefordshire had verbally or- 
 dered goods from a manufacturer at Bris- 
 tol; according to his orders they were 
 sent to Hi refold and deposited in a ware- 
 house there, .\fterthey harl been a consid- 
 erable time there the defendant repudiated 
 them. In an action for the price before a 
 most learned and cautious judge. .Mr. .lus- 
 tice Ersklne. it was left to the jury wheth- 
 er up<in the evidence the buyer had nccei>t- 
 ed and received the goods; and the verdict 
 was for the defendant, with liberty to cu- 
 ter a verdict for the plaintiff if the court 
 should be of opinion that there was an ac- 
 ceptance. A rule tr) shew cause was 
 granted ; iMid cause being shewn the court 
 unaniuKiiisly apiiroved of the direction, 
 but dec-lined to take upon themselves to 
 enter a verdict for the plaintiff, and made 
 u rule absolute for a new trial. I partic- 
 ularly rely upon the pointed language in 
 that case of my Brother Ccderldge. who. 
 after observing that the acceptance re- 
 quired by the statute must be very clear 
 and unequivocal, says that It may be con- 
 structive; and nilds that "it is a ciiiestlon 
 for the jury, whether under all the rlroum- 
 stances" "tile acts which the buyer docs 
 or forbears to do are an acceptance or 
 otherwise." 
 
 These are express decisions throiiah a 
 long course of years that there may be 
 an acceptance and receipt of gtiods liy a 
 purchaser within the statute of fraudR, 
 
 '14 M. & W. 277. 
 "5 B. & Aid. 557. 
 "3 Oampb. 52S. 
 
 "1 East, 102. 
 " 7 Taunt. .'■.!)7. 
 »S Jurist. 5::l". \Z 
 
 Q. B. 442, note.
 
 570 
 
 MORTON V. TIBBETT. 
 
 nlthougli he has had no opportunity of 
 examininK them, and althouRh he has 
 done nothinK to preclude himself from 
 objecting that they do not correspond 
 wiHi the contract. We approve of these 
 decisions thinkinj; that they do not in- 
 
 fringe upon the statute of frauds and that 
 they conduce to fair dealinj; in trade. 
 
 We are therefore of opinion tliat in this 
 case the rule for entering a nonsuit should 
 lie discliarged. 
 
 Rule di.soharged.
 
 NATIONAL BANK o. DAYTON. 
 
 573 
 
 NATIONAL BANK v. DAYTON. 
 
 (102 U. S. 59.) 
 
 Hupremo Court of the United Stales. Oct. Term, 
 1S80. 
 
 Error to tlip HU|>renie court of Wyoming 
 Territory. 
 
 Siimuol Slicllabarni'r nnd Jeremiah S. 
 Wilson, lor iihiiiiliff in error. .Mr. William 
 A. Maury, for ilcfeiidaiit in error. 
 
 Mr. .JiiKtirc 1 1. \ ULAN delivered the o|)in- 
 ion of the court. 
 
 TliiH was replevin by the Wyoming Na- 
 tional liank a^ainHt TliomaH .1. Day ton. 
 The latter, n» hheriff of Albany county, 
 Wyoming territory, haij, by virtue of .sev- 
 eral attiicIitnentH a^ainHt the property of 
 one W.S. liruniel, levied upon a iiuinberof 
 cords of wood. The bank, claiming; to be 
 the owner of the wood at and before the 
 tiinewhen the writs were isHued and levied, 
 brought this action to recover it, and 
 daniaKes for the <letention thereof. 
 
 In the court of ori^'iaal jurisdiction a 
 verdict was returned in favor of tlie de- 
 fendant, and judsnient thereon entered. 
 From the judgment of atlirmance by the 
 supreme court of the territory the present 
 writ of error is iirosecuted. 
 
 I'pon the question of the ownership of 
 the wood, at the date of the respective 
 levies, the wvidence was conllictin>;, and 
 presented a case peculiarly vvilliiu the 
 province of the jury to determine, under 
 proper Huidance as to the law soverniiifr 
 it. Without attemptinu to set forth the 
 whole case, it is sufficient to remark that 
 there was evideuce to establish the follow- 
 iu>; facts : — 
 
 lirauiel was enRaued in the business of 
 briuKiufr wood down the liin' Laramie 
 river to Laramie city. He had a con- 
 tract with the I'nion Pacllic Railroad 
 (_"ouipany for the delivery to it, at its yard 
 in that "city, by a specilied date, of Hve 
 hundreil cords of wood at Sf."i percord. In 
 the necessary prei)arations for that en- 
 KaKcnient, he had, prior to Oct. ;!(), lsT;i. 
 received from the bank about flMOh. which 
 its presiilent testitied had been ailvance<l 
 to him at different times on this same 
 wood. For these advances the l>ank held 
 his notes. On the day last named he ap- 
 plied to the president of the bank for a fui-- 
 ther advance of money. 1 1 is appliiMlion 
 was denied. He then proposed that the 
 bank should buy all the wood he had, 
 some of which was then in the yard of the 
 comnany, but not received by it, some on 
 the bank of the river, and some in the river. 
 This proposition was at lirst declined; 
 but. after further con vei'sa tiou between 
 him anil the president of the bank, it was 
 agreed that the baidi should take the live 
 liunilre<l cords at $."i per cord, to be paid 
 for in tlie<lel)t of $l.'.l(>0, then held by the 
 hank, and .'if400 in cash, upon the condi- 
 tion that the company would receive the 
 wood from the bank upon like terms. It 
 was a part of the arran^;ement that 
 Hramel shoul I, in that evi'nt, put the 
 wood into the yard of the company, and 
 use the $Mm for that purpose, lu order 
 
 to ascertain whether the company wnnlil 
 assent to this arraai;ement, the bank 
 cashier anil I'.ramel. by dli-ectlon <if the 
 president of the bank, visited .Mr. Shank- 
 land, who had thecuntrol of all such busi- 
 ness for the company. They returned to- 
 ftellier and reported that Shankland ap- 
 proved the arranirenient, and would moke 
 out the vijuchersfor the wood to theliank. 
 The cashier then paid $4tM) to Itrainel, tak- 
 ing bis note therefor, bearing; interest ut 
 three percent per month; and the latter 
 went on putting fe wood into the yard 
 of the companj'. He had delivered at that 
 place about three hundred and seventy- 
 live cords, and had a few cordH on the 
 river-liauk, when it was all seized by the 
 ilefendant in error, under the attuchmeiitK 
 against Urainel's property. .None of the 
 wood had then been actually received l)y 
 the company, liramel's notes, to whicli 
 we have referred, were held by the bank 
 at the commencement of this action. 
 They were taken, as the tiank claimed 
 and i)roveil by its president, more as 
 memoranda than anytliinu else, and had 
 not lieen surrendered to liramel berouse 
 he had not called at the bank for them. 
 
 Such was, substantially, the case of the 
 bank. We do not say that tliejury shoidd 
 have found that it was made out. even by 
 a decided preponderance of the evidence, 
 but only that there was evidence tending 
 to show that the contract and acts of the 
 parties were such as the foregoing state- 
 ment sets forth. 
 
 I.ookinj; at the case in the lifrht of these 
 facts, it seems that the transaction be- 
 tween the liank and liramel was some- 
 thing more than a mere asireeinent as to 
 the disposition of the money to In- ob- 
 tained from the company. It constituted 
 a sale to the bank of all the wood which 
 he delivered at the yard of the company. 
 The absolute title to It passed tothebank 
 upon his depiisiting it there, with the in- 
 tention or for the purpose of completing 
 the sale. Nothing; more remained to be 
 done by him. His contr.iet bound hini 
 to deliver the wood, not to thecompnnv. 
 Init at its yard only. In li«nl eonlemplu- 
 tion, it then can)e into the possession and 
 control of the bank, and was not there- 
 after subject to be reached liy hiscreditors, 
 upon the mere Kround that the title had 
 not passed, or that a complete delivery 
 had not been made. The delivery in exe- 
 cution of the contract, at a specilled place 
 not lielonjiinf:; to him. was such as accord- 
 ed with the natureof the property. W hen 
 placed in the yard of the company, in pur- 
 suance of the' ajireenient, the acts of tlip 
 parties united with the previous verlial 
 contract. rcsuIlinK in a consuniinated ob- 
 ligatory agreement, deprivini; the seller of 
 all furtiier control of the proi)erty, and 
 putting it under the exclusive dominion oT 
 the tiiiver. with a perfected title thereto. 
 
 From that moment, the indebtedneHS of 
 the seller to the bank to the extent of the 
 contract price of the wood actually deliv- 
 ered at the desi;;nated place was dl8- 
 charKed. and the pror.erty was thence- 
 forward at tlip risk of the liuyer. .\ctiinl 
 manualpossessionof the liank by Its aRcnta 
 was. under the circumstances and rotjnrd- 
 inji the nature of the property, bothlinpruc-
 
 574 
 
 NATIONAL BANK v. DAYTON. 
 
 ticable and unnecessary to a complete de- 
 liveiy. These conclusions are atiumlantly 
 sustained by authority. Benjamin, Sales, 
 hk. 1, pt. 2, p. 134; Hilliard, Sales, c. 7, pp. 
 124-130; Browne, Statute of Frauds, c. 15, 
 p. 323. 
 
 The instructions were not in accordance 
 with these views. The coui't failed to 
 state distinctly and clearly the princiiiles 
 of law by which the jury were to be gov- 
 erned. Taking all theinstructions togeth- 
 •'jr, it is evident that the dejjosit of the 
 wood at the yard of the company, in pur- 
 suance of the previous agreement between 
 the bank and Bramel that it should be 
 put there for ultimate delivery to the com- 
 pany, was not regarded by the court as 
 such a change of possession as would, in 
 law, pass the title to the bank as against 
 the creditoi's, whose attachments were 
 subsequently issued and levied. 
 
 That we do not misinterpret theinstruc- 
 tioiis is quite clear, from the opinion of the 
 supreme court, which declaied that "the 
 record shows that the full and absolute 
 control and possession of the same was 
 publicly and privately retained by Bramel, 
 after the alleged unconditional sale." In 
 view of the pleadings and evidence this 
 could not be the case, unless the court 
 below not only disregarded the evidence 
 in behalf of the bank, but was, further, of 
 opinion that the delivery of the wood at 
 the>ard was insufficient to pass the title, 
 and change the control and possession of 
 the property from the seller to the buyer. 
 But that po.sition, as we have seen, is un- 
 sound both upon principle and authority. 
 We repeat that, it Bramel agreed to sell 
 and the bank agreed to buy The wood at 
 a fixed price per cord, the seller to remove 
 
 the wood from the river and put it in the 
 yard of the company, for sale or delivery 
 to the latter by the bank, which was to 
 receive the vouchers, and if the wood was 
 so deposited in pursuance of that sale and 
 agreement, then, in legal contemplation, 
 the title and possession of the projjerty 
 passed to the bank from the moment it 
 reached the yard. If after being placed 
 there and betoreits receipt by the compa- 
 ny the wood had been destroyed orstolcn, 
 the loss would have been that oftbel)ank. 
 It is immaterial, under the circumstances, 
 that the company had not, when the at- 
 tachments were levied, expressly or form- 
 ally recognized the bank's ownership of 
 the wood. 
 
 Some stress was laid upon the fact that 
 the hank took the note of Bramel for the 
 |4U0 advanced to him. That act, it is 
 claimed, was incon.siatent with the theory- 
 of an absolute purchase by the bank. 
 There was, however, evidence conducing 
 to show that the bank took the note by 
 way only of precaution, and to meet the 
 |)ossible contingency of the non-delivery of 
 the wood at the yard of the company. 
 But it was for the jury tosay whar weight 
 should be given to that fact in determin- 
 ing, upon the whole case, whether there 
 was an actual sale of the wood.oronly an 
 agreement as to the disposition of the pro- 
 ceeds after it should be received by the 
 company. 
 
 The judgment will be revci-sed. with 
 directions to require the judgment of the 
 court of original jurisdiction to be set 
 aside and a new trial gTaute<], and for 
 such further proceedings as may be in 
 conformity with this opinion; and it is 
 
 So ordered. 
 
 1
 
 NEWIIALL 0. CEXTHAL PAC. R. CO. 
 
 NEUHALI. et al. v. CF.NTHAL PAC. U. CO. 
 
 (51 Cal. 34.5.)- 
 
 Supreme Court of California. July, IS7G. 
 
 Ap|)fal from district court, tifteentli ju- 
 dicial district, city and county of Sun 
 Fi-iiucisco. 
 
 Caniiilicll, Fox & Campliell, for appel- 
 lant. \V. II. KliodeB, S. M. Wilson, and 
 W. W. Cope, for respondents. 
 
 CROCKETT, J. This case comes up on 
 tlie finiliiiKs, and there is, tlieretore, no 
 controverHV as to the facts; the only 
 (juestion bcinK. whether the ])laintiffw are 
 entitled to jud;;ment on the facts found. 
 The facts necessary to a correct under- 
 standiii:; of the only question of law in 
 the case are, that a mercantile tirni in 
 New York sold certain merchandise on 
 credit to a similar lirrn in San Francisco, 
 and shipped the same in the usual course 
 of business, by railway, to the veiKlees as 
 consifjnees, under bills of ladinjr in the 
 usual form. The bills of lading were re- 
 ceived at San Francisco by the consiKnees 
 before the ^oods arrived; and while the 
 nicrchnndise was in transit, in the custody 
 of the <lefendant as a common carrier, the 
 consiy:nees failed, and became insolvent, 
 and theieupon the vendors notified the de- 
 fendant in writin;i that they stopped the 
 Roods in transitu; that the vendees had 
 become insolvent, and the (roods were not 
 paid for. and that they must not be deliv- 
 ered to the consi:;neey, but to the vendors. 
 The plainiiffs then were, and for many 
 years had been, auctioneers and commis- 
 sion merchants, doinjr business in San 
 Francisco, and liad been in the liabit of 
 receiving from the coiisii;nees bills of lad- 
 inn, and floods under them, for sjile on 
 commission. About two hours after the 
 notice of stopijane in transitu was served 
 upon the di'lendant, tlii' consi>;nees in- 
 dorsed and delivered the bills of lading to 
 the plaintiffs, who, on the faith thereof 
 and of the ki""'" n&mc<l therein, "ad- 
 vanced a Kiim of money to the consi(;nees 
 in the usual course of business;" and the 
 sum so advanced was to be reiiul)ursed 
 <mt of the pi-oceeds of the uoods, which 
 were to be sold at auction tiy the plain- 
 tiffs. .At the time of the indorsement and 
 transfer of the bills of lading to the i)lain 
 tiffs, they had no notice that the con- 
 sijinecs were in failing; circuinstances, or 
 had failed, or 1liat any notice of stopp.iKe 
 in transitu had been served ui)on the de- 
 fendant. While the goods were still in 
 the possession of the defendant as a com- 
 mon carrier, the plaintiffs, as holders, ex- 
 hii)lted to the ilefendant the bills of lad- 
 ing, tendered the char;;es, and denianded 
 « delivery of the gooils. which was re- 
 fused, and the action is to recover their 
 value. 
 
 The question involved being one of 
 sreat practical iiiportanee. it has been 
 disc\issed by coutisel both orally and in 
 printed arfiummts, with learninsi and 
 ability, lint after the most cartful re- 
 search, they have Iiiiled to call H) our at- 
 teuiltin a siUK'e adjudicated case in whicii 
 the precise question under review has been 
 decided or discussed. There are numer- 
 LAW SALtii — 37 
 
 OU8 decision-), both in i;nKlnnd and Amer- 
 ica, to the effect that where goodH arecon- 
 siiriied by the vendor to the vendee, under 
 bills of lading in the usual form, as In thla 
 case, an attempt by the vendor to stop 
 the iroods In transitu will be uiiavalline 
 as against an assignee of the bill of lad 
 iiiK. who took It in >fi>od faith, for a val- 
 uabl" consideration, in the usual cour-«« 
 of l)usiness, before the at torn [>ted stoppaKe. 
 The leadinK case on this point 1h Lickbar- 
 row v. .Mason (2 Term K, at), the author- 
 ity o( which has been almost univerKally 
 ucquiesce<l in by the courts and text-writ- 
 ers, in this country and In iCnt;lund. 
 There beluK little or no conflict in the au- 
 thorities on the point adjudicated in that 
 case, it would be useless to reeapitulate 
 them here. liut it is Important to ascer- 
 tain the principles which underlie thene 
 decisions, that we may determine to what 
 extent, if at all, they are upidlcable to the 
 case at bar. The first, and, as I think, 
 the controllinc, point determined in these 
 cases, is, that by the bill of l.idiuK the 
 li'Kal title to the ;;oodH [>asses to tlie ven- 
 dee, subject only to the lien of the vendor 
 for the unpaid price; which Hen continuett 
 only so lonn as the goods are in transit, 
 ami can be erjforcecl oidy on condition 
 that the vendee is or becomes Insolvent 
 while the gooils are In transit. 
 
 On the failure of each of these condi- 
 tions, the ri2;ht of stoppage is gone, and 
 the lien ceases, even as against the vendee, 
 liut it is further settled liy these adjudica- 
 tions, that if the bill of lading i.s assigned, 
 and tile legal title passes to a bona tide 
 |)urchaser for a valuable consideration be- 
 fore the right of stoppage is exercised, the 
 lien of the vendor ceases as against the 
 assignee, on the well-known principle 
 that a secret tru.--t will not be enforced as 
 against a bona fide Indder for value of the 
 legal title. In such a case. If the eijultlea 
 of the vendor ami assignee be considered 
 equal (and this is certuinly tlie light most 
 favoralile to the vendor in which the 
 transaction can t)e regarded i, the rule ap- 
 plies tliat where the equities are equal the 
 legal title will prevail. Hut in such a case 
 it would beiiilhcult to miintain that the 
 equities aree<inal. The vendor has volun- 
 tarily placed in the hands of the vendee a 
 muniment of title, clothing him with the 
 a|q)arent ownership of the goods; and a 
 person dealing «ith him in the usual 
 course of l)usiness, who takes an assign- 
 ment for a valualile consideration, with- 
 out notice of such circumHtances as render 
 th"' bill of lading not fairly and lionestly 
 assignable." has a superior equity to that 
 (»f the vemlor asserting a recent lien, 
 known, ]ierhnps. only to himself ami the 
 ven<lee. (lirewster v. .Sime. -41.' t'al. I:!;i.) 
 
 These being the conditions which ileter- 
 mlne and control the relative rights of the 
 vendor and assignee, where the assign- 
 ment is maile before tlienoticeof stoppage 
 is given, precisely the same principles. In 
 my opinion, are ap|ilicable when the as- 
 signment is made after the earlier Is nt>- 
 titied by the veiidor. .\ot withslantliiiK 
 the notice to the carrier, the vendor's lien 
 continues to l>e only a secret trust as to 
 a person, who, in the langu;ige of Mr. Uen- 
 jainin, in his work on Sales, section eight
 
 578 
 
 NEWIIALL V. CENTRAL PAC. R. CO. 
 
 liundrerl and Hixly-six, taUes an assign- 
 nientofa bill of killing " without notice 
 of such circumstance as renders the 
 bill of lading not falrl.v and honestly 
 assignable." The law providesno method 
 by which third persons are to be af- 
 fected with constructive notice of acts 
 transpiring between the vendor and the 
 «arrier; and in dealing with the vendee, 
 whom the vendor has invested with tlie 
 legal title and apparent ownership of the 
 goods, a stranger, advancing his money 
 <in the faitli of tliis apparently good title, 
 is not bound, at his peril, to ascertain 
 whether, possibly, the vendor may not 
 have notified a carrier — it maybe on some 
 remote portion of the route — that the 
 
 goods are stopped in transitu. If a per- 
 son, taking an assignment of a bill of lad- 
 ing, is to encounter these risks, and can 
 take the assignment with safety only after 
 he has inciuired of the vendor, and of every 
 carrier tlirough whose hands the goods 
 are to come, whether a notice of stoppage 
 in transition has been given. It is quite 
 certain that prudent persons will cense 
 to advance money on such securities, and 
 a very important class of coruniercial 
 transactions will i)epractic»lly abrogated. 
 In my opinion the judgment should be af- 
 firmed, and it is so ordered. 
 
 Mr. Chief Justice WALLACE did not ex- 
 press an opinion.
 
 XEWIIAI.L 0. L\S(;\H)S. 
 
 bSl 
 
 NEWHALL V. LA.NUDON. 
 
 (39 Ohio St. 87.) 
 
 Supreme Court of Ohio. Junuaiy Term, 1883. 
 
 Krror to district CDurt, Hamilton 
 county. 
 
 Action by Newhall, Gale & Co. n.(;>iinHt 
 Lini^filon & Son to recover lialnnrc dne 
 on r>U linn-t'ls oi llonr, nt .If'i.l.") per linrrcj. 
 'I'h(! nnHwcr ndniittcd tlic purcliUHf of 17 
 ImriolH, (inij .•illcf^cd pnynicrit tlu-reldr, l)Ut 
 ilciiicd t lie |Mirchn.-i<> anil delivery of tlie 
 li.iliine.'. Tile followinn were the Hpeclal 
 Uridines of fact in the CDnnnon pleas: 
 "FirHt. On August L's, INTO, during the 
 forenoon, (he plalnliffH, \vh(» were at tliat 
 diite conirni.s.siiin tnerchantH, in Ciminnuti, 
 Ohio, coiitraeted to Hell the defendantH 
 fifty l)arrels of fl'iiir of u particular (juaj- 
 ity and hrand. The price ti.xed by tliecon- 
 tract waw $7>.^'> per liarrel. On the after- 
 noon of the Haine day the defendants re- 
 ceived from the plaintiffs an onler upon 
 the Dayton Shoit-IJne Itailroad ("oniiiany 
 for the delivery to the defendants of hfty 
 t)arrels of Hour, of the l)rand and ehar- 
 neter called for tiy the terms of the con- 
 tract. .Second. The plaintiffs were the 
 owners, at the time of nivirit; the order, of 
 one hundred barrels of the brand and 
 character called for by the contract. Said 
 one hundred barrels of Hour had ai lived 
 ut the de|)ot of said raili'oad company in 
 I'incinnati, and was stored in the depdt 
 in a i)articular location or conipartiiieut. 
 On said "JStli day of Anyrust plaintiffs H(dd 
 twenty-live liarrels ctf said one huniired 
 biirrels to one Smith, and ;:ave him an or- 
 <ler upon the railroad company therefor. 
 On the L".»th of Aunust they sold to one 
 Sweeney twenty-live liarrels, and ;;ave 
 him an order therefor. On the L".tth, be- 
 tween four and live o'cloi k 1". M., the de- 
 fendants sent their drayman to the depot, 
 with the onler for the titty barrels for the 
 purpose of obtaining son)e of the Hour. 
 He delivered the order to the railroad 
 clerk, took seventeen barrels of the llonr, 
 left the order with the railroad clerk, who 
 noted the delivery of the seventeen barrels 
 on the back of It, and hauled the seven- 
 teen liarrels to defendants' stoi'e, pursuant 
 to his instructions. Later in the after- 
 noon of the l".lth. Smith and Sweeney re- 
 ceived and hauled away the remainder of 
 Hour, due them upon their respective or- 
 <l"rs, thus leavin;;- thirty-three barrels of 
 the one hundred before referred to. Duiim; 
 the ni'xt suceeedinu ni;iht, to wit, at 11!'.; 
 o'clock A. .\1., Aufinst the .•!Oth, the dep.if 
 was burned, and the t hirty-three barrels 
 of Hour left of the one hundred, as above 
 staled, were totally destroyed. Subse- 
 quently the defeuilants paid illaiutiffs for 
 the seventeen barrels which had been 
 hauled, such payineut beiuK without prej- 
 udice to the rights of either party touch- 
 lii«' the remninint; thirty-three barrels. 
 Thiril. Neither the plaintiffs nor the rail- 
 road eomiinny set apart at any time any 
 Bliecilie barrels to the defendants, and 
 there « as no such setting off, nnlQ,ss the 
 fact that Sweeney and Smith haule<l 
 away all of the Hour save the thirty-three 
 barrels which were left, and the hauling 
 
 of the seventeen barrels hauled by defend- 
 ants, amounted to such separation and 
 appropriation. Neither defenilants nor 
 any of their ncents saw any of the flour 
 which remained after the drayman look 
 away the seventeen barrels, ruir had they 
 seen any part of the one imndred at uny 
 time prior to the hunlint; of the seventeen 
 barrels, nor dii] they know ot the sales to 
 .Smith and Sweeney, or the removal of nnv 
 flour by (liem until after the lire. I'onrtli. 
 The usa^e of business In Citiclnnati, be- 
 t%veen buyers and sellers of Hour, at and 
 liefore the ilates named, was this: I'lonr 
 arrives at the depots consi^'ued to com- 
 mission merchants. The railroad com- 
 pany notlHes the merchant of Its arrival, 
 who pays the freight, and .-i«ns n full re- 
 cei()t. acknowledging the delivery of the 
 Houi' to him. The railroad company then 
 stores the Hour in a jiarticular loeatlcm or 
 compartment in its depot, of which the 
 merchant is advised. He then makcH 
 sales, and, upon the conclusion of an 
 aRreemeut of sale, he hands to the buyers 
 an order upon the rnilroarl company for 
 the nun:ber of barrels caller] for by the 
 conlrnct. The purchaser sends h's dray 
 or w a iron with the order. The drl\er <le- 
 livers the order to the r.-iilroad clerk, wlui 
 Iioints out the Inention or compartment 
 in which the flour against which the or- 
 der Is drawn is contained, and the driver 
 proceeds to loail his vehicle. If (he order 
 calls for a certain number of liarrels, and 
 the comiiartnient contains a lar;;er num- 
 ber, the clriver makes the selection and re- 
 moval of the iiumber to which he Is en- 
 titled, and recei|itH for them. The order in 
 left with the railroad compi.ny when the 
 llrst load is hauled, and separate receipt 
 fiivenby the haulerfor the amount of each 
 load. The p.-irties to this suit umlersloud 
 and pursued this, the usual mode of trans- 
 actiiiK this business. The order from Iho 
 seller to the buyer u|ioii the railroad com- 
 pany speciHes the number of barrels, the 
 number of the car upon which the llonr 
 was transported to the ilepot, ami the 
 number of the locntion or <'oiniiartinfnt 
 in which it is stored; also the liriind and 
 quality of the flour. Fifth. The one hun- 
 dred barrels ot Hour before referred to waB 
 all that was in the location in which It 
 was stored on the "-'sth. iMlth. and :iltli <if 
 Aiiiiust, mill it was all alike, and answered 
 tlie terms of the contract between the 
 Illaiutiffs and defendants in all res|iivtH. " 
 The conclusions of law were: " First. 
 That upon the facts, asfound byllieconrt, 
 the title to the thirty tliree barrels of flour 
 destroyed in the ilepot remained in the 
 plaiullffs until the destruction thereof by 
 lire, and did not pass to the defendants. 
 Second. That the plaintiffs are not enti- 
 tled upon said facts to maintain an action 
 aualnst the defendants as to said thirty- 
 three barrels as for ;;oods biir»;alned niu] 
 sold, or irooils sold and delivered. Third. 
 It is therefore adjudged that defendanffl 
 y;o hence without day, and rei'over their 
 costs in this behall expended, and faxed 
 
 at ? . To all of which said plalntlff«, 
 
 by their counsel, except. .liidKuient and 
 liiidintrs of court for defendants. I'laln- 
 tiffs except. Motion for new trial over-
 
 582 
 
 NEWHALL V. LAXGDON. 
 
 ruled, to which plalntiffa except." This 
 judKineiit was affirmed by the district 
 court. 
 
 Rnmsey & Matthews and C. B. Mat- 
 thews, for plaintiffs in error. P. H. Kuni 
 ler, Drausin Wiilsin, and .lames H. Per- 
 kins, for defendants in error. 
 
 JOHNSON. C. J. Since the decision of 
 Whitehouse v. Frost, 12 East, 614, the 
 cases l>earinp: on tlio question here in- 
 volved have l)een numerous, bnt by no 
 means uniform. The tendenc.v of the 
 more recent cases has been to follow that 
 ease, though its correctness has l)een ably 
 challenged. This tendency has arisen out 
 of the apparent necessity of adap'ting the 
 Iiriiiciples of the common law to the 
 changes in the new methods adopte<l for 
 the transaclion of hnsiuesa. 
 
 The accepted piliioiples of right and jus- 
 tice form the grouncUvorU of the law of 
 contracts. In all (luestions involving 
 contract relations, the convenience and 
 wants of business give rise to usages 
 which become part of the contract, where 
 It is made with leference to such usages. 
 This is often called the expansive i)rop- 
 erty of tlie common law, but it is rather 
 the application of accepted principles of 
 right and justice, as evidenced by com- 
 mon law, to new phases and methods in 
 the transaction of business. 
 
 in view of the nature of this particular 
 business, in case at bar, and the known 
 usage governing buyer and seller, we 
 think it clear that, as between them, by 
 the delivery of the order from the seller, 
 by the purchaser to the warehouseman, 
 and his acceptance of the same, the right 
 to the fifty barrels of flour was perfected 
 in the purchaser, and that thereafter it 
 became his property. It is true, there 
 were one hundred barrels out of which the 
 order was to be filled, but it was all of 
 the same quality, and by the known 
 usage, the onl.y delivery to be made by the 
 seller, was b.v an order on the warehouse- 
 man, which, when presented, entitled the 
 purchaser to separate and remove the 
 propert.v. 
 
 No selection, properly speaking, had to 
 be made, as all the l)arrels were alike, 
 but only a counting off and separa- 
 tion, and in this I'espect it differs from 
 those cases where it is the inten.tion of 
 the parties that there is to be a selec- 
 tion or designation out of thelargcrquan- 
 tity. The effect of a known usage onsuch 
 a transaction is settled in Steel Works v. 
 Dewey, .37 Ohio St. 242. In that case. 
 Dewey, Vance & Company hud a contract 
 for a large (piantity of ore, belonging to 
 the Iron Mountain t.'omiian.v, to be taken 
 from a larger quantity l.ying on the bank 
 of the river. They sold to the steel works 
 part of the ore so situated, and gave the 
 purchaser an order on the Iron Mountain 
 Company for the san'.e, which was pre- 
 sented and accepted. B.v the terms of the 
 contract, and by the usage of the busi- 
 ness, purchasers were to take away their 
 ore by l)oats during the year, or the order 
 would be canceled. Owing to ice and 
 other causes, the ore was not taken away 
 by the steel works during theyear, though 
 
 it was there for them in mass with the 
 larger lot. It was held, that as betw-een 
 Dewey, Vance & Company and the steel 
 works, and in view of the usage, the sale 
 was completed, and the right to the ore 
 vested in the steel works, without any 
 separation from the larger mass. We 
 think thi!< case is decisive of the case at 
 bar. 
 
 Woods V. McGee, 7 Ohio, pt. 2, p. 128 
 (4l:i), is relied on to sustain the court he- 
 low, and but for the effect of the known 
 usage, tlie language of ,Iudge Grimke sus- 
 tains this daiu). An examination of the 
 facts of that case will show, that while 
 the judgment is right, yet it did not nec- 
 essarily depend upon the principles dis- 
 cussed and declared by the learned judge. 
 That was trover by Woods against Mc- 
 Gee, a warehouseman, for the wrongful 
 conversion of three hundred barrels of 
 flour, which he claimed to own. Thefacts 
 were these: Swearinger owned fifteen 
 hundred barrels of flour, viirying in value 
 from twenty-five to fifty cents per barrel, 
 which was stored with McGee, a ware- 
 houseman. Out of this lot, Swearinger 
 sold to lluttou six hundred barrels, and 
 on the 2ltd of April, gave him an order on 
 MctJee for the same. On the same da.v, 
 Hutton assigned the order to tiordon 
 andSidwell. Seven da.vs thereafter, (ior- 
 don assigned to plaintiff. Woods, all his 
 interest in the order and purehase. This 
 was on Ma.v 1. The order was not pre- 
 sented to tiie warehouseman until May 21, 
 when Woods, as assignee of (iordon's in- 
 terest, received from McGee three hundred 
 barrels, and Sidwell receiveil three hun- 
 dred barrels, and in each case McGee took 
 a receipt for the amount, from the res[iec- 
 tive parties. Wood sued for the three 
 hundred barrels delivered to Sidwell, on 
 the ground that he had purchased the 
 same of Sid well, prior to said deliver.v, 
 through his agent, Gordon. Of this sale 
 McGee had no notice, and it api)ears that 
 Sidwell, at the time he received the flour, 
 presented the original order with the as- 
 signment thereon b.v Hutton to himself 
 and Gordon, and with the assignment of 
 (jordon, otil.v of his interest to Woods. 
 Looking, therefore, to the order, one-half 
 this flour belonged to Sidwell, when 
 delivered to him, and the warehouseman 
 who delivered the same to him in good 
 faith, could not. on any principle (jf jus- 
 tice, be charged in trover in favor of an 
 unknown ijurchaser, when lie had strictly 
 complied with the terms of the order 
 showing the right in Sidwell. 
 
 The distinction between that case and 
 the one at bar, is so manifest, that even 
 conceding the correctnei-s of the principles 
 stated b.v the learned judge, independent 
 of any usage on the subject, and it is un- 
 necessary to question thetu, they do not 
 control in this case. 
 
 1st. There the question was considered, 
 unaffected by any usage, in the light of 
 which the parties acted. 
 
 2d. In that case, the order was never 
 presented by the holders and accepted b.y 
 the warehouseman, as in this, nor does it 
 appear that he knew of its existence, or ol 
 the assignments indorsed thereon, until 
 the day when all the flour was delivered.
 
 XKWIIALr. V. L.VNODOX. 
 
 583 
 
 one hHlf to cncli nKsiKneo, as dircctod by 
 the orikT. So fur, tliyrefore, aH the ac- 
 (■p|)t;iiii-e of thf order l).v the warelioiiHC- 
 innii iilfectH the qiiostion ol ownerKhip, as 
 hctween seller and l)uyer, the cases are 
 nnlike. 
 
 :!(1. The flour varleil in price, and there- 
 furo in rniirUetiible ((ualily, and in all snch 
 cjiKes, tlicre Is to be a selection bffore the 
 title |)aHses. 
 
 'I'his opinion mlKht be extended and per- 
 linpH made more intorestinK by an analy- 
 His of the nnnieroue cases on the subject 
 both ani'ient and modern, but \vecont(.'nt 
 onrselvps witli n reference to some few of 
 liieu), witjiout ntteini)tinK more. We 
 li()l<l that upon the facts found by the 
 court, sliowing the well known usase of 
 
 the business, it Is manifest that apoti the 
 presentation and acceptance of tliis order, 
 the sale was completed, nnri the subse- 
 Huent loss of tlour, while stored at th»- 
 <icpot must fall on the purchaser. Steel 
 Works V. Dewey, :!7 Ohio St. IMJ: Younjc 
 V. Miles, 2:; Wis. r.4:!: ('loud v. Moorman, 
 is Iiid. 40; llorr v. Barker, f. Cal. 4V.(; 
 C'usliinn V. IJreed. 14 Allen, 370; KImberly 
 V. I'atchin, UtN. Y. rno; Waldnin v.CliaHe. 
 37 .Maine, 414; Chapman v. Sliepard. :{S» 
 ("imn. 41:!; U'hitehouse v. Frost. 12 Kast. 
 (514; also notes to Hires v. Hurff. 17 & IS 
 Am. Knw lU'ff. 17. Uil. In wlilrh the whole- 
 subject is exhaustively discussetl and the 
 cases reviewed. 
 
 .1ud}i;nient reversed, and coumc reniaml- 
 ed.
 
 I
 
 NICHOLSON r. TAYLOR. 
 
 585 
 
 NICH(5I.S0N et al v. TAYLOR et al. 
 
 (31 Pa. St. 128.) 
 
 Supreme Court of Pennsylvania. 1858. 
 
 Action on the cbkc by Ricluird L. Nich- 
 <iIh<)ii 011(1 anotlier, trmlinu an K. L. & V.. L. 
 NicliolHoii. iiKiiinHl DnvicI H. Taylor (ind 
 DtlierH, trailinu na U. U. Taylor *: Co., (or 
 breach ot eontract to deliver certain lum- 
 ber. From a ju(l;?nieiit for clefenUantH, 
 |/laintiffH appeuleil. Allirnied. 
 
 .1. Cook LoiiKntreth, for plaintiffn in er- 
 (or. FnrHopH, lor defeiidantH in error. 
 
 THOMPSON, .1.— "When the lawful form 
 of contractiiiK in pursued," said .\lr. .Iun- 
 liee Lowrie in W'iiiwlow. Lanier & Co. v. 
 Leonard, IL' llarri.'<, 14, "the vestins of tlie 
 litle ahvayw depends upon the intention 
 of the parties, to be drawn from the con- 
 tract and its circumstances," ami "it is 
 perfectly legitimate to point to the want 
 of measuring ami settinj^ apart as evi- 
 dence, in tlie very nature of the transac- 
 tion, that it was not intended as u perfect 
 Hale:" Id. lioius further in this <lirection 
 than mere evidence. C. .1. Gibson, in Haz- 
 aril V. llamlii). .'> Watts, 201, declared that 
 "where nothini; is paid or delivered, it is 
 ajrreed on all hands that the contract is 
 merely executory." This is true of such a 
 contract standing alone; whether taken 
 as an a.xiom or an evidence merely, the 
 diffeience is in terms only. No intention 
 is to be drawn from a contract but what 
 It expresses, when there is nothing else to 
 manifest it; so that the differenceof terras 
 in statini; the [jroposition leaves the rule 
 the same, namely, that so long as any- 
 thinc remains to be done as lietwecn the 
 vendor and vendee, for the pnri)ose of as- 
 certainiiiK the amount and price of the 
 article, the proi:erty and risk remains in 
 the vendor; it isnotclianged : Addison on 
 Contracts L':.''.'. I'l':?; Hanson v. .Meyer, (i 
 East til4; Word v. Shaw, 7 Wend. 404 ; 
 Lester, Sennett & Co. v. .McDowell, Hnr. 
 ris !)2; Hutchinson v. Hunter, 7 KarrUii; 
 Smyth V.Craig, :i W. & S. -JO ; Wiuslow. 
 Lanier & Co. v. Leonard, I'J Harris 14; 
 Nesbit V. I'urry. 1 Casey L'Os. This rule Is 
 predicable of cases « here no actual deliv- 
 ery of the property has taken place, and 
 it is sought to give the contract the effect 
 of changing the possession. If i)arties 
 choose to deliver property without the 
 price being lixed, the [jropcrty will pass, 
 iiecause it is the contract an<l intention to 
 pass it. Hut we have to «lo with a case 
 not of this last kind. The contract is as 
 follows : — 
 
 "Sold Messrs. U. L. & C. L. Nicholson, 
 
 load of Pine creek luml>cr, within the 
 neighborliood of ."jOOO feet of plonk, at 
 ?l."j..")0 and e.Ypenses, take a note at *! 
 months, with interest. U. 15. Taylor & Co. 
 Ntli Mo. 11th." 
 
 .\ I'ine creek load of lumlier. it would 
 appear contains abr)ut ."iO.ihmi feet l;oard 
 measure, a portion of "iiieli in this cune 
 was plank. The oral testimony left tlie 
 case just OS it found it, glvini; nothing in 
 regard t'> the intention of the parties but 
 what was contained in it. The defendants 
 lieli'w refused to deliver the iiinitier. alleg- 
 ing that they were mistaken in the 
 amount of the plank contained In it — that 
 in place of .".OOO there were 10.000 fc-et, and 
 which they chargi'd tliat idaintiffs knew ; 
 but they offered to deliver the load, or tlie 
 anxinnt of it, witli .'lUiio feet of plank in it. 
 The plaintiffs n-fuseii to take it. Tills lie- 
 ing tlie situation of things between the 
 parties, and the plaintiffs claiiuing that 
 the property passed to them, brouglit a 
 special action on tlie case og.'iiost the de- 
 fendants in which they liad a count in 
 trover. On the trial in (he district court, 
 the point was reserved as to whetlier the 
 property passed by the contract; and a 
 verdict w IS rendered in fav(jr of plain- 
 tiffs for $10.'i0..'i0, its entire value, .\fter. 
 wards tlie court entereil juilgnient for tlie 
 defendants non obstante veredicto, on the 
 point reserved. 
 
 Tlie cose stands now sniply upon the 
 riglits of the parties as created liy the 
 written contract. .Applying Hie rule al- 
 ready laid down, "that when something 
 remains to be done between the vendor 
 and vendee for tlie purpose of ascertain- 
 ing the amount and price of the article, 
 the property and risk remains in the ven- 
 dor," to this case; we will have but little 
 difficulty in coming to a conclusion. Tlie 
 lumber was to lie measured before the 
 price could be ascertained, so as to give 
 the si.x months' note for tiie piiynient. 
 Tills was. in point of liil>or, as well as in 
 other particulars, an important item of 
 the transaction. No time was set for the 
 measurement, or for giving tlie note, the 
 Litter licing eonsei|ueiit only on the for- 
 mer; all showing that the contract wan 
 but executory In fact and intention. The 
 property therefore remained in the vendor, 
 and the plaintiffs liad no legal right to 
 recover its value In trover; property in 
 the plaintiffs lieing neressory to eiialde 
 them to ilo so. Tliey were at no time de 
 barred from suing for damages for a 
 brencii of the contract.il any such hinl 
 occurred. We think tlie court below were 
 right in thei.- decision, ami this Judg- 
 ment must bealHrmed. 
 
 .Juilgmcnt athrmed
 
 NIGHTINGALK c. ElsKM.YX. 
 
 687 
 
 NIGHTINGALE et al. v. EISEMAN el al. 
 
 (■a N. E. Rep. 47->, 121 N. Y. '^s.) 
 
 Court of Appeals of New York. April 20, 1890. 
 
 Appeal from supreme court, uoneral 
 term, first departiiiLMit. 
 
 Action by John Niftlitinnnle and others 
 ORahist Moses L. Kiseniaii ami aiiotlicr. 
 A jii(ly:inent entered at cirenit in favor of 
 defendantH, and disiiiiKHinK the conndaint, 
 wan .•illiinied at general term, and plain- 
 tiffs aucaia appeal. 
 
 Albridf^e C. Smith, for appellants. The- 
 odore Connoly, for respondents. 
 
 Earl, J. On the 4th day of January, 
 1880, the plaintiffs were manufacturers of 
 silk at Patterson, N. J., and tlu; defend- 
 ants were dealers in sill< doinu' business in 
 the city of New York. On tliat day an 
 agent of the plaintiffs, who was eiiKnged 
 in selling silk lor them on a salary, called 
 upon the defendants at their place of busi- 
 ness, and took from them the following 
 order : 
 
 Order No. 11. 
 Ship bv Ex. 
 Hill .Mnch. 
 DapliL-atc .N'o. 
 Term, 6-lU 1 per 
 
 Janaary 4tli. 188U. 
 KlHiMnaa & Co., 
 Grand St., City. 
 
 nt. sperlnl. 
 
 ■> pes , Feb. 20. 
 
 I BO pes., Mill. let. 
 Ualanee before Mcb. 16, or 
 earlier, if posuible. 
 , 19-ln. Snrali. at COc. 
 
 Delivery, 
 
 No. 750. 100 pc! 
 
 Then follows a statement of thecolorsof 
 the different pieces to bo furnished. It 
 was i)roved tlmt tlie figures "G-10 1, " fol- 
 lowing the word "Term," meant G per 
 ci'iit. off from the bill for tlie silk, 1 per 
 cent, extra discount, and tliesilk to bepaid 
 for 10 days after delivery. The order hav- 
 ing been sent to the plaintiffs by tlieir 
 agent, on the next day they wrote to the 
 delciid;uits that they had receivetl theiror- 
 der, and would endeavor to forward the 
 goods "as near as possible to the time 
 specilieil." Aliout the l:jth of March they 
 sliipped from Patterson to tlie defendants 
 at New York 17 pieces of iho silk, and nev- 
 er thereafter shipped any more; and tiiey 
 commenced thisaction on tliellith of April 
 thereafter to recover the contract price of 
 the silk delivered. Tlie defendants refused 
 payment before the action was com- 
 menced, and defended the action on the 
 ground Hint the iilaintiffe had not per- 
 formed till ir contract. 
 
 If we .issume tliat the contract as made 
 by the pliiinliffs" agent is to be considered 
 niodilied by tlieir letter to the defendants, 
 so tliat they were bound to delivertliesilk 
 only, ns near as possible to the time siiec- 
 ilied in the contract, yet, in iiiiy event, the 
 contract bound them to deliver at some 
 time. If the circunistances weresuch as to 
 excuse the plaintiffs froni delivery at the 
 time specilied in the contract, yet they 
 were bound to deliver, and they could per- 
 from their contract only by delivering the 
 silk at some time. We are inclineil to the 
 opinion that thecontract should be treated 
 as an entire contract to ileiiver the inO 
 pieces, and that non,- of the silk was to 
 be paiil for until 10 days after the delivery 
 of the whole. But if such be not its proper 
 construction, and the defendants were 
 bound to pay for each of the installments 
 
 of silk specified In the contract within 10 
 diiys after the delivery thereof, the plain- 
 tiffs were bound to makeat least one com- 
 plete delivery before they conld call upon 
 the di-fendants for any payment. The de- 
 feiiilants in no way, so fur as the evidence 
 discloses, waived complete performance. 
 The 17 pieces of silk were shipped to them 
 from I'atterson. Tliey hud no reason to 
 suppose that the plaintiffs intended that 
 shipment as a compliance with their con- 
 tr.'iet to ship L'.'i pieces; and so when they 
 rereived the 17 jiieces llicy hud the right to 
 suppose tliat tiie.v wouhl he followeil by a, 
 further shipment, and tliat the plaintiffH 
 would coiitiiiiie to perforin their contract. 
 They could, therefore, receive the 17 piccea 
 without waiving their right to demand 
 further performance before they could be 
 compelled to pay. At the very tirst time 
 ■when they were called upon tospeak,that 
 JB, when they were asked to pay for the 17 
 pieces, they refused payment on the ex- 
 press ground that the plaintiffs had not 
 lierforiiied their contract, and promised 
 that they would pay when the balance of 
 the silk was received, and not before. 
 Therefore wliether we regard this as a sin- 
 gle contrtict, by which the plaintiffs were 
 bound to ileiiver 100 pieces of silk before 
 they could demand any payment, or 
 whether we considerthe defendants bound 
 to i)aj' for each delivery specilied In tlie 
 contruct, we tliink the plaintiffs are not 
 entitled to recover; and for this conclu- 
 sion the authorities in this state an? so 
 abundant that they need not be cited. 
 
 At the trial the counsel for the pluintifis 
 asked one of tlieir witnesses— the agent 
 who took the order from the defendants— 
 the following questions: "After you took 
 this order, did you have any conversation 
 with the defendants, or either of them, 
 with respwt to the delivery of any of the 
 goods under this c<mtract'.'" ".\ftertho 
 taking of that order, what conversation 
 did you have with the defendants In re- 
 gard to thedeliveryof thelirst installment 
 of pieces referred to in the contract?" 
 These questions were objected to on the 
 part of the defendants ns immaterial, and 
 were excluded by tlie court. The counsel 
 did not disclose what heexpected to prove 
 by these <iuestions. and it is impossible to 
 discover what competent evidence could 
 have been elicited by them. No claim was 
 made at the trial that thecontract had In 
 any way been changed, nntl the court, 
 therefore, committed no errorin excluding 
 the questions. 
 
 One of the plaintiffs, ns a witness, was 
 asked the following ipiestions by his coun- 
 sel : "State whether or not, but tor tlie 
 strike of the laborers employed in your 
 mill, vou w:.Mil(l liave been able to deliver 
 thegooils ordered by thedefenduntsat the 
 time stati-d in the or<ler, or within a rea- 
 sonable time thei-eufter. " ".State whether 
 or not the strike of the labon-rs int«rfere«i 
 with the delivervof a portion of the goods 
 ordered bv the defendants nt the time 
 nameii in theordergiven by them." These 
 questions wen> objected to by defenibints 
 counsel as incompetent and immuterial. 
 and were excluded. No complaint was 
 made at the trial that the plaintiffs did 
 not deliver the 17 pieces of silk lu time.
 
 588 
 
 NIGHTINGALE v. EI8EMAN. 
 
 The sole complaint was that thoy did not 
 deliver even the 25 pieces requiri'd for the 
 first installment, and any evidence which 
 could have been elicited by these questions 
 could show no justification fora failure to 
 
 nialve such delivery at some time before 
 the action was commenced, and therefore 
 the questions were properly excluded. 
 The judgment is clearly right, and sliould 
 be affirmed. All concur.
 
 NOBLE 0. SMITH. 
 
 Wl 
 
 NOBLE V. SMITH et al. 
 
 (2 Johns. 5'.) 
 
 Supreme Court of New York. Nov. Term, 1800. 
 
 This was an action of troKi)asK, for 
 hri'iikins; and ciitcriiiK the cIdhi- of the 
 pluintiff, ciitlinji down, tdkinK: juid ciirr.v- 
 inirmviiy tlie wheat in tlii' Htraw, which 
 was there Ktaniliiit;, and oonveitinji the 
 Hainc to liiH own use. 
 
 ThfcauNPwaH tried at the RenHselaer 
 circuit, in Ma.v, ISlMi, hofore Mr. C'liief Juh- 
 tice Kent. The pl.-iintiff proved, tliat lie 
 waH ])iit into possesHion of the loeiis in 
 quo in Marcli, l.su."j, liy tlieslieriff of lienH- 
 splaer county, li.v virtue of a writ of lia- 
 bere laeias |)OHKe.s.sioneni, isHued on a judg- 
 nient in ejectment a/];ninst one liallett, and 
 that liecontinned in possesHion totlie time 
 of tlie trewpasH. At tlietinietlie sheriff put 
 tlie plr.intiff in possession, he did not re- 
 move the ^roods out of the house of Ilallelt. 
 It wasalscj pi'oved, that thedefendanlH and 
 their servants, in July, ISO.'), broke and en- 
 tered the same close, and there cut down 
 and carried away, though fcrhidden by 
 the plaintiff's overseer, near two hundrecl 
 bushels of wheat in the straw. A witness 
 for tlie defendants, proved that liallett 
 had lived on the farm as a tenant to John 
 Hill, the principal of the plaintiff, above 
 two years before the plaintiff was ]iutinto 
 possession. That two of the defendants 
 were step-sons of liallett. and lived in his 
 family. That after liallett was dispos- 
 sessed, he was sued, and taken on execu- 
 tion for rent due to Hill. The witness ap- 
 plied to the (ilaintiff, to let Mrs. liallett 
 liave some of the whe;it then fii'owin^ on 
 the premises, for seed; and the plaintiff 
 told the witness, that "he wouhl H:ive the 
 wheat growiuK. to the defendants, the 
 Smiths, for the support of themselves and 
 Mrs. Ilalli>tt,and would procnrea written 
 suneniler to be drawn up for Hallett to 
 execute." The Smiths, afterwai'ils. re- 
 rjuested the plaintiff to j-ive them a writ- 
 iuK for the wheat, wliicli the plaintiff re- 
 fused to do. snvinsr. "that he would re- 
 serve it for them, if he should <leniise the 
 premises »o any other person." The 
 Smiths were relations of Hill, who reipiest- 
 ed them to repair the feiie<' in the antuMui, 
 rouinl the Held in which the wheat was 
 KrowiuK. .\iiolher witness stated, that 
 the plaintiff, in October, ISO."), told him, 
 that lie had >iiven the wheat to theSniiths, 
 hut that he had revoked the fjilt, on ac- 
 count of some offence they had niven him. 
 .Something was said of a coiulition an- 
 nexed to the fiift. Imt "hat it was, did not 
 clearly appear. 
 
 The judge charsed the jury, that there 
 was sullieient evidence of a valid jrlft of 
 the wheat, and which was not revocable 
 by the plaintirf. The plaintiff, therefore, 
 stibmitted to a nonsuit. 
 
 A motion was now made to set aside 
 the nonsuit, anil for ;i new trial for the 
 tnisdiieetion of the jud;ie. 
 
 Henry and \'an \'eclitoii, for plaintiff. 
 Woiiii worth, Atty. Gen., for defentlnnts. 
 
 KK.NT, ('. J. This case presents the f<d- 
 lutving questions. 1. Can property in 
 
 corn Krowinjr, be transferred, liyKittV 2. 
 Is there here the refpilslte evidence of such 
 a Kiff 
 
 After n coDsidcrntion of this case, I am 
 satisfied, that the opinion which 1 gnve 
 at the circuit, upon the trial of this cause, 
 was incorrect. 
 
 Lord Coke is reported to have salil. In 
 Wortes V. Clifton. (I Uol. Hep. CI,) that l>y 
 the civil law, a uift of Koods, was not 
 valid, without delivery, but that it was 
 otherwise, by our law. This is a very 
 inaccurate dictum, and the difference be- 
 tween the two systems, is directly the re- 
 verse, liy the civil law, a i:ift. Inter vivos, 
 was valid and bindinK. without d -livery; 
 (Inst. lib. U. tit. 7. § l'. Code lib. s. lit. iA. 
 1. :!. 1. :j.">. § .'il but at common law.lt is \ery 
 clear, from the general current of aiitlnir- 
 ities.thal delivery is essential to niveeffect 
 to a Kift. I Hracton. de acq. reruni doni. 
 lib.!', fo. 1."). b. 10. a. I' lower'sCase, Xoy.O". 
 Smith v. Smitli. 2 Str. ll.'i?. (ine .No. 9, 
 .lenkins. HI'.i. 2 Black. Conini. 441. ) Inthe 
 analo;;()Us case, also, of nifts, causa mor- 
 tis, it was held, by Lord Hard w icke. in the 
 case of Ward v. Turner. (J Vesey. .Sr. 4:11.) 
 where the subject umlerwent a very full 
 discussion, that a flelivery was necessary 
 [to make the;;ift valid; and. aeconiiiiKly, 
 I that a delivery of receipts, (or south seu 
 annuities, was not a sullieient delivery to 
 pass these annuities by that speciesofKift. 
 
 Delivery, in both kinds of gift, is e(|ually 
 re<iuisite. on grounds of public policy and 
 convenience, and to prevent mistuke and 
 iin|>oHitiiin. 
 
 If dtliverj- be requisite, there was none 
 in the present case. The land, at the time 
 of the nllesed gilt, was in p<»sessicin of oue 
 Hallett, and not of any of the defendantH, 
 to whom The gift Is said to have been 
 made: and befuic tin- wheat was ripe, the 
 plaintiff recovered the possessbm of the 
 land, by due course of law. Here was not 
 even an attempt at a symbolical delivery, 
 ami giving the testimony the strongest 
 possilile construction, in favour of the de- 
 fendants, il amounted to nothing more 
 than saying. I give, without any act to 
 enforce it. A mere symbidical delivery, 
 would not, I up,>reliend, ha ve been sulli- 
 eient. The cases in which the delheryuf 
 a symbol has been held sullieient topei"i"ct 
 the gift were those in which it was I'on- 
 sidered as equivalent to actual delivery, 
 as the delivery of a key of a trunk, of a 
 room or wareliouse, which was the true 
 and eflectnal way of obtaining the use 
 and command of the sisbjit-t. (Ward v. 
 Turner. 2 Vesey. 442. 44.1. Tate v. Hllbert. 
 4 lirown. Ch. 280. Toller's law of Kxc. Isl. 
 2.) 1 tlo not know, that corn, growing, 
 is susceptible of delivery, in any other 
 way. than by putting Hie donn- into pos- 
 scs.sion of the soil: but it is not necessary 
 to give any opinion, at present, lo that 
 extent; nor do t.'ie court mean to do so. 
 II is sntllcieut to say. that there was n<i 
 evidence of delivery, in the p'vsent case, 
 and. that to presume one. we must go 
 the whc.le length of the exaniide, given in 
 the Koinaii law. where the buyer Is sup- 
 posed to take possessloniif a liirgelmnmv- 
 able column, bv his eyes an I hisaffittlons. 
 oculls et aflectu. (Dig. 41,2. I. 21.) The
 
 592 NOBLE v. SMITH. 
 
 courts of equity seem to liave adopted tliel The oiiiniun of the court, tlieieforc, is, 
 true rule in their decisions, on the dona- that tlie nonsuit be set aside, and a new 
 tio Ciiusa mortis, in wliicli they hold, that trial awarded, with costs, to abide the 
 tlie delivery must be actual and real, or, event of the suit, 
 by some act, clearly equivalent. ' New trial granted.
 
 N()KI{in(;t()\ c wkkmit. 
 
 595 
 
 N()KKl.N(iT().\ V. WKKillT l-1 iil. 
 (6 Sup. Ct. Uep. 12, 115 U. S. 188.) 
 
 Supremo Court of tho United States. Oct. 20. 
 
 I.S.S0. 
 
 In error to tlio rirciiit court of the Unit- 
 ed StntcH for the caHtern disti'ict of I'l-nn- 
 Hjivaniii. 
 
 The fiictH fully appear in the followin}^ 
 fltutcincnt li.v .Mr. .lustice (iKAY : 
 
 TIiIh waH an action of aHHumpHit, hrotisjht 
 by .\rthiir Ndrrington, a cilizL'ti of (jri'at 
 liritain, trading under the name of A. 
 NorriMKton & Co., atiainHt .laineH A. 
 Wright and otlipr.s, citizcnH of Ucnnsyl- 
 vania, tradin^r under the njuiit- of I'cter 
 Wright <*i SonH, upon the followini; con- 
 tract: '■ I'hiladclpliia, .lanuary Hi, Issil. 
 Sold to .MesHPH. I'etcr Wright iV Souh, for 
 ucconnt of A. Norrinuton it Co., London: 
 Five thouHand (.'i,(inil) tonw olil T iron railH, 
 for shipment from a ICuronean port or 
 port.i, at the rate of about one tliouHanil 
 (1,OUO) tons per month, hej.;inninK I'ehri-- 
 ary, IK.SO, hut whole contract to he 
 Hhip|)cd before Auf;nHt 1, l.ssu. at forty-live 
 clollarH{$f.").()0) per tonof LMUO llis.cuHtom- 
 bouHO weidht, ex whip I'liiladelphia. .Set- 
 tlement, cash, on prenentation of billH ac- 
 coui|>aniPd by cuHtoni-houwe certificate of 
 weijiht. Sellers to notify buyers of Hliip- 
 nients with ves.sels' namew as smjn as 
 known by them. -.Sellers not to be com- 
 pelled to replace any parcel lost after 
 shipment. Sellers, when possil>le, to se- 
 cure to buyers rijjht to name discharKiny; 
 berth of vessels at Philadelphia. K(l- 
 ward .1. HtlinR, Metal IJroker. " 
 
 The declaration contained three counts. 
 The first count allef^ed the contract to 
 hove been for the sale of about ri,(lU(i tons 
 of T iron rails, to be shipped at the rate 
 of about l.OlllI tons a month, be^iuniim in 
 February, and en<lin;; in .Inly, 1nn(I. The 
 second count set forth the contr;icf ver- 
 batim. Kacli of these two counts alle;;(Ml 
 that the plaintiffs in February. March, 
 April, .May. .lune, and .Inly shipped the 
 Koods iit the rate of about 1. (Mill tons a 
 month, and iiotKied the shipments to the 
 defendants; and further alleged the due 
 arrival of the (roods at I'liiladelphia. the 
 plaintiff's readiness to deliver the jjoods 
 and bills thereof, with cnstoin-honse cer- 
 tificates of weight, nccordiiii; to the con- 
 tract, and the defendants' refusal toaccept 
 tliem. The third count diflered from tlie 
 second only in nverrintr that 40(1 tons were 
 sliii)peil l)y the plaintiff in l'"ebruary anil 
 acceptcil by the defendants, and that the 
 rest was slil\)ped liy the plaintiffs, at the 
 rate of about l.Odi) tons a month, in 
 March, .\pril. May. .Mine, and .July. The 
 dcfeiKlants pleadetl non assumpsit. The 
 material facts proved at the trial were as 
 follows: 
 
 The plaintiff shippeil from varions Kuro- 
 l)enn ports 400 tons by one vessel in the 
 last part <if February, *>s,") tons by two 
 vessels in March, 1,.')71 tons by live vessels 
 In A|)ril, HM) tons by three vessels in May, 
 1,000 tons by two vessels in June, and .'!00 
 tons by one vessel In .luly, and n<itilieil to 
 the defendants each shipment. The de- 
 fendants receive<l and paid for the Feb- 
 ruary shipment upon its arrival in .March, 
 
 and in .Vpiil ^ave diiecthMis at what 
 wharves the .March Hhi|)nients sliould l)e 
 dischar^:ed on their arrival, but on .May 
 14th. about the time of the arrival of the 
 •March shipments, and havinir bei n iheD 
 for the first time informed of the amountH 
 shipped in Feliruary, .March, and April. 
 Kave Fttin^ written notice that they 
 should decline to accept the shipnientH 
 made in .March and April, beiause none 
 of tlieni were in accorilancc with the con- 
 tract ; and in answer to a letter from hitu 
 of .May l(;th, wrote him on .May ITIIi. »n 
 tolhuvs: " We are ailvised that what lias 
 occuri-ed <loes not amuunC to an accept- 
 ance of the iron under the circumstances, 
 and the terms of the i-onlract. You had a 
 rijiht to <leliver in parcels, and we lind a 
 richt to e.xpect thc' stipulated quatitlty 
 wonlil be delivered until the time was ui» 
 in which that was possible, lioth deliv- 
 ering and rcr'eivlnn were thus far condi- 
 tional on there beinj; thereafter complete 
 •lelivery in due time and of the stiiiulated 
 article. On the assnm|)lion that this time 
 had arrived, and that you had ascertained 
 that yon did not inteinl to, (»r could not, 
 make any further deliveries for the Febru- 
 ary and Marc-h shipments, we Rave you 
 the notice that we declined occeptluR 
 those deliveries. ,\s to .Vfiril, It Is too 
 plain, we suppose, to reipiire any remark. 
 If we are mistaken as to onr oblii;ation 
 for the Februai'y and .March shipments, of 
 course we must abide the consequences; 
 but if we are rijiht, yon have not per- 
 formed your contract, as you certalidy 
 have not foi-theApiil shipments. There 
 is then the very serious and much debated 
 (ineslion, as we are advised, whether tin 
 failure to mnke the stipulated shipmentM 
 in Februjiry or .March has absolved na 
 from the contract. If it does, we uf course 
 will avail ourselves of this ncl vanta;re. " 
 
 On .May istli Fttlnc wrote to the rlcfend- 
 ants, insisting on their liability for both 
 past and fut.ire shipments, and sayiuK. 
 amontf other thiiiiis: "Iti respect to the 
 objection that there had not been a com- 
 plete delivery in due time of the stipulated 
 article. I bei; to call your attention to 
 the fact that while the contract is for live 
 thousand tons, it expressly stipulates 
 that deliveries may be made ilurin« si.x 
 mouths, and that they are only to be at 
 the rate of about om' thousand tons per 
 month." " .\s to .\pril, while it seems to 
 ivic ' too iilain to requii-e any remark.' I do 
 not see ho« it can seem so to yon. unless 
 vou intend to accept the rails. If you 
 object to taking all three shipments made 
 in that month, I shall feel authorized to 
 deliver only two of the carjroes.orfor that 
 matter, to" make the delivery of precisely 
 one thousand tons. Hut I think I am eii- 
 titleil to knowdcliuilely from you whether 
 von intend to reject the A|>rll -hipments. 
 and. if so, upon what ground, and also 
 wheMier vou are decided to reject the re- 
 nuiiiiintr shipments umler the contract. 
 You sav In your last paragraph that you 
 shall avail yourselves of the advantUKe. 
 if vou are "alisidved from the contract: 
 but, as yon seem to l>e In donnt whether 
 vou can set up that claim or not, 1 should 
 like to know detiuilely what is your Inten- 
 tion. "
 
 596 
 
 NORRINGTON^ v. WKIOnT. 
 
 On May 19tli the defeiidniitd replied: 
 "We do nut read the contract as you do. 
 Wercad it as stipulating forniontldy ship- 
 meiits of about one thousand tons, begrin- 
 ning in February, and that the Mix months' 
 clause is to secure the completion of what- 
 ever had fallen short in the five months. 
 As to the nieanins of ' about,' it is settled 
 as well as such a thin;^ can be; and cer- 
 tainly neither the February, March, nor 
 April shipments are within the limits. As 
 to the proposal to vary the notices for 
 April shipments, we do not think you can 
 do this. The notice of the shipments, as 
 Boon as known, you were hound to irive, 
 and c'lnnot afterwards vary it if they do 
 nut conform to the contract. Our rifiht 
 to be notilied immediately that the ship- 
 ments were known is as material a 
 provision as any other, nor can it be 
 changed now in order to make that a 
 performance which was no performance 
 within the time required." " Von ask us 
 to determine whether we will or will not 
 object to receive further sbipnients be- 
 cause of past defaults. We tell you we 
 will if we arc entitled to do so, and will 
 not if ■we are not entitled to do so. We 
 do not think ynu have the riuht to com- 
 pel ns to decide a disputed question of law 
 to relieve you from the risk of deciding it 
 yourself. You know quite as well as we 
 do what is the rule and its uncertainty of 
 application." On June ]Oth Etting offered 
 to tlie defendants the alternative of deliv- 
 ering to them one thou.-^and tons strict 
 measure on account of the shipments in 
 April. This offer they immediately de- 
 clined. On June 15th Etting wrote to the 
 defendants that two cargoes, amounting 
 to 2'2\ tons, of the April shipments, and 
 two cargoes, amounting to imO tons, of 
 the May snipmeuts, (designated by the 
 names of the vessels.) had been erroneous- 
 ly notified to them, and that about 1)00 
 tons had been shipped by a certain other 
 vessel on account of the May shipments. 
 ')n the same day the defendants i-eplied 
 that thenotification as to April shipments 
 could not be corrected at this late date, 
 and after the terms of the contract had 
 long since been broken. From the date of 
 the contract to the time of its rescission 
 by the defendants, the market priceof such 
 iron was lower than that stipulated in 
 the contract, and was constantly falling. 
 After the arrival of the cargoes, and their 
 tender and refusal, they were sold by Et- 
 ting, with the consent of the defendants, 
 for the benefit of whom it might concern. 
 
 At the trial the plaintiff contended (1) 
 that under thecoutract hehad six months 
 in which to ship the 5, OIK) tons, and any 
 deficiency in the earlier months could be 
 made up subseiiuently, i)rovided that the 
 defendants could not be required to take 
 more than 1,000 tons in any one month; 
 (■-') that, if this was not so, the contract 
 w a.s a divisible contract, and the remedy 
 of the defendants for a default in any 
 month was not by rescission of the whole 
 contract, t)ut only by deduction of the 
 damages caused by the delays in the ship- 
 ments on the i)art of the plaintiff. But 
 the court instructed the jury that if the 
 defendants, at the tiuie of accepting the 
 delivery of the cargo paid foi', had no no- 
 
 tice of the failure of the plaintiff to ship 
 about 1,000 tons inthemonthof February, 
 and immediately upon learning that fact 
 gave notice of their int.?ution to rescind, 
 the verdict should be for them. The plain- 
 tiff excepted to this instruction, and, after 
 verdict and judgment for the defendants, 
 sued out this writ of error. 
 
 Samuel Dickson and J. C. liullitt, for 
 plaintiff in error. Richard C. Mc.Murtrie, 
 for defendants in error. 
 
 Mr. Justice (iRAY, after stating the facts 
 as above, delivered the opinion of the 
 court. 
 
 In the contracts of merchants, time is 
 of the essence. The time of shipment is 
 the usual and convenient means "of fixing 
 the probable time of arriv:il, with a view 
 of providing funds to pay for the goods, 
 or of iullilling contracts with third per- 
 sons. A statement descriptive of the sub- 
 ject-matter, or of some material incident, 
 such as the time or place of shinuiont, is 
 ordinarily to be regarded as a warranty 
 in the sense in which that term is used it) 
 insurance and maritime law, that is to 
 say, a condition precedent upon the fail- 
 uie or non-performance of which the party 
 aggrieverl maj' repudiate the whole con- 
 tract. Behu V. Burness, 3 Best & S. 751 ; 
 Bowes V. Shand, 2 App. Cas. 455; Lowber 
 V. Bangs, 2 Wall. 728; Davison v. Von 
 Lingen, 11:3 U. S. 40, a !Sup. Ct. Rep. alC. 
 
 The contractsued on is a single contract 
 for the sale and purchase of 5,000 tons of 
 iron rails, shipped from a European port 
 or ports for Philadelphia. The subsidiary 
 provisions as to sliipping in different 
 months, and as to paying for each ship- 
 tnent upon its delivery, do not split up 
 the contract into as many contracts as 
 there shall be shipments, or deli vcries of so 
 many distinct quantities of iron. Mersey 
 S. & 1. Co. V. Naylor, 9 App. Cas. 434, 439. 
 The further provision that the sellers shall 
 not be compelled to replace anj'i)arcel lost 
 after shiptnent, simply reduces, in the 
 event of such a loss, tne quantity to he de- 
 livered and paid for. The times of ship- 
 ment, as designated in the contract, are 
 "at the rate of about 1,000 tons per 
 month, heginning February, 1880, but 
 whole contract to he shipped before Au- 
 gust 1, 1880." These words are not satis- 
 fled by shi|)ping one-sixth I'art of the 5,000 
 tons, or about 8;i'J tons, in each of the six 
 months which begin with February and 
 eiiil with July. But they require about 
 1,000 tons to be shipped in eacli of the five 
 months from February to .Tune inclusive, 
 and allow no more than slight and unim- 
 portant deficiencies in the shipments dur- 
 ing those njimths to he made up in the 
 month of July. Thecoutract is not one 
 for the sale of a specific lot of goods, iden- 
 tified by independent circumstances, — such 
 as all tho.se deposited in a certain ware- 
 house, or to be shipped in a particular 
 vessel, or that may be manufactured by 
 the seller, or maybe required for use by 
 the buyer, in a certain mill, — in which case 
 the inentiim of the quantity, accompanied 
 by the qualification of " about, " or "more 
 or less," is regarded as a mere estimate of 
 the probable amount, as to which good 
 
 i
 
 NOUItlNGTON' 0. WI!IG!IT. 
 
 5117 
 
 (iiitli iR all that iH reiiiiireil of the [)iirty 
 iimkiiiK it. I'lit tlie contnift liefore uh 
 viiincK within the ficniTjil riih-: "Wlien no 
 Hiich iiiih|icii<l('nt ciniiiiiKtiii.fcH are rc- 
 fiTPcil t'). (iiiil the (>iitC'iK''ii!<'Nt iH to fiir- 
 iiiwli k<)0(1h of a certain i|iiaiity oroliurue- 
 ter to a certain ainiiiint, tlie <|iinntlty 
 Hjieclfied is material, and governs the con- 
 tract. The addition of the <|tialif.vint; 
 words 'altoiit,' 'more or less," and the 
 like, in Hiich cases, is only for the pnrpofe 
 of i)roviilin}i afrainst accidental variations 
 ari.sinK from 8li.!;ht and unimportant ex- 
 CCHHCH or tlcliciencie.s in number, mefiunre, 
 or weight." liruwley v. United Slates. '.Hj 
 n. .S. KiS, 171, 17-'. The seller is Ixinnd to 
 deliver the quantity stipulated, and has 
 no ri;ilit either to compel I he Imyer to ac- 
 cept a less quantity, or to rciiuire him to 
 select part of a greater qnantity; and 
 when tlie K'xxls '"'e to he shipped in cer- 
 tain proportions monthly, the seller's fiiil- 
 ure to ship the recpiired i|iiantity in the 
 first month jiives the Ijuyerthe same riy;ht 
 to rescind the whole contract that he 
 would have had if it had heen agreed 
 that all the };oods should he delivered at 
 (inre. 
 
 The plaintiff, ioHtead of shippinK About 
 I.IMK) tons in February and about l.OUO 
 tons in March, as stipulated in the con- 
 tract, shippeii only 400 tons in February, 
 nud >1N.". tons in March, llis failure to ful- 
 fill the coiitriutoM his |iart in respect to 
 llieselirst two iTistallments just itie<l the de- 
 fendants ill rescinding the whole contract, 
 provideil tli"y distinctly and seasonably 
 Ji.Nserted the ritrht of rescission. The ile- 
 fendants, immediately after the arrival of 
 the .March sliiiiments, and as soon as they 
 knew that the (piantities wiiich had been 
 sliipped ill February and in .March were 
 less than the contriiet calleil fur, clearly 
 and positivel.v asserted the rij^ht to re- 
 scind, if the law entitled them to do so. 
 Their previous acceptance of the sinjjrle 
 car>;o of 400 tc.ns sliipped in February was 
 no waiviT of this ri^iht, because it took 
 Place without notice or means of knowl- 
 edge that the stipulatecl (juantity had not 
 been shipiied in February. The price paid 
 by them for that carj;o beinu above the 
 market value, the plaintiff suffered no in- 
 jury by the omission of the defendants to 
 return the iron; and no reliance was 
 piMceil on that omission in tliecorres[)ond- 
 ence bet wei'ii the parties. 
 
 Tlie case wholly cliffers from that of 
 Lyon V. H(>rlrani, I'O How. 1-1'.), in wlii(di 
 the bu.Ncr of a specific lot of ^^oods accept- 
 ed and used part of them with full means 
 of previously ascertaining whetlier they 
 conformed to the contract. The plaintiff, 
 denying the defendants' riflht to rescind, 
 and assei'tinir that the contract was still 
 In force, was bound to show such per- 
 formance on his part as entitled him to 
 dcmaiKl perlormance on their part, and, 
 haviuK failed to do so, cai:iiot maintain 
 this action. 
 
 For these reasons we areol opinion that 
 the jud;;ment below should be aflirmed. 
 15ut MS much of the arKuim nt at the bar 
 was devoted to a discussion of the recent 
 English casis. and as a diversity in the 
 law, us administered on the two sides of 
 the Atluutii-, concerniii); the interpreta- 
 
 tion anil effect of commercial contracts of 
 this kind, is ^rently to lie deprecated, it is 
 proper to arbl that upon a ciireful e.xumi- 
 nation of the cases referred to they do not 
 aiipear tons to establish any rule IncuD- 
 sistent with our conclusion. 
 
 In the leadiuK ease of lloare v. ICeiinle, 
 5 Hurl. & N. 10, which was an action upon 
 a contract of sale of (107 tons of bar irr.n, 
 to be shipped from Sweden in .1 une, .1 uly, 
 AuKUst, acid September, and in about 
 equal portions each month, at a certain 
 price payable on delivery, the declaration 
 alleued that the plaintiffs perlormed all 
 thin;;s necessary to entitle them to ha>e 
 the contract pei-formed by the defendants, 
 and were ready and willing to perform 
 the contract on their part, and in June 
 shipped a certain portion of the iron, and 
 within a reasonable time afterwards of- 
 fered to deliver to the defendants the por- 
 tion soshipped, but the defeiidunts refused 
 to receive it, and ^ave notice to the plain- 
 tiffs that they would not accept the rest. 
 The defendants pleaded that the shipment 
 in .June was of about JO tons only, anci 
 that the plaintiffs failed to complete the 
 shipment for that month according to the 
 contract. Urion deuiurrer t<i the pleas, 
 it was argued f<ir the plaintiffs that the 
 shipment of abint one-fourth of the iron 
 in each month was not a condition pre- 
 cedent, and that the defenilants' only 
 remedy for a failure to ship thai i|uantity 
 was by a cross-action Itut judgment 
 was uiven for tlie defendants, Chii-f Haron 
 I'ollock sayin;;: "The defendants refused 
 to accept the lirst shipment, because, as 
 tlu'y say. It was not a performance, but a 
 breach of the contrnct. Where parties 
 have made an OKreemeiit for themselves, 
 the courts oiiKht not to mnk ■ another for 
 them. Here the.v say that, in the events 
 that have happened, one-fourth shall be 
 shipjied in each month, and we cannot say 
 that they meant to accept any otiier quaii- 
 tity. At the outset the plaintiffs failed to 
 tender the (|Uhntily according to the con- 
 tract,— they tendered a much less (]uan- 
 tity. The defendants had a risiht to say 
 that this was no performance of the con- 
 trnct, and they were no more bounil to ac- 
 cept the short quantity tlinn if a sinnle 
 delivery had been contracted lor. There- 
 fore the pleas are an answer to thea''tion. " 
 .') Ilurl.& .N'. J->. So in t'oddiii^ton v. I'ale- 
 oloKO, Ij. H. '2 Exch. r.l."., while there was s 
 division of opinion upon the question 
 whet her a con tract to supply i;oods, "deliv- 
 ering on .\pril 17th, comjdete sth May," 
 bound the seller to b(>;in deliveriiiK on 
 April I7tli, all the judges a;rrceil that If It 
 did, anil the sellei made no delivery on 
 that day, the buycrmlKlit rescind the con- 
 tract. 
 
 On the other linnd. In Simpson v. (^rip- 
 pin. L. U. S Q. n. 1-t, under a contrnct to 
 supply from fi.OOO to S,000 tons of coal, to 
 lie taken by the biiver's wajrons from the 
 seller's colliery in ecpial monthly quanti- 
 ties for I'J months, the buyer sent wai;ons 
 for only l."iO tons during the lirst month: 
 and itWas held that this did not entlllo 
 the seller toannul thecontract and decline 
 to deliver any more coal, but that his only 
 reme.lv was by an action for dainH;;es. 
 And ill Bramlt v. Law rence. I ii. U. I)iv.a44,
 
 598 
 
 NORRINOTOX v. WRIGHT. 
 
 in which thecontract was for the piirchnse 
 of 4,r)0() (luarterw, 1(1 per cent, more or less. 
 of Russian oats, "shipment l).v steamer 
 or steamers during February." or, in ease 
 of if-e preventing sliipuieat, then immedi- 
 ately upon the opening of navigation. and 
 1 139 quarters were shipped byonesteamer 
 in time, and 3,3()1 quarters were shipped 
 too Inte, It was hehl that the buyer was 
 bound to accept the 1,139 quarters, and 
 was liable to an action by the seller for re- 
 fusing to accept them. Such l)eing the 
 condition of tlie law of England as de- 
 clared in the lower courts, the case of, 
 Bowes v.Shand.after conflicting decisions | 
 in the (jueen's bench division and the court 
 of appeal, was finally determined by the 
 house of lords. 1 Q. B. Div. -170; 2 Q. B. I 
 Div. 11;-': -' App. ("as. 4.">. In that case,] 
 two contracts were made in I^ondon, i 
 each for the sale of 30i) tons of "Madras 
 rice, to be shipped at Madras or coast tor 
 this port during the months of March '",■ i 
 April, 1874, per Rajah of Cochin. " The (iOU | 
 tons filled S,200 bags, of which 7,120 bags : 
 were nut on l>oard, and bills of lading j 
 Bignedin February ; and for the rest, con 
 Bisting of 1,030 bau-s put on board in Feb-; 
 ruary, and no in March, the bill of lading 
 was signed in March. At the trial of an 
 action by the seller against the buyer for 
 refusing to accept the cargo, evidence was 
 given that rice shipped In Fel)ruary would 
 be the spring crop, and quite as good as 
 rice shipped in March or April. Yet the 
 house of lords held that the action could 
 not be maintained, because the meaning of 
 the contract, as apparent upon its face, 
 was that all the rice must be put on board 
 in March and Aiiril, or In one of those 
 mouths. In the opinions there delivered 
 tlie general principlesunderlying this class 
 of cases are most clearly and satisfac- 
 torily stated. It will be sufficient tociuote 
 a few passages from two of those opin- 
 ions. 
 
 Lord Chancellor Cairns said: "It does 
 not appear to me to be a (luestion for 
 your lordships, or for any court, to con- 
 sider whether that is a cimtract which 
 bears upon the face of it some reason, 
 8<ime explanation, why it was ninde in 
 that foim, and why the stipulation is 
 made that the shipment should be during 
 these particular months. It is a mercan- 
 tile contract, and merchants are not in the 
 habit of placing upon their contracts stip- 
 ulations to which they do not attach some 
 value and importance." 2 App. Cas. 403. 
 "If it be admitted that the literal mean- 
 ing would imply that the whole quantity 
 must be i)Ut oil board during a specified 
 time, it Is no answer to that literal mean- 
 ing.— it is no observation which can <lis- 
 pose of, or get rid of, or displace, that lit- 
 eral meaiiiug,— tosay that it imts an addi- 
 tional burden on the seller without a cor- 
 resi>onding benefit to the purchaser; that 
 is a matter of which the seller and pur- 
 chaser are the best judges. Nor is it aiiy 
 reason for saying that it would be a 
 means bv which purchasers, without any 
 real cause, would frequently ol)tain an e.\- 
 cuse for rejecting contracts when prices 
 had dropped. The non-fulfillment of any 
 term in any contract is a means by which 
 
 a purchaser is al)le to get rid of the con- 
 tract when prices have dropped; but that 
 is no reason why a term which is fo;iiid in 
 a contract should not l)e fulfilled." Pages 
 465, 4()r>. "It was suggested that even if 
 the construction of the contract be as I 
 have stated, still if the rice was not put 
 on board in the ijarticular months, that 
 would not lie a reason which would justify 
 the aiipellants in having rejected the rice 
 altogether, lint that it might afford a 
 ground for a cross-action Ity them if they 
 could show thai any particular damage 
 resulted to them from the rice not having 
 been [)Ut on board in the months in ques- 
 tion. V.y lords, I cannot think that there 
 is any foundation whatever for that argu- 
 ment. If the construction of the contract 
 1)6 as I have said, that it bears that the 
 rice is to be put on board in the mouths 
 I in question, that is part of the description 
 [of the subject-matter of what is sold. 
 I What is sold is not :300tons of rice in gross 
 1 or in general. It is liOUtons of Ma<lras rice 
 i to be put on board at Madras during the 
 particular months." "The plaintiff, who 
 I sues upon that contract, has not launched 
 ! hi.s case until he has shown that he has 
 I tendered that thing which has been con- 
 tracted for, and if he is unable to show 
 that, he cannot claim any damages for 
 the non-fulfillment of the contract." 
 Pages 4()7, 408. 
 
 Lord Blackburn said: "If the descrip- 
 tion of the article tendered is different in 
 any respect, it is not the article bargained 
 for", and the other party is not bound to 
 take it. I think in this case what the par- 
 ties bargained for was rice, shipped at 
 Madras or th.e coast of Madras. I'^pially 
 good rice might have t)een shipped a little 
 to the north or a little to the south of the 
 coast of Madras. I do not quite know 
 what the boundary is. and probably 
 equallvgood rice might have been shipped 
 In February as was shijjped in March, or 
 equally good rice might have been shipped 
 in Mayas was shipped in April, and I dare 
 say equally good rice might have been i)ut 
 on hoard another ship as that which was 
 put on board the Rajah of Cochin. But 
 the parties have chosen, for i-easons best 
 known to themselves, to say: We bar- 
 gain to take rice, shipped In this particu- 
 lar region, at that iiarticular time, on 
 board that particular shli>; and before 
 the defendants can be compelled to take 
 anything in fulfillment of that contract it 
 must be shown not merely that it is 
 equally good, but that it is the same ar- 
 ticleas they have bargained for, otherwise 
 they are not bcnind to take it." 2 App. 
 ('as. 4S0, 4S1. 
 
 Soon after that decision of the house of 
 lords, twt) cases were determined in the 
 court of appeal. In Heuter v. Sala, 4 C. P. 
 DIv. 2:!9, under a contract for the sale of 
 "about 25 tons (more or less) black pepper. 
 
 Oc toiler 
 
 and 
 
 November shipment, from 
 
 Penang to London, the name of the vessel 
 or vessels, marks, and full particulars to 
 be declared to the buyer in writing within 
 00 days from date of bill of lading," the 
 Keller" within the GO days, declared 25 tons 
 by a particular vessel, of which only 20 
 tons were shipped in November, and five
 
 NORRIXGTOX v. WRIGHT. 
 
 599 
 
 tons in Dcccniher; and it was held that 
 the buyer liad the rljihl to refuse to receive 
 any part of the pepper. In Honcl< v. Miil- 
 ler, 7 U. B. Div. 92, under a coritrnet for 
 the sale of 2,000 tons of pig-iron, to be de- 
 livered to the buyer free on board at the 
 niaker'H wharf "in November, or equally 
 over November, December, and .lanuary 
 next," the buyer failed to take any iron 
 in N'ovenilier, hut demanded delivery of 
 one-third in December and one-third in 
 .lanuiiry; audit was held that the seller 
 was juHtificil in refusins to deliver, and In 
 civiHK notice to the buyer that he consid- 
 ered the contract as canceled by the buy- 
 er's not taking any iron in November. 
 
 The plaintiff in the case at bar greatly 
 rclie<l on the very recent decision of the 
 liouoe of lords in Mersey Co. v. Naylor, !) 
 App. ('a8.4.'!4, affirming the judgment of the 
 court of appeal In il. B. Uiv. ()4S, and fol- 
 lowing the decision of the court of com- 
 mon pleas in Freeth v. Burr, L. I'. !) C. P. 
 20S. But the point there decided was that 
 the failure of the buyer to pay for the Hrst 
 installment of the goods upon delivery does 
 not, utdcss the circumstances evince an in- 
 tention on his part to be no longei bound 
 by the con tract, en title the seller torcscijid 
 the contract, and to decline to make fur- 
 ther ileliveriea under it. And tlie grounds 
 of the decision, as stated by Lor(l Chan- 
 cellor Selborne in moving judgment in the 
 house of lords, are )i|>plicable only to the 
 case of a failure of the buyer to pa.v for, 
 and not to that of a failure of the seller to 
 deliver, the first installment. The I,ord 
 Chancellor said : "The contract is for the 
 nurcliase of .").000 tons of steel blooms of 
 the company's manufacture; therefore, it 
 is one contract for the purchase of that 
 (|uantity of steel blooms. No doubt, 
 there are subsidiary terms in the contract, 
 as to the time of (lelivciy, — 'delivery 1,000 
 tons monthly, comencing January ne.xt.' 
 — and as to the time of payment, — ' pa.v- 
 ment net cash within three days after re- 
 ceipt of shit)ping ilncuments,' — but that 
 does not split up the contract into as 
 many contracts as there shall be deliveries 
 for the purpose of so many distinct (]uan- 
 tities of iron. It is (luile consistent with 
 th<' natural meatiing of the contract that 
 it is to be vine contract for the (lurchase 
 of that (piantity of iron to he delivered at 
 those times and in that manner, and for 
 which payment is so to l)e made. It is 
 perfectly clear that no particular payment 
 can bo a condition precedent of the entire 
 contract, because the delivery under the 
 contract was most certainly to precede 
 pnynient: and that being so, I do not see 
 how, without express words, it can possi- 
 lil.v be made a condition precedent to the 
 subsecjuent fultillment of the nnfultilled 
 part of the contract by the delivery of the 
 undelivered stei'l." '.) App. Cns. 4:!'.l. 
 
 Moreover, althuugl) in the court of ap- 
 peal dicta were uttered tending to ap- 
 I)rove the decisii>n in Simpson v. Crippin, 
 and to disparage the decisions in Iloare v. 
 Rennie and llonck v. .Mulli-r, above cited, 
 .vet in tlie house of lords Simpson v. Crip- 
 pin was not even referred to. and Lord 
 
 Blackburn, who had given the leadlnK 
 ofiirdon in that chhc. aH well as Lord 
 Bramwell, who had delivered the lendlnK 
 opinion in Honck v. .Muller, distinguished 
 Uoare v. Rennie and Honck v. .Muller from 
 the case In judgment. 'J .App. Cas.4-t4, 44t>. 
 
 Upon a review of the Knglish declsionH, 
 the rule laid <lown in the earlier cusch of 
 Iloare v. Hennie and ''oddlngton v. I'ale- 
 ologo, as well as in the later cases of Rou- 
 ter V. Sala and Honck v. Muller, ajipean) 
 to us to be supported by a gnwiter wel>cht 
 of authority than the rule stated in the 
 intermediate cases of Simpson v. Crlppln 
 and Brandt v. Lawrence, and to accord 
 better with the general principles nflirmcd 
 by the house of lorils in Bowes v. Shnnd, 
 while it In nowise contravenes the deci- 
 sion of that tribunal in .Mersey Co. v. 
 Naylor. In this country there Is less judi- 
 cial authority upon tiie question. The 
 two cases most nearly in iioint that have 
 come to our notice are Hill v. Blake, 97 N. 
 Y.21li, which accords with Howes v. Shund, 
 and King Philip Mills v. Slater, I'J R. 1. S2, 
 which approves and fcdlows Iloare v. 
 Rennie. The recent cases in the supreme 
 court of Pennsylvania, cited at the bar, 
 support no other conclusion. In Shinn v. 
 Bodine, f.O Pa. St. 1S2. the point decided 
 was that a contract for the purchase of 
 SOO tons of coal at a certain price per ton. 
 "conl to be delivered on bo.ird vessels as 
 sent for during the tnonths of .Vugust and 
 September," was an entire contract, under 
 which nothing waf paj-able until delivery 
 of the whole, and therefore the seller had 
 no right to rescind the contract upon a 
 refusal to pay for one cargo before that 
 time. In Morgan v. McKee, 77 Pa.. St. T2X, 
 and in Scott v. Kittanning Coal Co.,y) Pa. 
 St. 2:J1, the buyer's right to rescind the 
 whole contract upon the failure of the 
 seller to deliver one installment was de- 
 nied, only liecause that right had been 
 waived, in the one case by unreasonable 
 delay in asserting it, ami in the other by 
 having accepted, paid for. and used a pre- 
 vious installment of the goods. The de- 
 cision of the supreme judicial court of 
 Massachusetts In Winchester v. Newton, 
 2 Allen, 402, resembles that of the house of 
 lonis in Mersey Co. v. Naylor. 
 
 P.eing of opinion that the plaintiff's fail- 
 ure to make such shipments in Kebruary 
 and March as the contract required pre- 
 vents his maintaining this action. It la 
 needless to J well upf)n the further objec- 
 tion that the shipments In .\prll did not 
 comply with the contract, because the de- 
 fendants could not be compelled to t«ke 
 about l,00(t tons out of the largeri|uantlty 
 shl|)ped In that month, and the plnlntlfT, 
 after once designating the names of vom. 
 sels, 08 the contract bound him to do, 
 could not substitute other vessels. See 
 lUnk V. Spence, 4 Camp- •'!2".i; Ciraves v. 
 I^egg, E.xch. 7011; Renter v. Sala, above 
 cited. 
 
 Judgment affirmed. 
 
 The CllIKF JCSTICt: was not present 
 at the argument, and took no part in the 
 docison of this case.
 
 OLIVKK 0. IIC.NTING. 
 
 601 
 
 OLIVKR V. HUNTING. 
 
 (44 Ch. Div. 205.) 
 
 Chancery Division. Feb. 2,3, ISOO. 
 
 In AuiiUHt, 18SM, KmiiiH Oliver, n ninr- 
 ried woiiiun, poHHPHHeil of considerable H.-p- 
 unitecHtute, noKotiated wit!) ji Mr. Hunt- 
 inn f<"" the iiureliase of a freehold projjerty 
 liiiown aH tile Flettori Manor l!o\iHeeKtnte. 
 Kveiiliially »Uo agreed to purchase it for 
 i;j:!7-"i, and on tlie 7th of Se])teinl)er, ISHS, 
 he HiKned tlie foIlowiMK <locnnient : — 
 
 " .\iernoraiidiini of ternn of aKreenient 
 heween .Mr. lliintinK and Mth. Oliver: 
 Price ,i;2:J7.'). Vendor to make K'>od title. 
 PurchaHor to [jayfor her own conveyance. 
 Fixtures included in purchase. Purchase 
 to be HOttlcd as soon aw possible. Pos- 
 scRHi.in on L'.'itli .Se|)teniber. Deposit to 
 be paid on the lUtli. " 
 
 On tlie 12th of September, 18S8, Mr. 
 Huntin;^ wrote and sent a letter to MrH. 
 Oliver in the following words: 
 
 "I bi'K to aclinowledKe receipt of cheijue 
 value £.n~) on account of the purchase 
 ijionej- for the Fletton Manor House es- 
 tate." 
 
 Mr. Hunting; havins refused to com- 
 plete, Mrs. Oliver commenced this action 
 acninst liim.cjaimintc specific performance 
 of the contract of the 7th of iSepteinlier, 
 InSS, and allcKiuK in her stntemeiit of 
 claim that In pursuance of the said con- 
 tract she. on the 10th of September. ISSS. 
 paid to Mr. Hunting; the sum of i£:!7.j as a 
 deposit and in part payment of the said 
 purchase-,inoney, and sulunittinjr that the 
 memorandum of theTthaml the letter of 
 the l:.'th of September, IssS, formed a valid 
 contract and n euflicient memorandum 
 within the statute of frauds. 
 
 Mr. Hunting, by his statenipnt of de- 
 fence, did not admit any of the allef;ations 
 in the statement of claim, and relied on the 
 statute of frauds. Issue was joined. This 
 was the trial of the action. 
 
 Mrs. Oliver in her evidence deposed tliat 
 she sent i he cheiiue of .S;:!7.">, mentioned in 
 the letter of the 12th of September, on ac- 
 count of tlie purchase-money of the Flcttrin 
 -Manor House estate. It was jiurt of the 
 .£2:575. No other money was payable by 
 her to the defendant. The £;J7.'> was the 
 balance that Mr. Hunting t^as to receive, 
 because the .E2000 was to be paid over to a 
 iiiortjiaKee of the property. Her solicitor, 
 Mr. Law, was going to lind the £2000 for 
 her. 
 
 Neville, Q. C, and DunninK, for plaintiff. 
 WarmiiiKton, Q. C, and Swiafen Kady, 
 for defendant. 
 
 KKKKWICH, J.: The elementary prop- 
 osition about which there is no doubt is 
 this — the nieniorancluni to be signed by 
 the parly sought to be charged, so as to 
 bring a particular case within the statute 
 of frauds, need not be on one piece of 
 paper, nor need it be a complete docu- 
 ment, signed liy the party at one and the 
 same time. It may be contained i;; two 
 or more pieces of pajier, but they must 
 be BO connected that you can read them 
 together, so as to form one iiieniorandiim 
 of the contract between the pailies. Di- 
 
 rectly you get beyond that, you Ret Into 
 didiculty. One can illustrate that in a 
 simple manner. An inlendiiig purchnMer 
 accepts an offer made by a proponini: ven- 
 dor thus: " In reply to your letter of the 
 ]4tli instant." (^an one annex to that 
 reply the letter of the 14th instant? Sure- 
 ly one cannot, without in<|uiring what 
 letter it is; unless tlie purchaser has, with 
 unusual priiilciice, completed the reference 
 by saying, " In re|ily to your letter of the 
 14th instant, a copy of which Is on the 
 other Bide." In the absence of any such 
 complete evidence as that, one niiiMt In- 
 quire what the letter of the 14th instant 
 was, because non constat, it may have 
 been n reference to any one ol half a dozen 
 different letters; and so, from that very 
 simple illustration, one can go tliroiiRli a 
 large variety of more complex ones. It 
 is not for me to say that the old rule was 
 better or worse than the present rule; but 
 that it was a different rule, not wlthstond- 
 iiig the criticisms in the cases which Mr. 
 .^'eville has given me. I have no doubt. I 
 lake the old rule from the original edition 
 of Lord lUacUburn, on the contract of 
 sale, which is cited — I have not the orig- 
 inal work before mo— by Williams, .1., ia 
 Uailway Co. v. Peek,' where, after refer- 
 ring to Hinde v. Whitehouse,* and Ken- 
 worthy V. Scholield.s he says: "The prin- 
 ciple of these eases seems to me to lie well 
 st;iteil in the same work by my [Jrother 
 lUackburn. as follows: "If the contents of 
 the signed paper themselves make refer- 
 ence to the others so as to shew \)y In- 
 ternal evidence that the papers refer to 
 each other, thoy may be all taken to- 
 gether as one memorandum in writing'" 
 (as in the case which I have meniioned 
 of a letter referring to a previous letter, 
 of which the copy Is anncxt'di; "'but it it 
 is necessary, in order to connect them, to 
 give evideiice of the Intention of the par- 
 ties that they should be connected, shewn 
 by rircuin-itaiices not apparent on the 
 face of the writings, the memorandum Is 
 not all in writing, for it consists partly 
 of the contents of the writings and partly 
 of the ex|iression of an intention to unite 
 them, anil that expression is not in writ- 
 ing.'" The oM case of lioydell v. Driini- 
 mond,' and some other cases, might lie 
 consistent with that rule; but certainly 
 of Intea diflennt rule has been introduced, 
 and it is a rule, to say the least, consist- 
 ent with the convenience v)f mankind, be- 
 cause if you were to exclude partd evi- 
 dence to explain such a doubtful reference 
 as " the letter of the 14th inslant," or It 
 might be simply "your le'ter. " the result 
 niiglit In a large number of cases l)e gross 
 injustice. Now 1 take it to be quite set- 
 tled that in a case of that kind you moy 
 i;ive parol evidence to shew what the doc- 
 ument referred to was. I take It that yoD 
 iiiMV go further than that, and that if you 
 tinii a refcieiice to something, which may 
 be a conversation, or may be a written 
 document, you may give evidence to shew 
 
 ' E. B. & E. 1001. 
 «7 Eiist, .">.">■*. 
 •3 B. & f. <Mh. 
 Ml Eiisl. 14'i
 
 602 
 
 OLIVER V. HUNTING. 
 
 wliether it wjis a conversation or a writ- 
 ten docLiment ; am), havinjj proved that 
 it was a written document, you may put 
 tliat written dooiiinent iu evidence, and 
 S(» connect ic witli the one already admit- 
 ted or proved. ISo far there is no ditti- 
 cidty. That was applied in the case of 
 Hidgway v. Wharton," where the ques- 
 tion was on tlie intanin^ of instructions 
 which did not by any means necessarily 
 point to a written document; l)ut later 
 tlie cases linve gone furtlier than that, 
 and it scenis to nie that Long v. Millar," 
 followed hy Field, J., in Cave v. Hastings,'' 
 does estal)lish a very much larger series 
 of exceptions. In Long v. Millar I pro- 
 fess myself rather embarrassed by the 
 judgment of Thesiger, L. J. — that is to 
 say, I am unableqiiiteto understand what 
 he means by the passages on p. 4ri6, which 
 seem to me rather inconsistent; but see- 
 ing that I have the juilgments of Bram- 
 Wfll and Baggallay. L. J. J., without the 
 slightest doubt or embarrassment, and 
 that Thesiger, L. J., concurred in their 
 judgment,! think I may put any difficulty 
 of that kind aside. Bramvvell, li. .1., gave 
 a judgment which, beyond its reference to 
 the particular case, is exceedingly useful 
 as illustrating this branch of law; be- 
 cause he gives an illustration which seems 
 to me to go to the root of the matter. 
 The illustration he gives is thisS; "Sup- 
 pose tliat A. writes to B., saying that he 
 will give £10(10 for B.'s estate, and at the 
 same time states the terms in detail, and 
 suppose that B. simply writes back in re- 
 turn, ' I accept your offer.' In that case 
 there may be an»identilication of the doc- 
 uments by parol evidence, and it may be 
 shewn that the offer alluded to by B. is 
 that made by A., without infringing the 
 statute of frauds, sect. 4, wliich rc(inires 
 a note or memorandum in writing." If 
 that is sound, which I tal<e it to be, ac- 
 cording to other cases, and according to 
 the convictions of judges in older cases 
 which are introduced into the old law, it 
 is (litticult, perhaps, to say where parol 
 evidence is to stop; but substantially it 
 never stops short of this, tliat wherever 
 parol evidence is recjuired to connect two 
 writtfn documents together, then that 
 parol evidence is admissible. You are en- 
 titled to rely upijn a written document, 
 whicli requires exiilanation. Perhaps tlie 
 real principle upon which that is based is, 
 tl)at you are always entitled in regariling 
 the construction and meaning of a writ- 
 ten document to inquire into the circum- 
 stances under which it was written, nit 
 in order to find an interpretation by the 
 writer of the language, IJut to ascertain 
 
 «6H. L. C. 23S. 
 •4 C. P. D. 450. 
 '7 Q. B. D. 125. 
 •Long V. Millar, 4 C. P. D. 4.'4. 
 
 from the surrounding facts and circum- 
 stances with reference to what, and with 
 what intent, it must have been written. 
 I think myself that must be the principle 
 on wliich parol evidence of this kiiid is 
 admitted. Turning to the case before me, 
 I tind a letter of the TJtli of September, 
 IS^SH, written by the defendant to Mrs. 
 Oliver; and in that he says: "I beg to 
 acknowledge receipt of cheque, value £375, 
 on account of the purchase-money for the 
 Fletton Manor House estate, for which I 
 thank you.'" I have two things here per- 
 fectly clear, that there is a property called 
 Fletton Manor House estate, wliich con- 
 stitutes the subject of a purchase, and, 
 therefore, the subject of a sale. I have 
 also that £37.j is part of the purchase- 
 money for that house; but, beyond that, 
 I have no terms of a contract. I am enti- 
 tled to consider the circumstances under 
 which the letter was written, in order to 
 give any meaning that 1 properly can to 
 it— not to add terms to it, but to tind out 
 what the meaning necessarily must be, 
 having regard to the facts and circum- 
 stances — and, having got the evidence 
 which I have in this case, the conclusion is 
 inevitable that it refers to a previous 
 memorandum of terms of agreement un- 
 der which Mrs. Oliver becomes the pur- 
 chaser of this particular projierty for the 
 price of £2375, on account of which the 
 cheque for £375 was sent. Having got 
 that evidence in, having got the connec- 
 tion between the two documents, I have 
 then enough to enable me to read the two 
 documents together, and, reading them 
 together, I have a distinct memorandum 
 of contract, specifying all the terms, the 
 second one supi)lying what the first one 
 omitted to give, namely, singularly 
 enough, the property which was intended 
 to be purehahcd and sold. That being so, 
 the objection that there is no memoran- 
 dum within tlie statute of frauds fails. 
 
 I have not referred to the late case of 
 Studds V. Watson," before Mc. Justice 
 North, because 1 am not quite sure how 
 far that learned judgeintended to go. If I 
 1 am right in my view of his judgment, that 
 he only allowed the parol agreement to 
 be proved to see whether it connected the 
 two written docuuients, and then, having 
 got it in evidence, found that it did, and 
 so was able to connect the two docu- 
 ments— if that is the right view, which I 
 believe it to be, of what lie intended — then 
 it really follows Long v. Millar, i" and 
 Cave V. Hastings, 11 to both of which he 
 referred in his judgment. 
 
 Under these circumstances, I think the 
 plaintiff is entitled to judgment for spe- 
 cific performance, and, of course, to the 
 costs of the action. 
 
 '28 Ch. D. 305. 
 '»4 C. P. D. 450. 
 " 7 Q. B. D. 125.
 
 Olt.MliOD V. IIUTII. 
 
 605 
 
 ORMROD V. UUTH ut aL 
 
 (14 Mees. & W. Gol.) 
 
 Courts of Exchequer Chamber. June 18 & Ifl, 
 1845. 
 
 In error on a hill of exceptions from the 
 c-ourt of o.xclii'iincr. 
 
 (,'iiHu for a IuIhp representation. Tlie 
 (Ipc-laration Htated, that the plaintirr, to 
 wit, on, iVrc, at the riMitieHt ol the (tcfeiid- 
 ants, hjM-Kaiiieil with the (lefendiintx t(j 
 liny of thcni divers, to wit. 142 liales of 
 eoltoii ol (hem (he defendaiitK. and f(>r 
 a eertaiii price, (o wit, (lie price or Kiiin of 
 t:iii4(i l.')H.; and the defentlant.s then, dur- 
 ing such liart;aiiiiiiK. falnely, fraudulently, 
 and deceitfully e.xhil)ited to the plaintiff 
 (livern, to wit, 142 parcelH of cotton, and 
 falsely, fraudulently, and deceitfully repre- 
 sented and held out to the plaintiff, and 
 Midiiccd the [)laintiff to helieve, that the 
 satne parcels Weri^ samples of the said 
 cotton 8o bargained for, and were fair 
 samples theieof, and that the said cotton 
 was e(iual to and of the same description 
 with, and of e(|ual ami like quality with 
 the said parcels ho exiiiliited as ufcjresaid ; 
 and thereupon the plaintiff, heretofore, to 
 wit. on tlieBumeday and year, conhdin;; 
 in and r.->IyinK upon the said i)arcels ao ex- 
 hil)itei|. and the said repri'sentations and 
 indncemeuts of the defendants so made as 
 aforesaid, at the rc(iuest of the defend- 
 ants, was induced to buy and did buy the 
 said cotton of the dclenilants, at and for 
 thesaid larne price orsnmof, to wit, tllijti 
 1.5s., and afterwards, to wit, on the same 
 day and year, |)ald to the defendants the 
 same sum of money for the same; where- 
 as, in truth and in fact, at the times of tlie 
 said IxirKiiinitin and sale by the defend- 
 ants, the said parcels of cotton were not 
 fair sainples, nor wore they samples of the 
 said cotton so baruained for. nor was the 
 said cotton ecpial to and of the same 
 description with, and of ecjual and like 
 quality with thesaid parcels, l)ut of in- 
 ferior and much worse description and 
 quality, and of much less value. .Vnd the 
 plaintiff in fact says, that the defendants, 
 by means of tlie premises, on the day and 
 year aforesaid, falsely and fraudulently 
 deceived the plaintiff in the sale of the said 
 cotton as aforesaid, by means whereof. 
 &c. 
 
 Fleas, first, not K'lilty : secondly, that 
 the plaintiff was not induced to buy, nor 
 did lie buy thesaid cotton or any part 
 thereof, niodo et forma. 
 
 The rei)lica(lon took issue upon both 
 pleas. 
 
 At the trial, before Coltnian, .J., at the 
 I<iverpool sprint; assizes, ls4;i, it niipeareil 
 that (lie plaintiff, a cotton-spinner, had. 
 thidiiL;!) a broker, bought several bales 
 of cotton from the defendants, who were 
 merchants at Liverpool. The usual 
 method of ptirchasinn cotton l.-i by bro- 
 kers. The selliiiK broker always has sain- 
 I)lcs by wliicli he sells. Inspection from 
 the bulk is quite unusual in iiurchases of 
 cotton. The samples are drawn from a 
 silt in the bale; and if any part of the 
 bole proves to lie of an Inferior ((uality to 
 that found in the slit, it is s;ii4l to be false- 
 ly packed, and is i^nmerchnntable on (hat 
 
 I account. It is usual for the buyinK 
 broker to have sumplesdrawn by his own 
 people from the bale, which redrawn sam- 
 ples lie compares with thosi- by whjcli be 
 has bouKlit. In the present cose, forty-five 
 of the liales which were purclnised by the 
 plaintiff were found to be falsely packed. 
 Cotton is packed in layers, ho that the 
 edKcs are visilde only at the top and bot- 
 tom, and alon^ the narrow side. From 
 the way in which the cott<»n Is packeil, 
 you Can only take the sainide from the 
 louK narrow slile. In this case there were 
 two, tiiiee, or more layers of Rood cot- 
 ton like (he sample; but In the inner part 
 the cotton was liad : In some instances 
 there was not more than one layer of 
 «ood, and the rest bud. A witness stated 
 that this must have been done by de- 
 si«ii. aiHl that the bales must have been 
 falsely packed when purchased; but 
 there was no evidence to show that the 
 ilefendanis were co;.'nizant of the fraud. 
 It was proved that the cotton had come 
 strait-lit from the ship (o the defendants' 
 warehouse, and they were the consiRnees; 
 but whether (hey were (he coiislKiiees oti 
 their own account or for othei-s did not 
 ap|)enr. Upon this evidence, the defend- 
 ants' counsel insisteii (hut there was no 
 case to ;;o to (liejnrv on which they could 
 firiil for the plaintiff on the llrst issue, in- 
 usinuch as neither the defeudnnts nur 
 their brokers were proved to have had 
 any knowledge of the ulleRed misrepre- 
 sentation belns false, or of the false pack- 
 ing, or to have acted In any respect 
 auainst Rood faith or with any fraudu- 
 lent purpose. The plaintiff's counsel, on 
 the other hand, maintained, that the d^- 
 liver.v of samples not correspondint; with 
 the bulk, was a false representation of 
 the quality of the cotton, which must be 
 considereil in point of la w as fraudulent, 
 as beiu); the statement of a fact which the 
 party makiu); it did not know to be (rue. 
 anil which in fact was not (rue, and 
 which induced (In- buyer (n make (he pur- 
 chase. The learned judtte directed (he 
 jury, that, unless they could see urounds 
 for Inferrintr that (he defendniUs or their 
 brokers were ac(|uainteil with the fraud 
 that had lieen practised in (he packing, or 
 had acted in the transaction auainst 
 flood faith or with some fraudulent pur- 
 pose, the defendants were enddeil (o the 
 verdict on the first issue: whereupon the 
 plaintiff's counsel excepted (o (lie direc- 
 tion of (he learned jmlne. and insisted 
 that proof of (he defendants or their bro- 
 kers beliiK acqnainteil with the fraud that 
 had been iiractised In the packlni;. or of 
 their hiiviiiK acted airalns( (jooil faUh. or 
 wi(h some fraudnhiit purpose, was not 
 necessary to be Klven liy liim on that 
 issue, and tendered a bill of exceptions ac- 
 cordinuly. The jury found a verdict for 
 (he defendants on the first Issue, ami were 
 discharged by consent as to the other 
 Issues. 
 
 .\ writ of error havluK been brouRlit, 
 the case was now ar;;ned liy 
 
 Cowlintr. for plaintiff In error. Cromp- 
 ton, for defendant in error. 
 
 TINOAL, <\.I. We think the direction 
 of the learned judjie was perfectly correct.
 
 606 
 
 ORMKOD V. IIUTH. 
 
 The action is brought tor a false anrt 
 fraudulent representation, alleged to have 
 been made b.y the defendants, on the Kale 
 of certain cotton to the jilaintiffs, that 
 the cotton was of the same description, 
 and of equal and like <]ualit.v with the 
 sample by them exhibited, whereas in fact 
 it was not: tlie action not being brought 
 upon an exi)ress warranty, nor any ex- 
 press allegntion being laid in the declara- 
 tion, that thedefendants knew at the time 
 that the bulk of the cotton did not e(iual 
 in description or quality the sample wtiich 
 had been so exhibited. 
 
 Upon the trial, the learned judge direct- 
 ed the jury, that, unless they could infer 
 that the defendants or their brokers were 
 acquainted with the fraud that had been 
 practised in the packing, or had acted in 
 the transaction against good faith, or 
 with some fraudulent purpose, the defend- 
 ants were entitled to the verdict; and we 
 think this the proper direction. 
 
 The rule which is to be derived from all 
 the cases appears to us to be, that where, 
 upon the sale of goods, the purchaser is 
 satisfied without requiring a warranty, 
 (which is a matter for hi.= own considera- 
 tion,) he cannot recover upon a mere rep- 
 resentation of the quality by the seller, 
 
 unless he can show that the representa- 
 tion was bottomed in fraud. If, indeed, 
 the representation was false to the knowl- 
 edge of the party making it, this would 
 in general be conelofiive evidence of fraud ; 
 but if the representation was honestly 
 made, and believed at the time to be true 
 by the party making it, though not true 
 in point of fact, we think this does not 
 amount to fraud in law, but that the rule 
 of caveat emptor apjilies, and the repre- 
 sentation itself does not furnish a ground 
 of action. And although the cases may, 
 in appearance, raise some difference as to 
 the effect of a false assertion or represen- 
 tation of title in the seller, it will bcfound, 
 on examination, that in each of those 
 cases there was either an assertion of a 
 title embodied in the contract, or a repre- 
 sentation of title which was false to the 
 knowledge of the seller. 
 
 The rule we have drawn from the cases 
 appears to us to be supi)orted so clearly 
 by the early, as well as the more recent 
 decisions, that we think it unnecessary to 
 bring them forward in review; but satisfy 
 ourselves with saying, that the exception 
 must be disallowed, and the judgment of 
 the court of exchequer affirmed. 
 
 Judgment afhrraed.
 
 PAGE V. MORGAN. 
 
 609 
 
 PAtiE V. MORGAN. 
 
 (15 Q. B. Uiv. 32S.) 
 
 Court of Appeal. June 10, 1S85. 
 
 Appeal from the jiid^inent of the qiiei-n'H 
 lieiK'l) tlivinioa refuHlii^ nn apiilii-atioii for 
 a new trial, or to enter jiiilKiiient for the 
 (lelenilaiit. 
 
 Till- action wiiH for the price of wheat, 
 or in tlif alternative for daniaKes for non- 
 aice|itaaco of the wheat. 
 
 Tlic statement of defence denied the con- 
 tract of [jnrchaHC, allefie<l that the wheat 
 was Hold by 8aini)]e, and the liulkwaonot 
 eijiial to the Huniple, and Het up non-coui- 
 jiliance with the statute of frandH. 
 
 The case was tried Ix'fore ISnlwer, Q. C, 
 Hittinp as conirnisHioner at tlie riielmBford 
 smnnier assizes, iHHi, when the facts were 
 as follows: — 
 
 The defendant, H miller, bought of the 
 plaintiff bv oral contract thron;;li the 
 plaintiffs anent eijjhl.v-eiiiht quarters of 
 wheat. The sale was by sample. The 
 wheat was shipped by the plain tiff'saiient 
 on a liartie for carriage to the defendajil's 
 mill, which was upon a na\ livable canal. 
 The liarRe ai-rived at the mill on the even- 
 inn of 'I'uesday the L'.'.th of March, and at 
 S o'clock on the mornint; of the itith some 
 of the sacks containing: the wheat were, 
 by direction of the defendant's foreman, 
 hoisted uj) out of the barRe on to the mill 
 andeAamined by him. After twenty-four 
 sHclis liad been hoisted up and examined 
 the foreman sent for the tlefcndant, who 
 came to the mill and inspected the con- 
 tents of the sacks already delivered, and 
 ordered some more t(j be sent up for e.\- 
 ninination. and aft'-r liavinn examined 
 thirty-cjjijht sacks in all, he at !» o'clock 
 told the l)ar{>einan to send up no more, 
 as the wheat, he said, was not equal to 
 sample. The defcMidant then on the same 
 day went off to see the plaintiff's asent at 
 a neifjlitionriiiK market town, and told him 
 that the wheat was not equal to sample, 
 and that he should not take it. Some 
 ibiys afterwards, the e.xact interval, how- 
 ever, was not stilted, the wheat taken in- 
 to the mill was returned by defendant's 
 order to the barite, which reinaiiu'd at the 
 defendant's niill with the wheat in it, the 
 plaintiff refusing to take the wheat away, 
 for seven weeks and until alter action 
 was Itrouarht, when tin- wheat was sold 
 by the order of a judjie at chambers, and 
 the proceeds paid into court to abide the 
 event of the action. 
 
 The learned conimiRsioner directed the 
 jury, on the authority of Morton v. Tib- 
 bett'and Kibble \ . 'GoukIi.s that there 
 was evirlence of an acceptance l)y the de- 
 fendant snllicient to constitute a contract 
 within the 17th section of the statute of 
 frauds, althonjih the defemlant was not 
 precluded from rejeclinir the wheat if not 
 equal to sample. The jury found that the 
 wheat was equal to sample, and that the 
 defemlant had accepted it withia the 
 meaninir of the 17th section of the statute 
 of frauds, and accordingly anve a verdict 
 for the plaintiff. 
 
 ' !."> Q. B. 4-.'8. 
 ■•'3s L. T. (N. S.) '.'(M. 
 LAW .sAr.i:s — 39 
 
 A rule for a new trial, or to enii-r judjj- 
 ment f(ir the defendant, was moved for on 
 the jrroiind that there was no evidence for 
 the jury of an acceptance of the wheat 
 liy the defendant t<» satisfy the Htatute, 
 but the iineen'H bench division (Lord Cole- 
 rid^e, C. .1., and Cave, J.) refused the ap- 
 plicution. 
 
 Morten. (Murphy, t). C. with him. I tor 
 defendant. I'hdbrick, Q. ('., and It. 
 V'auKhan Williams, for plaintitf, were n<it 
 called upon to arRue. 
 
 BHICTT, .M. n. It seems to me that the 
 case of Kiblde v. GouKh" lays down the 
 KoverniuK princi|)le with reganl to the 
 question whether there is evhience of an 
 accei)tance to satisfy the 17tli secliun of 
 the statute of frauds. It was there point- 
 ed out that there must lie under the stat- 
 ute both an acceptanceand actual re<-elpt, 
 but su<h acceptaace need not lie an aliso- 
 lute acceptance; all that is necessary is an 
 acceptance whicli could not have been 
 made except upon admission that there 
 was a contract, and that the >to<ids were 
 sent to fultil that contract. Cotton. L. J., 
 in ;;ivia^ jud;;ment in that rase, said : "All 
 that is wanted is a receipt aad such an 
 acceptanc" of the koimIs as sliews that it 
 has regard to the ccmtract, but tliecoii- 
 tract riMiy yet be left open to objection : 
 HO that it would not precluile a man from 
 exercisin;; such a ixiwer of rejection. I 
 think that in this case enough hail been 
 done to satisfy the statute." Now what 
 had been done In that case'.' Tin- nonds 
 had been taken into the defendant's ware- 
 house and kept for some time, thouuh nut 
 so lonj^ as to make it unreasonable that 
 the defendant shduhl exercise his rlirht of 
 rejection if tlie kooiIs had not been nccord- 
 iiiK to contract, and the defendant hud 
 inspected tlie goods. They therefore had 
 licen delivereil. and actual possession of 
 them had been taken, and they had lieen 
 dealt with by the defendant for the piir- 
 poseH of the roatr.-ict. It was held that 
 under those circumstanceB what had 
 been done in respect to tlie jioods liy the 
 defendant must lie considered as havintr 
 been done witli regard to a contract for 
 the purchase of the goods, and as amount- 
 ing; to a recognition of the pxintence of 
 such contract, and that therefore, though 
 the defendant iniglit still have a right to 
 reject the goods if not equal to sample, 
 there was evidence on which the jury 
 might lind that the defendant had accept- 
 eil till" goods within the meaning of the 
 Htatule. Tliat lieing tin- law as laid down 
 by tliat decision, what was the evidence 
 oil the question of ncreptance in tlie pres- 
 ent case'.' The wheat was sent tothedi^ 
 fendaiit's mill in a barge, which wan 
 brought under the mill in tlieevening. The 
 next inoniing a considerable quantity of 
 wheat was taken up by the defemlant's 
 servants into the defendnnt's mill and 
 remained there some time more or less 
 until the defendant had opened tlie sacki* 
 and examined their contents to see If they 
 corresponded with the sample. How 
 could the defendant have tliese HackH 
 
 • asL. T. cN- s.) •:(>*.
 
 GIO 
 
 PAGE c. MOKGAX. 
 
 taken into liis mill and there opeiieJ ami 
 examined witliout a lecoaiiitiori of tlie ex- 
 istence of a contract entitling liini ho to 
 deal with them? How could any reason- 
 al)le n)e;i come to any otiier conclusion 
 from hiss dealins with tliem tlian that lie 
 had made a contract of purchase with re- 
 yard to them, and that the Koods were 
 <lelivered to and received by him under 
 •such contract, and exaniined by him to 
 see if they were according to thecoutract? 
 It seems to me clear that under these cir- 
 cumstances there was evidence for the ju- 
 ry of an acceptance within the meaning 
 of the statute. I can conceive of many 
 fasps in which what is done with regard 
 to the delivery and receipt of the goods 
 may not afford evidence of an acceptance. 
 Suppose tliat soods beini; taken into the 
 defendant's warehouse by the defendant's 
 servants, directly he sees them, instead of 
 examining them, lie orders them to be 
 turned out or refuses to have anything to 
 do with them. There would there bean 
 actual delivery, but there would be no ac- 
 ceptance of the goods, for it would be 
 quite consistent witn what was done that 
 he entirely repudiated any contract for 
 the jiurchase of the same. I rely for the 
 XJurposes of my judgment in the present 
 case on the fact that the defendant exam- 
 ined the goods to see if they agreed with 
 the sample. I do not see how it is possi- 
 ble to come to any other conclusion with 
 regard to that fact than that it was n 
 <lealing with the goods in volving an ad- 
 mission that there was a contract. It ap- 
 pears to nie that, having regard To the 
 case of Kibble v. Gough, which is an au- 
 thority binding on us, there was clearly 
 evidence in this case for the jury of an ac- 
 ceptance, anil that upon such evidence 
 there was only one conclusion to which 
 tliey reasonably could come. The counsel 
 for the defendant placed reliance on the 
 case of Rickard v. Moore.* Jt is alleged 
 that in that case Lord Bramwell doubted 
 the correctness of what he had said in the 
 previous case of Kibble v. Gough. How- 
 ever that may be, it is quite clear tliat 
 that casecannot overrule Kibble v. (Jough. 
 For tliese reasons I am of opinion that 
 this appeal must be dismissed. 
 
 nAG(iALLAY, L. J. I am of the same 
 opinion. It has been decided inthecasesof 
 Morton v. Tilibett-'"' and Kibble v. Gough 
 that there may be an acceptance within 
 the statute though it is not such an accept- 
 
 «.SS L. T. (N. S.) 841. 
 ' 15 Q. B. 428. 
 
 ance as to preclude the defendantfrom ob- 
 jecting subsequently that the goods are 
 not according to the contract, and reject- 
 ing them on that grourid. Different opin- 
 ions have been expressed as to the true 
 grounds on which Morton v. Tibbett was 
 based, but it seems to me that the case of 
 Kil)b!e v. (lough has made the effect of the 
 former decision clear. IJeliance wits placed 
 liy the defendant's counsel on the case of 
 Rickard v. Moore. But when that case 
 eonies to be examined there are various 
 points of difference which are adverted to 
 in the judgments, and there is also the 
 most important distinction adopted iiy 
 Thesiger, L. J., in giving judgment, viz., 
 that, whereas in Kibble v. Gough the juj-y 
 found that the goods were equal to sam- 
 ple, in Rickard v. Moore the jury found 
 that they were not equal to sample. The 
 only ()uestion we have to consider is 
 whether there is evidence of an acceptance 
 in this ease within the principle laid down 
 in the cases of Morton v. Tibbett and Kib- 
 ble v. Gough. It seems to me clear that 
 there was such evidence. 
 
 BOWEN, L. J. This case appears to me 
 to be governed by the decision in Kilitile 
 V. (iough. That decision would be bind- 
 ing upon me whether I agreed with it or 
 not, but it seems to me that it is based 
 on the soundest sense. The statute says 
 that the contract shall not begood unless, 
 among other alternative requisites, there 
 has been an acceiitance and actual receipt 
 of some part of the goods. Having r-e- 
 gard to the mischiefs at which the statute 
 was aimed, it would appear a natural 
 conclusion that the acceptance contem- 
 plated by the statute was such a dealing 
 with the goods as amounts to a recogni- 
 tion of the contract. That, accordingly, 
 was the view taken by this court in the 
 case of Kibble v. Gough. In Rickard v. 
 Moore there was the distinction that has 
 been pointed out by my Brother Baggal- 
 lay. In Kibble v. (Jough the goods were 
 found to be equal to sample, and it there- 
 fore became necessary to decide in that 
 case whether tliere was an acceiitance 
 within the ITtli section; in Rickard v. 
 Moore the goods were found not to be 
 ecjual to sample, so it was only necessary 
 to decide whether they were rightly reject- 
 ed. I do not think that Lord Bramwell, 
 by his remarks on what had thus become 
 a by point, can have intended to overrule 
 the previous decision of tliis court. In an.v 
 case we are bound by the decision in Kib- 
 ble V. Gough. 
 
 Appeal tiimnissed.
 
 PALMER c. HAND. 
 
 613 
 
 PALMER V. HAND. 
 
 (13 Johns. 4.S4.) 
 
 Riiprcmo Court of New York. Oct. Term, 1S16. 
 
 Tlii'i wiiH an action of trover, trU'cl bo- 
 fort- .Mr. .Justice Spencer, at the Albany 
 circuit, in Ajiril. ISKJ. 
 
 The plaintiff wan the owner of a raft. 
 coMHistin^ of ))lank, joiht, and l>onnlH; 
 anil whilst coming <lown tlie North 
 river, in the autumn of the year 1M.">, witli 
 the raft, oni' I'otter eanie upon the raft, 
 and offeri'il to buy it: the price was 
 agreed upon: it was also ajrreed, that 
 the plaintiff should <leliver it at one of the 
 <locks in .Mbany, and be at the expense of 
 takinc it out of the water. I'otter then 
 applied to the defendant, who kept a 
 lumber yard, in Albany, to i>urchase the 
 lumber wliiih the plaintiff had agreed to 
 sell him; l)ut I'otter and the defendant 
 not lieinu able tosettlc the bar^^ain. i t was 
 ajireed that the defendant sliouM take 
 and sell the lumber. The plaintiff ar- 
 rived w'ith his raft, the ne.vt day, and 
 brought it to the defendant's dock, and 
 there inquired of one of the witnesses in 
 the cause for Potter, and asked if I'otter 
 was not to have more hands to take out 
 and pile the hunber, and said that he had 
 sohl it to I'otter. He then left the raft, 
 and went into the city, and at 4 o'clock in 
 the afternoon, at which time all the raft 
 was taken out of the water, and nearly 
 all piled, a few cnllins pieces excepted, the 
 plaintiff returneJ and forbade any more 
 to be piled, sayintr that Potter had none 
 off. The defendant, on the same day, ad- 
 vanced to Potter, on account of the de- 
 posit of lumber, lOOdollars; and also gave 
 him an order on Wilder & Hustings, for 
 150 iloUars, in goods, which were, in the 
 oveniuK of the same day, delivered to him. 
 There was no formal delivery of the lum- 
 ber to Potter, who, it was conceded, was 
 a cheat, and had absconded. The plaintiff 
 proved a demand on the defendant to 
 restore the lumber, or pay for it, and a re- 
 fusal. Tile jury found a verdict for the 
 plaintiff, subject to the opinion of the 
 court, on a case containing the above 
 facts. 
 
 Van Vechten, for plaintiff. Henry, con- 
 tra. 
 
 PLATT, .J., delivered the opinion of the 
 court. This is an action of trover, for a 
 quantity of plank and scantling. It ap- 
 pears that the plaintiff was owner of a 
 raft of lumber, and while descending the 
 river opposite to Lnnsingburgh. he con- 
 tracted w-itli one I'otter for the sale of the 
 lumber, to be delivered to Potter, by the 
 plaintiff, on one of the docks, in Albany, 
 at a price agreed on, to l)e paid on deliv- 
 ery. Potter then went to the defendant, 
 "ho keeps a luniber-vaiil and dock, at 
 Albany, and agreed to delivei- to him the 
 lumber of that raft, to be sold by the de- 
 fciidjiut, on comniission, for Potter. 
 
 Nc\t morning, about sunrise, the plain- 
 tiff arrived witli the raft, and fastened it 
 to the defendant's dock. The plaintiff 
 
 then told the workmen employed there, 
 tlint he had sold the lumber to Potter. 
 One or two men began immedlatelv to 
 |)ile the i)lank, &c., on the d.'tendant's 
 dock, and the plaintiff "asked if Potter 
 was not to have more hands til take out 
 and pile the lumber." The plainliff then 
 went Into the city, and did not return 
 ai.'ain till 4 o'clock P. .\I.. at which time 
 the lumber was almost all piled on the de- 
 fendant's dock. Tlie pliintiff then for- 
 bade the (lilitig of any more, saying that 
 I'otter had absconded. 
 
 While the men were piling U|> the lum- 
 ber, about in or II o'clock A. M. of that 
 day, the defendant advanced to Potter 
 101) dollars, and, also, gave an order for 
 l.'id dollars' woi-th of goods, in favor of 
 Potter, on account of the deposit of lum- 
 ber. The plaintiff, afterwards, demanded 
 the lumber, which the defendant refused 
 to deliver. 
 
 There is no doubt that, upon u contract 
 to sell goods, where no credit Is stipu- 
 lated for, the vendor has a lieu ; so that 
 if tlie goods be actually delivered to the 
 vendee, and, upon demund then made, he 
 refuses to pay, the proi)erfy Is not 
 changed, and the vendor may lawfullj' 
 take the goods as his own, because the 
 delivery was conditional. 
 
 .\s between the vendor and vendee, in 
 this case. I incline to the opinion that 
 the property in the lumber was not so 
 vesti'd in the vendee as that the vendor 
 could not legally have resumed it when he 
 came, in the afternoon, and forbade the 
 piling of any more of it. 
 
 The contract with Potter was for the 
 whole raft, to be delivered on the dock. 
 Till- vendor, therefore, had no right to 
 demand payment for any part until the 
 whole was delivered; anil it appears that 
 he came to tlie place of ilelivery. at 4 
 o'clock ill the afternoon of the day on 
 which the raft arrived at the dock, whilst 
 the lumber was still in the course of deliv- 
 ery, and signilied his determination not 
 to consider tlie sale aa absolute. He said 
 that Potter had absconded, and ordered 
 the men not to pile anymore of the plank. 
 &c. Ah between Palmer and Potter there 
 was no such delay or acquiescence on 
 the part of the vendor, as would be evi- 
 dence of .'1 credit given for the money. If 
 the vendor was there, and dem.-indeil pay- 
 ment, as soon as the whole lumber was 
 plied on tlie dock, that was enough to 
 preserve his lien; and such, I think. Is the 
 fair construction of the evidence. 
 
 The plaintiff, in this case, seeks to en- 
 force his lien against a person wlio has 
 bona tide received the property ns a 
 |)leilge for money and good.-* mlvanced to 
 Potter, to nearly the amonnt of its value. 
 Tlios" ailvances were made bv tlie <Iefi'nd- 
 ant while the lumber was In a course of 
 delivery on the dock, and before the plain- 
 tiff assi'rted his claim to it. Hut there Is 
 no evidence that the plaintiff had any 
 kiuiwledge of the negotiations between 
 Potter and the defendant, in regard to the 
 lumber, until after the plaintiff had made 
 his election to rescind his contract with 
 Potter. This is a contest, then, between 
 two honest men, who shall be the dupe of
 
 014 
 
 PALMER v. HAND. 
 
 n swindler. The strict rule of law must, 
 therol'oro, l)p applied ; and the defendant 
 caiMioc be allowed to stand in a more 
 favorable situation than Potter would 
 have been in if he him.self had withheld 
 
 the possession of the liinibor, without 
 payiTiK the price when demanded. 
 
 We are, therefore, of opinion, that the 
 plaintiff "is entitled to judgment. 
 
 Judgment for the plaintiff.
 
 PARKER 0. PATRICK. 
 
 617 
 
 PARKER V. PATRICK. 
 
 (5 Term H. 175.) 
 
 Court of King's Uench. April 22, 1793. 
 
 Oil tho trinl ol thJH iiution of trover for 
 ;ri)()iln at the lust Sittings, it Hppenrcd 
 tluit the troiiilH in riucMtioii had bt'cn oli- 
 tained from tlie defendant l)y falwe pre- 
 tcnreH. and afterwards pawned to the 
 Iilaintil'f for a vahiiiblo conHiderution, 
 wKliout iiotiee of the fraud : that the per- 
 Hon olitainiiiK them had lieeii convicted 
 liy the defendant, on which tlie latter not 
 DOHHeHHion of the ^ooils anicin; and now 
 tliis action was liroUKlit by tlie iilalntiff, 
 the pawnliroker, to recover them from 
 the defendant. Tlie del'endant'H connHol 
 prcHsed for a non-Huit, contendinir that 
 the (iiiestion inunt he conwidered to he the 
 Haine aH if the j^ood.s had been felonioii.^ly 
 Htoleii from tho defendant; and that the 
 plaintiff, who derived litle tliroii;;h a 
 fraud, thouuli ho himself were innocent of 
 the fraud, was not eiititleil to recover 
 airaiiiBt the ilefendant, who was the true 
 owner: but Lord Kenyon thought that 
 it was not like the case of felony, and the 
 plaintiff obtained a verdict. 
 
 Conste aniJ Bayley now renewed the 
 same objection in u motion toenter a non- 
 suit; urKiiiK that in this respect there was 
 no difference between the obtaining of 
 Koods by fraud or felony, for that the rea- 
 
 sons given in tho latter case were equally 
 applicable to the former. In a case In 13 
 Kd. 4. 1). recot;nizcd in Kel. s|, k2, where 
 one hiirKained witli uiiother to carry 
 some packs of noods to .Southampton, 
 and delivered the goods to the currier, 
 who carried tlieni to another plac;-, and 
 there opened the packs, and took the 
 goods, and disiiosed of them to his own uhp, 
 it was held to be felony " because his subse- 
 nnent act of currying the goods to an- 
 other place, and there opening them, and 
 disposing of them to his own use, declared 
 that his intent originally was nut to 
 take the goods upon the agreeii eut and 
 contract of the party, but only with n de- 
 sign of stealing them. " Accordingto which 
 doctrine the subsequent act of tlie person 
 who obtained these goods upon false pre- 
 tences shewed that he did not take them 
 upon the contract with the defendant, hut 
 by fraud; and consequently he could not 
 I make a title of them to the plaintiff. But 
 
 ! PI:R CURIAM. This is distinguishable 
 from tlio c.-ise of felony; for there by a 
 po.-iitive statute 1 the owner, in rase he 
 prosecutes the offender to conviction, is 
 
 I entitled to restitution : but that does not 
 extend to this cuse, where the goods were 
 obtained from the defendant by a fraud. 
 Rule refused. 
 
 '21 Hen. S. c. XI. Vid Horwood v. Smith, 
 R. 7.W. 
 
 iTerm
 
 PAUL c. \IEEU. 
 
 619 
 
 PAUL V. REED et ol. 
 
 <h2 N. H. 13«.) 
 
 Supreme Judicial Court of New Hampshire. Sul- 
 livan. June. InT'J. 
 
 Action by A/.or I'liul asriiinHt Dexter O. 
 Hceil. (lefiMiilant, nixl Uiiiiii U. .Mooilv, 
 triiKtci'. The triiKtee wiis held liiihle on 
 the (liHcloHure. iinil ilircnilant took e.xcep- 
 tioMs. ExceptiouH KWHtaiin'il. 
 
 The disclosure of .Moody, the trustee, 
 showed that hesiu-ceeded defendant. Iteeil. 
 us tenant of a lioardinc house, and when 
 he wan tiikinK possession, and Heed was 
 moving out, he a^jrecd to purchase from 
 Heed a ho^, some svmar. and other ai'tl- 
 cles. The agreed price of tlie articles was 
 as follows: One ho^, S1(t..")U: Hour, $7; 
 butter, SIU: l)edstead, f I ; suuar and salt, 
 51. Ml. Heed made a nieniorandnni of the 
 articles with the price carrie<l out, and, as 
 he was addin;; it up, the sheriff served the 
 trustee summons on .Mood.v. 'IMie hoji 
 had already been removed by Moody to 
 another pen, and the sugar had been 
 placed with .Moody's other sufrar. Wiien 
 the summons was served. Moody held the 
 money in his hand, read.v to ])a.v (or the 
 articles us soon as the aiiionnt was ascer- 
 tained. .Vfter service of process. Heed 
 asked .Moody to give the articles up, sa.v- 
 in}r,"\Vpcan call It no sale, and I can take 
 my stuff," Kivinn as a reason that they 
 were not yet |)aid for. .Moody replle<l 
 that ho woidd take counsel, and. if it was 
 safe for him to do so, he would jiive them 
 up. Me was advised to let the matter 
 stand, as there would be a (juestioii as to 
 his liability to be tried. Defendant, Heed, 
 claimed the property, but the court held 
 Moody to be charnealile with the ?:!(). :J0, 
 and defenilant excepted, and the (|uestlon 
 was reserved. 
 
 Howers, for plaintiff. S. H. Edes, for 
 defendant and trustee. 
 
 HELLOWS, C. J. I'nlesH the principal 
 defendant had anotherliot; and other pro- 
 visions or fuel, so that the value of his 
 provisions and fuel exceeded twenty dol- 
 lars, all the articles sold to the trustee 
 were exempt from attachment. .As there 
 Is no proof that he had another hoy:, or 
 more provisions, or fuel, the court cannot 
 lind that he had sudi ; anil, therefore, 
 unless the title in these floods had vested 
 in the trustee so that he became inilebted 
 for them, the trustee must l)e dischariied. 
 
 The <|uestion then is, whether the jjoods 
 were delivered so us to vest the title In the 
 trustee. 
 
 The proof tends to show that the sale 
 was for cash, and not on credit: — so the 
 trustee testilies, and this is just what 
 would have l)een intendeil had no time of 
 payment lieen stipulated, l! Kent's Com. 
 'A'.m, •4117; Story on Con., § 7!i('); Noy's 
 Maxims M; Insurance Co. v. De \V(.ll, l' 
 Cow. 10."). riie c-ase. then, stnmls before 
 us as a contract of sale for cash on deliv- 
 ery: in such case the delivery and luiy- 
 nient are to be concurrent acts; ami 
 therefore, if the poods are pnt into the 
 pos.session of the buyer in the expectation 
 that he will immediately pay the price, 
 and he does not doit, the seller is at lib- 
 
 erty to rr^ard the delivery as conditional, 
 and may at once recl/ilin the ;;ooi]h. Iu 
 such a case tin- contr;ict of sale is not ron- 
 snmmated. anil the title does not vest In 
 the buyer. The seller, may, to be sun-, 
 waive the payment of the price, and ui;ree 
 to postpone it to a future day, and pro- 
 ceed to comrilete the delivery: in which 
 case it would be absolute, and the title 
 would vest iu the buyer. I'.ut in order to 
 have this effect, it must appear that the 
 Koods wi-re put into the Ituycr's posses- 
 sion with the intemion of vestinK the ti- 
 tle In I'.im. 
 
 If, howeviT, the delivery and payment 
 were to he simultaneouH, and the Koods 
 were ilelivered in the expectation that the 
 price would lie immediutely paid, the re- 
 fusal to make payment wouM be such a 
 failure on the part of the liuyer to perform 
 the contract as to entitle the seller to (lut 
 an end to it and reclaim the goocjs. 
 
 This is not only eminently just, but It Is 
 in accordance with the ^reat current of 
 authorities, whicli treat the delivery, un- 
 der such circumstances, as eonditionul 
 upon the immccliiite payment of the [irice. 
 L' Kent's Com.*4'J7; Chitty on Ci>n., '.•th 
 Amer. Eil.. *:!.")(). note 1 and cases; Storvon 
 Con.,§§ 7'.m;,S04; rainier v. Hand, 13 . 1 (dins. 
 4:14; .Marston v. Hahlwin. 17 Mass. tiO.'i; 
 J/<'ven V. Smith, I Denio ."ii:!. and cases cit- 
 ed. So the doctrine was fully recocnired 
 in Hussell v. .Minor, I'l' Wend. ti.V.l, where, 
 on the sale of paper, it was a;;reed that 
 the buyer slxiuld cive his notes for it on 
 ilelivery, and the delivery was in several 
 parcels. On rieliver.v of the lirst, the seller 
 asked for a note; but the buyer answered 
 that he would ulve his note for the whole 
 when the remainder was delivered, and the 
 parcel now delivered could remain until* 
 then. When the rest was delivered, the 
 defendant refused to pive his note; and 
 tlu' court held that till' ilelivery of all the 
 jioods was conditional, and tliMt the seller 
 iniKlit maintain replevin for all the jjoo.ls. 
 TheKcneral doctrine is fully recoirnized in 
 this state in Luey v. linndy. '.t .\. II. L".»s. 
 and more especiall.v in Ferguson v. Clif- 
 ford. :!7 .\. II. Mi. where it is laid down 
 that if the delivery takes place when pay- 
 ment is expected simultaneously there- 
 with, it is in law made upon the condi- 
 tion precedent that the price shall forth- 
 with lie paid. If this condition be not |KT- 
 formed, the delivery is inoperative to pass 
 the title to the property, and it may be 
 instiiutly reclaimed by the vendor. 
 
 I'he niicstioii then is, whether the deliv- 
 ery here was absulute, intending; to pass 
 the title to the vendee and trust him for 
 the price, or, whether it was made with 
 the expectation that the cash would be 
 paid immediately on the delivery. This 
 is a ipiestion of fact, but it Is nubmlltrd to 
 the court forilecision. Ordinarily it should 
 be passed upon at the trial term: liut 
 where the (luestioti Is a mixed one of law 
 and fact, as it is here. It may not he Irreij- 
 nlar, if the jud;:c thinks it best, to reserve 
 the entire iiueslion for the whole court. 
 Assnmint: that the qu'stions both of law 
 and fact are reserved, we lind that the 
 Kiiods were sold for cash, and of course 
 that tlie delivery of the uoods anil the 
 payment of the price were tobo slmultune-
 
 620 
 
 PAUL V. KEED. 
 
 ou." , iitul nccordiiifily, when a part had 
 been (lelivered, and the seller wan tiRuring 
 up the anidunt, and the hiiycr hud taken 
 out his money to pav the price, the act 
 was arrested by the serviceot this jirocess. 
 The evidence relied cpon to prove the 
 delivery to be absolute and intended to 
 l)as8 the title at all events, is simply and 
 solely the changinff of the hop: into an- 
 other pen, and niixing the sugar with 
 other 8U(jar of the buyer. Without this 
 mixinii of the sugar, the case would be 
 just tiie ordinary one of a delivery of the 
 goods with the expectation that the 
 buyer would at once pay the price; and 
 We think that circumstance is not enough 
 to show a purpose to make the delivery 
 ■■ibsolute, btit rather a confident expecta- 
 tion that the buyer would do as he had 
 agreed, and pay the price at once. The 
 case of Henderson ". Lauck, 21 Pa. St. '^7)'.), 
 was very much like this. There was a 
 sale of corn, to be [laid for on the delivery 
 of the last load : and as the loads were 
 delivered, the corn was placed in a heap 
 with other corn of the buyer, in the i)res- 
 ence of both parties. On the deli very of 
 the last lot the buyer failed to pay, and 
 the Seller gave notice that he claimed the 
 corn, and brought replevin, which was 
 held to lie, — the court regarding the de- 
 
 livery as conditional, and the plaintiff in 
 no fault for the intermingling of the corn. 
 It is very clear that the intermingling of 
 the sugar does not, as matter of law, 
 make the delivery absolute; and I think, 
 as matter of fact, it is n(jt sufticient to 
 prove an intention to pass the title abso- 
 lutely. When th<! buyer declined to pay 
 the price, the seller at once reclaimed the 
 goods, and so notified the bu.ver, vvho did 
 not object to giving up the sale if he could 
 safely do so. 
 
 Jn respect to the question now before 
 us, it is not material for what I'eason the 
 buyer declined to pay for the goods, al- 
 though the service of the trustee proc-.ss 
 might shield him from damages in a suit 
 by the seller for not taking and paying for 
 the goods. For the purposes of this (jues- 
 iion, it is enougli that the buyer did not 
 pay the price, and thus gave the seller a 
 right to reclaim the goods, which he did 
 at once. The goods themselves were ex- 
 empt from attachment; and the fact that 
 the trustee process was designed to inter- 
 cept the price of those goods, could not 
 affect his right to reclaim them when the 
 buyer declined to pay the price. 
 
 The exception must therefore be sus- 
 tained, and the 
 
 Trustee discharged.
 
 I'Kiujcv c. i;al< II. 
 
 623 
 
 PEKLKY V. H.\I-CH. 
 
 (23 ['ick. ^S!. ) 
 
 Supreme Judicial Court of Massucliusetts. Es- 
 sex. Nov. Toi-Di, ls;i'J. 
 
 A.sHiiniD.sit on n proiiiiHmir.v iioU'. At 
 the triiil in the court of foinnion pIciiH. 
 before WilliiniiH J., the (Icfeniliiiit iiitro- 
 diiL-ed evidence tending to prove, that the 
 con.sideriition of the note w.ih the Hale of 
 an ox hy the plaintiff to the defendant, 
 with a wfirrnnty. that the o.\ would fat- 
 ten i\» well as any one the defemliint then 
 had; that one eye of the ox, which >vas 
 then aii[)arently defective and diHcaHcd. 
 wan falsely "nd frandulently represented 
 hy the i)laintiff to have l)een hooked ont, 
 whereas, in fact, it hii<l l)een destroyed hy 
 a cancer; and that this disease was incur- 
 ahle, and rendered the ox incapahle of lie- 
 inK fattened and entirely worthless for 
 any other purpose. 
 
 It did not appear, that the defendant 
 had returned or offered to return the ox 
 to the plaintiff, or had ever notified to 
 the plaintiff, that he was dissatislied with 
 the contract, until after the coniinence- 
 inent of this nction, which was several 
 years after the sale. The defendant kept 
 the ox in his pasture, &!■. for several 
 months, and was at some troulile to as- 
 certain whether it would answer his ])ur- 
 rxisp. It did not appear what liecHuie of 
 the ox afterwards. 
 
 The defendant also offered evidence tend- 
 in}; to show, that he purchased the ox for 
 the sole purpose of fa tteniuK it. and that 
 this was known to the i)laintiff at th:' 
 time of tlie sale; and he contended, that, 
 upon these facts, then was an implied 
 warranty on the part of the plaintiff, that 
 the ox should he reasonahly 'it for that 
 purpose. 
 
 The judRe instructed the jury, that no 
 -such implied warranty arose frc.on thi'se 
 tacts; that if they wei'e satlstied that the 
 plaintiff warranted, that theox would fat- 
 ten OH well as any one which thedefendant 
 then liad. and that the warranty was 
 false, or if they were satisfied, that the 
 plaintiff falsely and fraudulently repi-esent- 
 ed the eye of tlit" ox to have lieen hookeil 
 out. whereby the defend;int was induced 
 to |)urchase it, and if they were further 
 satislied. that the ox, if it liail been re- 
 turned to the plaintiff in a reasonable 
 time, would h?ive been of no pecuniary 
 value to him, the <lefendant would be en- 
 titled to a venlict; biit that, otherwise, 
 their verdict should be lor the plaintiff. 
 
 The jury returned a verdict for the plain- 
 tiff; and the defendant excepted to the in- 
 structions to the jury. 
 
 Lord, for plaintiff. Perkins. f<ir defend- 
 ant. 
 
 MORTON. ,T. The Instruction, that 
 there was no implied wnrrant.v, is not 
 now rouii)lained ot, and is undoubtedly 
 correct. See lOmerson v. ISriKliani. 10 
 .Mass. R. I'.tT; Shepherd v. Temple, :t N. 
 (lamp. R. l.V). Kvery sale of ch.it tels con- 
 tains an implied warr-anty. that the prop- 
 erty ot thcni is in the vendoi'. I!ut It is 
 well settleil by authority as u {icneral 
 
 rule, that no warranty of the tinnlitv, Ih 
 ini|)lied from the sale. Themaxlin.cavent 
 emptor, Koverns. L' Kent's Com. 47s ; Chlt- 
 ty on Contr. IX!; ('!ian!pion v. .Short. 1 
 , Campb. .-.:!; I'.raKK v. Cole, li Moore. 114: 
 Stuart V. Wilkins, 1 houjj. -.i); I'arkinHon 
 V. Lee. 2 Kast. :!I4; Mockbee v. (ianlner, 
 '2 Mar. & (iill, Uti. 
 
 But the learned justice of the common 
 r»leas further Instructed the jury that If 
 there was a fraud in the sale, or an ex- 
 press warranty and u breach of It, In ei- 
 ther case, the defendant mi>;ht avolil the 
 contract, by returninK the ox within n 
 reasonable time; or. if theox would have 
 been of no value to the plaintiff, then 
 witliout returnini: him. Whether the jury 
 found their verrlict upon the Kround, that 
 no fraud or express warranty wasproveil, 
 or that the ox was of no valui', does not 
 appear. If therefore any part of the In- 
 structions was incorrect, thedefendant Ih 
 entitled to ii new trial. 
 
 Where the purchaser is indin-ed hy the 
 fraudulent misrepresentationH of Iheseller, 
 to make the |>urchase, he may, within ii 
 reasonjilile time, l)y restorintc the seller to 
 the situation he was in before the sale, re- 
 Hcinil tlie contract, and recover back the 
 consideration paid, or, if he has driven »i 
 note, resist the pavment of It. Here wnH 
 no return of th3 property purchased . but 
 if that property was of no value, whether 
 there was any frauil or not. the note 
 would l)e nudum pactum. Theilefendant's 
 counsel, not con trovertin;; the general 
 rule, obji'ctsto the (inalilicntion <jf it. lie 
 Ka.vs, that tlie ox, thou>;h valueless to the 
 defendant. mii;ht be of value loth" plain- 
 tiff, and so the dcf'.'ndant would b. uonnd 
 by his contraet, nlthon;;h hea''i|aired niith- 
 iiitr by it. liut a damage to the promlHee 
 Is as Kood a corisideration as n beueflt to 
 the (iromisor. ITa chattel he of no value 
 to an.v one. it cannot be the basis of a liar- 
 ;j:ain: lint if it be of any value to either 
 party, it may be a tjooil considerntlon for 
 a promise. If it is benelicial to the pur- 
 chaser, he certainly ou;;ht to pay for it- 
 If it Ilea loss to the sellet. he is entitled 
 to remuneration for his loss. 
 
 Itut it is apparent, that a want of con- 
 sideration was not the principal ground 
 of defence. The defeiiilaut mainly relied 
 upon fraud or a warranty. .\nd to ren- 
 der either available to ;ivoid llienote.it 
 was iudispeusable, th:it the property 
 should be returned. Ilecannot resrind the 
 contract, and yet retain any portion of 
 the consideration. The only cxceptinn Is. 
 where tlie pnipertv is entirely worthlettM 
 to both parties. In such case the return 
 would be a useless ceremony, which the 
 law never reipiires. The purchaser can- 
 not derive an.v benelit from the purchase 
 and yet rescind the contract. It mast be 
 uulliiied in toto, or not at all. It cannot 
 be enfiirced lo part and rescinded In part. 
 .\nd. if the property would be of any ben- 
 elit to the seller, he is equally bound to 
 return it. He who would rescind a con- 
 tract, must put the oilier party in as good 
 asituati<in as he was before; otherwise 
 he cannot do it. Cliitly on Contr. L'7»i 
 Hunt V. Silk. ."> Kast. AA'.t; Conner v. Hen- 
 derson. 1.'. Mass. R. :tl'.l. 
 The facts relied upon by the defendant
 
 624 
 
 PERLEY V. BALCH. 
 
 to defeat the note, might, If proved, be 
 used in mitiKfltioii of damages. If there 
 was a partial failure of consideration, or 
 deception in the quality and value of it, or 
 n breach ol warranty, the defendant may 
 avail himself of it to reduce the damat;es 
 to the worth of the chattels sold, and 
 need not resort to an action for deceit, or 
 upon the warranty. Chitty onContr. 140; 
 <Jern!aine v. Burton, 3 Starl;. R. 32; Bas- 
 ten V. Butter, 7 East, 480; Poulton v. Lat- 
 timore, !) Barn. & Oessw. 2.")'.); Buyley on 
 Bills, (2d Amer. Ed.) 531, and cases cited. 
 But he is not bound to do this. He may 
 
 prefer to bring a separate action, and he 
 has au election to do so. The present 
 judgment will not bar such an action. 
 But however this nia.v be, it does not ap- 
 pear, that anj' instructions were given or 
 refused upan this point. The value of the 
 property to the defendant would have 
 been the true rule of damages. And had 
 he desired it, doubtless, such instructions 
 would have been given. But as heilidnot 
 request them, he cannot complain of their 
 omission. 
 
 Judgment of the court of common pleas 
 affirmed.
 
 PETERS V. FT. MADISON CONST. CO. 
 
 C2: 
 
 PETERH et aL v. FT. MADlbON CONST. CO. 
 et al. 
 
 (34 N. W. Rep. 190, 73 Iowa, 405.) 
 
 Supremo Court of Iowa. Oct. 5, 1887. 
 
 Appeal from circuit court, Lfte county. 
 
 Thie is iin tipi)eul by plaintiffH from n 
 Hnal order made t)y the circuit court in a 
 sujiplemental proceediuK for the enforce- 
 ment ol n jiidKiiient. The facts are Htated 
 in the opinion. 
 
 James H. Anderson, for appellants. D. 
 N. SpraRue and H. C. Steniple, for ap- 
 pellees. 
 
 UKKP, J. In February, 1M79. the Ft. 
 Madison ("onstniction Company was in- 
 corpornted, and soon aftersvnrds begnn 
 the work of building a railroad, that be- 
 in>! the oliject for which it was organized. 
 The amount of its paid-up capital was 
 J31,.')00, which was evidenced by ;il'.^ shares 
 of stock of .Ifl.oao each, of which s'. ^vt j. (;. 
 Atlee held five shares; .1. C. Atloe, live 
 sliares; defendant (jeorse Schlnpp, 10 
 shares; N.(,'. Roberts, two shares; (,'harlo8 
 Uoerr, one share; A. L. CartwriKht, one 
 share; Peters & Bernhard, three shares, 
 and C. H. Peters four and one-half shiircs. 
 After building; about 11 miles of roail. the 
 corporation sold o\it to the Ft. Madison 
 & N. W. Hy. Co., and ceased to do busi- 
 ness. The consideration for the sale was 
 $-ll),O()0 of tirst mortKaRe bonds of the pur- 
 chasing company. At the time of the sale 
 the corporation was indebted (in addition 
 to its indebtedness to the stockholders 
 for their payments to its capital stock I 
 in the sum of fjl'. 542.7s. The greater part 
 of tliis indebtedness was to the stockhold- 
 ers for moneys advanced by them in addi- 
 tion to their stock snbscriptiorjs, (or the 
 benefit o( thecorporat ion. anil for liabilities 
 assumed by some of them for it. I'.ut ?'I4.- 
 .■)00 of the mort;;as:e bonds of the purchas- 
 ing company was ever delivered, and that 
 amount was delivered in various amounts 
 to the individual stockholders. A suit in 
 e(|nity was instituted for the windinK up 
 of the business of the corporation, and 
 for the distribution of tlie assets, after the 
 payment of its debts, aiuouK the stock- 
 holders. 
 
 The judgment rendered in the action 
 determines the facts enumerated above. 
 It also determines tliat the morty:ace 
 bonds in tlie hands of the stockliolder.s, 
 together with the interest received by 
 them thereon, were a.ssets of the corjiora- 
 tion ; nn<l the receiver a()pointed by the 
 court was ordered to collect the same, and 
 ap|)ly the proceeds in payment of the 
 debts of the company and the costs of the 
 proceediUK. It also determines that de- 
 fendant George Scldapp held Sll),0<.0 of the 
 mortRace bonds, and that he had received 
 as interest thereon the sum of .'?L'.-l(i.">. The 
 hulebtedness of the corporation to indi- 
 viduals was also determined, and It was 
 determined that it was indebted lo 
 Xchlnpp in the sum of ifL'.TlU.T.'i.and to him 
 and A. L. Cartwriuht in the sum of ;?:(.- 
 23".). 4S; the latter sum beinj; thenmount of 
 judgment obtaineci nsrainst Schlapp and 
 Cnrtwricht for an indebtedness incurred 
 by them for the benelit of the corporation. 
 
 The judsment also contained the follow- 
 ing provision: "It is further ordered that, 
 if any of the parties desire, they may ap- 
 ply the amount due thereon, respectively, 
 upon their pro rata proportion of the 
 charges as aforesaid against the property, 
 and pay the balance, if any, in cash, and 
 thereupon they may retain their pro rata 
 amount of bonds, or be entitled to riHeive 
 their pro rata amount of bonds from the 
 receiver; anil, if the amount due them 
 should exceed their pro rata amount of 
 tlieir charges against the property, they 
 may apply so much as Is necesHnry, aiid 
 retain or receive their bonds, and be enti- 
 tled to receive the balance from the IudJh 
 in tlie hands of the receiver." 
 
 That judgment was entered on the 
 twenty-seventh of .March. KM. Di-fend- 
 ant Schlapp did not deliver the mortgage 
 bonds to the re<'elver, nor did he pay 
 over to him thenmount of the money he 
 had received as interest thereon ; and, on 
 tlie twenly-si.xth of Febninry folhjwinii;, 
 an e.xecution was issued on the judgment, 
 directing the sheriff to collect from him 
 the l)onds, and the amount of money re- 
 ceived by him, but the exifution was re- 
 turned unsatisHed. On the eleventh of 
 .April, ISN.'), ti.e plaintiffs, who are stock- 
 holders in the corporation, itistituted this 
 proc-eeiling fur the pur[>ose of enfoicing 
 the juilgment against Schlapp. They al- 
 leged in tiieir petition that he had con- 
 verteil the bonds and money in his hands, 
 and that he was indebted to the corpora- 
 tion in llie amount of their value, and 
 tlu-y prayed that a moni'y judgment be 
 entered against him for that amount, and 
 the same be applied in satisfaction of the 
 corporate debts. They also made .\Iarle 
 .Schlafip. the wife t>f (icorge Schbip[i. a 
 defendant in the proceeding, and sought 
 to subject certain property, which they 
 alleged she hcdds in fraixl of the rights of 
 the creditors of her hUNb'ind. to the satis- 
 faction of whatever judgment ndght be 
 rendered against him. The circuit court, 
 on the heariag, dismissed the petition an 
 against .Marie Schlapp. It also entered an 
 order or jinlgmeiu wliich deti-rmines that 
 (Jeorge Schlapp holds the SHl.nu) iif mort- 
 gage bonds as assets of the corporation, 
 and required him to pay the same over to 
 the receiver within L'O days from the ren- 
 dition of tlie judgment, or pay to him the 
 sum of :f4,ss().,',n,— the amount which It Is 
 found woulil be due from him in case he 
 retains the lnuids. It Is from this order 
 that the present appeal Is presented. Uy 
 an amendeil abstr.-ict theilefendant shows 
 that since the rendition of the judgment 
 he has ilellvered the bonds to the ri-ceiver. 
 which delivery was made within the JO 
 days allowed therefor by the jmlginent. 
 anil that the circuit court has onlereil the 
 receiver to sell the same, and apply the 
 Iiroeeeds to the payment of the debts. 
 This order, however, was made at a term 
 Riibsennent to that at which the judgment 
 was entered. 
 
 1. It is insisted by the Hpiiellnnls that. 
 upon the facts, they were entitled to nn 
 absolute money judgment for the amount 
 which defendant ought to pn.v as his pro 
 rata share of the debts, and we think this 
 position must lie sustained. L'uder the
 
 628 
 
 PETERS V. FT. MADISON CONST. CO. 
 
 original judgment, defendant was re- 
 quiri'd to pay over the bonds and money 
 in liis hands to the receiver; but, under 
 tlie provision of the jutlgraent set out 
 above, he had the election to retain tliem, 
 and pay to the receiver the balance re- 
 niainins after deducting the indebtedness 
 which the corporation was ovN'iug him. 
 On the facts, he must be held to liave 
 made this election. He retained the prop- 
 erty when the supplemental proceeding 
 was instituted. He refused to surrender 
 it to the officer who souRlit to recover it 
 on the e.xecution issued on the judgment, 
 and he did not even offer to surrender it 
 pending the supplemental proceedings. 
 While lie did not in express words express 
 an election to retain it, all his conduct in- 
 dicated that he had determined to avail 
 himself of the privilege accorded to him 
 by the judgment to retain it; and, having 
 made that election, he cannot now be 
 permitted, after tlie circumstances have 
 changed, and the valueof theproperty may 
 have depreciated, to make a different elec- 
 tion, and the circuit court erred in award- 
 ing him a second election. We do not con- 
 sider the matters shown by defendant's 
 amended abstract. The records embt)died 
 in tliat abstract relate to proceedings sub- 
 sequent to theorderor judgment appealed 
 from. Tliey do not relate to that judg- 
 ment, and cannot be considered in deter- 
 mining the questions of its correctness. 
 The appeal does not bring tliera here for 
 • review. 
 
 2. Having reached the conclusion that 
 plaintiffs are entitled to an absolute 
 money judgment against George Schlapp, 
 we will inquire as to the correctness of 
 tlie order (iisniissing the petition as 
 against Marie Schlapp. The property 
 wliich she claims to own is .fL'2,500 of 
 United States bonds. These lionds for- 
 merly lielonged to George Schlapp. It is 
 claimed that lie, in 1879, made an absolute 
 gift of them to his wife. Tlie proof is that 
 he, being the owner of the bonds, and 
 being about to go on a journey to a for- 
 eign country, called liis wife's attention to 
 them, and said to her: " I give these bonds 
 to you, and I show you how to cut the 
 coupons so you may know how to do it 
 
 yourself, and use the money for your liv- 
 ing. " He did not, however, deliver them 
 to her, but took them to a bank, in 
 the vault of which he had a drawer in 
 which he kept his private papers. He 
 placed them in the drawer, wliicli he 
 locked, and the key to which he retained. 
 During his aiisence his father had access 
 to tlie drawer, and as the interest on the 
 bonds matured, he detached the coupons, 
 and delivered them to the bank for collec- 
 tion, and as the money was collected it 
 was paid to Mrs. Schlapp. When George 
 returned from his journey, he assumed 
 cuntrol of the drawer, and as the interest 
 fell due on the bonds he would detach the 
 coupons, and deliver them to the bank for 
 collection, and when the money was re- 
 ceived by the bank it was passi^d to his 
 credit. The business was transacted in this 
 manner for about two years; after which 
 the bank, by George's direction, opened 
 an account in the name of Mrs. Schlapp, 
 in which it credited the interest as it was 
 collected. He, however, continued to 
 draw out money as he needed it, on diecks 
 drawn on the bank by himself in liis wife's 
 name. She has never had the bonds in 
 her possession, nor has she ever seen tliem 
 since the.v were first locked up in tlie 
 drawer in tlie bank vault. It is very clear 
 that she is not vested with the title to 
 them. To constitute a valid gift of per- 
 sonal property, there must be an actual 
 delivery of the property, or some act must 
 be done which in law is the equivalent of 
 such delivery. Willey v. Backus, 52 Iowa, 
 401, 3 N. W. Uep. 431. Nothing of the kind 
 was done in the present case. The title 
 to the projierty remains in the husband. 
 At his death it would descend to his per- 
 sonal representatives as assets of his es- 
 tate, and during ills life it may be subject- 
 ed by his creditors to the payment of his 
 debts. He claims to be insolvent, and 
 said Ijonds are the only propertj' within 
 tlie reach of bis creditors. 
 
 The judgment will be reversed, and judg- 
 ment in harmony with tliis opinion will 
 be entered in this court, or the cause will 
 be remanded for the entry of such judg- 
 ment in the court lielovv. as the parties 
 may elect. Reversed.
 
 PETERS BOX & LUMBER CO. v. LESH. 
 
 C31 
 
 FETKIIS BOX &, LOMBEU CO. v. LESH ot al. 
 
 (20 N. E. Rep. 291, 119 Ind. 98.) 
 
 Supreme Court of Indiana. Feb. 21, 1889. 
 
 Appeal from circuit court, Huntington 
 county; Henry B. Snylcs, Judue. 
 
 Action of rei)lovin jiKninHt tlie Peters 
 Box anil Liin]t)er Company tiy VV. H. and 
 J. A. LchIi, to recover certain liiinl)er. 
 .ludK'nent for iilaintiffH, and defendant 
 appeals. 
 
 A. Zollars, H.Colcrlck, and W.S. Oppen- 
 heini. for appellant. K. W. KawleH and T. 
 E. Ellison, for appellees. 
 
 COFFEY, J. Tills action was iirouRht 
 by the appellees at;jiin.st the ai)pellant in 
 the Allen circuit court, to recover certain 
 lumber and logs di.'Kcribed in the com- 
 plaint. The cause was put at issue by 
 a general denial, and the venue was 
 changed to the Huntitiuton circuit court. 
 The cause was tried by a jury, who re- 
 turned a verdict for the appellees, assess- 
 iuK tlie value of the property at $'2~0. 
 Motion for a new trial overruled and ex- 
 cepted to, and juilKUient on the verdict. 
 
 The errors assiKued in this court are: 
 (1) That theHuntin«ton circuit court had 
 nojuri.sdiction over the cause; (2) that the 
 court erred in overruliuK the motion for a 
 new trial. No point is made in the brief 
 of counsel for the appellant on the first 
 aHHinnnient of error, and, therefore, the 
 same is waived. The evidence on the part 
 of the appellees tends to prove that the ap- 
 pellant is a corporation carryini; on a 
 larKC saw-mill and lumber business at the 
 city of Fort Wayne, Ind. ; that the appel- 
 lees, in November, tss;(,had been and were 
 opera tint; a saw-mill at Sidney, Kosciusko 
 couuty, ind.; that a man calling; himself 
 Milliard came to .Sidney, and represented 
 to the appellees that be was the iiKent of 
 the appellant, to buy lumber and Ions for 
 it. The appellant had, before that, to the 
 knowledRc of the api)ellee8, bought such 
 property in that vicinity, and they sup- 
 posed ho was such afj;eut. One of the ap- 
 pellees went with the said Al'lliard to 
 several places, where he bought Iii^h for 
 the appellant, and they liiially sold him, 
 as the agent of appellant, the property in 
 question, for f2(i;!. By their agieement, 
 it was to be measured, put on the cais, 
 the measurement to be sent to the ajipel- 
 laut and it to immediately pay the bill by 
 a draft oil New York. The property was 
 measurvd, sold, and shipped on Monday, 
 and Milliard left Fort Wayne on Tuesday. 
 The draft not comiiiK, one of the appel- 
 lees wer.t to Fort Wayne on Tuesday, 
 where he met Mr. I'apa, the n|)pellant's 
 president, and asked liim to p'ly for said 
 property. Papa denied the authority of 
 Milliard to act for the appellant, and, after 
 ilemaiid, refused to deliver the property, 
 and also refused to say much ab-uit the 
 contract of appellant with Milliard, ov to 
 Hay how much he had been paid for the 
 property. The appellant did in fact pay 
 Milliard" .f rj."> for the property in contro- 
 versy. Iiiiiiiediately after the delivery of 
 the property to it by Milliard, the appel- 
 lant coiumenced to saw up the logs and 
 
 mix the lumber with Its own. up to tlilH 
 point there seems t(j be no diHHKreement 
 about the facts. It is claimed tiy the ap- 
 pellant that bills of lading wpre mndp out 
 for the property in the name of .Milliard, 
 with the Consent of one of the appelleeii, 
 but tills fact Is disputed by the appelleeii, 
 will) claim that there was nothng made 
 out at the freight olllce from which the 
 property was Hhlp[ied except a receipt for 
 the property. 
 
 The court gave to the jury the following 
 Instruction: ".Should you find from the 
 evidence that the title and right to pos- 
 session of the property In controvt-rsy la 
 in the plaintiffs, and if yon further Hud 
 that the defendant. In the purchase of Bald 
 property, was in nofnult,then you sh<iuld 
 (ind the value of said projierty at what 
 you believe was Its fair market value in 
 the condition and place it was situated 
 when the plaintiffs demanded the same of 
 the defendant. If such demand were made, 
 exclusive of any expenses or labor the de- 
 fendant may have invested in manufactur- 
 ing the same into lumlier up to the time 
 said demand was made, lint if the evi- 
 dence shows defendant knew or ought to 
 have known that Milliard was not the 
 real owner, then you siiould not take Into 
 consideration any expense or labor the 
 defendant put upon said logs and lumber, 
 
 ] but give the plaintiffs a verdict for the 
 full value at the time and place it was de- 
 manded, and in its condition then. " 'io 
 
 I I he giving of this instruction the appel- 
 
 I lant excepted. 
 
 1 The court had previously instructed the 
 jury, substantially, that if .Milliard had 
 
 : represented himself to the appellees as 
 the agent of the n|)|)ellaiit. and ihey, rely- 
 ing on such representation, solil him the 
 |)roperty in controversy as such agent, 
 without any intention of vesting the title 
 in him, but Intending to vest it In the ap- 
 pellant, when he was in fart not the agent 
 of the appellant, such sale was void and 
 vested no title in Milliard, and he could 
 not by a suliseiiuent sale vest title to the 
 property in the atipellant. 
 
 This case comes clearly within the law 
 as enunciated In the case of Alexander v. 
 Swnckhanier, lO.^) Ind. M, ■« N. E. Kep. -133. 
 and ,"> N. E. Rep. '.los. It Is there distinctly 
 decided that in a case like this no title 
 liasses to the fraudulent fiurcliaser, and 
 that such purchaser cannot by any subse- 
 (liient sale transfer title to another, for 
 the reason that he has none to transfer. 
 It must be true, then, that at the time (ho 
 apiiellecH demanded possession of the 
 property of the appellant, at l'"ort Wayne, 
 the title was In them, as well as the right 
 to the posses.sion. It was tlieiluty of the 
 appellant to surrender to them such pos- 
 session, and U|)on its failure or refusal to 
 do so, what were they eiilided tori>'over? 
 It is earnestly conteiiiled by the learned 
 counsel for the appellant that, as the 
 freight from Sidney to Fort Wayiii- was 
 paid by the appellant, the meaKiire of the 
 
 I appellee's damages was the value of the 
 propertv at Sidne\ . lint It must be re- 
 membered that the appillant did not pur- 
 chase the property at .Shlney. It was 
 
 j purchased at Fort Wayne; and the ap
 
 632 
 
 PETERS BOX & LUMBER CO. o. LESH. 
 
 pellant must be presumed to have taken 
 into consideration the amount he would 
 be compelled to pay to obtain possession 
 of the property, in Bxing its value at the 
 time of thepurchase. Iteertaiuly will not 
 be contended that the appellant could 
 refuse to deliver the i)ossession, upon de- 
 mand, because it had paid the freight. 
 Korean it be successfully claimed that 
 Milliard, the fraudulent purchaser, euuld 
 claim to have the freight refunded to him 
 if he had been cauf^ht at Fort Wayne, be- 
 fore he had disposed of the property. Sec- 
 ti<jn 572, Rev. St. ISSl, provides that in ac- 
 tions to recover the possession of personal 
 property judgment for the plaintiff may 
 be for the delivery of the property, or the 
 value thereof in case a delivery cannot lie 
 had, and for dama};os for the detention 
 thereof. It is not denied that at the time 
 of the demand the appellant had the prop- 
 erty in controversy, and tliat it could 
 have delivered it to the aiipellees. By re- 
 fusing to do so, we think it became liable 
 to the appellees for the value of siicli prop- 
 erty at the time and |)lace of such demand 
 and refusal, less any additional value it 
 may have had by reason of labor be- 
 stowed upon it, in )j;ood faith, before such 
 demand was made. Mitchell v. Burch, 3G 
 Ind. 529; Wells, Rep. !?§ 540,503; Cushint; 
 V. Longfellow, 2fi Me. liOli. It is clainipd 
 that in actions for trover the rule is differ- 
 ent, but, as this is an action of replevin, 
 we need not, and in fact do not, decide 
 that question. 
 
 It is earnestly insisted by the learned 
 counsel for the appellant that as the ap- 
 pellees permitted Milliard to take bills of 
 lading in his name, and thus enabled him 
 to sell the property to an innocent pur- 
 chaser for full value, they are now es- 
 topped from claiming the property in con- 
 troversy in the hands of the appellant. 
 Instructions were given by the court. 
 
 and others asked by the appellant, and 
 refused, which fairly raise this question. 
 
 The court instructed the jury that if 
 Milliard had the hills of lading made out 
 in his own name as the consignor, to en- 
 able him to fraudulently sell the same to 
 the defendant, and the plaintiffs knew 
 that the prcjperty was so shipped, and 
 that Milliard's purpose in so shipping said 
 property was that he might fruudulentlv 
 sell the same to the defendant, then tlieir 
 verdict should be for the defendant. In 
 tlie case of Alexander v. Swackhamer, 
 supra, this court, by Mitchell, J., says: 
 "The appellee was not estopped on the 
 ground of negligence in delivering the cat- 
 tle under the circumstances disclosed. To 
 constitute an estoppel the party sought 
 to be estopped must have designedly done 
 some act or made some admission incon- 
 sistent with the claim or defense which he 
 proposes t(j set up, and another must 
 have acted on such admission with his 
 knowledge and consent." If the appellees 
 acted under the belief that Milliard was 
 the agent of the appellant, and that they 
 were selling the jjroperty to the appel- 
 lant, basing such belief on the representa- 
 tions made to them by Milliard, we do 
 not think that they would lie estopped 
 from claiming their property by reason of 
 permitting the bills of lading to be made 
 out in the name of the supposed agent. The 
 instructions asked by the appellant ignore 
 this phase of tlie case, and we think the 
 court properly refused to give them. We 
 are of the opinion that the instruction 
 given by the court properly stated the 
 law applicable to the case as made by the 
 evidence. 
 
 We flud no error in the record for which 
 the judgment should be reversed. Judg- 
 ment affirmed. 
 
 Petition for rehearing overruled.
 
 PHILADELl'lIIA vV K. li. CO. p. WIltKMAX. 
 
 035 
 
 PHILADELPHIA & R. R. CO. v. WIREMAN. 
 
 (SS Pa. St. 264.) 
 Supreme Court of Pennsylvania. Jan. 20, 1879. 
 
 Action by tlie Plilliidclpliia & lieadiii)^ 
 Kiiilroad ("onipiiny u>iiiiii«t Jacoh Wire- 
 man t<i recover the value of property niiH- 
 (lellvered hy Hnid company to deleiidant. 
 Verdict for defendant, and plaintiff ap- 
 pealH. Atlirnied. 
 
 SpauldiiiK & Son, of Kluurn, Hold certain 
 DierciiandiHe to one l-isler. piiyment to 
 be made in defendant's paper, Indorned l-y 
 FiHler. The vendors delivered the k<'<>iI« 
 to the Leliijih Valley Hailroad C(>nipany 
 to be forwarded to defendant at plaintiff'H 
 station in ['hilndelphin, at the Haine time 
 Bending Finler their bill, the receipt of the 
 railroad company, and a draft for defend- 
 ant's acceptance an<l Fii^ler's indorsement. 
 The sellers then hearing that Fisler and 
 Wireman were not responsible, and fail- 
 ing to get additional security from them, 
 left orders with plaintiff's railroad not 
 to deliver the goods to defendant. The 
 goods having been transshipped to plain- 
 tiff's railroad, th" latter delivered them to 
 defendant on bis [)reseutatiou of the mem- 
 orandum of shipment and the Lehigh Val- 
 ley Itailroad ("ompany's receipt, which 
 Spaulding & Son had sent to Fisler, and 
 the latter had turned over to defendant. 
 Spaulding & Son returned the paper of 
 Wireman. and broucht suit in Eliniru 
 against plaintiff railroad company for the 
 value of the goods, and obtained judg- 
 ment therein. Plaintiff paid this judg- 
 ment, and then brouirht this suit 
 
 Before SHARS\V()()1), C. J., and MEK- 
 Cri!, (JOKDOX. PA.XSON, WOODWAHl), 
 THU.NKEY, and STICKUETT, JJ. 
 
 Thomas Hart, Jr., for plaintiff in error. 
 Hufus I']. Shnpley,for defendant in error. 
 
 STEHKETT. J. The pinintiff'si laini. as 
 appears by the bill of particulars, was 
 based on the unauthorized delivery of the 
 goods consigned to the defendant Wire- 
 man. Hence, the main question was, 
 whether the latter had a right to receive 
 them at the time they were delivered to 
 him by the plaintiff's agent. To show 
 that he hail not, the plaintiff mainly relied 
 on the qualilication and direction con- 
 tained in its way-bill, to "deliver only on 
 the order of II. ('. Spaulding & Son, of El- 
 mira." Kesting upon this alone, thedeliv- 
 ery to Wireman. without the order of 
 Spniddiiig A: .Son, would have been unnu- 
 tliorizeil ; but the testimony ndiluced by 
 the defendant tended strongly to prove 
 that Fisler hacl purchasetl the goods from 
 Spaulding & Son, to be delivered at Eliiii- 
 ra, consigned to Wireman, and to be paiil 
 for in the negotiable pai>er of the con- 
 signee, endorsed by Fisler; that, piirsuant 
 to agreement, the goods were delivered 
 at Elmirn to the Lehigh Valley Kailroad 
 Company, whose receil)t, for theirdelivi'ry 
 to Wireman at Philadeljiliia, without any 
 (lualilication or restriction, was taken by 
 Spaulding & Son, and immediutely sent 
 
 by them to Fisler In a letter, advising lilm 
 of t^e shipment and enclosing ciraft for 
 the amount to be accepted by Wireman, 
 endorsed by Fisler ami remitted to the 
 consignors: anil that on the arrival oftho 
 goods in Philadelphia. Wireman. who had 
 agreed to purchase them from I'lfler, ((re- 
 sented the receipt of the Lehigh Valley 
 liailroad Company, paid the freight anil 
 received the goods. If these facts were 
 found by the jury, as they doubtless were, 
 from the testimony Hubmitled to tln-m, 
 they constituted a complf te answer to the 
 alleged want of authority in Wireman to 
 detnand an<l receive theconsignment. The 
 learned judge was therefore clearly right 
 in receiving the testimony and submitting 
 it, n.s he did, to the jury. 
 
 The testimony fairly justified the Infer- 
 ence thac after S[>aulding & Son had tak- 
 en the receipt of the Lehigh Valley Itail- 
 road Company, and mailed it to Fisler, 
 they doiilitAl the solvency of Wireman 
 and Fisler, and induced the company to 
 restrict the delivery to the consignee, by 
 adding to the bill of lading the words 
 above quoteil, and when the goods were 
 transferred to the plaintiff company, at 
 Allentown .lunction. the <>..i::e direction 
 ivas inserted in its way-ldll. IJut neither 
 Fisler nor Wireman was a party to this 
 change In the terms of shipnicnt, and were 
 not bound by it. If the goods were pur- 
 chased and delivered at Elmira. as con- 
 tended by the defendant, the title had 
 passed from Spaulding Ji .Son and vested 
 in the purchaser. .After an uni|unlilied de- 
 livery to the carrier at Elmira they were 
 no longer at the risk or under the control 
 of Spauliling & Son, and they had no right 
 to say that, on reaching theirdestination. 
 they should not be clelivered to the con- 
 signee without their order. If the i>lain- 
 tift company had refused to deliver the 
 goods on presentation of the receipt and 
 teiiiler of the freight by the consignee, he 
 could have sustained replevin by proving 
 the facts which the jury must ha\e found 
 under the instructions ol the court in this 
 case. 
 
 There may be apparent hardship In the 
 failure of tiie plaintiff to reco\er, after 
 having been sued by the consignors, In the 
 state of .New York, for misdelivery of the 
 goods, anil compelled t<. pay the volue 
 thereof; but with this we have nothing 
 to do. It may lie that the right of the 
 consignee to receive the goods, was not 
 urged or sustained in that case as it was 
 in this. Ill the present case, as we have 
 seen, the action was based e.\clusively on 
 the ground that the consignee had no 
 right to reieive the goods without the or- 
 der of the consignors, a position which the 
 plaintiff failed to maintain. Perhaps the 
 result might have been different if the ac- 
 tion hud been in the name of the consign- 
 ors to the use of the railroad company. 
 .\8 it was, however, the case hingeil on 
 the question of Wireman's authority to 
 receive the goods. The facts were for the 
 jurv, and the testimony, sulunltted to 
 them with appropriate instructions, fully 
 jusli'ied the venlict. 
 
 Judgment allirmed.
 
 I'HILI.ll'S V. KEITZ. 
 
 C37 
 
 PHILLIPS V. REITZ. 
 
 (16 Kan. 396.) 
 
 Supreme Court of Kansas. January Term, 1S70. 
 
 Error from Jolinson district court. 
 
 He[)l<-'vin, broiiKht by Perry Pliillipa, for 
 the iiiidividi'd oiie-linlf intt-reHt in nine 
 lieiKi of liorweH, one jdiaeton, tw<j huKKii'H, 
 luirneHKeH, etc. PhillipH claimed to lie the 
 owner, nnd entitled to the poHHCHtiion of 
 the property, and ullcsed tlint it ha<l been 
 wronKfiilly taken and was wrongfully re- 
 tained l)y Vick Heitz. lieiti! answered, that 
 the property in question was tlie i)roperty 
 of one 1. N. Phillips, and not the pro|)erty 
 of plaintiff; that defendant was sheriff of 
 .lohnson county, and as such sheriff be 
 lind received anil held a writ of execution 
 to him duly issued and delivered, upon a 
 juddmenl duly recovered in the .Jolinson 
 county district court, liy li. A. I'eineinan 
 & Co. as plaintiffs ajralnst said I. N. I'liil- 
 lips as defendant, for $IGO.:i."i and cosls, 
 April l.'ith ls74; that liy virtue of said 
 writ of execution he ( Ueitz) as sheriff had 
 levied upon Siiid pioperty as the prr>perty 
 of said 1. .N'. I'hillips; that he found said 
 I'roperty in the possession and under the 
 control of said 1. ^. Phillips, and that he 
 (the sheriff) had taken the same, and now 
 held and retained the pc.ssession thereof 
 as such sheriff, and by virtue of said writ 
 of execution. Trial at the .\UKUst term 
 1S74. The evidence showed that I.N.Phil- 
 lips and one Thomas Muir had l)cen part- 
 ners, carry ini? on the livery business in the 
 city of Olallio for a loiifj time; tliat the 
 horses, cjirriaKCs, etc., levied on by Sheriff 
 Reitz had been owned by said Philiip-f & 
 Muir, and used in tlieirsaid business; tliat 
 said 1. N. I'hillips, in March l.s74, was 
 largely indebted, and suits were pending 
 against him; that his iiomesteail, and all 
 his real property except tlie undivided half 
 of the livcry-stnlile lot was moi'tgaued ; 
 that Perry IMiilliiis, the plaintiff, was his 
 brother; that Perry icsideil on a farm tea 
 ndles distant from Olatlii': tliat ontlie4tli 
 of April hs74 said I. N. Phillips and one .\lc- 
 Keever went to the residenc e of the plain- 
 tiff, and there said I. N. I'hillips sold his 
 interest in the livery Ktal)le and stock to 
 the rdaintiff for f l,L'oo, for whicli sum tlie 
 [ilRintlff executed his promissory note, 
 which was immediately Indorsed to said 
 McKeever as collateral security for the 
 payment of the purcliase-m<mey of a farm 
 sold by said McKeever to said I. N. I'liil- 
 lips, upon which farm .McKeever held a 
 mortgage niveii to secure said iiurchase- 
 money ; that the livery stock and prop- 
 erty was all at Olathe at the time, and 
 the plaintiff did not go to see or take pos- 
 se-ssion of it; that I. N. Phillips and Muir 
 continued the livery business as partners, 
 but one witness for plaintiff had testitied 
 that plaintiff had employed him (the wit- 
 ness) to take charge of the stock and at- 
 tend tt> the iilaintiffs Interests in the liv- 
 ery business. It alsoappenred tliat Feine- 
 man & Co. Iiail recovereil a judgment 
 against 1. N. Phillips, April ],'.th 1><74, and 
 an execution thereon had been issued, as 
 alleged in Keitz's answer; that Iteitz had 
 levied said execution upon the property in 
 controversy ou the lilUh of .\pril; that 
 
 thereuiion I. .N'. P. dispatched a menBen^r 
 for the plaintiff who immediately came to 
 Olathe, and then (after said levy) said 1. 
 N. P. went with the plaintiff to the livery 
 stable, and undertook to make formal de- 
 livery of the property to the plaintiff, but 
 they were notified by Muir that the shcrlfr 
 lia<l levied upon the property and had 
 left it in bis (.Muir's) care, and that no de- 
 livery or change of possession could be 
 made; that after said levy .\lulr and I. N. 
 Pliillilis had a settlement bet ween them- 
 selves. Which Included partnership ac- 
 counts in the livery business down to the 
 day of the settlement. It olso a|ippared 
 that I'erry Phillips had olitained posses- 
 sion of the property, at thecommeni-ement 
 of the action, and that at the time of the 
 trial a part of the stock, and two of the 
 carriages were in the iiossession of I. N. 
 Phillips. Thematerial part of theinstruc- 
 tions is copied Into the opinion. Infra. 
 The jury found for the defen<lant, and as- 
 sessed the value of the property at f7.'{2..")0. 
 New trial refused, oud judgment on the 
 verdict in favor of defendant Iteitz for a 
 return of the property, etc. Phillips 
 brings the case here on error. 
 
 John T. BurrlH and John T. Little, for 
 plaintiff. 
 
 n HEWER, J. This was an action of tv- 
 plevin, and the question was as to the va- 
 lidity of a sale claimed to have been made 
 by one I. .V. Pliillips to plaintiff. Defend- 
 ant was sheriff of Johnson county, and 
 uniler an execution against I. N. Phillips 
 levied on the property. The property 
 consisted of livery stock in the city of 
 Olathe. Plaintiff was a farmer living 
 some miles off in tlie country. The sale 
 was maile at the farm of plaintiff. He 
 was not from the lime of the sale to the 
 time of tlie levy in Olathe, and I. .\. Phil- 
 lips remained in theactual charge, though, 
 as was claimed, as the agent of plaintilT. 
 The errors alleged are in tlie giving of in- 
 structions. The two propositions to 
 which specific objections are mn<le are — 
 1st, "The unex|ilalued possession liy the 
 vendor, after the sale, is conclusive evi- 
 dence of fraud. " 
 
 2d, "The actual participation by the 
 vendee In the vendor's fraudulent Intent, 
 is not necessary to avoid the sale. It is 
 enough if he knew of sucli intent, or of 
 facts sutMcient to excite the susidcions of 
 a iirudent man. and jiut him on bKiuiry." 
 
 Tliat good faith is as essential to sup- 
 port a sale like the one liefore us, as n 
 suttieient consideration, will not be tpies- 
 tioiied. Twyne's Case, ;l Coke, SO, 1 
 Smitli's Leaiiing Cases, 41;; Ha Id win v. 
 I'eet, '2'2 Texas, 70S: Chandler v. Van 
 Itoeder, L'4 How. (P. S.) •.•■J4; Pulliam v. 
 Newtierry's Adin'r, 41 Ala. llVS. And that 
 a continuance of posscsson is evidence of a 
 want of good faith, as well as a want of 
 BUlficlent consideration. Is settled by the 
 statute, (ien. Stat., p. 5iM. § :<■ That 
 (lossession iiiav be retained, and still then» 
 be n valid sale, is also clear, anil so In un- 
 mistakalde language the court instrucle<l 
 the jury. And this instruction, as to the 
 effect of an unexplained po-session, must 
 be considered in reference to and as quail-
 
 638 
 
 PIIILLU'S V. IIEITZ. 
 
 fied by the other instructions. There has 
 been a vaKt amount of controversy as to 
 the effect ttf a retained possession lipun an 
 alleged sale, when challenaeil by a cred- 
 itor, or sul)8equent purcliaser. It is all 
 based upon the idea that ijossession fol- 
 lows title, and that where there is a trans- 
 fer of title there should be a change of pos- 
 session. In some courts it has been held, 
 that a failure to change possession is so 
 inconsistent with a transfer of title that 
 it creates a presumption of law against 
 thf alleged sale. Thisijresnaiption of law, 
 noevidence of thegood faithof tiieparties, 
 and of the payment of full consiileration, 
 can overthrow. In others, such failure ro 
 change possession is merely evidence 
 against a sale, which may be ex[>lained. 
 The presumption is one of fact, and like 
 all presuinpti(jns of fact open to explana- 
 tion by other testimony. It is like the 
 presumption of guilt which flows from the 
 possession of recently-stolen pro|)erty. It 
 casts upon the possessor the duty of ex- 
 planation. (See for a full discussion of 
 this question and the authorities there- 
 on, Twyne's Case, and notes thereon, in 1 
 Smith's Leading Cases, Hare & Wallace's 
 notes, p. 47, and following.) Our stat- 
 ute has accepted the latter construction, 
 and provides in the section cited, that 
 "Every sale * * * unaccompanied by 
 an actual and continued change of pos- 
 session, shall be deemed to be void, 
 * * * until it is shown that such sale 
 was made in gooil faith, and upon suffi- 
 cient consideration." In other words, 
 proof of actual good faith, and payment 
 of sufficient consideration, does away with 
 the presumption which fiows fron; a re- 
 
 tained possession— shows that such pos- 
 session does not imply a retained title, or 
 secret trust — in short, explains the pos- 
 session. Until It is so explained, it is evi- 
 dence against the sale; and unless so ex- 
 plained, it is conclusive evidence. To that 
 extent, and only to that extent, do we un- 
 derstand the instructions of the court, 
 taken as a whole, to have gone; and in 
 that is no error. See upon this, Ayres v. 
 Moore, 2 Stewart (Ala.) 33(5; Peck v. 
 Land, 2 Kelly (Georgia) 1 ; I'leming v. 
 Townsend, () (Jeorgiu, 104; Beers v. Daw- 
 son, 8 Georgia, ^57; Robinson's Ex'rs v. 
 Robards, 15 Mo. 4.59. 
 
 As to the second o'ojection, the court 
 distinctly charges that the vendee must 
 be a party tcj the fraud to avoid the sale, 
 and then, in another instruction, appar- 
 ently in explanation of what was neces- 
 sary to make him a party to tlie fraud, 
 charged that it was enough if he knew of 
 the vendor's fraudulent intent, or of facts 
 snfticient to put him upon inquiry. Is 
 this error'? We think not. Knowledge 
 of facts sufficient to excite the suspicions 
 of a prudent man, and put him upon in- 
 quiry, is, as a general proposition, equiv- 
 alent to knowledge of the ul'imate fact. 
 Garahy v. Bay ley, 25 Texas, (Suppt.) 294; 
 Pitney v. Leonard, i Paige ("h. 461. And 
 if the vendee knew of tlie fraudulent intent 
 of the vendor, and bought with that 
 knowledge, he can scarcelj- claim to be a 
 bona fide purchaser, for he was knowing- 
 ly helping the vendor to accomplish the 
 fraud and do the wrong. 
 
 There appearing no error in these rul- 
 ings, the judgment must be affirmed. 
 
 All the justices concurring.
 
 PITKIN c. XOVKS. 
 
 041 
 
 PITKIN et al. v. NOTES. 
 
 (4H N. H. 294.) 
 
 Supreme Judlciul Court of New Hampshire. 
 Coos. Jan., ISG'J. 
 
 AsHiimpMit by Saimiel P. Pitkin niidoth- 
 iTK aKiiiiiHt .\na -No.vcr* lor ii(iii|iei'fi>riiiaiic(> 
 of a CDiitract to ili'liviM- potatoes. Cam' 
 I'everKC'd. Del'eixlaiit, in ISlili. inade a vcr- 
 l>al aKi'efilitMit with plaintiffs' testator to 
 raise tliree acros of potatoes, atiil deliver 
 tlieni diiriiiK tlie year at testator's plaee 
 of Inisiness, f<jr twenty eents a hnsliel; 
 and. accordintc tosoniuof tiK'evidenee, tins 
 aKi'eenient |)rovided tliat lie sliould do the 
 same ill Isoi. Uefendaiit raised and deliv 
 ered the potatoes in lsi;:j, Imt plaintiffs 
 raised some ([uestion as to the price to he 
 |)aid, claiiiiliifi that the previous a^ree- 
 inciit was not hindiii^ because not in writ- 
 ing. They (inally aitreed in .laniiary, 1S(;4, 
 to pay twenty cents for the ls(j;i potatoes 
 if defendant would raise and deliver the 
 same ijnantity in ls(j4. This nctiun was 
 brouKht for failure to deliver the potatoes 
 for IS(;4. 
 
 Ladd, for plain tiff.'*. Uay, fordefendant. 
 
 liELLOW.S, .1. If the bargain in the 
 sprint: of ls(i:' was for the potatoes of that 
 year, and also for the year lsri4. it would 
 be within the statute of frauds, as to the 
 potatoes of the last year at least, as an 
 ay:reenient not tt) be iieriorined in one 
 year. Kniery v. .Smith. M't S. 11, l.")l. The 
 (luestioii then is, whether a valid af;ree. 
 meat for the crop of Istil was made in 
 .lannary of that year; and we propose to 
 inquire in the first place whether such a 
 contract as is stated in the testimony of 
 the plaintiff is to be rf'irarded as a con- 
 tract for work, labor and materials, or a 
 contract of sale of the crop of potatoes. 
 If the foriiK r. it is not witiiin the statute 
 of frauds, but if t he latter it is. 
 
 It is nianilist fi'oin the natureof tlipcnse 
 that it must be very ditlicult to draw a 
 line of distinction between these two 
 classes lit contracts. In some instances 
 the distinclions must be very nice, and it 
 is to be expected that wesli.juld find the 
 authorities not alloKelher harmonious. 
 
 It is now settled, however, that a con- 
 tract for the sale of noods is not without 
 the statute because it is executory, and it 
 is well settled that a contract for vvork 
 anil l.'iboraiid materials found is not with- 
 in the slatnte. 
 
 lu the early Enslish cases it was lield 
 that a contract for the sale of articles to 
 be afterwards manufactured and delivered 
 was not within the statute; as in Towers 
 V. Osborne. 1 Str. Iteii. ."idli. where defend- 
 ant bespoke a chariot; and so of a coii. 
 tract to deliver wheat m.-t then threshed, 
 as ill ("laylon v. .\ndrews, 4 liiirr. '.'1(11. 
 In both of these cases the dtcision went 
 upon the )i>'<:uiid that the contract was 
 execulory. I'.ut these cases weresoon aft- 
 er (lualilied by decisions holding that con- 
 tracts of sale thi>iii;li executor.v were with- 
 in the statute. Koadeau v. Wvatt. •-' II. 
 BIk. o:!, and Cooper v. Klston, 7 T. U. 14; 
 and yet the results reached in Towers v. 
 Osborne and Clayton v. Andrews have, 
 LAW SALha — 41 
 
 been in some caHen reooKnlzed an correct, 
 although upon a different );roiiiiil: name- 
 ly, thai the articles were not exl».tln« at 
 the time of the barKaiu, and so incapable 
 of delivery and acceptance; as In (iruves 
 V. IJuck, y M. \ S. 17s; 2 sturkie Evl. 008, 
 and cases citid in note C. 
 
 Hut in tiarbiitt v. Watson, 5 B. & AM. 
 <il:i. it wa-i held that a contract to sell lUO 
 sacks of flour, at a price fixed, to be nady 
 in three weeks, was within the statute, 
 thouKii the flour was not then ground. 
 
 Of the sail, n character is Smith v. .Sur- 
 man. ;» li. i C. .")iil. where it was decided 
 that a bargain for certain limber tree* 
 Krowinu o;) the owner's land al a fixed 
 price p-r foot, was a contract for t be sale 
 of Koods, and within thestiitute, iillliou;;li 
 to be ;-ut afterwards li.\ the seller; liolil- 
 iiiR that wlien cutting them he was doini; 
 work fur himself and not for the buyer. 
 Littledale, .1., holds that where the cori- 
 trai tiiiir parties cont.-mplate a sale of 
 Kooils. althoutfh at the time of making 
 Ihe coiilract the subject mat ter does not 
 exist as t^ooils, but is to be converted In- 
 to that state by the eeller's lu'stowInK 
 work and labor on his own raw materi- 
 als, that is a case witliin the statute; and 
 he says further th.it it is sullicient. II at 
 the completion of the contract the siibjirt 
 matter be Koods, wares and laerchnndiHe: 
 and Parke. J., says the true <|uestioii In 
 such cases is whether the contract be sub- 
 stantially a con tract for tlie sale of ^ixxIh, 
 or for work aud labor and materlalH 
 found. 
 
 These two last cases modify materially 
 the doctrine of Groves v. I'.uck, and the 
 earlier cases of Towers v. OsOorne and 
 (,'layton v. Andrews, and hold that It is 
 not essential that tlie K""'Is be capable 
 of delivery at the niakiiii; of the contract, 
 to brin;r it within Ihe statute. So the 
 fart that the coods are to be traiisporteil 
 to another place and there delivered iloes 
 not take the case out of the statute. 
 Kent V. lluskinson. 3 I!. & P. 2X!, and As- 
 tey V. Kmery, 4 M. Ac S. 'Ji;!'. 
 
 The weight of American authority Ik 
 in accordance with the doctrine of (inr- 
 buft V. Watson. .'> P.& Aid. id:!, and Smith 
 V. Snnnan. '.I I!. & C. .■)(il, that the niei-e 
 fact that the (joods are not. at the mak- 
 ing of the contract, in the condition in 
 which they are to be when delivered, iloes 
 not take n case out of the statute. 
 
 If. however, a person contract to m«n- 
 ufactiire and deliver al a future time cer- 
 tain >;i)ods. at prices then lixed, or at rea- 
 sonable prices, the essence of the njiree. 
 meat t)einK that he will bestow his own 
 labor and skill u|ion the maiiiifucture, it 
 is held not lo be within Ihe statute. If 
 on the other hand the barKala be to de 
 liver jroods of a certain description at n 
 future time, and they are not exi»tla»r at 
 the time of the contiact. but the seller 
 does not sti,'inlate to maiiiifact ure them 
 himself or procure a pnrlicubir person to 
 do so, the contract is within the statute. 
 The distinction Is that in the one ca»p 
 tlie p.-irty sti|iulates that be will himselt 
 manufacture the article and the liuyer h/iK 
 the ri>;lit to rci|iiire him to dti It. and can- 
 not be ciiiiipelled to take one as Kood or 
 even better if made by aaolher, while to
 
 r>\2 
 
 PITKIN 0. NOYES. 
 
 the other case the Heller only afrrees to 
 Mfll and deliver the article, and Ih nnder 
 no obligation to make it hiniseif, but may 
 jniri'liase it of another. 
 
 This in tlie doctrine laid down by .Shep- 
 ley, J., in llinlit v. Hipley et al., 1!) Maine 
 livp. 187, wliere the distinction between 
 tlie cases is well ex|)laiued. and the doc- 
 trine has been since followed by the Maine 
 courts, Abbott v. (Jilchrist et al., :iS Maine 
 2(i(); Fickett v. Swift. -11 Maine (iS; and Ed- 
 wards V. Grand Trunk Hallway Co.. 4S 
 Maine ail). Tliis doctrine of Higlit v. 
 Kijjiey is recosniited as sound by Prof. 
 Parsons in his work on Contracts, '2il vol. 
 ;i;W, where in a note the authorities are col- 
 lected. 
 
 This distinction is also recosnized in 
 Massachusetts. In Gardner et al. v. .loy, 
 a Met. ITi), Shaw, ('. .!., lays it down thus: 
 "If it is a contract to sell and deliver 
 Koods, wlietlier they are then completed 
 or not, it is witliin tlie statute. But if it 
 is a contract to make and deliver an ar- 
 ticle or (juautit.v of Koods it is not within 
 the statute." Here the contract wa.s for 
 one hundred boxes of candles b.v a manu- 
 facturer, and although the candles were 
 not then made it was held that the con- 
 tract was within the statute, there beiiiK 
 no stipulation b.y the manufacturer to 
 make them. 
 
 In Mixer v. Howarth, 21 Pick. 205. il 
 was held that an agreement by defendant 
 to build a carriaf^e for the plaintiff, or to 
 finis!) one for him from materials partly 
 wrought, was not within the statute; 1) 
 being lield b.y Shaw, C. J., that a contract 
 to sell an article then e.xistins, or which 
 the vendor nsuall.v has for sale in the 
 course of bis business, is within the stat- 
 ute: but it is otherwise if the agreement 
 by a workman be to [lut materials togeth- 
 er and construct an article for theem- 
 plo.yer, whether at an agreed price or not. 
 
 The saLne general doctrine is recognized 
 in Spencer v. Cone et al., 1 Met. 28;J, hold- 
 ing that an agreement to make certain 
 machines for another at a specified price is 
 not within tlie statute, but an agreement 
 for labor and materials. The distluction 
 is also recognized in Waterman v. Meigs 
 et al., 4 Cush. 4'.)'.), and in Lamb v. Crafts, 
 12 Met. :^5(i. 
 
 In New York the distinction is fully rec- 
 ognized between an agreement fortlie sale 
 and deliver.v at a future day of articles 
 then existing, and an agreen^ent to sell 
 and deliver articles not thus manufactured, 
 but to be'made afterwards, holding that 
 the latter are contracts for work and la- 
 bor and materials found, and not within 
 ithe statute; but the N"W York cases do 
 not appear to maik the difference between 
 tlie contract, of a party to manufacture 
 and deliver an article, and his contract to 
 deliver it merely, whether made l)y himself 
 or another. A contract of sale though ex- 
 ecutory is held to be within the statute. 
 Bennett v. Hull, 10 .lolins. :W4 ; Jackson v. 
 Covert, ;') Wenil. 141. 
 
 The cases that hold that a contract to 
 make an article is not within the statute 
 are Crooksluink v. Burrell, IS Johns. .5s, 
 which was an agreement to make the 
 w^oodwork of a wagon; Sewall v. Fitch, S 
 Cow.2l."i, which was a contract for nails of 
 a particular manufacturH, but not then 
 
 made; Robertson v. Vaughn, 5 Sandford, 
 1. which was a contract to make and de- 
 liver one thousand molasses shooks at a 
 fixed price, which was decided not to be 
 within the statute, upon the authorit.v of 
 Sewall v. Fitch. Duer, J., who ga ve the 
 opinion, thought the case to be within the 
 niisehiefs of the statute and was disposed 
 to question the earlier eases. 
 
 So in Bronson v. Wiman, 10 Barb. 406, 
 where it was lield that a contract for 
 flour to be ground from wheat, bargained 
 for, but not then received, is not within 
 the statute. 
 
 So in Donovan v. Willson, 20 Barb. l:W, 
 there was a contract to deliver at afuture 
 day an article to be nianufactureil b.v de- 
 fendant, and it was held not to be within 
 the statiite. 
 
 So is Parker v.Schenok, 28 Barb. 38, and 
 Mead v. Case, 33 Barb. 202, where the 
 agreement was to finish a monument, 
 with the inscription, and dtiliverit to tlie 
 other (lart.v. 
 
 In most of the cases the part.v himself 
 agreed to manufacture the goods, and 
 that would bring them witliin the doc- 
 tiine of Higlit v. Itiple.v, 1!( Maine, 1:17, be- 
 fore cited, although the distinction does 
 n(jt seem to be adverted to. 
 
 In Itovvtis V. Itoss, 2:i Wend. 270. a con- 
 tract for the sals of seven hundreil bushels 
 of wheat, part of which was yet to be 
 threshed and the rest to be cleaned more 
 thoroughl.v, and all to be delivered in six 
 days at a price fixed, was held to be a 
 contract for the sale of goods, and within 
 the statute; Covven, J., dissenting upon 
 the ground that the (juestion wjis settled 
 b.v the early English and New York cases; 
 but sa.ying that were it an o|jen ques'ion 
 he would not deny that a contract to 
 manufacture and sell woulii more correct- 
 ly be considered a sale within the statute. 
 Tills ease falls within the princi(de of 
 (larbutt V. Watson. .5 B. & Aid. (ii:!, and 
 Smith v. Surinan, '.) B. & C. .'')(;l, before cit- 
 ed, where something was to be done by 
 the seller to perfect the goods before deliv- 
 ery 
 
 In Connecticut it was held that an agree- 
 ment to deliver to a part.v one hundred 
 sewing machines of a certain description, 
 at a time and place (Ksignated, on condi- 
 tion that a part of them not then com- 
 pleted were finished in season b.v a third 
 person who worked in stller's shop and 
 with his material.-i. was acoiitract of sale, 
 and not for the manufacture of the ma- 
 chines, but even if it i\ ere otherwise as to 
 the part not completed, sixty -four in num- 
 ber, still as the contract was entire and 
 as it was clear that in respect to the 
 thirt.v-six it was ;> sale, the whole it was 
 said must be regarded as within the stat- 
 ute. Atwaler v. Hcmgli, 1".) Conn. .')0S 
 
 In Phippsv.McKarlane.;! Minn, lol), ((iil. 
 ()1,) there was an agreement to fiir.iish 
 materials, and fit them fo:- a steam mill, 
 wiiicli was portable: and it was held that 
 it was not a contract of sale; but it 
 blends together the price of the thing, 
 and compensation for work and latior and 
 materials, and is not within the statute. 
 
 In our own courts in Oilman et al. v. 
 Hill, 30 N. H. 31 1, vv'here there was a con- 
 tract made in .\ugust to sell to the plain- 
 tiff all the sheep pelts taken off by the
 
 riTKIN c. XOYE.S. 
 
 643 
 
 Heller who wbh n butolier, between the 
 Hrst of .liilv niicl the (irHt of (k-toher. it 
 waH helil thiit in ri'spect to till, ati well 
 those not then taken off aH those that 
 were ready for delivery, it w;ih a contract 
 of Kale of };ooiIm, and not for work and l)>- 
 iior. and wan within the Ktatntc. 
 
 1:: 2 Kent's ('i)innientarloH 004 and 511, 
 note b, the earlier lOiiKli^h doctrine is rec- 
 ognized th'it if the article sold existed at 
 the time in solido, and was capable of 
 delivery, the contract was within the 
 statute; bnt otherwise if it was to lie aft- 
 erwarils inannfaitiired or prepared for ile- 
 livery liy work and labor. 
 
 And much the same is Story on Con. sec. 
 787, and note. In Browne on Frauds, this 
 subject is well considered, and the conclu- 
 sion reached is e.xpressed in section ■Mix, 
 that if the contract be essentially a con- 
 tract for the article manufactured or to 
 he manufactured, the statuteapiilies toil: 
 but if it is for the manfncture, for the 
 work, labor and skill, to be bestowed in 
 produriuf; the article, tiie statute does not 
 ajiply. 
 
 L"iion the whole we are satisfieil that if 
 the contract lie substantially for the 
 Koods. it is within the statute, whether 
 they are then manufactured or not : but 
 It is otherwise if the contract be to manu- 
 facture and deliver the noods, that is, if 
 the labor and skill of the seller is stipulat- 
 ed for and makes pai-t of the contract. 
 
 It is (piite obvious that the labor and 
 skill of a workman may be bargained for 
 in this way as well as in any other— his 
 compeusation beinji' in the price of the ar- 
 ticle he makes; and the only (|uestioii in 
 the [larticular case is whether the skill 
 and labor of that workman was especial- 
 Ij' contracted for, so that the employer 
 was entitled to that, and could be obliged 
 to take no other. 
 
 In ainny cases, then, there could be !io 
 diliiculty in determining whether the la 
 lior and skill of the particular pers<in was 
 of the essence of the coritiaet,or whether 
 it was, in the conteiii illation of the par- 
 lies, substantially a sale. 
 
 If an artist contract to paint the por- 
 trait of another, 'lU.houKh he is to find the 
 canvas and paints, it would readily be 
 cor.ccded that the substance of the con- 
 tract was for the skill and labor of the 
 particular artist. .So if a printer contract 
 to print a book lor an author, tliou;rh he 
 is to furnish the paper an<l ink. as held in 
 (lay V. Cates, 1 11. & N. ?:!. .Soifarar- 
 pentcr a^ree to erect a bnildiiiK for anoth- 
 er upon his land and tind all the materials, 
 it is a contract for work and liibor .ind 
 materials, ("ourtriuhl v. Stewart. I'.l I!arb. 
 4.V>. .So it would lie if a person carry 
 cloth to a tailor who agrees to make 
 a coat for him, oven if the tailor is to find 
 the tiiiniiiiiiy,s. 
 
 The contract may be for work and labor 
 simply, for work and labor and materials, 
 or for the sale and delivery of uoods, 
 wares and merchandise. In resp-ct to the 
 two last till- line of seiiaration must often 
 be indistinct aul dillicult to trace; and 
 we are not alile to discover any estab- 
 lished rule or criterion by which to dis- 
 tlnuuish them rcMdily. 
 
 Tlip rule estalilished in New York, name- 
 ly, that, if the floods contracted for are 
 
 not then in existence but are still tube 
 manufactured, it is to be considered as a 
 contract for w<irk and labor. orii;inated 
 at an early period in a diHp.jHiti<in of the 
 KiiKlish courts to liaiitthe operation of 
 the statute of frauds, and miiHt olivlouHly 
 exclude from the operation of that statute 
 a larne class of cases that are within Its 
 mischiefs, and at the same timt- are, in 
 substance, contracts of sale. 
 
 On the other hand the doctrine o( Llt- 
 tledale, .1. in Smith v. Surmun, '.) H. & C. 
 ."itil, is that if the parties contemplate a 
 sale of Koods, although the subject mat- 
 ter at the lime of making thecontruct doed 
 not exist In uoods, lint is to be converted 
 into that state liy the seller best.iwinj; 
 work and lalior on his own raw materi- 
 als, it is a case within the statute — hold- 
 inir that it is siillicient, if at the time of the 
 completion of the contract the subject 
 matter be (joods, warps anil merchandise; 
 and thi-i i;t-iieral doctrine seems to be rec- 
 oRuized in Watts v. Friend. 1(» H. & C. 446. 
 per Lord Tenterdeii. So in he*- v. (iriflin.l 
 IJest & Smith. Kxcheii. liep., 27-'. {T-i I.'. .S. 
 1)1^. 277.) it was held that a contract to 
 make a set of artitlcial teeth, and lit them 
 to the mouth of the other party who iliel 
 before they were con.pleted, was a cnn- 
 ti-actfor the sale of goods and within the 
 statute. 
 
 This doctrine of Littledale, J., lirinKs us 
 rounil to the i|uesti<in whether in thecon- 
 templatliin of the parties the contr.-ict was 
 substantially a contract for the sale of 
 goods, or for work and labor. 
 
 In Massachusetts a distinction is made 
 between a contract for the sale and deliv- 
 ery of articles which the seller is habitual- 
 ly making, and a contract to make an ar- 
 ticle pursuant to the agreement, the for- 
 mer tieing regarded as a contract of sale, 
 but the latter n<it. Lamb v. Crafts. 12 
 Met. :i."i:!. 'I'his must be because it was 
 supposed to bear on the i|Uestioii whether 
 the stipulation that the party tiiinself 
 should make the goods was of the essence 
 of the contract, and so a contract for 
 work anil labor. 
 
 As a rule of law.howcTpr.it does not 
 strike us as afftirding a very satisfactory 
 distinction between a contract of sale, 
 anil a contract for work, lal'or and mate- 
 rials. If it be of the substance of the con- 
 tract that the niauufactnrer shall himself 
 apply his own labor and skill to the nian- 
 i.facfure of the goo.ls for the buyer, who 
 is n.it lioiind to receive any other, it can 
 make no difteivnce whether the goods art* 
 habitually made by such manufaclurer or 
 not. If he does habitually make such 
 goods for sale, he may nevert lieless con- 
 tract to bestow his own lalmr and skill in 
 making them for a particular person, and 
 the real iiniuiiy is whether in a given in- 
 stance he has done so or not. 
 
 In the absence of explicit and ilistlnct 
 terms, the circumstances may be such as 
 to indicate cleat ly that the lalior and xklll 
 of the particular artist was especially 
 stipulated for. as in the case of an »grp«>- 
 ment to paint a portrait, to execute a mar- 
 ble statue, or any other work of hiKh 
 art. In such cases, and especially where 
 the mateiials used in the work are of 
 slicht importance compared with the la- 
 bor and skill of the artist. It might well
 
 644 
 
 PITKIN V. NOYES. 
 
 be mi|iposp(1 that the skill and labor was 
 of the esseiiite of the contract, and auch 
 seems to have licen the uphiiou of Pollock, 
 V. B. in Clay v. Yates. 1 H. & N. 73, before 
 cited. 
 
 On the other hand If tlie contract bs for 
 goods which arc usually in the market, 
 and there is nothing in the terms used or 
 in the nature of the case to indicate that 
 the labor and skill of tlie contractor was 
 stipulated for especially, it must be 
 deemed a contract of sale and within the 
 statute. 
 
 If the article to be manufactured or the 
 crop to be raised is not a marketable 
 c«)nimodity, but of value chielly to the one 
 who contracts for it, that circumstance 
 has l)een supposed to indicate that the la- 
 bor and skill of the other was bargained 
 for. Browne on Statute of Frauds, sec. SOS, 
 citinK Cason v. Cheely, G Geo. Hop. 5,i4, 
 which is based upon such a distinction. 
 Whether such a distinction asa ruleoflaw 
 is well founded or not, it certainly pre- 
 sents a strong equity in favor of holding 
 such cases as not to he within thestatute. 
 
 In the case before us the (luestion is 
 whether the essence of the contract was a 
 sale of the expected crop of potatoes at 
 twenty cents a bushel, or a stipulation for 
 defendant's work and labor and mate- 
 rials in producing them. The proof is of 
 an agreement bi' defendant to raise three 
 acres of potatoes in ISGI, and deliver them 
 at the plaintiffs' mill at twenty cents the 
 bushel; was it. then, an essential part of 
 the contract that the defendant should 
 himself raise tlie potatoes? If it was, it 
 would seem from the principles stated 
 that the contract cannot be regarded as 
 a sale. 
 
 In the case of Gardner et al. v. Joy, 9 
 Met. 177, the plaintiffs inquired of the de- 
 fendant what he would lake for sperm 
 candles, and upon being told, said they 
 would take one liundred boxes, which 
 was assented to; defendant « ho was a 
 manufacturer then said they were not 
 then manufactured, but he should or 
 would manufacture and deliver them in 
 the course of the summer. The court held 
 this to be a contract for the sale of goods 
 within the statute; and that what was 
 said as to the suiisecjuent manufacture 
 hud reference only to the time of delivery, 
 and that the ilelivery of good merchanta- 
 ble candles of another person's manufac- 
 tu7'e would have been a compliance with 
 the contract. 
 
 In the case before us was the defendant 
 bound himself to raise three acres of pota- 
 toes, or only to deliver good merchanta- 
 ble potatoes in quantity equal to the or- 
 dinary product of three acres? Or in oth- 
 er words was the stipulation in respect 
 to the three acres introduced only to de- 
 termine the quantity to be delivered, and 
 not to oblige tlie defendant to raise them ? 
 
 It is obvious that the plaintiffs might 
 have an interest in stipulating that de- 
 fendant should himself raise the potatoes, 
 and as the terms of the contract arc ex- 
 l)licit that he should do so, we cannot be 
 justified, as the evidence now stands, in 
 holding that thi.s is not an essential part 
 of the agreement. 
 
 We are aware of the case of Watts v. 
 Friend, 10 B. & C. -14(1, before cited. There 
 A. agreed to supply B. with a quantity of 
 turnip seed, and B. agreed to sow it upon 
 his ovvn land and sell the crop to A. at 
 £1, Is. per bushel, and it was hold that in 
 good common sense tliis must bo consid- 
 ered as substantially a contract for goods 
 and chattels for the thing agreed to l)e de- 
 livered would at the time of delivery be a 
 personal chattel. 
 
 Tl'e reason assigned here for this deci- 
 sion would apply to all cases where the 
 labor and materials employed were to re- 
 sult In goods anil chattels, the price oi* 
 which was to be the measure of comjien- 
 sation, and without regard to the ques- 
 tion whether in the contemplation of the 
 parties labor and skill were especially con- 
 tracted for or not, and for the reasons al- 
 ready suggested, we are not prepared to 
 assent to that view. 
 
 Upon the whole our conclusion on thi» 
 point is that as the question is a mixed 
 one of law and fact. It will be projjer to 
 leave it to the jury, in view of all the cir- 
 cumstances of the case, to lind whether 
 the contract was essentially for the work 
 and labor and materials of the defendant 
 in raising the potatoes, so that he was 
 liound himself to raise them ; or whether 
 it was substantially a sale of potatoes, 
 which he might raise himself, or procure 
 by purchase or otherwise. If it was the 
 former it would not be within the statute 
 of frauds; but if the latter it would l)e. 
 
 Another question raised is in regard to 
 the coDsideration for defendant's agree- 
 ment. If the i)laiiitiffs agreed to take and 
 pay for the crop of i)otatoes at the price 
 fixed, that of course would be a sufficient 
 consideration. We are of the opiLiion al- 
 so, that the cnmpromise of doubtful and 
 conflicting claims is a good and sufficient 
 consideration to uphold an agreement. I 
 Parsons on ('on.;3G4: Chitty on (\)n. sec. 
 42, and note 1 and cases; Longridge v. 
 Dorville, r> ii. & Aid. 117; Crowther et al. 
 V. Farrer, 15 A. & E., N. S., Queen's Bench 
 Rep. 677; Barlow v. Ocean Ins. (.'o., 4 Met. 
 270: Tuttle V. Tuttle, 12 Met. 551; Craus 
 V. Hunter, 2S N. Y. .389: Gates v. Shutts, 7 
 Mich. 127; Union Bank of Georgetown 
 V. (Jeary, 5 Peters 99; Fleming v. Ramscv, 
 46I'enn. St. Rep.. 252; Parker v. Wav, 15 
 N. H. 45; Burnham v. Dunn, 35 N. H. .560. 
 
 The law indeed highly favors the com- 
 promise of doubtful claims ; but the sur- 
 render or discharge of a claim which is 
 utterly without foundation uud known to 
 be so, is not a good consideration for a 
 promise; Kidder v. lilake, 45 N. H. 330, 
 and cases cited : but it is otherwise if the 
 claims are doubtful and so understood by 
 the parties, and in such a case the consid- 
 eration will not be defeated by showing 
 that in fact no valid claim really existed. 
 
 In the case before us it does not appear 
 that there was any doubt about the con- 
 tract for the first year, and if not, an 
 agreement to perform it would be no valid 
 consideration i<.;v a new promise. What 
 the evidence on that point was, however, 
 we do not know and the only questioa 
 here is as to the law in such cases. 
 
 Case dii-'C barged. 
 
 II
 
 M
 
 I'OPK c. ALUS. 
 
 647 
 
 roPE Gt al. T. ALLIS. 
 (G Sup. Ct. Ucp. «9, 115 U. S. 303.) 
 
 .Supiciiu' Cciurt of llic liiiti'il States. Nov. 9, 
 
 18S.J. 
 
 In error to the circuit court of the I'littoil 
 States for the eu.sierii district of WiHcoii- 
 .sin. 
 
 Tlie fnctH fully niipoar in the following 
 Htatciiicnt liy WOODS, J.: 
 
 Kdwjinl P. Allis, the defeiMlnnt in error, 
 was the plaiiitifl in the circuit court. He 
 brouirlit liis suit toreiover from the de- 
 fendants 'riioinas .1. I'i)|)e and .laineH K. 
 I'ope, now tile plaintiffs in error, the suin 
 of f IT.NJit, tlie price of ."jlin tons of pi;r-iron, 
 which liealleKed lie liad hou^'it from tliem 
 and paid for. iiut wliicli lie icIuhimI to ae- 
 cei)! because it wasnotof theiiiiality which 
 thedefendants had agreed tofurnisli. The 
 plaintiff also denianiied .fl.T.'iO freight on 
 the iron, which he alleged he had paid. 
 The (acts appeariiiir upon the record wi're 
 as follows: The plaintiff caniecl on the 
 business of on iron-founder in .Milwaukee. 
 Wisconsin, and the defendants were bro- 
 kers in iron in the city of New York. In 
 the month of January. INM), by corre- 
 Bpondence carrieil on b.v mail and lele- 
 ;;rapli, the ilefendan ts agreed to sell and 
 deliver to the plaintiff .')l)0 tons of No. 1 
 p.xtra American and "(M) tons No. 1 extra 
 (jlensarnock (Scotch) ])i:;:-iron. The 
 Aniericaii iron was to be delivered on the 
 cars at the furnace bank at ('oiday, I'enn- 
 Bylvania, and the Scotch at the yard of 
 the defendants in .New York. I'.y a subse- 
 quent correspondeiicebet ween the plaintiff 
 and the defendants it fairly appeareil that 
 the latter asrrced to ship the iron for the 
 ])laintiff at Klizabcthport, New .Jersey. It 
 was to be shipped 'is early in the spriii}; 
 as cheap freiii:lits could be had, cousiuucd 
 to the National ExchaiiKe liank at Mil- 
 waukee, which, in behalf of the plaintiff, 
 astreed to pay for the iron on receipt of 
 the bills of lading. Th;it quanlity of 
 Ainericjin iron was landed at .Milwaukee 
 and delivered t<i the plaintiff about .July 
 l.'ith. Before its arrival at Milwaukee the 
 plaintiff had not only paid for the iron, 
 but also the freiuht "from C'oplay to Mil- 
 waukee. Soon afrer tl.e arrival in -Mil- 
 waukee the plaintiff examined the :'>(M) tons 
 American iron, to which scdely the con- 
 troversy in this case referred, ami refused 
 to accept it, on the ground tliatitwas 
 not of the tirade called fur by the eon- 
 lract,aiid at once frave the defendants no- 
 tice of the fact, and that he held tlie Iron 
 subject to their order, and brought this 
 Biiit to recover the price of the iron and 
 the freiji'ht thereon. 
 
 The defenses relied on to <lefeat the ac- 
 tion were (ll that the iron delivered liy 
 the defendants to the plaintiff was No. 1 
 extra .\iiiirican iron, and was of the kinil 
 ami (]iiality re(|uired liv the contract ; and 
 C-M that tiie title liavinj; passe<l to tlie 
 plaintiff when the iron was shipped to 
 him at Kliznbethport. he could not after- 
 wards rescind the contract !ind sue for 
 the tirice of the iron and the freight uhich 
 he had palil. but must sue for a breach of 
 the warranty. 
 
 It was conceded upon the trial that if 
 
 the plaintiff was entitled to rerover at nil, 
 his recovery should be for *2-.',31.">.-l<). The 
 defendants pleaded a counter-claim forf.">.- 
 •Tl, wliiih was admitted liy the plaiiillff. 
 The jury returner] a verdict for the plain- 
 tiff for *ir,..-d:i.ll, for which sum and eostH 
 tlie court rendered a judK>i>ent <i|;ninHt 
 the defendants. This writ of error 
 liroufjlit that judgment under review. 
 
 W. TV Lyiiile and Geo. 1'. .Miller, for 
 plaintiffs In error. Kppa llunloii, Jeff, 
 ('haniller, unU J. G. Jenkins, for dilendnnt 
 in error. 
 
 WOOns, J., after statiuK the facts an 
 above, delivereil the opinion of the court. 
 
 1. The first assignment of error relateH 
 to nine exceptions to the adir.ission of evi- 
 dence by the court aKaiiist the olijectlon 
 of the plaintiffs in error. The complaint 
 huviiiK allei;ed that the contract betwec-n 
 the parties was for the delivery of the iron 
 al ^lil waukee, tlie plaintiffs in error ob- 
 jected to the introiluc'ion of eviilence of- 
 fered by the defendant in error wliiidi tend- 
 ed to show a contract for the rlelivery of 
 the iron ut ('opla.\ or Klizabelhport, be- 
 cause the iiroof offered did Mot support 
 the avei'iuents of the complaint, and Hie 
 court liavin;; overruled their olijeclionH 
 and admitted the evidence, they now con- 
 tend that the judgment should for that 
 reason be reversed. Iiut it is clear that, 
 under section ".'lii;'.! of the Kevised SlatuteH 
 of Wisconsin, which constitutes a rule for 
 tlie >;uidance of the fedeial courts in that 
 state, this assi);iinieiit of error is not well 
 taken. The section mentioned proviilps: 
 ■■ .No variance between tlie alle^jations In 
 pleadin;; and the proof shall be deeincc) 
 matei'ial unless it shall actually mislead 
 the adverse parly to his prejudice in main- 
 taining; his action or defense on its iiierltH. 
 Whenever it shall be aliened that a party 
 has been so misled, '.he fact shall be 
 proved to the satisfaction of the court In 
 what respect he has lieeii misled, and 
 thereupon the court may order the plenil- 
 iuK to be amendfd niioii such lernis ait 
 may lie just. " The answer <if the plain- 
 tiff.s in error denied that the contract pro- 
 vitled for the delivery of the iron In .Mil- 
 waukee, anil averre<l that the iron was to 
 lie delivered at I'oplay. We do not think 
 that evidence offered by the defendant In 
 error, which teiKled to establish the aver- 
 ments of the answer rather ihaii of the 
 comiilaint. was such a variance ns could 
 mislead the plaintiffs in error to their prej- 
 udice in maintainini; their defense upon 
 the merits; bill, if they lia>l been really 
 misled, tliey should have proved the fact 
 to the satisfai-tion of the court upon the 
 trial. Iliivins iie;:l"cted to do this, they 
 cannot now complain. It is char that, 
 under the statute of Wisconsin, the plaln- 
 tilfs in error had no just ground of e.xre|»- 
 tlon to the admission ijf the evidence ob- 
 jected to. Homier v. Home Ins. Co., 13 
 Wis. fiTT; Leopold v. Van Kirk. •.".> Wis. 
 ."i:t; (iiffert v. West. :'.:! Wis. tilT. These 
 eases show that the dIsirepMnry I etween 
 the pliiidiim and the proof wa< a vari- 
 ance within the meaaiiii: of the stnliite of 
 Wiscou-iii. an<l that the s-ction cited l» 
 applicable to the (|Uesllon in hand.
 
 6-18 
 
 POPE V. ALLIS. 
 
 2. The next contention of the plaintiffs 
 in i>rror is that evidence was improperly 
 admitted ti.v Mie circuit court to show 
 tlint tile iron landed at Milwaul<ee was 
 not of tlie quality rc(iuir?d l)y the con- 
 tract; the de/eodant in error not liaving 
 shown, or offered to show, as the plain- 
 tiffs in error insisted, that it was the 
 same ir(jii which the defendant in error 
 liad purchased, and wliich had Ijeen 
 Hhii)ped at Klizahetliport. And on the 
 eronnd tliat tlie identity of the iron was 
 not shown, tlie plaintiffs in error insist 
 that the court erred in rel'usinj;; to charge 
 the jury, as requtsted l)y them, to return a 
 verdict in theirfavor. Wethink theassisn- 
 nient of error is not supported by the rec- 
 ord. The defendant in errordid introduce 
 evidence, and, as it seems to us, persuasive 
 evidence, to show tliat the iron shipped 
 for the defendant in error at Elizaheth- 
 port was the iron landed and delivered 
 to him at Milwaukee. The testimony in- 
 troduced tended to prove that one Haz- 
 ard, on whose dock, at Klizabethport, New 
 Jersey, iron belonging; to the plaintiffs in 
 error was stacked, shipjied lietween April 
 ■2Sth and May 12th, at Klizabethport, on 
 five canal-tioats, wliose names are jiiven, 
 500 tons of American iron, consiKiied to 
 Thomas J. Pope & Brother, care National 
 Exchange Dank. Milwaukee, Wisconsin, 
 and to be transported to Milwaukee by 
 the river, canal, and lakes; that about 
 the same time there was shipped to the 
 same consignees, and to tlie care of the 
 same bank, the aoo tons of SScotch iron 
 which had been sold liy the jjlaintiffs in 
 error to the defen<lant in error. 
 
 It was further shown that, on June 9th 
 and l.")th following, ^00 tons ofiron,.'JOO 
 being American an(l oOO Scotch, weretrans- 
 ferred from the dock at Buffalo to two 
 schooners, and the bills of lading given by 
 the schooners stated that the ."JOO tons of 
 American iron were the cargo of cannl- 
 boats of the same name as those on which 
 the iron had been s!)i|)i)ed at Elizubeth- 
 port, and it apiieared that both the Amer- 
 ican and Scotch iron transferred to tiie 
 schooners was consigned to Thomas J. 
 Pope & Brother, care National Exchange 
 Bank, Milwaukee, Wisconsin. It was fur- 
 ther shown that, about .luly 1.5tli, the 
 two schooners al)ove mentioned landed at 
 Milwaukee 500 tons American iron and 300 
 tons of Scotch iron for the consignees 
 mentioned in the bills of lading, and tlie 
 iron was delivered to the defendant in 
 error, and it was conceded that the :!00 
 tons of Scotch iron was the same which 
 had been sold by the plaintiffs in error to 
 the defendant in error and shipped to said 
 consignees for liini. 
 
 In addition to this evidence, the defend- 
 ant in error introduced the deposition of 
 James E. Pope, one of the plaintiffs in 
 error, in which he testified as follows: 
 "There is a suit pending between my firm, 
 as plaintiff, and the Coplaj' Iron Com- 
 pany, as defendant, relating to the Amer- 
 ican iron shipped to E. P. Allis & Co." As 
 an exhibit to this deposition there was a 
 copy of the complaint in the suit, sworn 
 to by James E. Pojie, from which it ap- 
 peared that the action was brought to re- 
 cover of the Coplay Iron Corapan.v dam- 
 
 ages for tHe breach of a contract by which 
 that company warranted that a cert.iiii 
 r)00 tons of iron, sold by it to the plaintiff 
 in said suit as .No. 1 extra iron, was of 
 that (|uality; and it clearly ajipeared, 
 from the complaint referred to, that one 
 of the facts on which the cause of action 
 was based, was that the 500 tons of iron 
 sold and shipped by the plaintiffs in error 
 to the care of the National Exchange 
 Bank, for tlie defendant in error, as No. 1 
 extra American iron, was the identical 
 iron delivered for him to tlie bank at Mil- 
 waukee, and which he had purchased and 
 paid for. We therefore repeat that there 
 was persuasive evidence offered to show 
 that the iron ship|>ed at Elizaliethport, 
 for the defendant in error at Milwaukee, 
 was the identical iron landed at Milwau- 
 kee and received by him. The assign- 
 ments of error, based on the contention 
 that there was no such evidence, must 
 therefore fall. 
 
 3. The bill of exceptions shows that the 
 complaint above mentioned in the suit of 
 the plaintiffs in error against the Coplay 
 Iron Coniiiany was sworn to by James 
 E.Pope; that it contained an averment 
 on information and belief touching the 
 (jualily of tlie iron in controversy in this 
 suit; and that the plaintiffs in error asked 
 the court on the trial of this case to charge 
 the jury that such complaint was n^.t evi- 
 dence of aii.v facts therein stated on infor- 
 mation and belief. The court refused the 
 charge, but instructed the jury that, in de- 
 termining what weight a-< an admission 
 the complaint should have, they might 
 consider the fact that the allegafion in 
 relation to the quality of the iron in ()iios- 
 tion was made on information and belief. 
 The plaintiffs in error, having excepted at 
 the trial, now assign as error the refusal 
 of the court to give the charge request- 
 ed. We think the court did not err in its 
 refusal. When a bill or answer in equity 
 or a iJleading in an action at la wis sworn 
 to by the [larty, it is competent evidence 
 againsr liiin in another suit as a solemn 
 admission by him of the truth of the facts 
 stated. Studdy v. Sanders. 2 Howl, & R. 
 347; De Wheljidale vMilburn, 5 Price, 4S5; 
 Central Bridge Corp. v. Lowell, 15 Gray, 
 lOG, Bliss V. Nich'ds. 12 Allen, 44:i ; P^lliott 
 V. Hayden, 104 Mass. INO; Cook v. Barr, 44 
 N. Y. 156; Tayl. Bv. (Tth Ed.) S 175:!; 
 Greenl. Ev. §§ i"»2, 5."5. When the aver- 
 ment is niade on information and lielief, it 
 is nevertheless aimissible as evidence, 
 though not conclusive. Eord EUenbor- 
 ougli in Doe V Steel, 3 Camp. 115. The au- 
 thority cited sust.-iins the proposition 
 that thefact that lliea verment ismade on 
 information and belief merely detraet.s 
 from the weight of the testimony. It does 
 not render it inadmissible. The charge 
 given by the circuit court on this point, 
 therefore, deprived the plaintiffs in error 
 of no advantage to which they were en- 
 titled. 
 
 4. The assign aient of error mainly relied 
 on by the plaintiffs in error is that the 
 court refused to instruct the jury to re- 
 
 'turn a verdict for the defendants. The 
 I legal proposition upon which their coun- 
 sel based this re(iuest was that the piir- 
 I chaser of iiersonal iiroperty, upon breach 
 
 4
 
 POPE V. ALLIS. 
 
 610 
 
 of warruntv of quality, ciinnot, in tlio nh- 
 Henue of fi-auil, iCHciiid tlic contract of piir- 
 clinHc and sale, ami sue for tlic recovery of 
 til" price. .\nil tl;ey contended that, aH 
 tlie iron waw delivered to defendant in 
 errtir eitlior nt ("oplay r)r lCii/.al>etlip()rt, 
 and (lie Hale wa.s completed tliereliy. the 
 only remedy i)f the defeudaiil in error whm 
 by a suit upon the warranty . It did not 
 appear that at the date of the contract 
 the iron had iM'cn tnaniifactnred. and il 
 was sliown l)y tlie record th.-it no partic- 
 ular iron wan He^reKated .Mnd appropri- 
 ated to the contract liy the plainlil'lH in 
 error unlil a Khort time tiefore itH MJiip- 
 ineat. in till' latter part of April and tlie 
 eiirlj part of May. Tliedefeiidant in error 
 had no oppoitiinity to inspect it until it 
 arrived in .Mil wauUee. and conHeci'iently 
 never accepted the particular iron appro- 
 priated to till the contract. It was eslati- 
 iislicd liy the verdict of the jury thai the 
 iron shipped was not of the i|uality re- 
 quired li.v the coiitra<-t. I'lKler these cir- 
 cumstances the conleiition ol the |ilain- 
 tiffs in error is that tliedefeiidant in error, 
 althoiiKli llie iron ship cd to him was not 
 what he liuu^ht, and could not he used in 
 his liusiness. was hound to keep it. and 
 could onl.v recover the difference in value 
 hetween the iron for vvliicli In; contracted 
 and the iron wliicli was delivered to liim. 
 We do not tliiiiU tli;it sui-h is tlie law. 
 When thcKUl>ji'''t-ni'i"'''" of a sale is not In 
 existence, <ir not ascertained at the time 
 of the contract, an unciertakiii};' that it 
 Hliall, when existiii^i or ascertained, pos- 
 Kess certain i|ualities. is not a mere war- 
 ranty, liut a condition, the performance of 
 which is jirecedent to any olilination upon 
 file vendee under tlie contract; because 
 the existenco of those (|iialilies hein>r [lart 
 of the description of llie tliiiK^ sold be- 
 comes essent i.il toits identity, and the ven- 
 dee cannot lie obliired to receive and pay 
 fora thin;; diffcreat from that forwhich lie 
 contracted. Chanter v. Hopkins. 4 .Mees. 
 & \V. JII4; r.arr v. (iibson, :! .Mees. & W. 
 :!!)0; (iomperlz v. liartlett. L' Kl. & 151. Sl!»; 
 OkcU V. Smith, 1 Stark. .\. P. Ih7; notes 
 to Cutter V.Powell.'.' Smith, Lead. ("as. 
 (7tli Amer. i:d.) :!7 ; Woodle v. Whitney, 
 :':? Wis. :V>; Itoothby v. Scales, 'J7 Wis. (1L'<! ; 
 Kairlield v. .Madison Maniif'a: Co., :>s Wis. 
 :!•!(). See, also, Nichol v. (;o(lts, 10 Excli. 
 1!M. So. in a recent case deciiled by tlii.-' 
 court, it was said by .Mr. .1 ustice (iray: 
 ".'\ Htalement" in a mercantile coiitract 
 "descriptive of the suliject-matter or of 
 Home material incident, sucli as the time 
 or place of Hhipment, is ordinarily to be 
 ret;arded as a warranty in the sense in 
 which that term iH used in Insurance and 
 maritime l.aw; that ia tOHuy, a condition 
 
 precedent upon thefnihire or non-perform- 
 ance of which the party aKurieved may 
 repudiate the wiml- contract. " .NorrlnR- 
 ton V. Wriuht, 11.'. I'. S. IsH, C, Sup.Ct. Itep. 
 ^2. See, also, Filley v. Pope, ll.", V. S. L'i:j. 
 li Snp. C». Ilep. 111. Anil HO. when a con- 
 tract fill' the saleof ;;oodH Ih made by HBin- 
 ple, it lunountH to an undertakInK on the 
 part of the Heller with the buyer that all 
 the KoodK are similar, both in nature and 
 i|uality, to those e.xhiliited. and If they 
 do not correspond the buyer may refUHu 
 to receive them; or, if received, he iiiiiy re- 
 turn them in a reaHonable time allowed 
 for examination, and tliiis rescind the 
 contract. Lorvnier v. Smith. 1 I'.arn. & 
 C. 1 ; Ma«ce v. I5illlnirHley, :! .Ma. r,7!l. 
 
 'the authoriticH cited Hiistain this prop- 
 osition: that when u vendor sells i;ooiIh of 
 a Hpccihed quality, liut not In existence or 
 aKcertained, and uiidertakes to ship them 
 to a distant buy«r. wln'ii made or ascer- 
 taineil. and deliviTH them to the carrier 
 for the purchaser, the latter Ih not bonnd 
 to accept them withoutexamlnation. 'I'lie 
 mere (lelivrry of tlie;;ooils by the vendor 
 to the carrier docs not iieceHsarlly bind 
 the vendee to accept tliem. On their ar- 
 rival he has the riu'it to inspect them to 
 nscertain wtietlicr they conform to tlie 
 contract, and the riuht to In-^pect implieH 
 the rijjht to reject them if they are not of 
 tlie qualit.v reijuired by the contract. 'I'lie 
 nillnKs o( the circuit court were in accord 
 aiice with these views. 
 
 We have been referred b.v the plaintiffs 
 in error to thecases of Thornton v. Wynn, 
 lLM\'lieat. 1N4. and T-yon v r.eftram. LM 
 How. l-l!l, to sustain the proposition that 
 the defendant in error in tliis case could 
 not resciiiil the contract and sue to re- 
 cover back the price of the iron, liut the 
 cases are not in point. In the first, there 
 was an absolute sale with warranty and 
 delivery to the vendee of a Hpicillc chat- 
 tel, namely, a race-horse; in the second, 
 tlie sale was of a specilied anil desiKiiated 
 lot of Hour which the vemlee had accept- 
 ed, and part of which he had iiHed, with 
 ample means to nscertain whether or not 
 it conformed to the contract. 
 
 The cases we have cited are conclusive 
 against the contention of the plaintiffs in 
 error. Tlie jury has found tliat the iron 
 was not of the quality which the contract 
 required, and on that irround the defend- 
 ant in error, at the lirst opportunity, n-- 
 jected it, as he had a riRlit to do. IIIh 
 suit to rei'over the price was, therefore, 
 well brou',ilit. 
 
 Other errors are assigned, but. In our 
 opinion, they present no ^rouiid for the 
 reversal of the jud;iment. and do not rc- 
 (|Uire discussion. Judgment alllrmed.
 
 KANDALL c NEWSON. 
 
 rni 
 
 RANDALL v. NEWSON. l 
 
 (3 Q. B. Div. 102.) 
 Court of Appeal. Jan. 22, 1877. 
 
 St.Ttenient of rluim. that plnintiff 
 l)()ijulit of defend a 111. ii I'lirriajre miiiiufac- 
 turcr, n phaeton for two lii;v.><eH, the pole 
 made and wupplicd for whic-li \\nn ho care- 
 lessly aiKl iiegiiKently made, ai.d of hucIi 
 had anil linpropir wood, that while the 
 plnintiff was drivin;; the phaeton the polo 
 broke and eaused 'he horses to run away, 
 and the horses were daniafjcd. 
 
 Defence, denying that the pole was care- 
 lessly or iiestlinently made, or of had or 
 improper w.ood ; and not admitting; that 
 the pole hroke hy reason of any ilefect in 
 the wood, or that the di'fi'iidaiil sold the 
 phaeton under such ciieunistanceB as to 
 render him lia hie for tli(> eonse(iuence.s of 
 a latent defect. Issue joined. 
 
 At the trial before Archibald. . I., at tlie 
 Sliddlesex Hilary sittiii^s, IST'l, it appeareil 
 that the plaintiff bouiiht of the ilpfeiidaiit, 
 who was a cairiaf;e builder, a iihacton. in 
 Aimust, 1^74; it was only fitted with shafts 
 for one horse, and the plaintiff ;;ave or- 
 ders to the defendant for a pole and splin- 
 ter-bar to be made and fitted to it. 
 
 The pliaeton was sent home with the 
 pole and splinter-bar. and while the plain- 
 tiff was driving it with two horses In Oc- 
 tober, Is".), the horses swerved and the 
 pole broke short off at the carriage. The 
 horses in coiisei)ueiice became restive and 
 were much danumed. 
 
 There was much contradictory evidence 
 ns to the causeof the breaUinj^ of the pcde, 
 the plaintiff's witnesses savin;; it was of 
 bad wood, while the defendant's stated 
 that the wood was jierfectly Kood. The 
 value of a new pole was agreed at f:!. and 
 the plaintiff nave evidence that his horses 
 were (laiDa;;e(l to bet ween SKJO and £14li. 
 The learned iudine expressed it as his opin- 
 ion, that it tlure were no ne;;li;;ence on 
 thejiartof tlie (<efeiidaiit in inakiuK the 
 pole, or in the selection of the materials, 
 the plaintiff could not recover more than 
 the £:}; and he left to tlie jury two ques- 
 tions: 1. Was the i)ole reasonably lit and 
 proper for the carria^ie'.* '2. Was the de- 
 fendiiiit ;;uilty of any neglisence'.' And he 
 asked the jury also to assess the conse- 
 ciucntial dama;j:e8, in case they should be- 
 come material. The learned jud^e was 
 obliH:Pil to leave the court, to attend a 
 meetiiiK I'f the judges, before the jury had 
 returned their verdict. 
 
 The jury answered both questions in 
 the negative, and as to the damages, said 
 they understood from tlie juilj;e that i:! 
 was all they could HikI. 
 
 On these findings, the verdict and judg- 
 ment were entered for the plaintiff for ۥ'!. 
 with leave to move to enter judgment for 
 the defendant. 
 
 The defendant Rave notice of motion ac- 
 cordingly; and the plnintiff obtained an 
 onler for a new trial on the >;i"ound of 
 misdirection by the learned judge as to 
 the measure of damages. 
 
 1S7G. Feb. 11). Sills, (Cave, Q. C. with 
 him.) for defendant. 
 
 • iates, Q. C., and Edward Pollock, for 
 plaintiff. 
 
 Tril-: (OirUT (BKA(KnrnN and 
 Ll'.SH.JJ.i ordered judumeiit to be en- 
 tered for the ilefendaiit. on the urniind 
 that the answers of the jury amounted to 
 a tiiiilinc of a latent defect" In the w<iod 
 of the pole, which no care nor skill could 
 discover, and thai the principle of the fle- 
 cision in Headhead v. llailway Co.' ex- 
 tended to the sale of an urtiile (or a spe- 
 cilic purpose. 
 
 The plaintiff appealed. 
 
 Nov. 17. Gates, t^. C. and It. V. Wil- 
 liams, (ICdward Pollock with hlin,) for 
 plaintiff. 
 
 Xov. 18. Cave, Q. C, and .SIIIm. for de- 
 fendant. 
 
 The judgment of the court (KKF.LY, C. 
 n.. .MliLLISH. U. J., and HIIKTT and 
 AMPHLETT, J J. A.) was delivered by 
 
 ni!KTT,.I. A. This case was tried upon 
 the footini; that it was an aclion 
 brought against the defendant, a coach- 
 buililer, to recover damageH in respect of 
 injuries to the plaintiff's liorses and car- 
 riage, b.v reason of the defendant having 
 supplied to the jilaintiff a defec 1 1 vi- car- 
 riage pole. The jury foiiinl that the pole 
 was not reasonably lit and proper for 
 the use of the carriage; but that there 
 was no negligence on the part of the de- 
 fendant (including, of course, his servants 
 or agents) in supplying the pole. The 
 price of a new pole was i;i. The damage 
 done to tlie horses and carriage was 
 inurh more. Hut the only damages found 
 by the jury were £'-i. t'pon these lindiiiKS 
 th<- court of queen's bench, applying to 
 this contract the principle laid down iu 
 Headhead v. Kailway Co.- gave judgment 
 for the defendant. No dispute was made 
 at the trial, or in argument, as to the 
 nature of the order given and accepted; 
 the r|uestions argued were whether the de- 
 fendant was liable at all. ami wh:it was 
 the extent of damages to which lie might 
 be subjected, if he was liable at all. Now 
 as to these questions, it is to be taken, al- 
 though nothing specitic seems to have 
 been said, that the order given and accept- 
 ed was not merely for a pole in general, 
 but tor the siipiily of a pole for the plaiu- 
 tiff's carriage; and tiiat the contract 
 therefore was lor the purchase and sale, 
 or supply, of an article for a specilic pur- 
 pose. In other words, the subject-matter 
 of the contract was not merely a pole, but 
 a pole for the purchaser's carriage; or, to 
 state the proposition in an .quivnlent 
 form, the thing, which would, if Hie con- 
 tract were formally drawn ui>. beilesi-rlbeil 
 in it as tlie subject-matter of it. would 
 not be mer"l> a pcde generally, but a pide 
 to be purdiaseil for a specillc purpose, 
 namely to lie used in the plaintift's car- 
 riage." The question is, what, in such a 
 contract, is the implied undertaking of 
 the seller as to the ell'ciency of the pole? 
 Is it an absolute warranty that the pide 
 shall be reasonably lit lor the purpose, or 
 is it onlv partially to that effect, limited 
 I to defects which miglit be disctivered by 
 care and skill? 
 
 I > L. R. 4 Q. B. :t79. 
 
 1 'L. U. 2 y B. 412; in error L. R 4 VJ. B. 378.
 
 €52 
 
 RANDALL v. XEWSON. 
 
 In order to fificido this question it seems 
 advisable to ascertain the primary or rov- 
 erninji; prineiple on wliiili the earlier cases 
 were decided, and to see wlietlier the jirin- 
 ci|)l9 on which they were decided ouRlit to 
 be niodilied by tlie decision in Ueadliead 
 V. Railway t'o. The earliest ease seems to 
 be Parkinson v. Lee.'' in ISUl'. It is suffi- 
 cient to Huy of it that, either it does not 
 determine the extent of a seller's liability 
 on the contract, or it has lieen overruled. 
 Neither can the case of Fislier v. Samu- 
 da,t in ISOS, be said to decide anythiny;. 
 The first cases of im|)ortance are iJardiiier 
 V. Gray,''' and Laing v. Fidgeon." in Isl.^. 
 In Gai'diner v. Gray the contract was for 
 the i)nrcliase and sale of "woste sDU.'" 
 The silk was inip<irted, and the Ijulk had 
 not been .seen either by the ilefendant, 
 the seller, or the plaint^iff, the buyer. 
 Lord ICIlenborough, said : "I am of opin- 
 ion that, under such circumstances" (i. e. 
 Ji sale of silk as waste siik ) " the [lurchassr 
 has a right to expect a saleable article, 
 answering the description in the contract. 
 AVitbout any particular warranty, this is 
 an implied cei'ui in every such contract.*' 
 The contract was for the purchase and 
 sale of a commodity described generally, 
 not described to be ordered or supplied for 
 a particular purpose. The description of 
 it was that it was waste silk. From that 
 it is implied that it is, or in other words 
 it is assumed that it might lie, specitically 
 described as saleable waste silk. The de- 
 cision, therefore, is that the commodity 
 offered and delivered must answer the de- 
 scription of it and be saleal)le waste silk. 
 The principle is that thecommodity offered 
 must answer the description of it in the 
 contract. Laing v. Fidgeon is to thesame 
 effect. In (iray v. Cox,'' in ISi."), the case 
 was dtciderl on a variance; but Abliott, 
 C. J., stated that he was of opinion. " that 
 if a person sold a commodity for a partic- 
 ular purpose, he must l)e understood to 
 wariant it reasonably fit and proper for 
 such purpose." The commodity offered 
 was copper for sheathing the ship Coven- 
 try. It was proved that no detect could 
 l)e discovered by inspection of the article, 
 and it was admitted that the defendants 
 were ignorant of the defective i|uality of 
 the copper. It is olivious that Lord Ten- 
 terden did not consider the seller relieved 
 by reason of the defect being latent. 
 
 This ruling of Lord Tentenlen was 
 ado|)ted in thedecision of Jones v. Bright, s 
 in ISSt. The contract was for copper 
 sheathing for a ship. The question pro- 
 posed liy Ludlow, Serjt., ri argument 
 was, "wliether the law will, according to 
 the dictum of Lord Tenterden, in Gray v. 
 Cox" lay upon the seller or manufacturer 
 an obligation to warrant in all cases that 
 the article which he sells shall be reason- 
 ably fit and proper fur the purpose for 
 ■which it is inttnded.and render him re- 
 
 »2 East, 314. 
 
 n Camp. 190. 
 
 '4 Uamp. 144. 
 
 « B Taunt. 108. 
 
 '4 B. & C. 108, 115. 
 
 T) Bing. .533, 540. 
 
 '4B. & C, at p. 115. 
 
 sponsil)le for all the consequence.s which 
 may result, if it shall he found not to an- 
 swer the purpose for which it was de- 
 nigned, and that, on account of some la- 
 tent defect of which he %vas ignorant, and 
 which shall not be proved to have arisen 
 from any want of skill on his jiart, or the 
 use of improper materials, or any accident 
 against which Ir.iman prudence might 
 have been capable of guarding him." 
 Here, therefore, the whole proiiosition, 
 with and without limitations, was plainly 
 laid before the judges for their coiisidera- 
 tion. 
 
 The answer given by Best, C. J., was: 
 "I wish to put the case on a broad princi- 
 ple. If a man sells an article he thereby 
 warrants that it is merchantable. — that 
 it is ht for some purpose. If he sells it for 
 that particular i)Ui|)ose, he thereby war- 
 rants it fit for that purpose. 
 Whether or not an article has been sold 
 for a particular purpose is, indeeil, a ques- 
 tion of fact; but if sold for such purpose, 
 the sale is an undertaking that it is tit. 
 . . . The law then resolves itself into 
 this, — that if a man sells generally, he un- 
 dertakes that the article sold is fit for 
 some |)'irpose; if he sells it for a particu- 
 lar purpose, he undertakes tiiat it shall be 
 fit for that particular purpose." Nothing 
 can be more clear than that the rule is ad- 
 visedly enunciated as a warranty without 
 limitatiiui. Brown v Edgington'o is to 
 the same effect. 
 
 In Wieler v. Schilizzi.n the contract 
 was for "Calcutta linseed." Jervis, C. J., 
 told the jury that the (luestion for them 
 to consider was, "whether there was 
 such an admixture of foreigii sul)stances 
 in it as to alter the distinctive character 
 of the article, and prevent it from answer- 
 ing the descri|)tion of it in the contract. " 
 Cresswell, J., said, "They wei'e to say 
 whether the article delivered ieasonal)ly 
 answered the description of Calcutta lin- 
 seed." Crowder, .L, said, "The jury in 
 effect found tliat the article delivered did 
 not reasonably answer the description in 
 the contract." Willes, .J., said, "The pur- 
 chaser had a right to expect, not a perfect 
 article, but an article which would tie 
 salealilo in the market as Calcutta linseed. 
 If he got an article so adulterated as not 
 reasonably to answer that description, 
 hedid not get what he liargained for." In 
 this case it is to lie observed that all the 
 judges adopted the form of stating the 
 principle which was used by Lord Ellen- 
 borough in (iardiuer v. (Jray.i- In Nlchol 
 V. Godtsis the contract was for "foreign 
 refined rape oil, warranted only equal to 
 samples." The oil offered was equal to 
 samples, but both samples and oil were 
 adulterated. Parke, I!., told the jury 
 "that the statement in the sold-ncte as 
 to the samples related to the quality 
 onl.v of the article, and that acL'ording 
 to the contract the <lefendant 'vas en- 
 titled to have rape oil delivered to 
 him." Piatt, B., in banc, said : "1 under- 
 stand that the oil to be deliveri^d was to 
 
 "'2 M, & G. 370. 
 
 " 17 U. B. 010, 633; 3.5 L. J. (C. P.; 89. 
 
 '=4 Camp. 144. 
 
 "10 Ex. Ifll; 33 L. J. (Ex.) 314.
 
 RANDALL c. M:\VSUX. 6j;} 
 
 bt'equnl to the HtiinpleR in (niiilily. I'.iit ' piirciiiiHe niiil nn]o must nnswer the ile- 
 tlie ilefcn.lant (li<l not refiiHP to ncccpt tlii" Kc-ilptioii of it wliiili Ih <oii t;iliifi| In wonlH 
 oil t('iMl< ri'il to liiiii oil tlie nioiinil that it In tin- rontruct, or which would In- ho con- 
 (liil not i<|iinl the Hainplus, iMit on accouMl tiiincil if tho contrnct were ucc-uratcly 
 of itH not l)( in;; forciun relined nipc oil at iliawn out. Anil If that he the RovernlUK 
 all. And the learned judye told the jury piincipic. there Im no plnc-e In It for the 
 that if they KhoMid thinli that waH MO. the Hii^Kested llniitation. If the nrtkle or 
 defendant wan not hound to accept it. coniinodity offereil or didivered doew not 
 Tliat direction was perfectly correct. If In fact anHwer the dcHCi Ipthm of It in the 
 tho jury had found that the article which contrnct. it doen i,i>l ilo ho more or lexH 
 the plaintitf tendered was known In the i)ecauHe the defect in it Ih patent, or la- 
 market under tlie name and cicMcriptlon tent, or discovcrRhle. .\nd accordlncly 
 of foieinn reHned rape oil, the plain tiff there Ih no HiiirtreHtion of any mucIi liniita- 
 woiild have lieen entitled to Hucceeil ; l)ut f-ion in any of thejud^rnentH In caniH re- 
 the (luestion wa.4 put to the jury, and latini;to conti-acts of purchiiHe and Hole, 
 they were of opinion that it wbh not Inlen.-*. theicfore, there Ih Home Idiidinjc 
 known as hucIi." And I'arke. I!.. Haid ' authority to the contrary, we oujjlit not 
 "the evidence went to hIiow that the oil now to introiluce hy Implication a liiultu- 
 offered <lid not answer the description of tii>n into contractn'of purchanp and nale 
 the arti<'le Hold." which linH never been Introiliiced before. 
 
 This form of Htating the rule wan dis- , ItisBaidthat the case of Hcadhead v. 
 tinctly adopteil in Josliiij; v. Kinnsford.' * Knilwuy Co.'" in error is such a l)lnding 
 IiyEile, ('..I., and Willi's,.!. Krle, C. .1 . I authority. liiit in answer to the cuseH 
 told the jury"tliat the defendant could ' cited of the implied nnilertakin;: in con- 
 only perform his part of tlie contract by tractH of purchase and nnle. .Montague 
 delivering that which in commercial laii- .Smith. .!., says: "The connHid for the 
 (■uuse miiilit properly be said to come un- pl;iinl iff referred to some of the cusch in 
 dertlie dcnoinination of oxalic acid ; and wliicli it had licen held tliat in contracts 
 that if they should be of opinion that the foi- the supply of kooiIh for a particular 
 article delivered i)y the defendant as ox- purpose, there is an implied wananty that 
 alio acid diil not properly fullil that de- t he noods Hiipplied shall he reasonaldy lit 
 scriptioii tliey should liiid for theplaiiitiff. " forthatpurpo.se. . . . Hut the n;;ree- 
 
 I have cited these cases, and the priuci- men t to sell and supply for a price which 
 pies laid down in thcin, in order clearly to maybe assiiincd to represent their value 
 ascertain what is the iirimar.Nor ultimate is a contract of a different nature from n 
 rule from which the rules which have liiH'n contract to carry, and has essentially dif- 
 applied to contracts of purchase and sale ferent incidents attachiim to it." It is 
 of somewhat different kinds have been de- true that the learned jiidiie afterwards 
 duced. Thosedifferent rules, as applied to says : " ICven in the cases of contractu to 
 such diffei-ent contracts, are carefully eiui- snpidy f^ijods it iiriy be a iiiiestion, on 
 mcratedaiid recognized in .loncs v. .lust.'-' which it is not now necessary to eXprcHg 
 111 Home contracts the under tali in;; of the an opinion, how fa rand to what extent the 
 seller is said to be only that the article vendor would be liable to the vcinlee In tho 
 shall lie iiierchaiitable: in others, that it case of a latent ilefect of the kind existing 
 shall be reasonably lit for the purpose to in the present case which no skill or care 
 which it is to lie apnlied. lu all, it seems could prevent or detect." Hut it seeuis 
 to lis. it is either assumed or expressly impossible loj;ically to hidd that n case.— 
 stated, that the fiiiidameutal iindertaUiiii: in whiih tlie court declined to follow the 
 is, that the articleolfered ordelivered shall decisions on contracts of purchase anil 
 answer (ho description of it contained in sale, on the Kronnd that those contractB 
 the contract. That rule comprises all the are of a different nature and have essen- 
 iilhers; they are adaptations of it to par- | tially different incidents from the contract 
 ticular kindsof contracts of purchase and to carry, which was in discussion in that 
 sale. Yon must, therefore, first determine I case,— can be fairly bindiiiK on this court, 
 from the words used, or thecircnmsfances, ho as 1o oliliKe it to iiilrndiice a purlieu- 
 what, in or accordiiiK to the contract, is lar limitation into a coiitri.ct of purchiiHe 
 the real mercantile or business descrip- | and sale, because, in that case, it was lii- 
 tion of the tiling which is the sultjcct- ' troduced into o contract to carry passen- 
 mntter of the liar^ain of purchase or sale, | jjers. 
 
 or, in other woi-ds, the cuntrai t. If that Thecase of Francis v. Cockrell'' Is basj-d 
 subject-matter be merely tlie commercial npoii Iteadhead v. Kaihvay Co. and is 
 arlicie or commodity, the undertakinii is. therefore of itself no more a liiiidli.c an- 
 that the thin;; offered or delivered shall tliority on us in t his case llian theollnr. 
 answer that ilescription, t ha t is to say. It is true, however, that the lord chief 
 shall he that article or commodity, salea- baron. uoin« further than the doubt ex- 
 ble or merchiintable. If the subject-mat- pressed by Montague .Sinilh. .1 .. docs rec- 
 tor lie an article or comiiiodity to lie used otfuiie the limitation as applicable to ron- 
 for a particular purp. ISO. the tliiiii; iiffereil tracts of purchase and sale."* Hut the 
 or delivered must answer that descrip- statement of the learned judce was not 
 tioii, that is to sav, it must be that arti- necessary, and therefore Is not bliidinit. 
 rle or commodity, and reasonably tit for tliou«h of courHe invitin;; a careful con- 
 tlie particular purpose. The <iiiveiniii;; siileradon of the older cases. After such 
 principle, therefore, is that the thin« consideration, for the reasons before 
 offered nntl delivered under n coutract of I 
 
 '• I.. R. 4 0- W- 3^. !*S«. 
 
 "13 C. B. (N. S.) 447; Si L. J. (C. P.) t'4. " b- K. 5 Q. B. M\. rm. 
 
 " L. R. 3 y. B. VJ7. I " b R. 5 g. U. at page W3.
 
 €5i 
 
 RAXDALL V. NEWSOX. 
 
 given, we are of opinion that the under- 
 taking of the present (ietendant was not 
 restricted by the limitations applied to 
 tlie contract of carriage in Readliead v. 
 Railway Co., and that so long as the ver- 
 dict in this ease stands it inii)oses a liabil- 
 ity on the defendant. We are, therefore, 
 of opinion that the jndgnient of the court 
 of (|ueen's bench directing the judgment 
 to beentered for thedefendant was wrong. 
 In theconrt of (lueen's l)ench across rule 
 had been oljtained on behaU' of the plain- 
 tiff for a new trial, on the ground of misdi- 
 rection as to the n,easnre of damages. In 
 consequeupe of the decision that the de- 
 fendant was not liable at all, it became 
 useless to argue the point. But Mr. Gates 
 lias renewed it before us, and has asUed 
 for a new trial on tlie ground of such mis- 
 direction, desiring to have such new trial 
 confined to the ijuestion i>f damage only. 
 We think that a (juestion should have 
 been left to the jury similar to that which 
 was left in Smith v. <lreen.i9 namely, 
 whether the injury to the horses was or 
 was not a natural consequence of the de- 
 fect in the pole. There has been a miscar- 
 riage in this respect at all events. We 
 are asked to contine the new trial to the 
 question of damages, but considering that 
 
 » 1 C. P. D. 92. 
 
 the real question is not whether the pole 
 was perfect, but only whetlier it was rea- 
 sonably fit, we cann(jt thiidi that the find- 
 ings of the jury as to the (luestions left to 
 them in order to determine the liability of 
 the defendant are so satisfactorj- as to 
 authorize us to confine the question to be 
 raised on a newtrial to thedamages only. 
 We think that the judgment of thecourt of 
 (jueen's bench should be reversed, and 
 that the order should be for a new trial 
 generally, if the plaintiff elects to have a 
 newtrial at all. If lie does not, the ver- 
 dict and judtiuient for the jilaintiff for £0 
 will statu!. 
 
 The plaintiff has succeeded on the ap- 
 peal, and should therefore have the costs 
 of the appeal. 
 
 KEI^LY, (J. B., in assenting to the judg- 
 ment of the court, observed, that, if the 
 language imputed to him in Francis v. 
 (-'ocki-ell-o l)e correctly reported, he must 
 have expresseil himself inaccurately, and 
 he had no intention to apply the doctriue 
 in I{eadhead's i'ase-i to a contract for the 
 sale and purchase of an article to be ap- 
 plied to a specific purpose. 
 
 .Judgment reversed. 
 
 -0 L. R. 5 Q. B. at page 503. 
 " L. R. 4 Q. B. 379.
 
 RODLIFF o. DALl.INGEK. 
 
 657 
 
 RODLIFF et al. v. DALLINGER. 
 
 (4 N. E. Rep. 805, 14t Mass. 1.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folli. Jan. U, isse. 
 
 Excrptions from wiipprior court, Suffolk 
 county; Knowlton, .ludtie. 
 
 ThiH waH ail action of replevin to recov- 
 er poHHCSHion of L'O bans of California wool. 
 The i)laintiflH were woijldealerHin 15onton, 
 and on or about November 1.'), 1SH2, deliv- 
 ered Hiiid wcjol to one Henry ClementHon, 
 a wool dealer and broker in Boston. The 
 defendant was a public warehouHeman in 
 Boston, and received tlie wool on storaKe 
 from Clenipntson about November l.'j, ISSL', 
 not knowintr where he obtained it, and 
 iHHued a wiirehouso receipt fortliewanie on 
 the day after the delivery of the wool. 
 Clementson ap[)lie(l to the MasHachusettK 
 Loan & 'I'rust Company, of Boston, for a 
 loan of $-,001) on tlie wool in the wnre- 
 honse, and, after an examination of the 
 article, the loan was made; thetrustconi- 
 pany takina the warehouse receii)t from 
 ClenientHon, having no knowledtce where 
 Clementson obtained the wool, his Htate- 
 ment beiny that he purchased the wool 
 to sell; and the trust company, beinp; the 
 real party in interest, defended the suit. 
 
 Dpon tlie foreKoiuK facts the court in- 
 structed the jury that there were three 
 possible views of the transaction: (1) 
 That they misht find it was an ordinary 
 sale to Clementson: or ('_') that it wasnot 
 a sale to Clementson, but was a delivery 
 to ('lementHon as a broker, with a view 
 to his selliuf; it to some customer, whom 
 he expected afterwards to negotiate with, 
 and with whom to consummate a sale; 
 anil if they found this, then there was a 
 special provision of the statute which 
 protects parties dealing in uood faith with 
 a broker havintr property in that way, so 
 far as they make advances t)r loans upon 
 property in (iledRe. in jjood faith, to per- 
 sons who have custody of property as 
 brokers, witli authority to sell or dispose 
 of It; or (;i) tlinl it was not a sale to 
 Clementson, ora delivery to liim as broker 
 with authority to sell, but that it was a 
 delivery to ('leuientson u|)on his represen- 
 tation that became from a iturcliaser rep- 
 resentint; him, with an offer for it,— a pur- 
 chaser he did not disclose,— and that tliese 
 goods were delivered to liim as the a^jcnt 
 of that pun-haser, — as a sale to that pur- 
 chaser; and if that was the fact, that 
 the phiiTitiffs were entitled to the proper- 
 ty, not withstnndinK it was subsetiuently 
 pledged to the Massachusetts Loan & 
 Trust Company. 
 
 The ((nirt also further instructed the 
 jury upon tlie third view "that if this was 
 a transfer upon a false representation 
 made by Clementson. — a representation 
 that he came with an offer irom a third 
 person whose name he did not wish to 
 disclose, — and the goods were delivered to 
 Clementson as a sale to him as the agent 
 of this third person, whose offer he was 
 bearing, with the view that the proiierty 
 should pass at the time to that third 
 person, and thus constitute a sale to that 
 third iierson, from whom payment was 
 LAW SALES — 42 
 
 to be made Bulisequently, anil the pay- 
 ment to be brought back by Clementson 
 as the agent of that third person, that 
 Clementson had no right afterwards to 
 deal with that property at all. lie got 
 it into his [losseHsion liy fraud, and he got 
 it into his posHession without any au- 
 thority to make any subseiiuent sale or 
 I to do anything with it. It was wrongly 
 in his possession from the start, and any 
 person who saw lit to ailvan<e money 
 ui)on it or to buy It, however honestly, 
 and in perfect good faith, would be the 
 loser, and plaintiffs could jiiirsue the prop- 
 erty, and get it wherever they could find 
 it, whenever the frnu<l practiced upon 
 them should come to their knowledge." 
 
 rpon the foregoing facts and rulings, 
 the jury found for the plaintiffH. and the 
 defendant, having duly excepted to the 
 third instruction of the court, being so 
 much of the judge's rulings as authorized 
 the jury to find for the plaintiffs, prays 
 that these his exceptions to said rulings 
 may be allowed. 
 
 .\lfred llemenway, for plaintiffs. Henry 
 D. Hyde, for defendant. 
 
 HOLMES, .J. The plaintiffs' evidence 
 warranted the conclusion that they re- 
 fused to sell to Clementson, the broker, 
 but delivere<l the wool to him on the un- 
 derstanding that it was sol<l to an undis- 
 closed manufacturer In good credit «lth 
 plaintiffs. This evidence was not objected 
 to, and was admis.Hible, notwithstanding 
 the fact that the sale was entered on the 
 plaintiffs' books as a sale to Clementson. 
 and that a bill was made to him. Com. v. 
 Jeffries, 7 Allen, .'>4S, ,',(;}. It was admitted 
 that Clementson in fact was not acting 
 for such an undisclo.'<ed principal, and it 
 follows that, if the plaintiffs'evidenco was 
 oelieved, there was no sale. There could 
 not be one to the supposeil piincipal, be- 
 cause there was no such person : and there 
 was not one to Clementson, because 
 none purported to bemadetohira; but, 
 on the contrary, such a sale was expressly 
 refused, and exclude 1. Edmunds v. Mer- 
 chants' Despatch Transp. Co., 135 Mass. 
 iS3; .\born v. Same, Iil. 
 
 It was suggested that this case differed 
 from the one cited, because there the prin- 
 cipal was disclosed, whereas here he was 
 not, and that credit could not besupposed 
 to have been given to an unknown person. 
 We have nothing to say ns to the weight 
 whicli this argument ought to have with 
 a jury, beyonil observing that the plain- 
 tiffs had reas<in, in Clementson's repre- 
 sentations, for giving credit to the sup- 
 posed manufacturer. I'.ut there Is no rule 
 of law that makes it impossible to con- 
 tract with or sell to an unknown but exist- 
 ing party, and if the jury linil that such a 
 sale was" the only <Mie that purportod to 
 have been made, the fact that It falliMl 
 does not turn it into a sale to the party 
 conducting the transaction. 
 
 Schmaltz v. .Wery, li. y. B. r..">.">, oidy de- 
 cided that a man's ilescriblng liiim-elf In 
 a charter-party as "agent of thefrelghter" 
 is not sullicient to preclude liim from al- 
 leging that he is the freighter. It does 
 not hint that the agent could not be ex-
 
 658 
 
 RODLIFF 0. DALLINGER. 
 
 eluded by express terms, or by the de- 
 scription of the principal, although insuffi- 
 cient to identify the individual dealt with, 
 as hai)pened hin'e; still less, that, in favor 
 of third persons, the agent would be pre- 
 sumed, without evidence, to be the undis- 
 closed principal, although expressly ex- 
 cluded. 
 
 The invalidity of the transaction in the 
 case at bar does not depend upon fraud, 
 but upon the fact that one of the sup- 
 posed parties is wanting, it does not mat- 
 ter h(jw. Fraud only becomes important, 
 as such, when a sale or contract is com- 
 plete in Its formal elements, and therefore 
 valid unless repudiated, but the right is 
 claimed to rescind it. It goes to the mo- 
 tives for making the contract, not to its 
 existence; as, when a vendee expressly or 
 impliedly represents that he is solvent, 
 and intends to pay forgoods, when in fact 
 he is insolvent, and has no reasonable ex- 
 pectation of paying for them; or, being 
 identified by the senses, and dealt with 
 
 as the person so Identified, says that he is 
 A. when in fact he is B. But when one of 
 the formal constituents of illegal transac- 
 tions is wanting, there is no question of 
 rescission,— the transaction is void ab ini- 
 tio,— and fraud does not impart to it, 
 against the will of the defrauded party, 
 a validity that it would not have if the 
 want were due to innocent mistake. The 
 sale being void, and not merely voidable, 
 or, in simpler words, there having been 
 no sale, the delivery to Clementson gave 
 him no power to convey a good title to a 
 bona fide purchaser. He had not even a 
 defective title, and his mere possession did 
 not enable him to pledge or mortgage. 
 The considerations in favor of protecting 
 bona fide dealers with persons In posses- 
 sion, in cases like the present, were much 
 urged in Thacher v. Moors, 13t Mass. 156, 
 but did not prevail. Much less can it be 
 allowed to prevail against a legal title 
 without the intervention of statute. Ex- 
 ceptions overruled.
 
 ROSS V. DRAPER. 
 
 661 
 
 ROSS et al. v. DRAPEa 
 
 (55 Vt. 404.) 
 
 Supreme Court of Vermont. Franklin. Jan. 
 Term, 18*5. 
 
 Replevin. Heard hy the court on the 
 report of a referee, .Septetnl)er term, 1S.S2, 
 Royce, (". J., preHlilinK. .Jurlgment for the 
 defendant. 
 
 Farrinuton & I'oHt, for plaintiff.H. .John 
 I. (ileed, for defeoddut. 
 
 ROSS, J. I. ThiH ia an action of re- 
 plevin for a piano. The case was referred 
 and came to the county c€)urt on the ref- 
 eree's report. Such a juilKraent was then 
 to he rendered upon tlie facts reported as 
 any legitimate amendment of the declara- 
 tion would admit of. An amendment al- 
 leKintr that the plaintiffs were huHlinnd 
 and wife, and that the piano was the 
 property of the wife, would neither add a 
 new cause of action nor n new [larty to 
 the suit, an(i would bo permlssilde. The 
 cause of action wouhl he the piano hoth 
 before and after the amendment, and the 
 right in controversy would he that of the 
 two plaintiffs to recover it. If the |>ian() 
 is the sole property of the wife, in an ac- 
 tion at law the joinder of the husband as 
 H co-pluintiff would be necessary. The 
 bond was conditioned upon the right of 
 the plaintiffs to have the piano delivered 
 to them as against the defendant who 
 had attached it as the property of a third 
 person. Under the decisions of this court 
 in regard to judgments on referees' re- 
 ports, holding that the cause of action 
 or subject-matter in controvei-sy is the 
 foundation of the judgment, if the i)leail- 
 ings can be so amended legally as to con- 
 form to the facts reported, we entertain 
 no doubt of the right of the plaintiffs to 
 maintain the action, if the facts rPi)ortcd 
 entitle the wife to the possession of the 
 piano. 
 
 11. The controlling facts found by the 
 referee are that in ISOi the wife's father 
 bought the piano for her, and, in two or 
 three months after, on the occasion of 
 her attaining her majority, gave her a 
 birthday party, and in the presence of 
 the asMeml)le(l guests, took lier to the 
 piano, toUI her tliat was her birthday 
 present from him and that he gave it to 
 her; that thereafter the family always 
 spoke of it as lier property anil that she 
 used and treated it as such ; that she re- 
 mained at home until her marriage in IStJT; 
 that she then went awa.v from home to 
 live, and left the piano in her father's 
 house, and never removed it therefrom, as 
 8he never had a suitable place to put it: 
 that she visited her lather's house from 
 time to time, stopping three or four 
 months seven or eight years ago, and had 
 been living in her father's family for the 
 last three years and more, ami on all these 
 occasions used and treated the piano as 
 her own ; that the piano remained all this 
 time in the house of her father: that her 
 husband always treated It as her sepa- 
 rate property; that in 1S77 it was at- 
 tuchedandsold by theconsent oi herfather 
 as his property unbeknown to her. but 
 was not removed from his house. There 
 
 la no fact found, save his cousent to lt« 
 sale, that after the gift the father ever 
 exercised dominion over the piano further 
 than to store it In his house. The only 
 question submitted by the referee to the 
 court is whether these facts constitute a 
 valid gift of the piano from the father to 
 the plaintiff wife. We entertain no doubt 
 on this i|uestion. The language used, as 
 : well as the occasion, indicate :i clear In- 
 tention of the father to pass the title of 
 I the piano to the daughter, and as clearly 
 her intention to accept the gift. There 
 was, therefore, the making and accept- 
 ance of the gift. He spoke of it, as did the 
 family thereafter, us her property. .She 
 useil and treated it as her property. This 
 must mean that sheassumed and exercised 
 the dominion of an owner, took and re- 
 tained such pcissession us the nature of 
 the pro[)erty admitted of, if capable of be- 
 ing locked, took possession of the key, 
 locked and unlocked it, used It heixelf. 
 and dictated in regard to its use by 
 others. It matters not that the property 
 was of such a nature that she could not 
 take it into manual possc-isiou, as shs 
 couhl hare a watch, ring, or set <if jewelry. 
 If the gift had been of eitlier of the last- 
 named articles, and the referee had found 
 that thereafter the daughterever used and 
 treated it as her property: that the 
 father and family so treated and spoke of 
 it, although it had been kept in her father's 
 house, and on her marriage and leaving 
 the home of her childhood, because she 
 had no suitable place to keep it she still 
 left it there, coulil there be the least 
 doubt It would be a i)erfected gift, that 
 the owner would be the dnuuhter both as 
 against the father and his creilitors? 
 We think not. The law recognizes the 
 fact that all species of personal property 
 are not capable of the same kind nf pos- 
 session, and it only requires the i>urcliaser 
 or donee to take such possession as the 
 character and nature of the property ad- 
 mit of. in order to protect it against at- 
 tachment by the creditors of the vendor 
 or donor. Sanborn v. Kittreilge. '.11 Vt. 
 (!:Jl': Hutchins v. Gilchrist. '.•;! \t. S'J; llirgo 
 v lidgeiton. •J>< Vt. l.".U ; Fitch v. lUirk. :i.S 
 Vt. r.s;!: sterling v. Haldwin. 42 Vt. :!ll. 
 
 The property in contention was of that 
 hulk.v character that forbids manual pos- 
 session. The only possession its nature 
 admitteil of consisted in its use and treat 
 ment The treatment of an owner In- 
 cludes acts of dominion and control. The 
 property itself was such as is much more 
 generally used by females than males unil 
 for that reason more likely to be owned 
 by the former. The occasion when the 
 gift was made, especially in a country 
 town, would give notoriety to the trans- 
 action equal to a sale In market overt. It 
 is to lie remembered that in these days 
 it is not an uncommon thing for the wife 
 and the chililren. while living at hon)e, 
 each to have and ke<>p separate property 
 in the common home of them all. It is 
 not a matter of course, and no creditor 
 has the right to assume, that nil the per- 
 sonal property in the house belongs to 
 the husband and father. It Is not uncom- 
 mon for the ilnughters to have roouis sot 
 apart lor their special use. furnished with
 
 662 
 
 KOSS V. DRAPER. 
 
 furniture purchased by, or giveu to them, 
 nor for them to own Hewing machines or 
 musical instruments. The facts reported 
 do not show a joint possession of the 
 piano by the fatlier and daughter during 
 the two or three years she was at home 
 after the gift and before her marriage, nor 
 after tier marriage. Ho allowed it to be 
 kept upon premises owned hy him. This 
 was the extent of his use, control and 
 acts of ownership, save alone his consent- 
 ing to its sale on his debt some twelve or 
 thirteen years after he had given it away, 
 and this act was not known by the daugh- 
 ter until long after it transpired. The 
 attaching creditor, who was the pur- 
 chaser at the sale, never took possession 
 of it. The defendant attached it as the 
 property of such purchaser. He found it 
 not in his possession hut on the premises 
 of the father, and in the possession of the 
 daughter. He was bound to take notice 
 of the fact that tlie property he was at- 
 taching was not in the possession of the 
 debtor, and was bound to inquire ot those 
 
 I on whose premises and in whose posses- 
 sion he found it, for whom they had the 
 ] piano in store and in possession. Hild- 
 ireth v. Fitts, .")3 Vt. GS4. lieing bound to 
 I inquire, he and the creditor for whom he 
 i was acting were affected by all the knowl- 
 j edge that would be gained by such in- 
 quiry. He would have learned of the gift, 
 of the notoriety that accompanied the 
 I making of it, that thereafter the father 
 I and family spoke of and treated it as the 
 I property of the daughter; that she al- 
 I ways so used and treated it, and for over 
 I two years before her marriage had it in 
 I her personal possession, so far as the na- 
 I ture of the property was capable of per-* 
 ; sonal possession. The transaction was 
 I natural, honest, notorious, and of long 
 ! standing. There was no fraud in fact in- 
 I tended or attempted. The property was 
 j not in the possession of the debtor, hence 
 no fraud in law. 
 
 Judgment reversed, and judgment ren- 
 dered for the plaintiff to recover nominal 
 I damages and costs.
 
 ROWLEY V. HIOi:r,()W. 
 
 665 
 
 ROWLEY et al. v. BIGELOW et al. 
 
 (13 Hck. 307.) 
 
 Supremo Judicial Court of Massachusetts. Suf- 
 folk and Nantucket. March I'J, 1S.'J2. 
 
 Trover for Gl.'7 biislielH of yellow corn, 
 valued ut ;">,") cents a IiuhIioI. 
 
 At the tiial, before Wilde, .1., it vva.s 
 jjroved by the plaintiff.s, that on the 24tli 
 of May, ls:!IJ, the corn belonj^ed to them 
 and waH in their imishpskIoi), in tlicclty of 
 New York, on board the sloop Milnn, of 
 which S. iJiuininy:, one of the pInintiffH, 
 was master, and that it was ni(>aKun-d 
 and delivered onboard the schooner Lion. 
 They alle^^ed that one William N. Martin, 
 a merchant there, fraiidnlontlv' obtained 
 po.<)session of it by pretending to (nrchase 
 Itfnrcasli; and it was proved that on the 
 25th of Afay he shipped it on board the 
 Lion, consif;ue<l to the defendants at Bos- 
 ton, and that thevessel sailed in the after- 
 noon of that day for HosKjn. On the 
 2(ith, DnnniriK, havins ineffectually de- 
 luandcil payment for the corn, at .Martin's 
 countinK-hoiise, proceeded to Hoston to 
 reclaim it. He reached Boston before the 
 arrival of the Lion, anil <>ii tlie "J'.tth jji'^'e 
 notice to the defendants, to whom by 
 Martin's orders the corn was to lie deliv- 
 ered, that .Martin had frandnlently ob- 
 tained it from the plaintiffs, and that they 
 intended to repossess themselves of il. On 
 the :iOth. when the Lion had arrived in 
 Boston hailiour, DnnniiiK boarded her 
 and demanded of the master possession of 
 the corn. Riving him notice that .Martin 
 had obtained it fraudulently from the 
 plaintiffs. The master notwitltstanding 
 delivered it to the defendants ; after wliich 
 DiinninR demaniled it of tliein and ten- 
 dered them any freight or charnes w hich 
 they had paid. They refused to deliver 
 the corn, and thereupon the suit was com- ] 
 nienced. j 
 
 In order to establish the fraud on the' 
 part of Martin, the plaintiffs r?lied on the; 
 dei)ositions of (". A. .lackson and others, 
 merchants in New York, who testilied that ' 
 Martin had inacie similar pnrehases of 
 them about the same time, and under cir- 
 cumstances tending to show that he was 
 insolvent, and that he knew it and had 
 no reas()nal)le expectation of paying for 
 the merchandise according to liiscontraet. 
 The defendants objected to the admission 
 of these depositions, but the Judge permit- . 
 ted tliem to be read to the jury. ' 
 
 The defendants, to establish their right 
 to hold the corn against the i)laintiffs, of- 
 fered in evidence a bill of lading, dated 
 May 17th, In;1(), signed by the master of the 
 Lion, purporting to tie for "Jdiill linshels of 
 yellow c<irn shipiied by Martin and con- 
 signed to the defendants ; iilso an invoice 
 coiresponiling to the bill of biding and 
 purporting to be for 20(Hi bushels of corn 
 consigned to the defendants for sale on 
 the shipper's account, and signed by Mar- 
 tin: also a letter from Martin to the de- 
 fendants, dated May ITtii (to which the 
 bill of lading and invoice were annexed) 
 advising that he v.'ilued on them in favor 
 of Henry Beniien for .« lOiH). at ten days' i 
 sight, anil tlirectiiig them, if he had valued 
 toomueh on this shipment, to charge it to | 
 
 some previous one. there being an exJHt- 
 Ing account lietween .Martin anil the de- 
 fendantH. And it was proved that a bill 
 drawn accordingly by .Martin, wan ac- 
 cepted by the defendants on the Ltjtii of 
 May and paid by them at maturitv. 
 
 There was no evidence that the" defend- 
 ants had any knowledge of the fraudulent 
 conduct of .Martin, but it appeareil that 
 they ri-cBived the bill of lading and invoke 
 and accepted the draft in the UHUal courHC 
 of business. 
 
 Upon this evidence the Judge ruled, that 
 the defendants had a good title to the 
 property notwithstanding the fraudulent 
 conduct of .Martin, and notwithstanding 
 the liill of biding had been signed before 
 the corn was shipped; to which the plain- 
 tiffs e.vcepted. 
 
 A verdict was taken for the defendantB 
 by consent; and if the whole court should 
 be of opinion that they had a valid title 
 to the corn, under the invoice and bill of 
 lading, judgment was to be rendered upon 
 the verdict; but if the court should be of 
 oiiinion that the ruling was wrung, the 
 verdict was to be set aside and the defend- 
 ants defaulted, unless the court should 
 also be of opinion that the depositions 
 above mentioned were improperly admit- 
 ted ; in which case a new trial was to be 
 granted. 
 
 Fletcher and W. . I. Hubbard, for plain- 
 tiffs. Curtis, for defendants. 
 
 .SH.WV. C. .1. The first i|uestlon arlRlng 
 in this cause is, wliether the depositionH 
 of .lai'kson and others, under the circum- 
 stances, ought to have been admitted aa 
 coni|ietent. These were generally persons, 
 of whom Martin had made Himilar pur- 
 chases, of like articles, abont the same 
 time, and under circumstances tending to 
 show that he was insolvent and had no 
 reasonable expectation of paying (or the 
 niercliandise according to his contract. 
 
 The objection to this evidence is placed 
 on two grounds, first, that these persotiH 
 ha ving similar claims of their own, some 
 of which are pending here, they have an 
 interest in estnblishlng the fraud which 
 they are called to prove; and sccimdly, 
 that the transactions being res inter alios, 
 have no tendency to prove the fact in la- 
 sue in this particular case. 
 
 But in our opinion, the ol>jectlon cannot 
 be sustained u|ion either ground. ;\h Io 
 tile lirst, it is unite clear, that the verdict 
 and judgment in this case would not lie 
 evidence in either of theirs; tliat their in- 
 terest is in tiie iiiiestion and sulijivt mat- 
 ter and not in tiic event of the suit, and 
 therefore that the objection, such as it is, 
 goes to the credit and not tothecompe- 
 tenc.v of the witnesses. .\s to the other 
 objection, we think tills evidence has a 
 direct and material bearing uiuin tlie fact 
 in issue. It tends to sliow. that at the 
 time tills ostensible purchase was made, 
 .Martin was insolvent, that he knew he 
 was insolvent, that he had no rensonalile 
 ground to lielieve that he could pay the 
 cash and did not expict or intend to pay 
 the cash for the merrhandi-e wliicii he pur- 
 chased, and so that he olitained the goods 
 by false pretcnccH. Thefact of insolvency.
 
 666 
 
 EOWLET V. BIGELOW. 
 
 of his kiiowledjie of his insolvency, and 
 that he liad no expectation or intention of 
 paying for the corn in question, is a mate- 
 rial fact and the princi|)al fact in contro- 
 versy on which this case rests, and is ma- 
 terial to the issue. The evidence iK'ars 
 upon tlie question quo animo, the Intent, 
 the fraudulent purjiose.i 
 
 :.'. It is next contended on the part of 
 the plaintiffs, that no property passed by 
 the fraudulent purchase of Martin, from 
 the plaintiffs to him, so as to enable him 
 to make a title to tlie defendants. 
 
 The evidence clearly shows that there 
 was a contract of sale and an actual de- 
 livery of the goods, by their being placed 
 on board a vessel, pursuant to his order; 
 and tills deliver}- was unconditional, un- 
 less tliere was an implied condition aris- 
 ing from the usage of the trade that the 
 delivery was to be considered revocable, 
 unless tlie corn should be paid for, pursu- 
 ant to tlie contract and to such usage. 
 This contract and delivery were sufficient 
 in law to vest the property in Martin, 
 and make a good title, if not tainted b.y 
 fraud. But being tainted by fraud, as 
 between tlie immediate parties, the sale 
 was voidable, and the vendors might 
 avoid it and reclaim tlieir property. JJnt 
 it depended upon them to avoid it or not, 
 at their election. They miglit treat the 
 sale as a nullity anil reclaim their goods; 
 or affirm it and claim the price. And 
 cases may be imagined, where the vendor, 
 notwithstanding such fraud, practised on 
 him, might, in consequence of olitaining 
 security, by attaclui.ent or otherwise, 
 prefer to affirm the sale. The consequence 
 therefore is, that such sale is voidable, but 
 not absolutely void. The consent of tlie 
 vendor is given to the transfer, but that 
 consent being induced by false and fraud- 
 ulent representations, it is contrary to 
 justice and right, that the vendor should 
 suffer by it, or tliat the fraudulent pur- 
 chaser should avail himself of it: and 
 upon this ground, and for the benefit of 
 the vendor alone, the law allows him to 
 avoid it. 
 
 The difference between the case of prop- 
 ert.v thus obtained, and propertj' ob- 
 tained by felony, is obvious. In the lat- 
 ter case, no riglit either of property or 
 possession is acquired and the felon can 
 convey none. 
 
 We take the rule to be well settled, that 
 where there is a contract of sale, and cin 
 actual deliver.v pursuant to it, a title to 
 the property passes, but voidable and de- 
 feasible as between the vendor and ven- 
 dee. If obtained b.v false and fraudulent 
 representations. The vendor therefore 
 can reclaim his property as against the 
 vendee, or any other person claiming 
 under him an<l standing upon his title, 
 but not against a bona tide purchaser 
 ■without notice of the fraud. The ground 
 of exception in favor of the latter is, 
 that he purchased of one having a pos- 
 session under a contract of sale, and 
 
 iSee Bottomlev v. United States, 1 Storv R. 13.5; 
 Bradford v. Boviston F. & M. Ins. Co. 11 Pick. IB'J; 
 Rex V. Hough, i Russ. & Ry. 120; Rex v. Ball, ibid. 
 132; Rex v. Dunn, 1 Mood. Cr. Cas. 14(i; Rex v. 
 Hunt, 3 Barn. & Aid. 566 ; Phillips & Amos on Evi. 
 (8th Lond. ed.) 494. 
 
 with a title to the property, though de- 
 feasible and voidable on the ground of 
 fraud; but as the second jiurchaser takes 
 without fraud and without notice of the 
 fraud of the first purchaser, he takes a 
 title freed from the taint of fraud. Parker 
 V. I'atrick, 5 T. R. 175. The same rule 
 holds in regard to real estate. Somes v. 
 Brevver, 2 Pick. 1S4. 
 
 3. Another ground is, that the plaintiffs 
 had « right to stop in transitu, and exer- 
 cised that right, in sufficient season, by 
 demanding the goods of the master on his 
 arrival at Boston, and before the goods 
 readied the hands of the defendants. 
 
 The right of stoppage in transitu is 
 nothing more than an extension of the 
 right of lien, which by the common law 
 the vendor has upon the goods for the 
 price, originally allowed in ecpiity and 
 subsequently adopted as a rule of law. 
 By a bargain and sale without delivery, 
 the property vests in the vendee; but 
 where, by the terms of snle, the price is 
 to be paid on delivery, the vendor has a 
 right to retain the goods till payment is 
 made, and this right is strictly a lien, a 
 right to detain and hold the goods of an- 
 other as security for the iiayment of some 
 debt, or performance of some duty. But 
 when the vendor and vendee are at some 
 distance from each other, and the goods 
 are on their way from the vendor to the 
 vendee, or to the place by him appointed 
 for their delivery, if the vendee become in- 
 solvent and the vendor can repossess him- 
 self of the goods before they hare reached 
 the hands of the vendee or the place of 
 destination, he has a right so to do. and 
 thereby regain his lien. This however 
 does not rescind the contract, but only re- 
 stores the vendor's lien ; and it can only 
 take place when the property has vested 
 in the vendee. ^ 
 
 Without considering what would have 
 been the effect of the bill of lading in de- 
 feating the vendor's right tostop in tran- 
 situ, had the place of destination been 
 Boston, we are of opinion that upon an- 
 other ground, the right did not exist in 
 tlie present case. 
 
 What does or does not constitute a 
 journey's end, and the termination of the 
 transit, may, in man.v cases, be a question 
 of difficulty and has often been a subject of 
 discussion. But here we think it very 
 clear, that a deli\ery of the corn on board 
 of a vessel apiiointed by the vendee to re- 
 ceive it, not for the purpose of transporta- 
 tion to him, or to a place appointed by 
 him to be delivered there for his use, but 
 to be shipped b.y such vessel, in his name, 
 from his own place of residence and busi- 
 ness to a third iierson, was a termination 
 of the transit, and the right of the vendor 
 to stop in transitu was at an end. Noble 
 V. Adams, 7 Taunt. 59.3 
 
 4. It is contended that the defendants 
 
 'See Clay v. Harrison, 10 Barn. & Cressw. 99; 
 James v. Griffin, 2 Mees. & Welsby, 632; Edwards 
 V. Brewer, ibid. 379; People v. Haynes, 14 Wend. 
 566. 
 
 3 See Bolin v. Huflnagle. 1 Rawle, 9; Allan v. 
 Gripper, 2 Crompt. & Jervis, 218; Foster v. Framp- 
 ton, 6 Barn. & Cressw. 107; Townley v. Crump, 5 
 Kev. & Mann. 606; Buckley v. Furniss, 15 Wend. 
 137 ; Newhall v. Vargas, 1 ShepL 93.
 
 UOWLKY c. BIOKLOW. 
 
 667 
 
 were not purchoserH for a valuable conxld- ] 
 eratioi) mid bona fide, ho hh to he entitled 
 to the l)crii'lit of the e.\ce[)tion in their fa- 
 vor. I5ut we are (jf o|iinioii tluit they do 
 Btund in that relation, ami are entitled to 
 the benefit of it. It appearH that they ad- 1 
 vaneeil, either in ea.sh or liy the accept- 1 
 anee of Niartin'n draftH in favor of third 
 pernonH, to an amount e(iual to tlie value 
 of the RoodH, and that after having heen 
 (uriiLslied with liill of lading ami invoice ; 
 and in flit; ordinary courwe of Idisincss. 
 TlieKround upon which tlie plaintiffn rely [ 
 iB, that at the time the hill of lading waH ' 
 Bitined, the corn was not on lioard, and 
 in fact, as appear.s by a coniparinon of 
 datcH, had not been purduiHcd of the 
 pluintiffH. This wan undoubtedly irre;;- 
 ular; and if done by eollu.slon between 
 Martin and the master to enable the for- 
 mer to net money or credit on the bill of i 
 ladins;, waH a Krcs.s fraud upon any iier- 1 
 son deceived l)y it. But it is not perceived ; 
 how tlie plaintiffs can avail themselves of 
 this, Bupposing it to be a frautl. A hill of 
 Indins is a contract of carriage for hire, 
 by which the master enjiajjces to deliver 
 the !;oo(ls to the shipper or his order, and 
 BO is <iuasi ucKotiable. It operates by 
 way of estoppel anainst the master and 
 also against the shipper and indorser. 
 
 The hill of lading acknowledges the 
 goods to be on board, and regularly the 
 goods ought to be on hoard before the hill 
 of lading is signed. But if, through inad- 
 vertence or otherwise, the bill of lading is 
 signed before the goods are on hoard, upon 
 the faith and assurance that they are at 
 hand, as if they are received on the wharf 
 ready to he shipped, or in the shipowner's 
 warehouse, or in the Bhip|)ur's own ware- 
 house, at hand and ready, and afterwards 
 
 they are placed on l)onrd, an and for the 
 gooils embraced in tlie bill of lailing, we 
 think, as against the shipper and inaHter, 
 the hill of lading will operate on theHe 
 goods by way of relation and by CHtoppel. 
 
 It is asked, how lung after the Higna- 
 tiire of the bill of lading property may be 
 delivered on bo'ird, so as to he bound by 
 it and become the subjirt on which It 
 shall operate. We (lilnk. at any time 
 whilst the vessel is taking in her cargo for 
 that voyage, as describrd in the bill of 
 lacling, and before she sails u|ion It. Here 
 there was a time, when the bill of lading 
 might have been [iroperly signed liy the 
 master, namely, after the corn was <lellv- 
 ered and before the veHsel sailed; and It is 
 admitted that this was ri'ceived asand for 
 thecorn mentioned in the bill of lading. And 
 it can make no difference to the plaintiffs, 
 whether the hill of lading was signed after 
 this shipment, or a few days before. In an- 
 ticipation of snch shipment. Supposing, 
 then, that when the goods were bhipped, 
 as against the shipper and master the bill 
 of lading operated upon this property and 
 would have bound the master to ileliver It 
 to theconsignec, as we think It would, then 
 by the uniform course and jiractice of mer- 
 chants, the hill of lading repre*ents the 
 property, and any bona fide title for valu- 
 able consideration obtained liy a trans- 
 missioii or negotiation of the bill of lad- 
 ing, gives as valiil and effectual a title tu 
 the goods, as could he obtained by an ac- 
 tual delivery of the goods themselveu.* 
 The defendants have shown such a title, 
 and therefore the order of the court must 
 be 
 
 Judgment on the verdict. 
 
 •See Allen v. Williams, 12 I'iik. 297.
 
 k
 
 HUllL V. CORNER. 669 
 
 RUUL et al. v. CORNER et ul. i gui-Ht of the 24th t<. Bend as a cur witboat 
 
 (63 Md. 179.) Urnft to ((jver the niurt;mH on Hhl|iineDt8 
 
 now oil hiind. " 
 
 Court of Appeals of Maryland. Feb. 12, IS8.V Corner nays in the tcHti'nonv he Hohl the 
 
 Before ALVKY, C. .1., an<l YELLOTT. "''m, ".',!. ''"'/*''', '" t'^'-ru'Ty. ulthouKh 
 
 STONE. >!ILLi;i{. HOIUN.SON, 1I{VIN(J. " V VVi J' '. """"fy '"'' "^'".'^ ^'*-"'"'"V 
 
 niwi UKVAM II '"^ ""'' recelve'l no offerH, an<l iJoeH not 
 
 '^" • npi.riHe him of a uale until the 4th of 
 
 \V. Irvine Cross and John K. Cowen, for March, 
 
 appellants. Joseph C. France and John The hill of ladinj;, though ismied on the 
 
 J'reiitiHH Poe, for up|>eHee. ."lOtli of January, was dated back to the 
 
 21st of January to correspoml with the 
 
 mVI.NG, J. the appellee l)einK a com- actual Hhipnuiit. This bill of ladiiiK in fii- 
 
 mission nicrcliant In lialUmore. between vor of liuhl ii; .Son, with draft on tlieni for 
 
 the inontli of AuKust, Ixsl, and the month ffil."., was presented bv .Merlon to the Se- 
 
 of January, lSs2, received consiKninentrf curity Dank of .MiniKHota. and the draft 
 
 of Hour from Oliver Merion, of MInneapo- was cuslied by the bank, which sent both 
 
 lis, .Minnesota, for sale upon commission, bill of Inilin;; and draft to the Bunk of 
 
 Upon the 21st of January, lsv.>, Merion Commerce in lialtimore, at which bank 
 
 shipped to Corner & Co., without order, 1 Ruhl & .Son paid the draft and received In 
 
 a car-load of "Cliampion" Hour, beiiiK one consiileration of such pa vment, via., the 
 
 hundred and twenty-live barrels, by Mil bill of IndiuK tor the flour. AscertainlnB 
 
 waukee and St. Paul Hailroad and Haiti- the tlour had been received bv Corner, ap- 
 
 more and Ohio Railroad via Chicago. On pellants in the latter part of ivi.ruary, or 
 
 the same day he wrote Corner & Co. ad- early in March, demanded pavnient for 
 
 visiiiK of this shipment, and naininfr a the same; and the Haltimore and ohlo 
 
 price at which Corner, his factor, should Railroad also in .March demanded the 
 
 sell the same. No bill of lading was sent flour. 
 
 to Corner & Co.; but at the time of the Cpon this state of facts the qucHtian 
 shipment a shipping receipt was taken arises, who was entitled to this flour— the 
 from the railroad for the flour, and that appellants, or the appellee? It is conceO- 
 witli a draft on Corner & Co. for five hun- ed that no bill of UkHiiii or invioce was 
 deed dollars was placed in bank for trans- ever sent to or received by Corner; where- 
 mission to Baltimore, but was 8ul)se- as it is equally well established and not 
 tiuently withdrawn, and was never sent, denied, that Ruhl <3c Son did receive a bill 
 Sul)se(iuent to the shipment to Corner & of lading, and did pay n draft on them for 
 (,"()., Merion received an order tor Hour ?til."i on it. 
 
 from Conrad Rulil & Son of Baltimore. The appellants insist, that although the 
 
 and decided to change the sliipment and flour was originally shipfied to Corner & 
 
 to send to Kuhl & .Son this car of C.ur Co.. it was sosliipiied without their order, 
 
 on their order. Accordingly, on the JJth and that afterwards, and while it was in 
 
 of January, 1^S2. the railroad linvinn been the power of the shi|iper to doso. the con- 
 
 noti(i(Ml, its atient at .Minneapolis tele- si;;iiinent was chuuKed. and the flour was 
 
 graphed the CliicaRo agent to hold the car si Id to Ituld & Sons, to whom a bill of 
 
 of flour, as Merion wished to clian«e the ladin;; and ilraft were sent, ani who (laid 
 
 consignment to Ruhl & Son. On the :Wtli theref<ir. 'i'hey claim that title never 
 
 of .laiiuary, the original receipt was Hiir- passed from .Merion to Corner ic Co., but 
 
 rendered to the railroad agent at Minue- that it did pass to Ruhl & Son. The ap- 
 
 apolis, and a bill of lading for the Hour pellants further and si rongly relied on the 
 
 was taken out to Huhl & .Son. Tne agent act of lS7(i. chap. 2('i2. in respect to bills of 
 
 on the 24tli had taken steps to hiive the lailiiig, and the effect of tin- possession 
 
 address of Corner >V: Co. removed from the of such bills of lading upon title. But the 
 
 car, and tt) have that of Huhl & Son sub- decision of this case does not involvean.v 
 
 stituted. lie telegraphed to ("liicugo di- consideration by the court of thei'ffwtof 
 
 rccting this change to lie made, but It was the net of isTG or what constructl:)n shall 
 
 neglected, and the Hour came through to be given it: for there are well settled prln- 
 
 Balliniore labeled for Corner i*i Co., and ciples establisliefl and acted upon In very 
 
 was delivere<l to them; the Baltimore many cases, which will control the deci- 
 
 agents of the railroad not being advised sioii of this case irrespective of any act of 
 
 of the change ot destination, and Corner assembly. 
 
 & C(». as yet, liaving received no informn. It is the well-settled law, that the ilellv- 
 
 tlt)n of Merlon's change of purpose, unci ery of goods to a common carrier for one 
 
 the actual consigninent, by bill ol lading, who has purchased and wlio has ordered 
 
 to Ruhl & Son. The proof shows, that them, is a delivery to the purchaser, 
 
 on the 21th of .lanuary. three days after though it does not amount t<i an accept- 
 
 the shipment spoken of. but before Corner mice of them. I Benjamin on Sales, pp. 
 
 knew of it, he wrote to Merion ad vising 1S2 and HI.".. But it is equally well settled, 
 
 against furtkier shipments unless .Merion that where goods have lieeii shipped to 
 
 cho.se to ship a ear of "Clematis" Hour, one who has not ordered them, title doP8 
 
 without draft, as the margins on the Hour not jiass to the consignee by delivery to 
 
 still on hand were exh.nusted. On the the carrier, and the r'ght to change the 
 
 2(lth of .laiiiiaiy. Corner acknowledged consignment and destination during the 
 
 the receipt of the letter telling him of the transportation reinaiiiH in the shipper: 
 
 shipment of "Champion." promising it ami this is so far the manifest reason that 
 
 should lie sold for the best prices. and say- there is a want of the essential element 
 
 ing, " we note you havenot made draft on of mutual assent to constitute a contrnct 
 
 this car, as if" in anticli ation of our re- ol sali-. So that in all rases w here goodn
 
 670 
 
 RUHL V. CORNER. 
 
 are shipped upon the account of, juid at 
 the risk of, the shipper, this right remains 
 in him. The Francis, (Boyer, Master.) 
 
 5 Cranch, 418; Mitchel vs. Ede, et al., 11 
 Adolphus & Ellis. SS8; Scothorn vs. The 
 South Staffordshire Railway Co., 8 Exch., 
 :U(); 3 Condensed Rep. U. S., L'4."), and 
 notes; Elliot vs. Bradley, et al., 23 Ver- 
 mont, 217; Hodses & Co. vs. Kimhall & 
 Fariisworth, 4!l Iowa, 577; Hutchinson 
 on Carriers sees. 134 and 337; Blanchnrd, 
 et al. vs. Page, et al., 8 Gra.v, 285; and 
 Walter vs. Ross, 2 Wash. Cir. Ct. Rep. 28(i. 
 In this last case of Walter vs. Ross, the 
 subject was fully considered, and .ludse 
 Wasliington says, "the factor has no in- 
 terest or property in the goods beyond his 
 commissions, and, of course, cannot con- 
 trovert the right of his principal. If, in- 
 deed, ho be a creditorof the shipper, he has 
 a contingent interest in virtue of his right 
 of lien which the possession would give; 
 but for the perfection of his right he must 
 acquire and retain an actual possession of 
 this property — constructive possession 
 will not do." 
 
 The same principles a re declared in Gros- 
 venor & Starr vs. Phillips, 2 Hill, (N. Y.,) 
 147, and in Bank of Rocliester vs. Jones, 4 
 Comstock.500. In Boiiner, et al.vs. Marsh 
 et. al., 10 Sm. & Mar., 37G: Chaffe vs. Miss. 
 
 6 T. R. R. Co., m Mi.ss., 185; Woodruff vs. 
 Nashville and Chattanooga R. R. Co., 2 
 Head, 87, and several other Tennessee 
 cases, the law is laid down more strin- 
 gently, as against the factor, than the 
 weight of authority justifies. There can 
 be no doubt, upon the weight of authority , 
 that if the factor havecluims foradvances 
 against his principal, and it be expressly 
 agreed, that goods shall be 8hi|)pfd to the 
 factor to pa.v tho.se advances, tlien, in such 
 cases, the law makes the delivery to tlie 
 carrier a delivery to the consignee, though 
 a factor; and the appellee's counsel en- 
 deavor to bring the appellee within the 
 operation c^f this rule as laid down in Bai- 
 ley and others vs. Hudson River Railroad, 
 -1!) N. v., 70, and Straus vs. Wessel, 30 
 Ohio State Rep., 211. But those cases are 
 not analogous to the present one. In 
 Bailey's Case it was decided that title had 
 passed. The court said that the plaintiffs 
 in that case "occupied the legal position 
 of vendees after having paid the purchase 
 money and received delivery uf the 
 goods." It is true, the court says, in ad- 
 dition, that it is not necessary to hold in 
 that case that the plaintiffs occupied the 
 position of vendees strictly; but still the 
 decision is wholly based on the ground 
 that "the actual agreement and transac- 
 tion proved by two members of the firm, 
 and uncontradicted, i)revailed." It was 
 because of the agreement expressly proved 
 that title was held to have passed to the 
 consignee on delivery to the carrier, and 
 in that way the shipper's right to change 
 ctinsignment and destination was lost. 
 The court say in that case, the goods 
 were not sold outright to the consignee at 
 specihed price, but they were by agree- 
 ment sent to him for sale, and that the 
 proceeds should be aiiplied to the payment 
 of tlie debt ; creating thereby the quasi re- 
 lation of trustee, to whom, for the pur- 
 poses of the trust, the title passed. In 
 
 Straus vs. Wessel, 30 Ohio Slate, 211, 
 the advances had been made on the partic- 
 ular lot of pork to be shipped, which, by 
 express contract, was shijjped to pay the 
 indebtedness; and it was held, that under 
 these circumstances, the delivrr.y to the 
 carrier was a delivery to the consignee, 
 who, the court say, in sucli case, is in the 
 'position of purchaser, having paid for the 
 I goods. 
 
 If the present case by the proof, meas- 
 ured up in its facts to these last consid- 
 ered cases we should think the delivei'y 
 complete so as to pass title unless the 
 act of ls7li interposes an insuperal)le l)ar- 
 rier to such a view, which the necessities 
 of this case do not require us to consider. 
 ! According to the facts of the case, which 
 are undisputed, we think it very clear 
 that there was no intention in the orig- 
 inal shipment to pass the title out of the 
 ' shipper , which. Judge Church says, in 
 Bailey's Case, already considered, is the 
 true test to l)e ajiplied. There was cer- 
 tainly no contract that the flour should be 
 shipped to pay the margins or advances 
 on account of the goods still in Corner's 
 I hands and unsold. The flour was snipped 
 ' without order from Corner & Co. Thelet- 
 ter advising Corner of the shipment and 
 naming the price at which he was to sell, 
 bears evidence of its being an unsuggested 
 shipment, and that Corner had been writ- 
 ing despon.lingl.v of Hour prosiiects. Not 
 a word was said in the letteral)out de- 
 signing that shipment to pay former ad- 
 1 vances; and we are warranted in suppos- 
 ing he did not know that the margins on 
 I the flour still in his factor's hands were ex- 
 i hausted ; for it does not appear that Cor- 
 : ner & Co. ever informed him, until he did 
 so by the letter of the 24th of January, at 
 which time the flour was on its way to 
 Baltimore, and could not be received until 
 some da.vs afterwards. In fact, the prr)of 
 shows that Merlon thought a considera- 
 ble balance was due him from Corner & 
 j Co. on the previous shipments. Ah al- 
 ' read.v stated, when the flour was shipiied 
 to Corner & Co., a draft for $'>{)i) was 
 : drawn and put in bank for transmission 
 : to Baltimore for presfntation to ('orner 
 1& Co., but it also appears it was subse- 
 (piently withdrawn and was never sent, 
 because Merlon had received an order 
 from C. Rnhl &: Son for flour, and deter- 
 mined to change the consignment, and 
 send this tlour to Ruhl & Son instead of 
 to Corner & Co. The Chicago railroad 
 agent was telegraphed by the .viijima/io- 
 I lis agent to hold the flour for this cliange 
 to be made Itefore C.)rner & Co. sent their 
 letter of the 24th of January, suggesting 
 there was an exhaustion of margins, and 
 if any Hour should he shipped, tliat it t)e 
 shipped without draft. It is clear, there 
 fore, there was no mutual assent between 
 .Merlon and Corner «& Co. to the flour be- 
 ing sent by Merlon to Corner & Co. to iiay 
 for previous advances on former orilers. 
 Without such assent, of course there 
 was no contract. Unfortunately, the 
 carding of the car, by the neglect of the 
 railroad or of Merion, was not changed, 
 and the flour came thi-ough to Baltimore, 
 and was delivered to Corner & Co., and 
 this complication has produced all the
 
 RUHL V. COKNEU. 
 
 671 
 
 trouble. If the fluur whh Morion'B when 
 CoruiT received it, of coin-He (Vomer's lienH 
 for previoiiH iiilvniices would at once nt- 
 tacli, and Merion would have to pay 
 them to releaHc the flour; but if, on the 
 other hand, Merion had, while the Hour 
 waHin transitu ami at IiIh risk, parteil with 
 the title, and the Hour waH no lon;;er IiIh, 
 the lieuH of Corner & Co. would not and 
 coulil not attach. We have seen that 
 when the Hour waw Hliipped it wmh went to 
 Corner without order, and the carrier whh 
 Merion'H ajjent and not Ciirner's; anil 
 that nothintr afterwardH occurred to 
 chaiiKe the relation of the carrier and 
 nialie it the a«ent of Corner & Co. iH clear; 
 for the sale to Hiihl ic .Son was made be- 
 fore (,'oriier & Co. had ever made their 
 propoHition of the LMtli of .Januiiry. Sup- 
 poHe, iiiHtead of the Hour beiiit; received 
 by Cornel' & Co., it had been received by 
 lUihl & Son. could Corner & Co. have 
 niiiintaine<l replevin or trover for the 
 tlonr? It certjiinly could not lie contend- 
 ed, upon the proof that the.v could. Il'not, 
 then Corner & Co. had no title, iuid Itnlil 
 & .Son hacl acipiired title and the ri^ht to 
 Hue (,'orner & Co. If Corner <Sc Co. have 
 been niiwled to their injury, they must 
 look elsewhere for redress. What the law 
 or c()uit.v would do, if the controversy 
 woH between Merion and Corner & Co., 
 must not l)e considered todivert the mind 
 from the rights of Huhl »t Son. 
 
 The court below erred in trrnntinj; the 
 defendant's prayer. It is entirelj' at vari- 
 ance with the law of the case, as we have 
 declared it. The first prayer of the plain- 
 tiff wascorrect in principle, but it omitted 
 some of the facts necessary for thejur.y 
 to find. It oiiKht to have submitted to 
 the jury to find the fact, that tlie oriiiinal 
 shipment to the defendant was without 
 Ills order, and was sent without bill of 
 huliuK and actual draft on Corner & Co., 
 and that before Corner & Co. received the 
 flour from the carrier, the sale was made 
 to Kuhl it .Son. When these elementH are 
 incorporated in the prayer.it will lierisrht. 
 The second prayer was correctly refused, 
 for it submits u question which, under 
 
 our view, the jury hod nothing todo with, 
 inasmuch as the factor's authority wa» 
 revoked by the sale to Kuhl & Son. It 
 was unuPcesHary. The third prayer waH 
 correctly .-r-Iused, forit clnirnM as the meaH- 
 ure of (lamaKCH that which bebrnKS to the 
 action of trover, and not to the form of 
 action adopted liy the plaintiffs. In the 
 action of assumpsit, in the alisence of 
 proof of actual sale of the (fooiN to the 
 defendant the plaintiff can only recover 
 for the moiwy had and received from the 
 sale of the Hour to the use of the plaintirf. 
 The prayer was therefore InconslHtent 
 with the form of ocllon. 
 
 'I'he iiueslion raistMl by the first Idll o( 
 exception needs no discuMsion. The proof 
 tenilered was wholly Immaterial, and 
 witlwjut bearing upon the issue. 'I'he pre- 
 vious admission of irrelevant testimony, 
 without objection, did not render its re- 
 buttal competent. There wns, therefore, 
 no error in its rejection. 
 
 The objection which has been raised by 
 the appelle(>'s counsel, that the llrst and 
 second bills of e.xceptionnrenotsiilllclently 
 connected, l>y apt InnKuaKe, to entitle the 
 court to look at the evidence in the firat 
 bill of exception, for the purpose of deter- 
 mining; upon the correctness ni the court's 
 rulings upon tlie instructions, cannot bo 
 maintained. .Ml the evidence was In, and 
 the prayers wore not Intemled to be mere 
 abstractions. They were offered with ref- 
 erence to the proof, as their lorin shows. 
 The most appropriate laiiKuatre Is not 
 used for connecting tlie two bills of excep- 
 tion, but we regard it asentirely siiHlclent. 
 The case is simibir to and covered by Hal- 
 tiinore and Ohio l!ailroa<l Company vs. 
 State, usi' of Fryer, .'iO .Md., -17. The Inn- 
 jruaf^e used is. "all the testimony beiiic In. 
 the plaintiffs offered the fcllowlnR 
 prayers." Heference to the testimony re- 
 cited is manifestly made. It is eipiivalent 
 to sayiuK " tlicre bein« no othi-r testimo- 
 ny," or "this being all the testimony." 
 The intention is too plain to he dlsrc- 
 ijarded. 
 
 .Judgment reversed, and new trial 
 awarded.
 
 RUI'I.KV V. DAOCKIT. 
 
 673 
 
 RUPLEY et al. v. DAGGETT. 
 
 (74 111. 351.) 
 
 Supreme Court of Illinois. Sept. Term, 18T4. 
 
 Replevin LroiiRlit l)y John F. DdKRett 
 OKJiinHt Aliriiiu Itupley and .Iiiciil) liupley 
 ti) recover a mare wliicli tlie defenilanl.s 
 clainuMl tliey liail b(>ii»;lit of the pluiatiff. 
 At the first con ver.siition about tlie mare, 
 Hiiplcy asked tlie piice. the plaintiff swear- 
 ing' that he icplled fKif.. while the defend- 
 ant testilied tliat he said *(;.'i. Inthescc- 
 ond conversation Itupley Hays lio told 
 DaKKett that, if the mart! whh as repre- 
 senti'd, they would f^ive ¥(i."i, and DaKKett 
 said he would take liim down next morn- 
 ing to see her. Dajmett testified tlial 
 lUipleysaid toliim."l)id I understand yon 
 Hi.\ty-live'.'" and tha; he supjiosed Itupley 
 referred to the fraction of tlie $101), and 
 meant $!(!.') as named at the previous in- 
 terview. He ansvvered, "Yes, sixty-live. " 
 Hotli parties theu supposed tlie jiriee was 
 ti.xed, Knpley supposing it was .IKir), and 
 ItaKnett KupiiosiiiK it was $]ii'). The iie.xt 
 day Hupley siiw tlie mare, and took lior 
 home. Jiidguient tor plaintiff, and de- 
 fendants appealed. 
 
 lA'llowsA: Leonard, for appellants. Hill 
 & Diliell, for appellee. 
 
 St'OTT, .1. It is very clear, from the evi- 
 dence in this case. tlier(> was no sale of the 
 property niiderstaiidia;;ly made. Appel- 
 lee supposed he was sellint; for .^Uir). and it 
 may lie appellant was eijually honest in 
 the belief tliat ho was buyiiiK "t the price 
 of .UI'm. There is, however, some evidence 
 tendliiK to show that apiiellant Ifnpley i 
 did not act with ontiro y,ood faith. Ho ' 
 was told, before he removed the mare 
 frtim appellee's farm, there must be some 
 mistake as to the price he was to pay for 
 her. There is no dispute lliis information 
 was given to him. Ho insisted, however, ' 
 the [irico was $6"j, and expressed his belief 
 he would Ueei) her if there was a mistake. I 
 On his way home with the mare in his' 
 
 LAW SALES— 43 
 
 [losBession, he met appellant, bnt never 
 intimated to him he had been tidd there 
 iiii«ht be a misun<letHtaiidlnK us to the 
 price he was to pay lor her. TIiIh he 
 ouKht to have done. HO that. If there had 
 been a misiinderstaiidbit; between tlierii, 
 it eonld be corrected at oni.c ]f the price 
 was to be ?l(;."j, he had niver agreed to 
 pay that huiii, and was iinib-r no sort of 
 obli);ation to keep the property at tlint 
 price. It was his pri\lle;;e (o return It. 
 On the contrary, appell-e had never 
 agreed to sell f.ir ?r..'.. and could not bo 
 compelled to part with his proiierty for a 
 less sum than he chose to ask. It is ac- 
 cording to natural justii'c. where there Im 
 a mutual mistake in n-;;,ird to the price of 
 an article of jiroperty, there is no sale, 
 and neither party is liounil. There has 
 been no meeting of the iiiinds of the con- 
 tracting parties, and hence there can be 
 luj sale. This princi[>le is so elementary 
 it needs no eitatimi of authorities In its 
 sujiport. .\ny other rule would work In- 
 justice and might compel n person to part 
 with his property without his consent, or 
 to take and pay for property at a price he 
 had never contracted to pay. 
 
 There was no error in refusing Instruc- 
 tions asked by appellants. Therourt was 
 asked to lidl the jury if they lielieved.froni 
 the evidence, ai'pi llee had "sworn wlll- 
 fnlly and corruptly false in any material 
 portion of his testimony, then they are nt 
 litierty to disregard his entire ti slimony. 
 except so far as it may l>e corroborated 
 by other evidence In the case." '"onced- 
 ing this instruction states a correct ab- 
 stract principle of l,iw, tliere was no ne- 
 cessity for giving it under t!ie facts proven 
 in this case. The verdict was right, and 
 appellants were not prejudli'ed by the 
 refusal of the court to give it. 
 
 .Ml that was pertinent to the Issues in 
 the other refused instrnetions was con- 
 tained ill others that were given, ond 
 there was no necessity for repeating It. 
 
 No material error appearing in the rec- 
 ord, the judgment mnsl be allirmcd. 
 
 .ludgnienc atllrmed.
 
 .>. I
 
 SAFFOIil) V. McDOXOrCH. 
 
 675 
 
 SAFKORD et ul. v. McUONOUUU. 
 
 d'iO Mass. 2'J(i.i 
 
 riupreme Judiciul Court of MuBsachusetts. Suf- 
 folk. May 6, ItsiG. 
 
 T. H. SweetHer and B. F. HnyeH, for 
 plaintiffrf. S. A. U. Abbott, for (Ic-feiidiiiit. 
 
 MOUTON. J. TliiH is nn actliiii of con- 
 tract to recover the price of a i|iiaiitity of 
 Icatli'T, C'XCcediiiK lil'ty i|i>llar.s in value, 
 alleged to lune lieeii sold l)y tlio plaintiffs' 
 to the defendant. There w.iw no ineii-.D- 
 randum in writing of theconti'act, and the 
 purchaHcrdid noty;lve atrvthinj;' la earucHl 
 to bind the barnnin or in pai't pay inent. 
 
 It appeared on fhe trial that the defend- 
 ant on -May 17, IsTl', went to th" plain- 
 tiffs' Ktore and auroed to purchase the 
 lenthi'r at the price nanieil, to he paid 
 for l)y a satisfactory note. 
 
 On the thirty-lirst <lay o! the Hnaie 
 inoiitli, he a;;ain went to the plaintiffH' 
 Htorc, exanuned the leather, had it 
 weifilieil, marked with the initials of his 
 name, and |)iled tip by itself, to be taken 
 away by him upon ;;ivinK a satisfactory 
 note for the pi ice. or the payment of the 
 price in money, but not otherwise. He 
 never complied with the terms of the 
 ajj;reem"nt. The i)laintiffM refused to al- 
 low him to take the leather from their 
 Mtore without such compliance, claiming; a 
 lien upon it for the price due. U remained 
 In their store till November',), ls7i>, when 
 it was burnt with the store. Fpon this 
 evidence the presiding' justice of the supe- 
 rior court ruled that the leather had not 
 been so accepted and received by the de- 
 fendant as ti> take the contract out of 
 the statute of frauds, and the plaintiff ex- 
 cepted to such ruling. 
 
 It should be kept in mind rlint the ques- 
 tion is not whether, if a valid contract of 
 sale upon the terms above named had 
 been proved, the title in the property 
 would have passed to the defendant so 
 tliat it wonid be at his risk. In such a 
 case, the title would paps to the pur- 
 chaser unless there was some agreement 
 to the contrary, but the vendor woidd 
 have a lien f<<r the i)rice, and could retain 
 |)ossession until its payment. Ilaskins v. I 
 Warren, ll.'i Mass.,')14. Morse v. .Sherman, 
 lot) Mass. 4;!(l. Townsend v. Ilar)»raves, 
 118 Mass. 325. But thequestion Is whotlierj 
 
 the defendant had acce|iled and received 
 the Koods, HO ns to take the case out of 
 the statute of framls, ami thus complete 
 and make valid thcoral contrail relied on. 
 rnless there was such acce|)tance and 
 receipt, there was no valid contract by 
 virtue of which the title to the >;ooiIh 
 would pass to the defendant. To constl- 
 tiite this, there UHist be a delivery by the 
 seller, and Home uneiinivocal acts of inpii- 
 erhhip or control of the (.'ooiIh on the 
 pait of the purchaser. Kiduht v. Mann. 
 lis .Mass. U:!, and cases citnl. 
 
 In till' caKe at bar. there was no actual 
 acci'ptance and rei-cipt of the ^o^ids by the 
 defendant. They w<-re never In IiIh poH- 
 session or control, but ririiained in the 
 possession and contnd of the idalntlffs, 
 who refused to allow him to take tlicni, 
 claiming a lien for the price. If they had 
 and asserted a lien as vendors, this Ih in- 
 consistent with the delivery of posHeHsioii 
 and control, necessary to constitute an 
 acceptance anil receipt by the vendee. In 
 Haldey v. Parker, L' W.ic V. :f7, 44, Molroyd, 
 .).. says; "Upon u hhIu of specific kooiIh 
 for a specific price, by parlin;; with the 
 possession the seller parts with hiH lien. 
 The statute contemplates such a parting 
 with tlie possession, and therefore, uh 
 lor!;r as the seller prcHerven his contrrd 
 over the kooiIs, so as to retain his lien, 
 he prevents the vendee from acceptini; 
 and receiving them as his own within the 
 meanini; of the statute." Benjamin on 
 .Sales. (.\n). edl l."d, and cases cited. 
 lii'owiie on St. ol Frauds, J :tl7. 
 
 It is tr\ie there may be cases in wlilch 
 the h;ooiIs remain in the possession of the 
 vendor, and yet may have been accepted 
 and received by the vendee. But in such 
 cases the vendor holds possession of the 
 jioods, not by virtue of his lien as vendor. 
 I)ut under some new contract by which 
 the relations of the partien are changed. 
 • 'nsack V. Hobinson. 1 B. & S. I'l'J), .■(1)8. 
 Castle V. Sworder. ti H. & N. 828. Dodaley 
 V. Varley, 12 A. & K. Ii.t2. 
 
 In the case at bar, the vendors refuaed 
 to permit the vendee to take possession or 
 control of tlieKoods. but claimed and na- 
 serted their lien as vendors for the price. 
 We are Hierefore of opinion that the rul- 
 xna of the superit)r court was correct. 
 
 Exceptions overruled. 
 
 KNDICOTT and I.ORD, J J., absent.
 
 I
 
 SALTUS V. EVEIIETT. 
 
 677 
 
 SALTUS et al. v. EVERETT. 
 
 (20 Wend. 267.) 
 
 Court of Errors of New York. Dec. 1838. 
 
 Error from the supremo court. • 
 Everett Urounlit nii action of trover in 
 the Hiipcrlor court of linv of the city of 
 ,\c\v-Y()rU a^uiuMt Muhhth. SalluH, for u 
 quiuitity of leu<!. In Au;;ust, ISL'.'i. liriclKe 
 & VoHe, luerchantH al New-Orh-aiis, 
 shipped 17!) piKH of lead on lioai-il tlie UriK 
 IJove, ot whicli Wllliain ("ollin.s waH iiiaH- 
 ter, consi;:iieil to .MesHrH. TiiflK, ICieieth. & 
 IJ;irrell, of .New- V(irl<, on account and riyk 
 of OtiH ICvcrett, the plahitilt, to whom 
 they were rcferreil for instructions. The 
 Dove put into Nctrfolk'in diHtress. and 
 part of tlie lead was sold to pay e.\pen«es, 
 and the residue was transferred in Decem- 
 ber, 1.S2.'), I)y an ;i(jrent of ('apt. Collins, to 
 the schooner Dusty Miller, Captain .lohn- 
 Hou, wlio sinned a liill of lading', acUnowl- 
 edKinj? tiic lead to have been shipped by 
 F. M., uKent for William Collins, and 
 promising to deliver the same in New- 
 York, to order, on payment of freight. 
 The Dusty Miller met with a disaster on 
 her voyage to Xew-York, and on her ar- 
 rival there, the lead, by the order of ('apt. 
 Collins, was delivered to the hrm of Collin 
 & Cartwrijjcht, who paid the freijiht, and 
 $7-'.n7, the averajic contribution, eharKed 
 upon the lead, for the loss occasioMe(l by 
 the disaster to the Dusty Miller. On tlie 
 '.ith March, ISl.'!!, Collin & Cart Wright sold 
 the lead to the Messrs. .Saltus, the defend- 
 ants, for «."j4l'.74, and received payment. 
 Tlietreisht of the lead from .New-Orleans 
 to New-Vork, amounted to.'J14.72. Everett 
 broiijrht an uction against Collin .Si Cart- 
 wri!j;iit, to recover the value of the lead, 
 but was nonsuited, in failinf; to prove 
 that before suit lrouKht,he offered to pay 
 the freiiiht, average and charges to which 
 the lead was liable, and which had been 
 advanced by .Messrs. Collin & Cartwri«ht, 
 and this court, on application, refused to 
 set aside the nonsuit. (See (> Wendell, (iUo.) 
 In October. iNIil, the plaintiff den.anded 
 the Icail of the Messrs. .Saltus, and offered 
 to pay any la w fill demands they had on the 
 same; to which they answereil. they 
 would have no further communication on 
 the subject. It was proved that in March, 
 ISL'C, one of the linn of Tufts, Eveleth, i^i 
 Ituirell demanded of the Messrs. Saltus, 
 the lead, or its value, and receiveil for an- 
 swer, that they had bought the leail, ami 
 paid for it, and would not do anythiriK 
 about it. Upon this evidence the jilain- 
 tiffwasn^ain nonsuited. Wher-.Mii)on ho 
 sueil out a writ of error, removiiifi the 
 record into the supreme court, where the 
 judgment of the superior court was re- 
 versed. See opinion delivered in the su- 
 preme court. (!.") Wendell, •17.'i, ct sei).) 
 The defendants then removed the record 
 into this court, where the cause was ar- 
 Kued by 
 
 T. T. Payne, for plaintiffs in error. T. 
 Sedawiek,".Ir., and S. I*. Stai)les, for de- 
 fen(Iunt iu error. 
 
 By the CHANCICl.EOH. The plaintiffs 
 in error were not entitled to the goods in 
 question on the ground, that they were the 
 
 [ purchasers thereor without notice of the 
 rights of the real owner; they were In the 
 same situation in this respect us every 
 other purchaser of goods from n person 
 
 I who hail no authority to hi-II. If the 
 owner of the goods hiitj caused the bill of 
 lading to be made out in the nnmo of Col- 
 lids.sd as give him o jirinia facie right to tho 
 gooils as owner, or coiiHigntH? for his own 
 benelit, Ji bona fide purchaser might liavo 
 been entitled to prutectlon. The principle 
 adopted in the case of .Mi)wrey v. Walsh, 
 (S ' 'o wen, L':{S), might be applicaole tosurh 
 a case; but here the change of the lilll of 
 hilling itself was u fraudulent act on the 
 [i.irt of the iiiMster of the vessel, or liis 
 agent, and could not deteat the right «if 
 the owner ot the goods svho had not au- 
 thorized any such change. 'I'lie hill of lad- 
 ing is, by the custom of inerchantM, trans- 
 ferable, so as to vest in the assignee tho 
 title to the goods which the assignor lind 
 in tliem ; but if a person without author- 
 ity from me ships my goods jiiid takes u 
 bill of lading in hi-i own name, lie cannot, 
 liyassigniig that bill of lading to another, 
 ilivest my title to the property. If by tho 
 perils of the sea, or otiierwise, the master 
 of the Dove was unable to continue the 
 voyage, and he was obliged to send on the 
 cargo by another vessel, he liad no right 
 to change the consignee of the iioods; and 
 if lie wished to retain a lien upon the 
 goods for the freight pro rata itineris, he 
 should have done sn by n special clause 
 in the new bill of lading. In this case tlie 
 umiuthorized sale of the goods in the port 
 of .New-York, liy the master of the Dove, 
 was probably such an act as would now 
 be a felony, under the provisions of the 
 Uevised Statutes proliil.iting carriers of 
 goods, delivered tothein to lie transported 
 for hire, from embezzling the goods orcon- 
 vertiiig the same to their own use: and 
 even at the time when this tran.saction 
 tool; [dace, no rights cnuld be acquired by 
 thill) parties, as against the owner of the 
 goods, liysuch a fraudulent act ot the car- 
 rier to whom they were entrusted for 
 carriage or transportation mcn-ly. 
 
 The question does not arise on this writ 
 of error whether tlip Messrs. Saltus by the 
 pui'idiase were sulistltiitcd in the place o( 
 
 Collin & Cnrtwriglit as to the Ilea upon 
 the goods for the freight iiald by tlieni 
 to the master ot the Dusty .Miller. II there 
 had nor been an actual conversion of the 
 goods liefore the coininencenient of the 
 suit, the question would arise whether 
 there ever was a lien which the pur- 
 chasers from Cntlin & Cartwright cnuld 
 claim the benelit of; and, if such Hen ex- 
 isted, whether it had not been waived by 
 putting their cinlni to retain the goods 
 upon other grounds. It appears, how- 
 ever, by the evidence, that the plainlifTs in 
 error hiid actually converted the goods, 
 bv selling them on the d;;y of their pur- 
 chase; and if they once had a lien which 
 wouhl have reliutted the presumption of n 
 conversion, from the meiv fact of n-fusinK 
 
 I to deliver on demand, when the amount 
 of the lien WHS not tendered or offered to 
 
 ! be |iaid, a tender aftir they had put It out 
 
 ' of their power to receive the money and 
 
 I deliver the goods, by an actual sale, would 
 linvc been a useless ceremony, and was
 
 678 
 
 SALTUS V. EVERETT. 
 
 not necessary to enable the owner of the ' 
 prcjods to recover hi nn action of trover. 
 In HiK'h a ca.se, if there was a valid lieu in 
 favor of the defemiarits liefore the conver- 
 sion, tliey would be entitled to be re- 
 couped in the dnmase, to the extent of 
 such lien : but they coulil not deleat the 
 plaintiffs' action altogether. 
 
 The l)ill of ladins signed by Collins at 
 New-Orleans was only [)riiua facie evidence 
 that the consignees were the owners of 
 the pro|ierty, and the letter of Bridge & 
 Vose, the shippers, which was sent to the 
 consignees with the bill of lading, was 
 sufficient to rebut the [jresumption and to 
 show that the [iroperty really belonged 
 to Otis Everett of Roston, in whose name 
 the suit was brought. Hcsides, oue of the 
 consignees was examined as a witness, 
 and iH'oved that Everett and not the con- 
 signees at New-York, was the real owner 
 of the goods. I have no doubt, therefore, 
 that the judgment of the supreme court 
 was i-orrect, and that it ought to be 
 affirmed. 
 
 By Senator VERPL.\N("K. This cause, 
 though of small magnitude as to the 
 amount of property in question, has lieen 
 contested in various forms through all the 
 courts to this tribunal of last resort. 
 
 The spirit of contentious litigation 
 ought to find little favor here; yet in this 
 instance, I think, the parties have de- 
 served well of the public, because the main 
 question in thecase Is of great importance, 
 and must frequently arise in a commercial 
 community. It ought, therefore, to be 
 distinctl.v settled on principles of general 
 application. That those principles are 
 not very clearly settled in our state, we 
 need no higher evidence than the manner 
 in which the cause now comes before us. 
 Thesui)remecourt havereversed the unan- 
 imous decision of the superior court of 
 law of the city of New-York, and on the 
 broad principles governing the questions 
 which we are now to decide, there is a 
 direct contrariet.v between the opinions of 
 our highest court of common law and 
 those of our most eminent commercial 
 tribunal, as delivered by their chief jus- 
 tice, vvho was formerly chancellor of this 
 state. 
 
 The main question depends upon and 
 inv<»lves the general rule that ought to 
 govern, bet ween the conflicting rights of 
 bona tide purchasers of personal property, 
 bought without notice of any opposing 
 claim, and those of the original owner, 
 divested of the possession or control of his 
 property by accident, mistake, fraud, or 
 misplaced confidence. The original owner 
 now claims his lead against purchasers 
 who bought for a fair price, in the usual ' 
 course of trade, from jiersons holding the 
 usual evidence (»f such property, (a bill of 
 lading endorsed to them,) and in actual 
 possession of the goods. Of these two in- 
 nocent parties, which of the two is to 
 bear the loss arising from the wi'ong do- 
 ing of the third? [ 
 
 The universal and fundamental princi- 
 ple of our law of pc'sonal property, is, 
 that nt) man can ne divested of his prop- j 
 erty without his own consent; and, con-' 
 sequently, that even the honest purchaser 
 
 under a defective title ca.nnot hold against 
 the true proprietor. That "no one can 
 transfer to jinother a better title than he 
 has himself;" is a maxim, says Chancellor 
 Kent, "(ilike of the .■omnion and the civil 
 law, and a sale, ex vi termini, imports 
 iiothing more than that the bona hde pur- 
 chaser succeeds to the rights of the ven- 
 dor." The only exception to this rule in 
 the ancient English jurisprudence was, 
 that of sales in markets overt, a custom 
 which has not been introduced among us. 
 "It has lieen frequently held in this coun- 
 try that the English law of markets overt 
 had not been adopted, and consequently 
 as a getieral rule, the title of the true 
 owner cannot be lost without his con- 
 '-ent." r2 Kent's Comni. 324, and cases 
 there cited.) 
 
 To whatever and however numerous es- 
 ce[)tions this rule of our law may be sub- 
 ject, it is unqucstionahy the general and 
 regulating principle, modilied only liy the 
 absolute necessify or the obvious policy 
 of human affairs. The chief justice of the 
 superior court has said, in his o|)iuion on 
 this case, that "it must be conceded that 
 a purchaser for a fair and valuable con- 
 sideration, in the usual course of trade, 
 without notice of any conflicting claim 
 or any suspiciouscircumstances to a v\ aken 
 inquiry, or to put him on lii.s guard, will, 
 as a general rule, be protected in his pur- 
 chase, and unaffected by any latent claim. 
 But there are exceptions to this rule." 
 Now, 1 cannot agree with thelearned chief 
 justice that this is the general rule. On 
 the contrary, I think it obvious that it is 
 hut the broad statement of a large class 
 ol exceptions to the operation of a much 
 aroregeneral principle, and that statement 
 of exceptions is subject again to many 
 limitations. I havestated thegeneral and 
 governing law; let us now see what are 
 precisely the exceptions to it. 
 
 The first and most remarkable class of 
 these exceptions relates to money, cash, 
 liank bills, checks, and notes payable to 
 the bearer or transferable by delivery, 
 and in short whatever comes under the 
 general notion of currt^ncy. It was decid- 
 ed by Lord Chief Justice Holt, at an early 
 period of our commercial law, that money 
 and bills i)ayableto hearer, though stolen, 
 could not be recovered sifter they had 
 passed into currency; and this "by rea- 
 son of the course of trade which creates a 
 property in the holder." "They i)nss by 
 delivery only, and are coiisiilered as cash, 
 and the possession always carries with it 
 the property." (Anon., 1 Salk. IL'6.) A 
 long series of decisions, beginning with 
 Millar V. Race, (1 Burr. •452.) has now set- 
 tled the law, that possession of such 
 paper is presumptive proof of property, 
 and that he who recei\ed it in the course 
 of trade for a fair consideration, without 
 any reason for just suspicion, can hold it 
 against the (rue owner, and recover on it 
 against the drawer, maker, and other par- 
 ties, even if the paper had been stolen from 
 or lost by the former holder; such lormer 
 holder retaining all hisoriginal rightsonly 
 against the thief or the finder, or whoever 
 received the p'aper from them under sus- 
 picions circumstances. These decisions 
 have lieen argue<l upon as authorities (at
 
 SALTUS V. EVEUETT. 
 
 679 
 
 IcHHt in tlie way of analofi.v t both at Imr 
 and ill opiiiioriH of tlip coiirtH. in cnscs iii- 
 volviii;r tlu; sniuc <jiit'Hti<jii hh to kooiIh or 
 utliur iiiovtilile inopcrty. Hence, it ivas 
 Inferreil that jiooiIk lioimlit or received " in 
 til? cuui-HU of IrucJe, island on tlie Hiiiiie 
 footins: witli hank iiotew or clieckH ro re- 
 reiveil." But an exaniiiiation of the caueH 
 will hIiow tluit tlii« part of tlie law of ne- 
 Ifotiahle paper rests on uroiindH quite pe- 
 culiar to itseli, for tlic folio wiiiji reaMiiiK: 
 1. The protection oi the liona fide holder 
 of reaper, transferalile liy delivery, extends 
 even to cases where the paper has been 
 lost or Htoleii. lint it has l)een often de- 
 cided that loss by accident, theft, or r(d)- 
 bery.does not divest the titleof the owner 
 of lioods. nor nive a title in them to a fair 
 after piirdiaser. '2. The rule is jmt by all 
 the authorities on the express and sepii- 
 rate Kronnd of the necessity of sustaiiiiu'; 
 the credit and circulation of the currency. 
 Thus Lord t'hief Justice llardwicke: "No 
 <lispute oimht to be niaile with tlie holder 
 of n cash note, who came fairl.v by it. for 
 the sake of currency, to which discreditiiiu 
 such notes woulil be a Kreat ilistiirbance. " 
 See, too, the reasoniiif^ of Lord Mansfield, 
 in »\l cases on this head decided before 
 him. Thus, says he, in the case of a stolen 
 Hole, Peacock v. Uliodes, ( l' l)ou;i. (!:{i; : ) 
 "An assignee must take tlie thiiiK assigned, 
 subject to all thoe(jiiity to wliicli the oritJ- 
 iiial party was subject. If this rule was 
 applied to bills, it would stop theii' cur- 
 rency." Similar reasons are assigned for 
 the same decision by .American jinli;es. ;j. 
 The analogy between notes and movables 
 or poods, is expressly denied in the lend- 
 ioK I'ases on this head. Thus, in rnply to 
 an arfiiimeiit founded on that siiuilarit.v, 
 l>oril Manstielil answers, (.Miller v. Kace, 
 1 I'lirr. 4.')7 : 1 "The whole fallacy of tlie ar- 
 cuiiient rests upon conipariii}; bank notes 
 t<i what they do not resemble, and what 
 they oufilit not to be comiiared to, viz., 
 Koods, or securities, or documents for 
 debts. Now, tliey are not sjoods. nor se- 
 curities, nor similar to them; they are 
 treated as cash to all iiurposes,' &c. 
 
 Setting wholly aside, then, this part of 
 the law as to cash, l)aiik n<jfes, and bills 
 to liearer, as founded on the peculiar ne- 
 cessities of curreiic.v and traile. and regu- 
 lated by rlecisions and iisa^res peculiar to 
 itself, what rules do we liiid to obtain in 
 other instances of conllict between the 
 ritfhts of ori;;iiial owners and those of fair 
 purchasers? .After a careful examination 
 of all the English cases and those of this 
 state, that have been cited or referred to, 
 1 come to this H;eiieral conclusion, that 
 the title of propert.v in ttiinns movable 
 can pass from the owner only liy his own 
 consent and voliinlary act. or l)y opera- 
 tionof law; liut that the honest purchaser 
 who buys for a valu.-ildi' considt ration, in 
 the course of traile, without notice of any 
 ailverse claim, or any circuii:staiices which 
 niiiiht lead a prudent man to suspect such 
 adverse claim, will be protected in his title 
 auaiiist the original owner in those cases, 
 and ill those oiil.v. where such owner has 
 by his own direct voluntar.v act conferred 
 upon the person from whom the liona 
 tide vendee derives title, the apfiarent 
 right of property as owner, or of disposal 
 
 asanoppnt. I llnl two dlntlnct cliissen 
 of cases under tliis head, and no more. 
 
 I. The lirst is. when the owner, with the 
 intention of sale, has in any way parted 
 with theaclual property of his poods, with 
 his own consent, thoiiph iimler such rlr- 
 ciimstances of fraud or error, as would 
 make that consent revocable, rescind the 
 sale, and authorize the rei-over.v of tlie 
 poods as apaiiist such vendee. liut It the 
 pr<u)erty passes into the liun<ls of honest 
 purchasers, the lirst owner must bear the 
 loss. Thus, to take an iiistunce from our 
 own reports, where goods were obtained 
 by a sale on credit, under n forged reconi- 
 mendatioii and guaranty, and then sold 
 to a bona tide purchuser in the customary 
 course of trade, the second buyer was pri>- 
 tected in his posseshlon against the de- 
 frauded originalowner. ( Mowrey v. Walsh, 
 H t'Dwen. iM:!.) So. again, where the 
 owner gave possession aiKl the iip[iarent 
 title of property to a purchaser, who gave 
 his wortliless note, in fraudulent contem- 
 plation of immediate liankrnptcy, a fair 
 )>urcliase from the fraudulent vemlee was 
 held to be good against tlie tirNt owner. 
 (Hoot V. French. 1:5 Weii.lell. .VJ. .See, 
 also. .Mct'arty v. Vickery, 12 Johns. K.,:t4s. ) 
 In all such cases, to protect the new pur- 
 chaser, there must be a full consent of the 
 owner to the iransfi'r of property, though 
 such consent might he tempi.rary only 
 obtaiiieil by fraud or mistake, and there- 
 fore revocable against such unfair pur- 
 chaser. 
 
 II. The other clnss of cases in which the 
 owner loses the right of following and 
 reclaiming his property Is, where lit has, 
 b.v Ills own voluntary act or consent, 
 given to another such evideticeof the right 
 of selling his goods as. accoriliiig to the 
 custom of trade, or the coir.inon under- 
 standing of the world, usually accompa- 
 nies the authority of iiinposal; or. to use 
 the language of Lord Kllenborough. when 
 the owner " has given the e.xteriial indicia 
 of the right of disposing of his property. " 
 Here it is well settled that, however the 
 possessor of such external indicia may 
 .'iliiise tlie conlideiiceof his principal, a sale 
 to a fair purchaser divests the tirst title, 
 and the authority to sell so c<rnferi-ed, 
 whether real or apparent, IH good against 
 him who gave it. 
 
 1 lius, the consignee, in a liill of lading, 
 is furnished by his consignor with such 
 evidence i>f right of disposal, according to 
 the custom and law of traile. so that the 
 bona tide hoMerof the bill endorseil liy the 
 consignee is entitled to all the rights of 
 property of the consignor in those gooiU. 
 if bought fairly in the course of buKlness, 
 although the actual consignee, uinler 
 whose endorsement he holds, has no rijjht 
 to the goods as ng.'iinst the formerowier. 
 H such gooils were not paid tor. they 
 niiglit liestopped intraiiHilii b.v theowrer, 
 unless his consignee has iiln-ady assigne<j 
 his bill of lading; but that assignineut 
 divests the owner of his right of btoppuge 
 against such assignee. 
 
 The famous series of decisions In the 
 varioas courts in the case of Lickliarrow 
 V. Mason. {.•- T. H. iVl; :.• H. Dlack. K. I'll; 
 ,tT. It. :tr.7,l which led to the estalillsh- 
 nientof the doctrine uf this qualllkHl nci;u-
 
 680 
 
 SALTUS V. EVERETT. 
 
 tiability of bills of lading, njemorable alike 
 in lesal anil commercial history, strongly 
 illustrateH the whole question before lis. 
 There, HiiUer antl his associate judges, 
 trained up at the feet of the great father 
 of Iiiris'lish commercial jnrispniilence, main- 
 tained and established the law as we now 
 hold it, under the influTice of Mansfield's 
 genius upon his reasoning and on his au- 
 thority, against those of Lord Loughbor- 
 ough and others, tlie most learned law- 
 yers of their times. .Ml the arguments 
 and admissions of l)oth sides thow how 
 deeply the general i)rin( iple is root(Ml in 
 the law of England, that (to use Lord 
 Lough'iiorough"s words) "mere posses- 
 sion, without a just title, gives no prop- 
 erty, and the person to whom such pos- 
 session is transferred by delivery must 
 take the hazard of the title of its author." 
 It is only as an e.\|)ress exception to this 
 rule that it was maintained, and finally 
 established, that the custom of merchants, 
 evidenced and sanctioned by legal deci- 
 sions, and fonnded on those conveniences 
 of trade, so admirably stated i>y Buller, 
 had compelled the courts to consider the 
 owner as giving his consignee evidence of 
 the iiower of disposal, which it was not 
 for him to dispute when the goods had 
 fairly passed into other hands, on the 
 faith of that evidence. But there is no 
 case to be found, or any reason or anal- 
 ogy anywhere suggested in the books, 
 wliich would go to show that the real 
 owner could be concluded by a bill of lad- 
 ing not given by himself, hut by some third 
 person, erroneously or fraudulently, as in 
 this present case. The assignment of the 
 bill of lading conveys, not an absolute 
 right to goods, but the right and title 
 merely of the actual consignor, who alone 
 is bound by it. 
 
 Again: the owner ma.v lose the right 
 of recovering his goods against purchas- 
 ers, by exhibiting to the world a third 
 person as having power to sell and dis- 
 pose of them ; and this, not only by giv- 
 ing a direct authority to him, but by con- 
 ferring an implied authority. Such an 
 authurity may be implied by the assent to 
 and ratilication of prior similar dealings, 
 so as to liold such person out tt) those 
 with whom he is in the habit of trading, 
 as authorized to buy or sell. It ma3' be 
 inferred from the nature of the business of 
 the agent, with lit accompanying circum- 
 stances- "If a man," says Bayley, J., in 
 Pickering v. Busk, (1.5 East, 44,) "puts 
 goods into another's custody, whose com- 
 mon business it is to sell, he confers an ira- 
 plieil authority to sell," and the cause 
 was decided on that ground. But this 
 implied authority must arise from the 
 natural and obvious interpretation of 
 facts, according to the habits an<l usages 
 of business; and it never applies where 
 the (diaracter and business of the person 
 in possession, do not warrant the reason- 
 able presumntion of his being em])owored 
 to sell propertj' o! that kind. If, there- 
 fore, to use an illustration of Lord Chief 
 Justice Ellenborough, in the case just cit- 
 ed, a person entrusts his watch to a 
 watchmaker to be repaiied, the watch- 
 maker is not exhibited to the world as an 
 owner or agent, ami credit is not given as 
 
 such, because he has posse-^ision of the 
 watch, the owner, therefore, would not 
 be bound by his sale. When these excep- 
 tions cease, the geiitral rule resumes its 
 sway; and the law is therefore clear, that 
 an agent, for a particular purpose, and 
 under a limited i)owei', cannot bind his 
 principal if he exceed his power. " Who- 
 ever deals with an agent constituted for 
 a special puri).>8e, deals at his iieril, when 
 the agent passes the precise limits of his 
 power." ("J Kent's Coium. Glil, and the 
 authorities there cited.) 
 
 Beyond the precise exceptions I have 
 above stated I think our law has not car- 
 ried the protection of the fair vendee 
 against the defrauded or unfortunate 
 owner. It protects him when the owner's 
 misplaced confidence has voluntarily given 
 to another the apparent right of property 
 or of sale. But if the owner loses his prop- 
 eity, or is robbed of it, or it is sold or 
 pledged without his consent b.y one who 
 lias only a temporary right to its use by 
 hiring, or otherwise, or a (jualitied pos- 
 session of it for a specific purpose, as for 
 transportation, or for work to be per- 
 formed on it, the owner can follow and re- 
 claim it in the hands of any person, how- 
 ever innocent. Among the numerous 
 cases to this effect, 1 will cite only that of 
 Hoare v. Parker, (2 T. R. :!7(j,) which I 
 select not only on account of the strong 
 and unhesitating manner of the decision, 
 but because it was pronounced by the very 
 judges who, in the case of Lickbarrow v 
 Mason, had carried the protection of a 
 bona tide purchaser under a bill of lading 
 far beyond tlie rig(;r of the ;Kicient la w. 
 There, plate had been pawned by a widow 
 who had only a life interest in it under her 
 husband's will, of which fact tlie pawnee 
 had no notice. It was not doubted that 
 the lien for the moneys advancecl on such 
 pledge was void against the remainder- 
 man, after the widow's ileatli. "Per 
 curiam: This point is clearly settled, and 
 the law must remain as it is, until the 
 legislature think it tit to provide that the 
 possession of such chattels is proof of 
 ownersliip." J n order to decide in such 
 conflicts between the claims of equally 
 meritorious sufferers by the wrong of a 
 third party, pul)lic policy must draw an 
 arbitrary line somewhere, and ihegreatest 
 merit of siicli a rule must be its certainty 
 and uniformity. 
 
 The rule of our law, as I nuderstand it, 
 is perfectly consistent with the equity be- 
 tween the parties, as far as such equity 
 can apply; and it serves the great inter- 
 ests of commerce, in a state of such exten- 
 sive foreign and domestic trade as ours, 
 by protecting the property of thestranger, 
 as well as of our own citizens, against the 
 possilile fi-auds of carriei's by sea, or by 
 internal transportation, whilst it throws 
 uiion the resident merchant the responsi- 
 bility of taking care with whom he deals, 
 and teaches hitu a less(jn of wholesome 
 caution. It is no mean proof of the wis- 
 dom of the rule, that it agrees in substance 
 with the provisions of tlie Napoleon Code. 
 The Code, like our la^v, hohis as a general 
 rule, that the sale of goods by any but the 
 true holder, is a nullity; "La vente de la 
 chose d'aiitrui est nulle." (Code Civil III.
 
 SALTUS V. EVERETT. 
 
 681 
 
 art. LIOO.) It conliiieB the nuthority of 
 tlio H|ii'rijil aRi'iit ur niaiida tiiire to the 
 Htrict limits of hin power; anil in naloH, 
 thi- power must always bo Hpecial anil ox- 
 preHH. (Code Civil, art. '.ils'J.) It allowH 
 the ri^ht of revetiilication or Ktojipajje In 
 traii.silii aKaiiiKt the insolvent or rraiiilu- 
 lent parchaser or eoiisiKneo; hat that 
 rif^ht eeasPH, as Willi us, ai;ainst the con- 
 signee, when the kooiIs have been fairly 
 sold aceorilhiK to the hills of ladinf;; "ven- 
 dues sans frauile sur factures et oonnaisse- 
 ments. " (Code de Commerce, Liv. 111.. 
 art. .07G, .177, .">7S.) The Seotili law, as 1 
 gather from Itell's Commentaries, lays 
 down a different rule, that "a purelinser, 
 in the cour.se of trade, should he protected 
 in the imrehase of floods from any one 
 who has them iii lawful possession." 
 Tills agrees with the doctrine of our supe- 
 rior court, and miiiht he a safe enough 
 rule if •;< iierally adopted and nndcrstooil. 
 r.ut it is not the rule of our own law, j 
 which is perhaps nuito as wise, as well as 
 certainly founded on a much larger and 
 wider commercial experience. 
 
 Let us apply these conclusions to the 
 present case. Collins, the person whose 
 sale it is asserted must divest the ori)>inal 
 owner of his rlKlits in favor of the l)oua 
 tide purchaser, stands, it is said l)y the su- 
 perior court, in a double relation of "a mas- 
 ter, who is at the same time the consignee 
 of the fj;oods, and who himself filled the 
 character of shipper, and has thoi'eforo an 
 undoubted power to sell, and his bona fide 
 transfer will he effectual to purchasers 
 a;;:.iiMst any secret trust for others with 
 which his apparent title mitfht be aflect- 
 cd." Had the lead been cousiHned to Col- 
 lins from the intermediate port, l)y the 
 owner or his aKent, this would be true. 
 Hut it isshii)iieil by Myers, of whom neither 
 the owner, nor any one with full power to 
 represent him in this matter, had any 
 knowledge as an a^ent, and under whose 
 care the vessel and car;io were placed by 
 Collins, so that he appeared only as his 
 representative, and tlius he styles himseif 
 in the bill of lading- 'Ihe plaintiff below 
 comes in no wise within the rule I have 
 stated, lie has neither siven to Collins 
 documentary and mercantile evidence of 
 property in a bill of lading from himself or 
 his own aui'iit with comi)etent power, nor 
 the evidence customary in business, such 
 as to Ixdil him out as anag<-nt authori7,eil 
 to change the title of his property in his 
 goods. 'l"he assumed authority of ship- 
 ping goods in his own name arid to his 
 own order, at Norfolk, and the documen- 
 tary evidence of it in the bill of lading, can 
 have no more effect as to the title of the 
 pri)t)erly, than if he had forged such a bill 
 of lading at New (Orleans. 
 
 Neither does the selection of a ship and 
 Its master vest in the master any implied 
 authority to sell the ship, or any part of 
 her cargo. His business is to carry the 
 goods, and no 'more, with some other 
 clearly delined and very limited powers, to 
 lie exercised only in cases of abs<dutenc-i 
 cessity. He stands In the same legal rela- 
 tion to his cargo with the watchmaker, in 
 the case supposed by Lord Kllenborough, 
 who has in his hands a watch to be re- 
 paired. He is not exhibited to the world ; 
 
 as the owner, or agent for Belllnii: and If 
 he does sell it, the sale is void agalast the 
 true proprietor. 'Ihe law of shlpiilng Ih 
 well known to the commercial world, to 
 declare that the master has no authority 
 to sell the cargo, or any part of it, uuIchh 
 under circumstances of pressinj; necessity 
 abroad; and of that absolute necessity, 
 the burden of proof rests on the pur- 
 chaser, and the presum|)tion Is against It. 
 .Vs.ludge liayley states the law. ( .Morris 
 v. Roliinson, 3 Uara. & Cress. l'J4;.i"The 
 caplain has no right to act as agent for 
 the owner of the goods, unless in absolute 
 necessity. The purchaser obtains no, irup- 
 erty liy the act of his professing to sell." 
 And this was held where the master acted 
 in perfect good faith. How much 
 stronger is the case of u probable fraud! 
 'i'hus again, in Freeman v. East India Co., 
 (5 Harn. & Aid. Ol'J,) Abbott, Ch. J., savH, 
 "a Rale of a cargo, or any part of It, by 
 the master.can conferno title, uidess there 
 was an absolute necessity ," and the rea- 
 son of the rule is thus assigned by.ludge 
 Best in the same case: " .\ carrier by sea 
 and by laud stands in tl.esnuie relation 
 
 to the owner of g Is to be carried. 
 
 Their duty is to carry the goods, and the 
 authority only such as is necessary. The 
 purchaser, knowing that necessity alone 
 can justify the sale, and give him n title to 
 what he bu.vs, will assure himself that 
 there is a real necessity for tlie sale liefore 
 he makes the purchase; and caution on 
 his part will prevent what has Irei|uently 
 happened, the fradulnent sale of ships uiid 
 cargoes in foreign i)orts." Such. then, be- 
 ing the well-settleil ami generally Unown 
 law, the selection of a master or any 
 other carrier, by sea or land, does noth- 
 ing to exhibit such carrier to the world .ns 
 having theiiowerof disposiiigol thegoods 
 he carries. The owner does nothing to 
 enable him to comuiil a friiud on third 
 persons. He gives merely a qualilied pos- 
 session, and if that ia turned into an as. 
 sumed right of ownership, it is tortious 
 conversion, and will not divest the own- 
 er's title. 
 
 It is true that the rule will aoinetinies. 
 as was urged by Chief Justice .Jones, "in- 
 volve purchasers in great perils;" hut 
 that i)eiil can scarcely he called "unrea- 
 sonable, " since there is a reason of public 
 policy of at least eiiual weight to counter- 
 balance this inconvenience. It Is the same 
 which is the ground of the ahsidute pro- 
 hibition ton master or carrier to sell the 
 goods he transports except under Insur- 
 mountable necessity ; It is to prevent. In 
 the language of the court in the case just 
 quoted, (.") iSarn. vt .Mil. t>l';l.) "fraudulent 
 sales of ships and cargoes ia foreign 
 ports." .Now the fraudident consign- 
 ments or change of the apiiarent evidence 
 of property for the purpose of selling else- 
 where, is but another form of the same 
 evil. I may add that this same ride, how- 
 ever rigid and occasionally hard in its op. 
 (■ration, is no small safeguard to the prt)- 
 teetlon of the owner's rlgiits In goods and 
 other (iroperty, in active coiunierce nei-es- 
 sarily pl.-iced linder the temporniy control, 
 and in the legal though (lualilled posses- 
 sion of .'igents. sailors, carriers, boatmen, 
 servants, and clerks, as well as of those
 
 082 
 
 SALTUS V. EVERETT. 
 
 who may have them stored for safe keep- 
 ing, ami their clerks, porters, and serv- 
 auts. 
 
 On the other question, as to the right 
 of the defendants below to stand in the 
 place of their vendor, and to he protected 
 to the extent of the charges on the lead 
 for freight, as claimed by Collins, I need 
 say but little. The right of lien in such 
 circumstances, (if any right exists here.) 
 depends upon actual possession by the 
 factor or carrier, or his immediate agent. 
 When the goods are sold and delivered to 
 a third person, the lien, as such, expires 
 with the possession. This is the distinc- 
 tion between the present case and the for- 
 mer suit against Coffin & Cartwright, 
 who were immediate agents or bailees of 
 Collins. 
 
 The two courts below have agreed in 
 deciding against the validity of the objec- 
 tions to the evidence raised on the trial of 
 
 the cause, and I have nothing to add to 
 the reasons they assign; to all which I 
 fully assent. 
 
 The importance of the principles and 
 rules not only of decision but of active 
 business involved in this cause, especially 
 in relation to that vast and busy com- 
 munity which I immediately represent in 
 this body, has lead me to examine this 
 whole head of law with an interest and 
 at a length wholly disproportioned to the 
 amount of value in controversy. If the 
 views I have been able to present shall in 
 any way, directly or indirectly, tend to 
 settle the law on this head, or make it 
 more clearly and correctly understood, 
 the study 1 have given the subject will 
 have been well bestowed. 
 
 I am of opinion that thejudgment of the 
 sui)reme court, reversing that of the supe- 
 rior court of New-York, be affirmed. 
 
 Judgment unanimously affirmed.
 
 I
 
 SANBORN V. FLAGLER. 
 
 685 
 
 SANIJORX et al. v. FLAGLER. 
 (9 Allen, 474.) 
 
 Supreme Jmlirial Court of &las.sachusetts. 
 Nov., 1SG4. 
 
 Contract hrnuclit t)y plnintiffn, who 
 were pnrtncrH under the firm u( Siinlioin, 
 HicharclKoii & Co., iiK"iiiHt .John H. Fhiyiler 
 
 and llcjidune, uh partners under the 
 
 llrm of lloldtinu & Co. The writ wmh 
 Herved only upon Klau'er. The plnintirtH 
 alleged that the defendants had refused to 
 deliver to them fifty tons of hewt relined 
 iron, in areordanee with a written agree- 
 ment etilereil into between them. The de- 
 fendant wet up amouK other defeuHes the 
 statute of frauds. One of the |)laintiffs 
 was called to the stand, and iirodueed to 
 be offered In evidence a paper, of which the 
 followiuK is a copy as nearascan beniade: 
 
 •■ Will deliver S. K. & Co. best rehned Iron 
 50 tons within 90 days — at .'i ct p lb 4 of 
 cash. I'lates to be 10 to 10 inches wide 
 and 1) ft to 11 louK- This offer j^ood till li 
 o'clock Sept. 11, 1802. .1. U. F. .1. U. R." 
 
 The defendant objected that the paper 
 wasnot a suflicient memorandum in writ- 
 ing of the aliened bargain signed by tin- 
 party to be cliary:ed, and that parol evi- 
 dence was not ndmissibleso as to make it 
 such a memorandum as co\ild be admitted. 
 Thejud^e ruled that the paper was a sudi- 
 eient memorandum, and would bind the 
 defendant if he was a member of the firm 
 of Holdane & Co. The witness then testi- 
 fied that the a^reenjent was wiitten by 
 him, and that he and the deleiidant si;;ne(! 
 their initials, the defendant writing tin- 
 initials ".I . II. F., " and he the initials".!. 
 U. H. ;" and that before the defendant left 
 the plaintifl's ollice, and before 1' o'clock. 
 he accepted the proposition, and so stated 
 to the defendant verbally. The witness 
 testitied that he sijrned his initials on be- 
 half of the plaintiffs, and that he under- 
 stood the defendant to si>;n for the firm 
 of Holdane & Co. This evidence was not 
 denied by the defendant. The ,iud;ie ruled 
 that said paper, with the exiilanation 
 given, if Richardson w;is believed, was a 
 Blitlicient note or men)orainhim, and was 
 binding o" the <lefendant if the jury found 
 him to be a partner as alh'Ked. The jury 
 found a verdict for the plaiutiffs. and the 
 defendant alleged exceptions. 
 
 A. A. Ranney, for plaintiffs. C. T. Rub- 
 sell, for defendant. 
 
 DI(iELt)\V,C. .1. The note or memoran- 
 dum on wliicli the plaintiffs rely to main- 
 tain theiraction contains all the reiiuisites 
 essential to eon-ititute a binding contract 
 within the statute of frauds. It is not de- 
 nied l)y the defendant triat a verbal ac- 
 ceptance of a written offer to sell mer- 
 chandise is sufficient to constitute a com- 
 plete and obligatory agreeiiicnt. on whii-h 
 to charge the i)erson by whom it is signed. 
 In such case, if the memorandum is other- 
 wise sullicicnt when it is assented to by 
 him to whom the proposal has been made, 
 the contract is consummated by the meet- 
 ing of the minds of the two parties, and 
 the evidence necessary to render it valiil 
 and capable of enforcement is supplied liy 
 thesigaature of the party sought to be 
 
 charged to the offer to sell. Indeed, the 
 rule being well settled that the signature 
 of the defendant only is necessary to 
 make a binding Contract within the pro- 
 visUjns of the statute relating lu saleH of 
 merchandise, it necessarily fi>llowri that 
 an offer to sell and an express iigreement 
 to sell stand on tne same fooling, iaari- 
 tiiucli MS the latter, until it is accepted liy 
 the cither |»arty, is in effect nothing more 
 than a proposition to sell un the terms 
 indicated. Tlie acceptance of the contract 
 by the parly seeking to enforce it may al- 
 ways l)e provetl by evidence aliunde. 
 
 The objections on which the defendants 
 rely are twofold. The hrst is that the 
 note or memorandum does not set forth 
 upon its face, in sucli manner as to lie un- 
 di-rstood by the court, the essential ele- 
 ments of a contract. Rut tills position is 
 not tenable. 'I'he nature and ilescription 
 of tli<- merchandise, the i|nantity sold, 
 the price to lie paid therefor, the terms of 
 payment, and the time witliln which the 
 article was to lie delivered, are all cl"-arly 
 set forth. But it is urged that the paper 
 does not disclose which of the parties is the 
 purchaser and which the seller, and that 
 no purchas<>r is in fact named in the pa- 
 per. This would be a fatal olij'-ction if 
 well founded. There can be no contract 
 or valiil memorandum of a contract which 
 does not shew who are the contracting 
 parties, liut there is no such defe<-t in 
 the note or niemoran<ium lielil l)y the 
 plaintiffs. Tlie stipulation is explicit to 
 deliver mercliannise to S. R. A; Co. It cer- 
 tainly needs no argument to demoiistr.ite 
 that an agreeiiipnt to deliver goods at n 
 li.\ed price and on si ecilied terms of pay- 
 ment is an ngreeinent to sell. D?livfry ol 
 goods at a stipulated price constitutes a 
 sale; an agreement for sucli delivery Is a 
 contract of sale. Nor can there be any 
 doubt raised as to the intrinsic import of 
 tin- memorandum concerning theeharac- 
 ter or capacity in which the parties are 
 intended to be named. A stipulation to 
 deliver merchandise to a pers<in clearly in- 
 dicates that he Is the purchaser, because 
 in every valid sale of goods delivery must 
 be macie by tlie vendor to tlie veiidet-. We 
 can therefore see no ambiguity in the in 
 sertion of the name of the purchaser or 
 seller. Tlie case is much stiongcr in favor 
 of the validity of the nii'moiii:nliiin in this 
 respect tlian "that of Snlinon Falls Maiiiif. 
 Co. v. (ioildard. U How. 440. There only 
 the names of the parlies were Inserted, 
 withiilit any word to indicate which was 
 the Imyer and which was the seller. It 
 was this uncertainty in the memorandum 
 which formed the miiin ground of the>ery 
 able dissenting opinion of .Mr. .lustice 
 Curtis ill that case. So in the leading ease 
 of iSailey v. Ogden, :i .Itihns. ;i"JU, there 
 was not fling in the memorandum to shew 
 which of the two parties named agreed to 
 sell the merchandise. Hut in the case at 
 bar. giving to the paper a reasonalile lii- 
 terprelation, as a brief document drawn 
 up ill the haste of business and Intended 
 to express in a few wonls the terms of H 
 bargain, we cannot entertain a doulit 
 that it indicates with siiltlcieiit clearness 
 that the pliMiitiffs were the purchasers, 
 and the dch-ndant the seller of the iiier-
 
 686 
 
 SAXBOUN V. FLAGLER. 
 
 cliandise, on the terms therein expressed. 
 Indeed we can see no reason why a writ- 
 ton agreement by one party to deliver 
 goods to another party does not as clear- 
 ly shew that the latter is the pnrchaser 
 and the former the seller as if the agree- 
 ment had been in express terms by one to 
 sell goods to the other. 
 
 The other objection to the memoran- 
 dum is that the name of the party sought 
 to he charged does not appear on the face 
 of the paper. If by this is meant that the 
 signatures of all the persons who are 
 named as defendants are not affixed to the 
 memorandum, or that it is not signed 
 with the copartnership name under which 
 it is alleged that the persons named as de- 
 fendants do business, the fact is certainly 
 so. But it is not essential to the validity 
 of the memorandum that it should be so 
 signed. An agent may write his own 
 name, and thereby bind his principal; 
 an<\ parol evidence is competent to prove 
 that he signed the memorandum in his 
 
 capacity as agent. On the same principle, 
 a (lartner maj' by his individual signature 
 bind the firm, if the contract is within the 
 scope of the business of the firm, which 
 may be shewn by extrinsic evidence. 
 Soames v. .Spencer, 1 D. & R. 32; Long on 
 Sales. 38; Browne f>n Statute of Frauds, 
 !j :!(;7 ; Higgins v. Senior, S M. & W. s;j4; 
 Williams v. Bacon, 2 Gray, 387, 393. Be- 
 sides, in the case at bar, the action is in 
 effect against Flagler alone. He only ha.=i 
 been served with process and appears to 
 defend the action. Whether he signed as 
 agent for the firm or in his individual ca- 
 pacity is immaterial. In either aspect he 
 is liable on the contract. 
 
 It is hardly necessary to add that the 
 signature is valid and binding, though 
 made with the initials of the party only, 
 and that parol evidence is admissible to 
 explain and apply them. Phillimore v. 
 Barry, 1 Camp. 513; Salmon Falls Manuf. 
 Co. v. Goddard, ubi supra; Barry v. 
 Combe, 1 Pet. 640. Exceptions overruled.
 
 SANGER V. WATEKBUUr. 
 
 689 
 
 SANGKll et al. V. WATERBURY et al. 
 
 (•,"•: N. E. Rep. 404, 116 N. Y. 371.) 
 
 Court of Appeals of New York, Second Divis- 
 ion. Oct. 22, 18*9. 
 
 Appeal from jiuigment of the general term 
 of tlie supreme court, in the second jmliciul 
 department, entered iijion an order made De- 
 cember 14, 188G, wliieli aliirraed a judgment 
 in favor of llio defendants, entered upon a 
 verdict directed by the court. This was 
 an action of replevin brought to recover the 
 possession of 238 bags of coffee identilied 
 and described in the complaint as follows: 
 "89 bajis, marked Xo. G, II. L. U. & Co., 
 
 D. 15. & Co.; 32 bags, marked No. 8, H. 
 h. IJ. & Co., D. B. & Co.; 14 bags, marked 
 No. 10, II. L. H. & Co., D. 13. & Co. ; 2'J bags, 
 marked No. 12, II. L. 15. & Co., D. 15. & Co.; 
 68 bags, marked No. 14. II. L. IJ. & Co., D. 
 15. & Co.; 6 bags, marked No. 1(3, II. 1,. 15. & 
 Co., U. B. & Co." The complaint alleged, 
 and the answer atlmitted, "that on or about 
 the 22d day of July, 1885, the said goods 
 * * * were sold by the plaintiffs to the 
 defendants John K. Huston and James E. 
 Huston, * * * on the credit of sixty 
 days for one-half thereof, and of ninety days 
 lor the balance Iheieol." Itappeared thai the 
 plaintiffs, on the tjth day of July, 1885, pur- 
 chased of Boulton, Bliss & Dallett 005 bags 
 of coffee, then stored with E. 15. Bartlelt & 
 Co. On the 22dday of July the plaintilfssold 
 the 238 bags of coffee hereinbefore referred 
 to to J. K. Huston & Co., of I'hiladelidiia. 
 That (irni, on the 24th day of .luiy, up- 
 on the security of the coffee thus purcliaseJ, 
 borrowed from the defendants AVaterbnry i^- 
 Force .$2,300, and then transferred thecoffrc 
 to llieiii. On .luly 27lli following, said (irni 
 failed, making a general assignment. On 
 the next day, the plaintiffs commenced this 
 action, by means of which the < offee was 
 taken from the poss"ssion of Waterbury & 
 Eorce. The coffee then w;is, as it had been 
 from the time of the purchase by the plain- 
 tiffs, actually deposited in the warehouse of 
 
 E. 15. Barllett <& Co., and had not iisyet been 
 weighed. 
 
 William W. Goodrich, for appellants. Ed- 
 ward N. Sht/iard, for resiwndents. 
 
 Paukeu, J., {after stati..g the facts as 
 iibore.) The appellant contends that the title 
 to the coffee in controversy did not pxss to J. 
 K. Huston & Co., and that therefore the trans- 
 fer to Waterbury & Force di 1 not vest in 
 them the title or the possession. The sale 
 is admitted; but as the cotTee had to be 
 Weighed, in order to ascertain the amount to 
 be paid to i)laintilTs, it is insisted that the 
 title remained in the plaintiffs. In aid of this 
 LAW SA Lies— 44 
 
 contention is invoked the rnle that where 
 something remains to be done by tlie seller to 
 ascertain the identity, quantity, or quality of 
 the article sold, or to put it in the condition 
 which the contract requires, tlie title remains 
 in the vendor until the condition be complied 
 with. The appi.-IIant cites a number of au- 
 thorities which, he urges, so apply this rule 
 as to make it appl, cable to the case here pre- 
 sented. It is said in Groat v. Gile, 51 N. Y. 
 431, that this "rule has reference to a sale, 
 not of specific property clearly ascertained, 
 but of such as is to be separated from a larger 
 quantity, and is necessary to be identilied be- 
 fore it is susceptible of delivery. The rule or 
 principle does not apply where the number 
 of the particular articles sold is to be ascer- 
 tained for the sole purpose of determining the 
 total value thereof at certain specified rates, 
 or a designated fixed price." This distinc- 
 tion is recognized and enforced in Crofoot v. 
 Bennett, 2 N. Y. 258; Kimberlv v. Patchin, 
 19 N. Y. 330: Bradley v. Whee'ler, 44 X. Y. 
 495. In Crofoot v. Bennett, supra, the court 
 say: "If the goods sold are clearly identified, 
 then, although it may be necessary to num- 
 ber, weigh, or measure them, in order to as- 
 certain what would be the price of the whole 
 at a rate agreed upon between the parties, the 
 title will pass." This expression of thecourt 
 is citeil with approval in Burrows v. Wliita- 
 ker, 71 N. Y. 291, in which case, after a full 
 discussion of the authorities, the court ap- 
 proved the rule as laid down in Gro.it v. 
 Gile, supra. Now applying that rule to the 
 facts in this case, nothing remained to be 
 done in order to identify the goods sold: be- 
 cause while, out of u larger lot, 23S b.igs of 
 coffee were ilisposed of, nevertheless, as ap- 
 pears from the complaint and the testimony 
 adduced, the bags were so marked that there 
 was no ditficulty about identifying the par- 
 ticular bags sold. There remained, there- 
 fore, nothing to be done except to weigh (he 
 coffee for the purpose of ascertaining the pur- 
 chase price; for whether the 2^38 bags of cof- 
 fee should prove to weigh more or less than 
 the parlies anticipated was not of any con- 
 sequence. Whatever should prove to be. 
 for that number of pounds J. K. Hus- 
 ton & Co. had agreed to pay. This case, 
 therefore, does not come within the rule con- 
 tended for by the appellants, but. insiead. is 
 governed by the principle enunciated in Groat 
 V. Gile. Having reached the conclusion that 
 the title and the possession passed to J K. 
 Huston & Co., it becomes unnecessary to 
 consider any of the other questions discussed, 
 for the plaintiffs are without title upon which 
 to found the right to maintain an action. 
 The judgment appealed from should be af- 
 firmed. All concur.
 
 SAWYKK 0. DKAX. 
 
 691 
 
 SAWYER V. DEAN. 
 
 (31 N. E. Rep. 1013, 114 N. Y. 469.) 
 
 Court of Appeals of New York, Second UivisiOD. 
 June 4, 18(59. 
 
 Chas. A. Clfirk, for appellant. Win. P. 
 Cantwell, for respoiiUent. 
 
 PoTTEit, J. This is an appeal by the de- 
 fendant from a jiulgraent of tlie (general 
 term of the Foil rLli (iejiartment, allirining a 
 judgment agaiiust liiiii on a trial before llie 
 court at si)ecial term. The action is brought 
 to recover damages alleged to have been sus- 
 tained by Franklin Sawyer, assignor of the 
 plaintiff, in conse'iuence of tlie neglect and 
 refusal of the defiiidant to accept and pay 
 for a car-load of ."lOO liidcs that ho had or- 
 dered and purchased of said assignor, and di- 
 rected to be shipped from Chicago, where 
 said Franklin Sawyer resided and where the 
 hides were, to Owego in the state of New 
 York, where the defendant had a tannery in 
 which lie was conducting, on a more or less 
 extensive scale, the business of tanning hides 
 into leather. The bargain for the hides was 
 made through corres])ondence l)y letter and 
 by telegraph coininunicatioiis between tlie 
 parties. Alter the arrival of the hides at 
 Owego, and some correspondenc ■ bv tele- 
 grams and by letter, and the sending an 
 agent by the plaintiff to Owego to see the 
 defendant, and after an interview with the 
 gentleman so sent by the plaintiff with de- 
 lendant's assent at C)we-;o, the defendant 
 linally refused to receive the hides unless he 
 had an opportunity of taking them from tlie 
 depot to his factory, and tliere opening and 
 examining, if not testing and proving, them. 
 This the plaintiff reliises to allow the de- 
 fendant to do, and gave liim notice, at the 
 proper time and manner, that unless he ac- 
 cepted the hides in accordance with the con- 
 tract, and especially if he refused, after the 
 offer which had been made, to examine the 
 hides at the railroad station, upon a |ilatform 
 or in a car, the hides wouUl bo relumed to 
 the seller in Chicago on account of tlie re- 
 fusal to receive and pay for the same, and 
 would there be sold for the best price that 
 could be obtained for them, and defendant 
 would be charged with the difference be- 
 tween the price brought on the sale at Chica- 
 go and the price agreed upon, together with 
 the necessary expenses growing out of send- 
 ing the hides to and return from Owego, and 
 otiier incidental expenses occiisioned by the 
 refusal of the defendant to receive and pay 
 for in accordance with the contract. This 
 action is brought to recover that difference 
 and those expenses, — that is, the difference 
 between the contract price and the price at 
 which they were sold at Chicago, — and this re- 
 covery is based upon that difference in the 
 price and these expenses. 
 
 This correspondence by telegram and by 
 letter commenced on or about the 20th day 
 of October, 16B2, and was carried on for a 
 
 few ilays, and culminated, as the trial court 
 found, in an agreement to purchase, on the 
 part of the defendant, the .5U0 hides, specify- 
 ing the price per pound and quality of the 
 hides; and that, in pursuance of such con- 
 tract and purchase, the plaintiff's assignor 
 shipjied the hides on the 4th of November to 
 his own order, accompanied by a draft on the 
 defendant, sent through a bank at Owego; 
 the hides to be delivered to the defendant 
 upon payment of the draft, ami the carrier 
 of the railroad company was directed to de- 
 liver them accordingly. When the hides ar- 
 rived at Owego on or about the 11th of No- 
 vember, 1882, notice was given to the agent 
 or person in charge of the defendant's tan- 
 nery that they had arrived. And at this point 
 the question in controversy arises whether 
 the defendant was hound, under the contract 
 ma<le between him and plaintiff's assignor, to 
 take the hides, and pay the draft, w ithout any 
 examination or inspection of them, or wheth- 
 er under the contract he was entith?il to an 
 insjjection of the hides before accepting the 
 draft, or paying the draft, or acceptance of 
 the hides. There had been nothing said in 
 these negotiations or correspondence between 
 the parties until alter the hides were shipped 
 on tlie -Ith of Noveniher, as before stated, in 
 res[)ect to the time or manner of payment 
 for the hides. The trial court found that 
 this contract wjls consummated, and found 
 the contract, by a inodilication or waiver, re- 
 sulted in giving to the defendant the right 
 that he claimed, namely, to an exainiiiatioiiof 
 the hides hefort- an accei)tance of them, or 
 acceiiting the draft and paying it. The court 
 should, 1 think, from the evidence have found 
 the correspondence between the ; hiiuiilf's 
 assignor and the defendant, commencing 
 with the letter of inquiry on the 20ih of 
 October and the actual shipment on Novem- 
 ber 4th, that the defendant ordered of plain- 
 tiff's assignor .">IM.) hides, the quality of which 
 was specilied in tliecoi respondence, at prices 
 named per pound for the hides, and the same 
 were to be selected by plaintiff's asi^ignor for 
 the delendant, and the plaintiff's assignor 
 did ship the hides accordinjily in his own 
 name; and the same were received at the 
 railroad station near defendant's tannery 
 in good order and in due time. The law 
 arising upon such finding is that the defend- 
 ant had no right to test or prove the hides, 
 and was not entitled to the possession of 
 them for that or any other purpose until 
 they were paid for. 
 
 Upon the ordinary agreement to sell and 
 to purchase personal property, in the absence 
 of any agreement or provision in the agree- 
 ment as to the lime or manner of p.iyment, 
 delivery and payment are simultaneous acts; 
 and, as a tender is equivalent in law to per- 
 . forniance, a Iciuler of delivery or payment 
 j by one person to llic other gives the person 
 i making the tender the right to enforce the 
 I performanceof the contract against the other. 
 I llayden v. Demets, 0;i N. Y. 420, 428. Al'i. 
 In the case under consideration, defendant
 
 692 
 
 SAAVYER V. DEAN. 
 
 ninde no objection tluit tlie IiiJps were not 
 of good quality or of tlio quality speuilied in 
 the terms of purchase, or" in the number of 
 hides. He simply insisted that he had a 
 right, under the contract, to an examination 
 ot the hides before acceptance and payment. 
 Under such a contract, as I think the trial 
 juilge might have well found from the evi- 
 dence in this case, it results, as in the case 
 of lliggiiis V. Murray, 4 Hun, 565, and as 
 was in the opinion in that case expressed 
 by Judge Daniels, the plaintiff by sliip- 
 ping in his own name, was simply keep- 
 ing the possession of the property, as he 
 liad the right to do, until it had been accepted 
 and paid for by the defendant. By shipjung 
 in that manner he retained and kept the lien 
 of possession as his security for the payment 
 of the property. The effect of the contract 
 •was to transfer the title of the property from 
 plaintiff's assignor to the deferiduut, sidjject 
 only to the right of the assignor to retain 
 possession until payment should be made, 
 as long as no credit was to be given, or 
 had been provided for, by tlie terms of the 
 agreement. After the making of the con- 
 tract he became the agent of the defendant, 
 save in retaining possession of the property 
 as security for the payment of the purchase 
 money, while title to the property was vested 
 in the defendant. To the same eflect is the 
 case of liank v. Pfeiffer, 22 Hun, 327. Also 
 the case of iMorey v. iMedbury, 10 Hun, 540. 
 If the law in this case is not as above stated, 
 the effect would be that a person who under 
 a valid contract has sold his property, sent it 
 to a distant place to the manufacturing es- 
 tablishment of the purchaser, has received 
 no payment, and has parted with the pos- 
 session of the property and that means of 
 securing payment, must rely upon the re- 
 sponsibility of the purchaser, and his dis- 
 position to pay for the jjrcjpertv. If this is 
 not satisfactory to the jjurchaser, he should 
 have made a different bargain. He could 
 have done as he was advised by the plaintiff's 
 assignor, viz., have appointed a hide broker 
 or expert to have made the selection. Then 
 both the buyer and the seller would have 
 been bound by the selection made, — the buyer 
 to accept and pay for, and the seller to de- 
 liver. J5ut the defendant chose to make the 
 seller Ins aj;ent to select, and he must abide 
 by the selection made for him, especially in 
 the absence ot any evidence that the hides 
 were not just what he ordered. Indeed, the 
 defendant did not base his refusal to pay U))- 
 on any allegation, much less upon any [iroof 
 that the hides were not in accordance witli 
 his specification and order, but upon the sim- 
 ple pretext that he wanted to examine them, 
 and that, too, after he had authorized the 
 plaintiff's assignor to select the hides for him. 
 Wiiile the trial court might, and I think 
 .5hould, have found as above indicated, it has 
 found substantially in that way, but with the 
 qualification that the plaintiff's assignor 
 gave the defendant the right to examine the 
 hides before accepting them. This light the 
 
 learned trial court bases upon expressions in 
 tlie letters of October 27th and November 4th, 
 and which, I think, were subseijucnt to the 
 correspondence which constitutes the con- 
 tract between the parties. The examination 
 referred to in those letters is not to be an ex- 
 amination which should determine whether 
 tlie defendant shouM receive these 500 hides, 
 but the examination of this lot was to deter- 
 mine whether he was so well suited with this 
 lot that he would make further anil larger or- 
 ders; besides, it seems very plain that the 
 plaintiff's assignor did not mean to change 
 the terms of the contract for this sliipment, 
 but at all times, and upon the stand as a wit- 
 ness upon the trial, he insisted that tlie de- 
 fendant was not entitled as a matter of right 
 to an examination before an acceptance of the 
 hides. There was no consideration for such 
 change of contract, or "waiver" as it is called 
 by tlie trial court, and it therefore imposed no 
 new or different obligation upon tlie philntiff 
 than existed under the former contract. Hut 
 the trial conrtmadealiiuling that the contract 
 was so modilied as to allow the defendant an 
 examination before acceptance. The trial 
 court also found that plaintiff's assignor had 
 offered to defendant an opportunity to exam- 
 ine the hides, outsideof the car in which they 
 were contained, upon the platform or in the 
 store-liouse; that such opportunity was a just 
 and reasonable one; and that defendant re- 
 fused, and thus defendant broke the contract; 
 and that the plaintiff's assignor was justified 
 in the course he pursued thereafter. I can 
 See no error in this tiiuling or conclusion. It 
 would afford a fair and reasonable opportu- 
 nity for llie defendant to determine the quality 
 of the hides. None could be better for the 
 purpose of an examination, unless they should 
 be taken to defendant's tannery and there be 
 worked as well as examined. Of course bus- 
 iness of this kind could not be practically oi 
 succ; ssfnlly carried on in this way; certainly 
 not to the vendor of hides living hundreds, if 
 not thousan Is, of miles away, and receiving 
 many, if not the most, of tlie hides he sells 
 from dealers and butchersliving and carrying 
 on business as many more miles from the 
 plaintiff's assignor. 
 
 We come now to not ice the exceptions taken 
 by the defendant. These were first as to the 
 proof of a custom existing in Chicago forthe 
 seller of liides to ship and consign to himself 
 at the ]>lace of destination, with directions to 
 the carrier to deliver to the vendee upon his 
 accepting a draft for the purchase price. We 
 do not think that the jiroof of such custom 
 could have harmed or prejudiced the defend- 
 ant in any way. Whether the contract was 
 to acce]it the hides, and sign a draft for pay- 
 ment upon notice of their arrival by the car- 
 rier, or to do so after reasonable opportunity 
 to examine the hides and refusal by the vendor 
 to avail himself of such o|iporl unity, can make 
 no difference with the legal rights and obli- 
 gations of the parties to tlie contract. It was 
 the clear right of the seller, when no other 
 mode or time for payment is provided in the
 
 SAWVKll c. DKAN. 
 
 (•)9:3 
 
 contract, to retain possession of his proi)erty 
 until he was paid for it. Tlio defenilanl has 
 no ri<;lit or ground for complaint that the 
 piaintilf insists upon such ri<?lit. Tlic iltd'cnd- 
 ant in this case orilercd hides to be sent to 
 Owcgo. Hides such as he vv.mted and had 
 ordered weie lirniiirht :ind tendered to him 
 at the railroad station at Owego, one <if the 
 usual routes and points of shipment. No 
 other route or pmul iiad heen indicated by the 
 defendant when tiie liiiies were shijiped. We 
 do not perceive that the defendant's rights 
 have been interfered with, or what just 
 ground of complaint or of refusal to accept 
 thegoods the defendant would have had if llie 
 goods had arrived in the personal c;ue or pos- 
 se.ssiou of the seller, and without any bill of 
 lulling or shipping bill wliatsoever. The sell- 
 er has the right to retain his possession until 
 he has received, or is tendered, payment of the 
 price. This mode of doing business is entire 
 ly legitimate, and i?i many cases it istheoiih 
 way of securing payment. Hank v. PfeilTer, 
 22 Hun, i'H. It certainly would not seem to 
 beany just ground of complaint, upon the part 
 of the defendant that the plaintilT, instead of 
 delivering the goods to the vendee at (Chicago 
 by an absolute consignment to him, as he was 
 authorized to have done under the contract 
 m question, took the risk upon himself of the 
 payment of the transportation, and of their ar- 
 rival in good order and condition at thei)lace 
 where the defendant desired to use and man- 
 ufacture them into leather. Iliggins v. Mur- 
 ray, supra. Our conclusion is that this proof 
 of custom did not change or affect the legal 
 relations of the parties to the contract in ques- 
 tion, and was not at all necessary or service- 
 able in the decision of the question in this 
 case. Whether this proof of custom was in 
 or out of the case, the decision must have been 
 the same, and so the defendant has no just 
 ground of complaint, or for another trial with- 
 out such proof. 
 
 Wo do not think there was any error in al- 
 lowing proof of the acts of ISond, plaintitf's 
 agent, and Upton, defendant's agent. There 
 can bo no doubt of their agencies upon the 
 evidence in the case, outside of any state- 
 ments made by the alleged agent that he 
 was agent. IJeing the agents of the parties, 
 Iheir acts and statements, whihi performing 
 acts for their piincipals, in the offers and ef- 
 forts for an opportunity to examine the hides, 
 and to obviate objections and reconcile dilTer- 
 ences between the parties, were competent 
 evidence. 
 
 The defendant, upon the argument, dis- 
 cusses another kind of evidence received up- 
 on the trial, viz., the letters and telegrams 
 sent by the seller to the purchaser, and tlie 
 Qndiugs which may in a measure be based 
 upon such evidence. An effectual answer 
 to that argument is that this evidence was 
 
 received witliout objection; and the defend- 
 ant, when examined as a witness after this 
 evidence was thus received, does not deny 
 that lie received them; and 1 think, when a 
 response iloes come from the defendant touch- 
 ing the points in the letters and telegrams, it 
 ;3 pretty plain that they were received by the 
 defendant. 
 
 Xordo I think that the letters introducing 
 Hond, agent for plaintilT's ;tssignor, to, and 
 informing, defendant's agi-nt, Upton, and .Mr. 
 Piatt, casii.er, and to the railroad agent, ob- 
 jectionable. They proved but the authority 
 of iSond to act. and could not until he had 
 acted alfect the rights of the parties; and the 
 elfect of his action would depend upon his au- 
 thority, and hence the necessity for proving 
 his authority. 
 
 1 think we have examined, closely and 
 carefidly, the lengthy and exhaustive points 
 furnished by the defendant's counsel upon 
 the argument; and I do not perceive any 
 substantial error on account of which there 
 should be a new trial granted in this case. 
 The case seems to have been thoroughly tried 
 by the court without a jury, the jury having 
 been waived at the close of the evidence, and 
 a consent given that the case be decided by 
 the court. There were numerous incidental 
 and unimportant questions raised and ruled 
 upon during the trial, and exceptions taken 
 in some instances, and in others not taken. 
 I refer to the depositions of witnesses taken 
 under commission, and the rejection of an- 
 swers or portions of answers, and the ques- 
 tion of variance and ameudmeut; but they 
 do not seem to me to be important, and many 
 of them are clearly within the discretion of 
 the court. Such were the statements made 
 to witnesses in identifying the hides sold in 
 Chicago. 1 do not understand from the de- 
 fendant's points that any serious contention 
 is made as to the right of the plaintilT to re- 
 call the hides, and to sell them at Chi ago, 
 the great hide market of the country, after 
 notice to the defendants that that course 
 would be pursued if the defendant refused to 
 accept and pay for the hides in accordance 
 witli the terms of the contract. The plaintiff, 
 in the (ontingency just stated, had the right 
 to ])ursue this course. 
 
 1 think the sale was properly made by the 
 plaintiff at Chicago, and that he adopted the 
 best means to got the highest price and occa- 
 sion defendant the least loss, and that the 
 sale, etc., was conducted in entire good faith 
 by the plaintiff's assignor, and that the 
 amount of the recovery did not exceed the 
 plaintiff's right or the defendant's obligation 
 after he had broken the contract. Uustan v. 
 McAndrew, 44 X. Y. 72, 74, 79. 
 
 We think judgment should be aflirmed, 
 with costs. All concur, except Follktt, 
 C. J., not sitting.
 
 SCOTT t>. LAUMAN. 
 
 695 
 
 SCOTT V. LAUMAN. 
 
 (104 Pa. St. 593.) 
 
 Supreme Court of Pennsylvania. Jan. 7, 1884. 
 
 Feitrned iHsue between George R. Laii- 
 man, udminiHtrntor of Williiiin Scott, ile- 
 cenHcd, ns jiluintiff, and Aiidrow Scott, an 
 defendant, to dctcnniDO the rialit to a 
 certain fund. .JudKnient for jjlaintiff, and 
 defendant hriiifi" b'T"!'. .Mlirnied. 
 
 Dei'eaHed, Williuni Scott, had a certifi- 
 cate of depoHit in a l)ank, on whicli certill- 
 cate in liiw laHt siclincHH lie wrote an an- 
 Hidmnent to defendant of part of tlie <le- 
 poHit. Ho delivered the certificate ko en- 
 dorHed to IiIh attorney, telling him to 
 "talceit wltli him, and put it in his wafe; 
 tliat it was for Andrew Scott ;" and the 
 attorney retained tlie certificate in liiH 
 oflice tiil tlic death of deceased, wlien he 
 banded it to defcMilant. 
 
 Uefore Mi:i{('f;i{. C. J., and (JOHDON, 
 PAXSON, TRUNKEY, STERRETT and 
 CLARK, JJ. GREEN, J., absent. 
 
 A. M. Brown and Jolin S. Ferguson, 
 
 for plaintiff in error. .1. Nf. Stoner, for de- 
 fendant in error. 
 
 PER CURIAM.— To constitute a vnlia 
 gift, tliere must bo a delivery of the (irop- 
 erty to the donee, or to some person for 
 his use. A gift is a contract executed. The 
 act of execution is the delivery of posseH- 
 sion. Without delivery, it Is only a con- 
 tract to give, not bindlni; for want of 
 consideration: CampbeH's Estate, 7 Rarr 
 100; Withers v. Weaver, 10 Id. .TJl ; Kidder 
 V. Kidder, 9 Casey L'fis; Trougii's Estate, 
 25 P. F. S. 115; Zimmerman v. Streeper, 
 Id. 147. 
 
 In the present cose tliere was no deliv- 
 ery to the tionee, nor to any person for 
 his use. The donee placed in the hands o( 
 his own attorney the certificate of de- 
 posit, and the order to jiay a i>art of the 
 sum therein sjiecitied to Ihedonee. lie did 
 not instruct his attorney to deliver It to 
 the donee. The latter had no knowledge 
 of any act of the donor relating to the In- 
 tended gift. Without delivery the whole 
 evidence was insufhcient to support the 
 paper as an executed contract. 
 
 Judgment atlirmed.
 
 SCOTT c. WELLS. 
 
 697 
 
 SCOTT V. WELLS. 
 
 (6 Watts & S. :)57.) 
 
 Supremo Court of Pennsylvania. Dec, 1843. 
 
 AsHuniiiHit hy Daniel WcHh aKDliiHt HukIi 
 Sciitt for the value of n riift of boarrlH 
 Holil and (k'livcnMl to (Icfcmlaiit. .lu'ltc- 
 niciit for [ilaiiitiff, and dufi/ndant appeals. 
 .Mlirtncd. 
 
 L. \. Siott, for plaintiff in error. J. .\L 
 Read, contra. 
 
 GIBSON. C. J.— The ninterial queHtion 
 is, whether tlie property paHHed hy the 
 Hflle and delivery in the lirHt instance. 
 Tlie faets were not eonteHted. KIdred, the 
 vendorV a^ent, sold a raft of hoanls to 
 TfiHtin, the pnrchaser'K at;''nt, at a eer- 
 tain rate the thousand feet, and delivered 
 it to a person employed by tin? latter to 
 take it, at the purchaser's expense and 
 risk, from Kichiiiond on the Delaware to 
 a place on the Schuylkill, where it was 
 afterwards moored. Thedeliverv was un- 
 conditional, pursuant to the contract and 
 complete: wliy then did it not pass the 
 property and put it at the [lurchaser's 
 risk? Itecause, say tlie purchaser's coun- 
 sel, the nnmher of feet cont.-iined, or the 
 suui total of the price, was not settled by 
 the terms of the contract; and the c<»nse- 
 qiicnce attempted is, that the sale was im- 
 perfect in its tneml)ers. Had there been 
 no delivery, or a con<litioiial one. the pur- 
 chaser would not perhaps have lii'ei! 
 bound till the number of feet and entire 
 price had been ascertained; but the par- 
 ties evinced, by taking the last step, that 
 notliln;^ rem.nined to be done in order to 
 perfect the contract. If I deliver a chattel 
 in execution of an aRreenient to sell it in 
 lerniH to be lixed ^ubsetiuently, tin own- 
 ership and risk of the pi-operty doubtless 
 remain with nie in the mean time; but 
 Huch delivery is conditional, and after an 
 ineffectual effort to perfect the sale, no de- 
 livery nt all. On the other hand, it is n 
 rule, perhaps without an exception, that 
 whenever then; has been an absolute de- 
 livery pursuant to n bargain perfect in its 
 members, or capalile of beiuj; made ho by 
 reference to something; else than supple- 
 mental conditions by the parties or an 
 arbiter appointed by them, the owner- 
 ship of tile property is vested by it. I 
 ;:rant that a sale may be fatally defective 
 In its members ; and that, by the civil as 
 well as the common law, the s|iecifica- 
 tion of a price is necessary to constitute it. 
 Itut there is abundant authority to show 
 that it may be supplied by arl>itrament, 
 where tlii're is a provision in the contract 
 lor it; ■•ind why not by calculation where 
 the contract furnishes a basis for it? 
 Surely the price is certain eniMmli when 
 the sum of it can be olitained bj cou'.puta- 
 tlon. l'"or instance, I sell my fat l)ullocks 
 grazinK in a p.artlculnr liehl, at so much 
 the head; there are tivo of them, but the 
 number is not specified in the contract ; 
 they are delivered and driven away, but 
 rush over a precipice and lirenk their 
 necks: surely it will not be sni<l that I am 
 to lose the price of them, because the a;i- 
 Kreirate amount of it or the nunilier was 
 not specitied by the terms of the bargain. 
 
 Yet the principle Ih iicceHsarily the saine, 
 whether the number be llveOr (Ive hun- 
 dred, lint I would be bound to liear the 
 loss, were the number, however InconHid- 
 erabU'. determinable by a proresH pro- 
 viileil in the contract. I'ut where no such 
 process is provided, may not a (nrmer i>ell 
 his Krowin« croi) by the bushel, so as to 
 chanjte the ownership of it in the mean 
 lime, without lixiuK the iinantlty by an 
 estimate liefore it is threshed? To sell by 
 tl'.e bushel anil fix the c|uantity would, In 
 effect, be to sell for a round sum. Mad, In- 
 deed the atients oi the parlies before UH 
 made it a condition that the number of 
 feet in the raft shonlil be counted <jr esti- 
 mate:; by a particular person, the sale 
 would have been incomplete, and the 
 jirupcrty at the vendor's risk till that was 
 done, insomuch that hcmit^ht havepassed 
 the title to another, leavlni; the prior 
 vendee to his action (or u tirench o( the 
 contract; but by the barLcaIn nctunlly 
 made, the vendor sold just so many feet 
 as the raft actually <-ontained. There Is 
 no process pointed out to ascertain the 
 number; and why roay he nut recover in 
 [)roportion to the number ascertalneil by 
 the evidence? A sale is Imperfect only 
 where it is left open lor the adililion ut 
 terms necessary to complete It, or where 
 it is delicient in some imiispensable int;rc- 
 dient which cannot be supplied from an 
 extrinsic source. I!ut when possession is 
 delivered pursuant to a contract which 
 contains no provision foradditional terras, 
 the parties evince, in n way not to be mis- 
 taken, that they suppose the liari;ain to 
 be eonsuminated. Kven where actual 
 possession ha« not been taken, the owner- 
 ship and risk pass by the contract, if noth- 
 ing remains to be done to the property 
 liy the veinlor. such as counting, mensur- 
 iu>;, weitfliinsi or lilliiiK up. to ascertnin 
 the number, iiuantity or weight. Thus 
 in HuiX'j: v. Minett, 11 Kast. L'lu, turpen- 
 tine had been sold at so much the hundred 
 wei;;ht in casks, to be taken at the marked 
 quantity, except two out of which the 
 others were to be tilled up before delivery: 
 and those two were sold as containing In- 
 delinile quantities. The buyer employcKl 
 a person to do the Iillin«, but before be 
 completed it, the warehouse, with its con- 
 tents, was destroyed bv lire; and it was 
 held that the property In those tilled up 
 had passed to the buyers, btvause noth- 
 ing remaineil to be done to them by the 
 vendors. Now the number of them, like 
 the number of fti't in this raft, couUl be 
 ascertained only by extrinsic proof ; and 
 the case, therefore. IS in point. In peifeot 
 consistence with it is Za^ury v. Fiirnell, i 
 Camp. -4(1, in wliicli a sale of i-oat skins 
 by the bale, containing a specitied num- 
 ber, was held not to pass the property, 
 because the usa«e of the trade, which was 
 consequently a part of the contract, made 
 it the iliity of the seller to count the skins 
 in each bale before they were delivered. 
 So in Hanson v. Meyer, i\ Kast CU. an 
 agreement to sell all the vemlor's starch 
 in a particular warehouse, nt so much 
 the hunilretl weitrhf. the number of hun- 
 dreds to be ascertained betore delivery, 
 did not presently pass the ownership. 
 I There Is no lack of authority for the prln-
 
 G98 
 
 SCOTT V. WELLS. 
 
 ci|)le, that while anythinp; remnina to be 
 iloiie by the terms of the contract, to ms- 
 certain the entire price, the property re- 
 mains at tlie risk of tlie vencior; anil in 
 Withers v. Lyss, 4 Camp. 287, the sale of 
 an unascertained quantity of rosin in a 
 particular warehouse, nut taken away, 
 hut requested to be kept in the names and 
 at the disposal of the purchasers, was 
 held not to have been completely deliv- 
 ered ; but it certiiiidy would have been 
 otherwise had the actual custody of it 
 been chantjed. In that event the sale 
 would have been perfect, provided the 
 quantity could have been ascertained by 
 proof. In the case before us, the raft was 
 actually delivered; and, in the absence of 
 stipulation to the contrary, the deliv- 
 ery evinced that no more was to be done 
 by the seller. Had he beeu unable to 
 prove the number of feet which were con- 
 tained in it, the sale would have liecn 
 incomplete, and he could not have recov- 
 ered. As he was able to satisfy the jury 
 on that head, we must take it that the 
 title passerl to the vendee. Did the subse- 
 quent transactions reve«t it? 
 
 The jury were left to judge of the au- 
 thority given to the agents as a question 
 of fact; and as there was evidence to 
 found a conclusion that their powers were 
 general, we must treat the case as if tlie 
 fact were so; and we must say that 
 Eldred was competent, with the assent of 
 the other party, to rescind the sale, re- 
 vest the title, and make a conditional sale 
 to the same vendee on terms which would 
 leave the property at his principal's risk 
 till the conditions were performed. Was 
 that done? It certainly was not intend- 
 ed. When he first met .Scott, the pur- 
 chaser, there was no proposal on either 
 side to recede from the bargain or alter 
 its terms. On the contrary, .Scott ex- 
 pressly ratified what had been done, and 
 in addition, proposed to fix the number of 
 feet by an estimate, to which Eldred ac- 
 ceded, and H day was appointed to meet 
 at the raft and make it. This new agree- 
 ment, it will be remarked, was not only 
 an independent but a conditional one, and 
 lieing itself imperfect, was of no foi'ce be- 
 ing unexecuted. At the day appointed, 
 Eldred, and Tustin came and met, not 
 Scott, but a person on his part, who said 
 that Scott would attend; but he came 
 not, and nothing was done. Eldred then 
 
 sought him, found him, and agreed with 
 him to have the raft taken out of the wa- 
 ter and counted at a day named. Eldred 
 again attended and Scott did not, so that 
 the second agreement turned out to be 
 as abortive as the first, and both became 
 as inoperative as if they had not been 
 made. Moreover, it is ol)vious that 
 neither of them was intended to impair or 
 alter tlie sale. The object, a distinct and 
 independent one, was to relieve the pur- 
 chaser from the alternative of taking the 
 agent's word for the number of thH feet, 
 or taking the trouble to ascertain it for 
 himself. To hold that this turned the 
 previous absolute sale into a conditional 
 one, out of which the l)uyer could creep 
 by refusing to co-operate in what was 
 further to be done, and thus leave the 
 property on the vendor's hanils at a place 
 remote from the market, would he not 
 only unreasonable but inconsistent with 
 the evident purpose of the parties. 
 
 As to the declarations of Scott, on the 
 one hand, that he had once considered 
 himself the owner of the raft, and the con- 
 sent of Eldred to remove it to Harding's 
 landing, on the other, it is enough to say 
 that these, though indicative of tlie un- 
 derstanding of the contract by the par- 
 ties, were not conclusive of the title, and 
 that they were properly left to the jury. 
 What is conclusive of it, however, is that 
 the terms of the sale were unconditional 
 and BUfhciently certain to pass the prop- 
 erty in the first instance; that there was 
 no evidence of an act done to rescind or 
 alter it, and that when the subsetjuent 
 negotiations failed, they left the contract 
 where they found it. 
 
 It is impossil)le to imagine an objection 
 to the comi)etency of Eldred as a witness. 
 The suggestion is that he may have in- 
 curred liability to his principal for negli- 
 gence or misfeasance, from which he 
 would be exonerated by a recovery in 
 this action; the answer to which is, that 
 there was no evidence of negligence or 
 misfeasance, and that, in the atoence of 
 proof of it, the law presumt's against it. 
 Besides, exposure to the possibility of an 
 action is one of those contingent interests 
 which go only to credibility. Such were 
 the principles that ruled a similar point 
 in M'Credy v. Navigation Co., 3 Whart. 
 424, and which rule the point before us. 
 
 Judgment affirmed.
 
 SCHANTOX V. CLAKK 
 
 SCRANTON V. CLARK. 
 
 (39 N. Y. 220.) 
 
 Court of Appeals of New York, March Term, 
 l^tiS. 
 
 Appi'"' from order rcvprsiiitr a judgment 
 for (lefi'iiilaiit and iirdcrin^ a new trial. 
 
 Action on a promissory note. 
 
 L. S. Cliutlield, for appellant. JanicH 
 Emott, for reHpoiidentH. 
 
 r.ACON, J . It the chnrKe of the li>iirnc<l 
 jiidKc upon tlic trial lind Htoppi'd iit the 
 (irst proposition ennnelated Uy liiin, it is 
 poHHlhle the verdic-t nilKht he upheld, he- 
 cause it may perhaps he said ilmt there is 
 some evidence from which th(! juiy iniKht 
 possibly have found that .leronic was the 
 owner of the note in iN^s, when it is 
 ciHiihed that he sold it to Ueliind. 'I'he 
 uncontradicted and indeeil overwheliiiinn 
 evidence is that in Decen.her, is.")", the 
 note in controversy was sold and deliv- 
 ered to Kdwin C. Litchfield, who held it 
 as ownei from that time until August or 
 Septemher, IMiO, when he sold ancl trans- 
 ferred it to Jerome, who soon after dis- 
 posed of it to Klislia 15. Lilchlield, from 
 whom the plaintiffs derive their title. It 
 is quite likely that in the transaction be- 
 tween .leronie and Leland, which occurred 
 in the fall of lNr)>S, both parties supposed 
 that this note wasainonfi the humlle of 
 securities that were traded off for the wild 
 land, liut it is as nearly certain, as it can 
 well l)e rendered by testimony, that 
 .lerome had not then either the possession 
 or ownership of the note, and it can hard- 
 ly lie claimed that the jur.v, if that naked 
 |')roposition had been left to them upon 
 the testimony, could have found any such 
 tact. The utnxist that can he insisted the 
 testimony conduces to prove is, it seems 
 to me, that Jerome agreed to sell this 
 note, with others, in exchanKP for the 
 lands; that the other notes were handed 
 to the clerk of Jerome, or to Jerome him- 
 self, who held them as the dei)ository of 
 Lel.'ind, but that this note was not anions 
 the number and was never in the posses- 
 sion of Leland or tuat of his ajient. 
 
 Ass'imin;; this to be the state of the 
 case, the jury were instructed, that if they 
 believed that Jerome sold, that is, in effect 
 asreed to sell, this note to Leland, al- 
 thouirh he was not the owner at the time 
 of this aL:re(in.'nt. yet as he afterward be- 
 came the owner, his a;j:reenient implied a 
 warranty of title, and this subseciucntly- 
 ac<)uired"title inured to the benellt of Le- 
 land, his vmiilee, am] payment to him ex- 
 tiiiKUishes the note. I'pon tlii-i proposi- 
 tion the jur.v were authorized to lind, as 
 they did, a verdict for the defendant ; and 
 the (piestion is, whether the proposition 
 is sound Inlaw; in other words, is there 
 an implied warranty of title in the sale of 
 a chattel where the owner is not in pos- 
 session ? 
 
 It is to b» assumeil that there was no 
 express alllrmat ion of title l)y .lerome to 
 Leland. There was, on the one hand, a 
 sale of Willi lantls, ami on the other, a sale 
 and transfer by delivering of certain notes, 
 and an airreement to sell another note, 
 t)ut of which no assiunnient or delivery 
 
 waH maile. and no written trunsfer exe- 
 cuteil [inrportitiK to convey a present In- 
 tert St, or one in fnturo. 
 
 On this precise iiuestion, as to the impli- 
 cation of a warranty on the sale of a 
 chattel ncjt In iiossesslon i>f the vi-ndor at 
 the time, Ciiancelliir Kent, in his Com- 
 nientarles, sl;ites the doctrine, without 
 i|ualilieation. to be. that the ruieofraviat 
 emptor applies, iinil the party bu.\s at hU 
 r)eril. •_' Com. 47n. lie lulds! that If the 
 seller has posseHsion of the article, and 
 sells it as his own. an<l not as airent for 
 another, anil for a fair [irlce, he is under- 
 stood to warrant the title. In support of 
 the rule as thus stated he citen two or 
 three old cases In the KukHsIi biKikrt. The 
 first m the remark of ■I'anlield, Chief Bar- 
 on I'in Cr'). Jac. r.t7>), 'o the effe<'t that If 
 one sells lands, whereof another is in poH- 
 sessii'U, or a horse, whereof another Im 
 possessed, without covenant or warranty 
 for the enjoyment, it is at the peril of him 
 wlio buys, and it is not reason that he 
 should have an action at the law, where 
 he dill not provide for himsi-lf. In Medina 
 V. Slouuhton, 1 Salk. L'lo. Ilult. Ch. J., de- 
 cided that where one having; possession of 
 a chattel sells it, the afhrmation that It iR 
 his amounts to n warranty, biit aliter 
 where the seller is out of posHesslon, for 
 there may be room to (juestion tlie Heller's 
 title, and caveat emptor, in such case, to 
 have either an express warrantv. or a 
 UimmI title. These canes RPein to have set- 
 tled the law in Knuland. in coiiforinlt.v 
 with ihe iirinciple laid down by Kent, 
 and we have been cited to no authority 
 doubtia^or (juestioidriK them, unless such 
 an inference may arise from the remark 
 of I5nller, in I'asley v. Freeman. S T. H. 
 .">s, which however is merely to the effift 
 that if tlie seller allirms the chattel not in 
 his p<)ssession to be his. he is bound to 
 answer for the title ; for in such case the 
 vendee has nothini: else to rely upon. 
 This places the liability upon the ground 
 of an allirmation, BinonntinK to a war- 
 ranty, and is not at all inconsistent with 
 the principle enunciated in thetwoeaseH 
 on which the rule as slated by Kent Ih 
 founded. 
 
 In this state the same iim-stion waa 
 presented, and is very fully discussed both 
 on principle and authority in the case of 
 .McCoy V. .\rtclier, :i I'.arb. :!'..':i. The effect 
 uponthe iiuestion of warranty of title up- 
 on a sale where the property is in or out 
 of till- Dossession of the vendor Is there 
 considered, and the propositions are es- 
 taldished that possession by a venilor of 
 chattels is eiiuivalent to an allirniation 
 of title, and in such case the vendnrls held 
 to nr) implied warranty of title, even 
 althouirh nolhiiiy: be said on the subject 
 between the parlies. Hut if Ihe property 
 sold be at the time of Ihe sale in the pos- 
 session of a third party, and there be no 
 alflrnnition or assertion of ownership, no 
 warranty of title will he Implied. In 
 those circumstances. In order to attach 
 anv liability to the vendor upon n sale, 
 there must be an ailirmntlon which will 
 amount to a warrnnly of the title. 
 
 The principle establlslietl by this cane !• 
 
 ' Roswcl V. Vaughan.
 
 702 
 
 SCRANTOX 0. CLARK. 
 
 followed aud approved in Edifk v. Crini, 
 10 Barb. 445, where the court cite the case 
 in Oo. Jac. 1!I7, and say t lie general rule 
 is that the vendor of a chattel impliedly 
 warrants the title, yet wlien the chattel is 
 not In the vendor's posae^'sion,blIt in that 
 of another, tliis rule does not prevail. In 
 Hopkins v. Grinnell, 28 Barb. 533, where 
 the sain3 point arose, the decision was to 
 the same effect, and the proposition in the 
 terms laid down by Kent, was reiterated 
 and upproved. 
 
 It i.i not important to cite authorities 
 from other states, several of which are 
 quoted in tlieoi)inion of the court in the 
 case of McCoy v. .\rtcher, and are to the 
 same effect. These cases in our own 
 courts settle the doctrine with us, from 
 which there has been no dissent from the 
 earliest case to the present time. The 
 effect of thene decisions is so'ight to be 
 evaded by the assertion of the defendant's 
 counsel, that in these cases the vendor 
 never had possession of the thing sold, 
 either before or after the sale, while here 
 Jerome not only had possession before he 
 sold, but afterward. It is not perceived 
 how this fact, conceding it to exist, can 
 vary the principle. The counsel, in this 
 part of his argument, also insists that 
 Jerome was the owner, and had i>osses- 
 aton of the note when he sold. If this 
 were conceded, the argument would be at 
 an end, and the proposition of law we 
 have been discussing would be immaterial, 
 lint it is to be remarked that the weight 
 of evidence is entirely otherwise, and in 
 the pro[)ositiou laid down by the court 
 in this case, the judge assumes that Jer- 
 ome was not the owner of the note at the 
 time of the alleged sale (as he undoubted- 
 
 ly was not in fact), but that it was his 
 subsequent acquisition of the title that 
 inured to the benetit of the vendee so that 
 ho could hold the vendor upon an implied 
 warranty, vvliich as we have seen, the law 
 does not create, but expressly repudiates. 
 In the case of McCoy v. Artcher, supra, 
 the note, which was the subject of thesale, 
 was potentially in the possession of the 
 defendants, being held by an agent, for 
 their l)enetit,some time prior to the trans- 
 action, by which they were sought to be 
 charged. 
 
 It is said l>y the defendants' counsel, 
 that the certificate of Jerome to Clark es- 
 tops hira from making any claim on the 
 note against Clark, and this estoppel fol- 
 lows the note into the hands of those de- 
 riving title from or through Jerome. It 
 is quite questionable whether this certifi- 
 cate was properly admitted hi evidence, 
 tlie effect being, if it had any, to iuipeacli 
 the title to a chose in action in the hands 
 of another party, after Jerome had [lart- 
 ed with it. But it could not operate as an 
 estoppel, for the simiile and obvious rea- 
 son that it was given long after the time 
 that Clark had dealt with Jerome, and 
 had profpssedlj- bought the note, and he 
 was induced to no action whatever upon 
 the strength of that certificate, or of any 
 representation made in it. It lacks all the 
 elements of a legal or equitable estoppel, 
 and should properly have had no influence 
 in the case. 
 
 I think the judgment of the general term 
 should be affirmed, and judgment in ac- 
 cordance with the stipulation rendered for 
 the plaintiffs for the amount of the note 
 and interest, with costs. 
 
 All concur except MASON, J.
 
 SCUDDEU P WOKSTKH. 
 
 705 
 
 SCUDDEU V. WORSTER et al. 
 
 (11 Cusb. 573.) 
 
 Sii]in'iiie .TmiicinI Court of MaRsacIiusetta. 
 SuftolU. Nov. Term, 1853. 
 
 TliiK wiiH nil nution «if reiilcvin. for IfiO 
 hunclM of pork, to which the <l<-ffiiiJiintH 
 pltfiiilccl only the ut'iu-rnl isHue. It wkh 
 Buhiiiilteil to this court on an iifjrefd 
 8tnt(>iiieiit of facta. 
 
 H. A. ScikIcUt, for pluiiitiff. \V. U. Ruh- 
 8ell, for Ueft'iiilaiils. 
 
 DKWICY. J. TlilHcnHeis Hiib:;)itti-(1 up- 
 on an iiKi'i'fd HtatcMDi'iit of facts, upon 
 which the coui't are to enter ju<l;;tneMt. 
 Tlie lirst (luestion presented, that of 
 proper plefulinjrH anil wpecificaticin of de- 
 fence, would have lieen more properly 
 raised, liail the case taken the ordinary 
 course of n trial hy jury. l!y niakin;; a 
 Htatenienl of facts and asking the judjr- 
 nient of this conrt thereon, the narticH are 
 understood to have waived all (luestions 
 an to the formal pleadiiiKs. unless those 
 questions are in direct terms reserved. 
 Kor oiivious reasons, this ought to he so. 
 OH the opportunities for amendments of 
 the pleadings would he much jii-eater, an<l 
 thc.v could be more conveniently allowed 
 in the earlier stages of tlie case. The pre- 
 rise objection taken by the idniniiff as to 
 this matter is, that the defendants liy 
 pleading the general issue without a spcci- 
 ticalion, nllefrinjj the property in tliem- 
 Helves in the articles replevied, admit the 
 propert.v in these articles to be in the 
 plaintiff, and deny only the taking of the 
 Name. 
 
 If this were HO, yet in a case when the 
 riKht of pr-operty was in fact the real mat- 
 ter in controveisy, and the defendant had 
 throuKli siinie misappreliensioii omitted 
 to set forth his claim of i-ight of property, 
 nil aiiieiidiiient ouglit to be allowed to 
 that effect, upim proper terms, if on trial 
 l>elon' a jury, or tiie fac*^s discliaiv-ed and 
 the case sent to trial, if the case were siib- 
 niitted to the court upon an agreed state- 
 ment of facts, if it were necessary to si-- 
 cure the deteiidanl a hearing upon the 
 merits of the <'ase. I!iit in the present 
 ease we think the riglit of the defendants 
 to as.sert theii' property in the articles re- 
 plevied, is not concluded by the form of 
 the pleadings; (irst.for the reason already 
 n«sigiied, that the parties have made a 
 case upon a statement of facts, ami thus 
 waiviMl the ol>jeciion as to the form of the 
 pleadings; and secondly, liecause under 
 our statute of I.SIIG, c. 1.'7:!, aliolishing s[)e. 
 fhd i>li'ading, and allowing no other plea 
 than the general issue, that was properly 
 plea<led, and no call having been made for 
 any specitication of defence, and no objec- 
 tion taken to its omission, until the argu- 
 ment was heard here upon tlie statement 
 of facts, it was too l.'ite to raise the point. 
 Miller v. !^U>eper, 4 Cusli. ;!t;!). .Nor can the 
 plaintiff aid Ids case by reference to his 
 writ commanding the idlii-er to replevy 
 I.'pO barrels of pork, "the property of the 
 phiinllff." and the return indorsed thereon 
 by the ollicer that " he had replevied the 
 within nrentioni'd property." \n oltlcer's 
 LAW t<Ai-b;s — 45 
 
 return, however conclnHlvo as to the serv- 
 ice of process, settles nothing of the right 
 of propert.v of the partlcK. 'I his case iniiHt 
 be deciiled upon the result we hIimII come 
 to upon the principal Muesllon no fnllv ar- 
 gued, whether llie propeitv In the l..o" bar- 
 rels of pork ev.r pa-sed from the v.-ndorn 
 by a sale HO far con.plcie a« to autliorlze 
 tlie idalntlff to maintain his action of re- 
 plevin for the same. It appears iroiii thp 
 facts slated, that on February Itl. IvV), ii 
 contract was made l»y the defemlantH 
 I with Secoinb, Taylor, & Coinnaii v. to sell 
 jtliem :;,-,(( barrels of pork briind"ed " ^Vo^- 
 | cesler & Hart ; " thatnliillof sale of the 
 poik was made and delivered to them, 
 an I they gave the defemlanls their nego- 
 tialile promissory notes of hand therefor, 
 f.ayaMe in six niontlis; that It was fur- 
 ther agreeil t hat the (lork should remoin 
 in dffendants' cellar on stornge, at the 
 risk and i'.\pen8e of the purchasers ; thiit 
 Secoinb, Taylor, & t'oin|iany, on the l:ith 
 of .May, 1.s.'>ll. solil lliit bcrrels of the fiork 
 to one Lang, who received llK'sameof the 
 defendants upon the orderof Sec. imti. Tay- 
 lor. & Company; that on the •.'Tlh of May, 
 Is.Vt, Seconili, Taylor, & ('oni|iany solil 
 tlie pbiintiff l.">0 barrels. «lth an order on 
 tlie defendants therefor. The next da.v 
 the ))laintlff gnve notice to the ilefciidantH 
 of tliepurchase, and recpiested them to hold 
 the Hame on storage for him to which the 
 defendants assented. On the L'.'dh oi .lime, 
 SecomI). Taylor, iV ('onipany became In- 
 solvent, and on the same day the plalnlirr 
 called upon the defendants for the pur- 
 pose of receiving the l.'iii liarrels of p.irk, 
 tint tlie defendants refused to allow lilin 
 to do so. On the next day a more fonniil 
 demanil. ai-conipanied by an offer to pay 
 storage, was made, which lii'lng refused 
 by the defeiitlants. nil action of repli'vin 
 was instituted, and l.M) liarrels of pork, 
 the same now in controver-y. were taken 
 and removed from said cel'nr, and deliv- 
 ered to the plaintiff. 
 
 The furtherfact Isstated In the case. and 
 it is this which raises t!ie<|niwt ion of prop, 
 erty in the plaintiff, that the pork liar- 
 gained anil sold in the manner aliovp 
 slated was in the cellar of the delciidanlH, 
 and n parcel of a larger niiantity ol the 
 same brand, and also with some of a dif- 
 ferent brand, and so contiii'ied jiarccl of 
 a larger quantity of similar liraml. n|i to 
 the tiiee of the suing out of the |daliilif('H 
 writ of replevin: though this fact was 
 not at the time of the sale stated to the 
 piiri'hasi'i's, or to the |)laliitirf when he 
 ipurchased of .Srcoinli. Taylor, \ Cniii- 
 
 paiiy. Mad these 1.V.0 barrels of pork I n 
 
 a separa'e parcel, or had the parties di-s- 
 igiiJ.ted them liy any visible mark, distln- 
 guishiiig tlieni from the residue of the viui- 
 dors" stock of pork, the sale would clearly 
 have been an alisolute one. and the prop- 
 erty would at once have pas^-ed to tlifl 
 (lurchaser. There was nothiiiK reqiilriMl 
 to have been done but this separation 
 from the general mass of Ilk'- kind, lo have 
 placed the sjile bevniid nil question or 
 doubt as to Us validity. 
 
 The rnses cited liy the plaintiff's counsel 
 fully establish the position, that what 
 was done in this case would have traoH- 
 leriod the property in the pork, If the 8Ule
 
 706 
 
 SCUDDER V. WORSTER. 
 
 had been of all the pork in the cellar, or of 
 juiy entire parcel weparateil froiu the rewi- 
 (liie, or if the '2'>i) barrels hafl some dt'Scrlp- 
 tive mark distinitnishiiifr them from the 
 other barrels not sold. The djthcult.v in 
 the case is, in maintaininK tliat in the al)- 
 nence of each and all these circumstances, 
 distinsuishing the articles sold, tlie partic- 
 ular barrels of pork selected by the officer 
 from the larger mass when he served this 
 process, were the [)ropert.v of the plaintiff, 
 or had ever passed to him. In addition, 
 however, to the numerous cases cited to 
 estal)li.<h the general principles contemled 
 for on the part of the plaintiff, and which 
 would hnve been decisive, if it had been a 
 sale of all the pork in the cellar, or a par- 
 ticular parcel, orcertaiii barrels havingde- 
 scriptive niarks which would enable the 
 vendee to separate hi.s own from the resi- 
 due, were cited several more immediately 
 bearing upon the present case, and where 
 property not separable has been held to 
 pass to the vendee. The leading case re- 
 lied upon is that of Pleasants v. Pendle- 
 ton, (i Kand. 17."). This was an action by 
 the vendor to recover the price of 110 bai-- 
 rels of flour sold to the defendant. .\'o 
 other objection existed t(j the validity of 
 the sale, except that the 119 barrels were 
 a parcel of 123 barrels, all of similar kind, 
 in the same warehouse. There were cer- 
 tain brands or marks on the entire 1.3 
 barrels. The fiour was destroyed by fire 
 while on storage, and the vendee refused 
 to pay for the lUl, upon the ground that 
 the sale was ni>t perfected for want of sep- 
 aration from the lL':5 barrels. The court 
 refused to sustain the defence, and ga»'e 
 judsment for the plaintiff. In i-eference to 
 this case, Grinike, .1.. in Woods v. Mc(Jee, 
 7 Ohio, 127, says; " It is impossible to di- 
 vest ourselves of the impression that the 
 small diflerence between the aggregate 
 maps and the quantity sold, the former 
 being 123 barrels, and the latter Hi), may 
 have influenced the decision. It was a 
 hard case, and hard cases make shipwreck 
 of principles. " 
 
 .lackson v. Anderson, 4 Taunt. 24, was 
 an action of trover to recover for tlie ecu- 
 version of 19('>!) Spanish dollars. It ap- 
 peared that the ainouiit had lieen ttans- 
 milled t<i a consignee for the use of the 
 l)laintiff,but they were in a parcel of .f 4i)IS, 
 all of which came into the liands of the 
 defendant. Among other points raised at 
 the argument, was this, that there was 
 nothing to distinguish the $!!)(!() from the 
 entire mass; that there had been no sepa- 
 ration, and of course the plaintiff had no 
 property in any particular i)ortion of the 
 money. The point, it seems, was not 
 made at the trial before the jury, but sug- 
 gested by the cfsurt during the argunicnt 
 before the full court, and this is stated by 
 the reporter; the court interrui)ted the 
 c(»unsel, anvl intimated a sti'ong doubt, as 
 there was nothing to distinguish the 
 ^liKil) from the remaining contents of tlie 
 barrel, wiiether the action could lie. At a 
 future da.v the court eave judgment for 
 the plaintiff. The objection was over- 
 ruled upon the ground th;it the defend- 
 ant had (li-<p()sed of all tie <lollars. conse- 
 qnently lie hail disposed of those belong- 
 ing to the plaintiff. 
 
 The case of Gardner v. Dutch, 9 Mass. 
 427, is apparently the strongest case in fa- 
 vor of tne plaintiff. The case was replevin 
 against an officer who hail alta< heil 
 goods as the property of Wellman & 
 I'.opes. The plaintiff liadseven ty six bags 
 of coffee, to which he l>ecame entitled as 
 owner, upon an adjustment of accounts 
 of a voyage he had [>erforined for Well- 
 man & Hopes, but the bags belonging to 
 the plaintiff were in no way distinguished 
 by marks, or separated from the other 
 coffee of Wellman & Ropes. The plaintiff 
 on Ills arrival at Salem, from his voyaue. 
 delivering the entire coffee to Wellman & 
 Ropes, taking their receipt "for sevent.v- 
 six bags of coffee, being his adventure on 
 board schooner Liberty, and which we 
 hold subject to his order at any time he 
 may please to call for the saire. " The 
 point taken in thecase was that the plain- 
 tiff had not the side property, l)ut only an 
 undivided interest, and so could not main- 
 tain replevin. The court ruled that the 
 plaintiff was not a tenant in common, 
 but might have taken the number of liags 
 to which he was entitled, at his own selec- 
 tion, and might maintain his action. 
 
 This case, on the face of it, seems to go 
 far to recognize the right of one having a 
 definite nnml)er of barrels of any given 
 articles mingled in a common mass, to se- 
 lect and take, to the number he is entitled, 
 alth(/ugli no previous seiiaration had 
 taken |jlace. It is, however, to lie borne 
 in mitid in reference to this case, that it 
 did not arise between vendor atid vendee. 
 The interest in the seventy-six bags of 
 coffee did not originate by purchase from 
 Wellman & Ropes. They becanie the spe- 
 cific propert.v of the plaintiff in that ac- 
 tion on an adjustment of an adventure, 
 the whol? proceeds of which were in his 
 hands; and separated with the possession, 
 only when he took their accountalde re- 
 ceipts for sevent.v-six bags, held by them 
 <m his account. It did not raise the ijues- 
 tion, here so full.v discussed, as to what is 
 necessary to constitute a delivery, and 
 how far it was necessary to have a sepa- 
 ration from a mass of articles, to constitute 
 a transfer of title. Perhaps the circum- 
 stances may well have warranted that 
 decision, but we are not satisfied that the 
 doctrine of it can be properly hpiilied to a 
 case where the party asserts his title, 
 claiming r)nly as a purchaser of a specific 
 number of barrels, there having been nt> 
 possession on his part, and no separatiini 
 of the same from a larger mass of articles 
 similar in kind, and no descriptive marks 
 to designate them. 
 
 On the other hand, iri support of the 
 position that this sale was never perfected 
 for want of sucl. se()aration of the partic- 
 ular barrels on account of the plaintiff, or 
 some designation of them from others of 
 like kind, there will be foutid a strong 
 weight of authority ; and to some of the 
 most prominent cases 1 will briefi.v refer. 
 Tlius, in the case of Hutchinson v. Hunter, 
 7 liarr, 140, which was an action of «s- 
 sun.psit to recover payment for 100 bar- 
 rels of molasses sold to the defendant, the 
 sa me being parcel of 12.t barrels, and the 
 v.hole destroyed by fire while on storage, 
 and before separation or designation of
 
 SCUDDEH c. AVORSTER. 
 
 707 
 
 any particular Itarrels, It was held that 
 the plnititiff coiilil nut rerovcr. the Hiih- 
 never \ii\\'\u}i Ixcii rorisiiii.'inatcil. Itutrci-. 
 J., Ka>H: '"'I'he liiniliiniciital rule wliiili 
 a|iplli'H to thiH ciise iw, that the parties 
 niUHt be agreed aw to the KptcKic koo<I« 
 on wliieli the coiitraet is to attach before 
 there can be a liarKalii and Bale. The 
 goods iiiUKt be aHcerlained, deNiunated. 
 and separated from tlie stocli or quantity 
 willi which they are mixed, before the 
 pro|ierty can paKs." He considers the 
 case of I'ieasants v. Peiidleton, <i Hand. 
 47."i, as decided un erroneons prineifiles. 
 The case of Hutchinson v. Hunter pre. 
 sented a case of a sab-contract or sale like 
 the present, and it was urged that this 
 differed the casefroni what it niidiit other- 
 n isp have been, as respects the original 
 vendor. I'.ut the court held that this did 
 Dot vary the cas-e In the matter of the ne- 
 cessily of a se|iaration of the article sold 
 from the urea ter mass. So in Golder v. 
 Ogden. 1.') I'enn. St. (;i Harris,) .")L'H, where 
 a contract was made for the sale of L'OOO 
 pieces of wall |>aper. the purchaser jtiviim 
 Ills notes therefor to the vendor. an(l tak- 
 iuK away with him loou pieces, and it was 
 URreed that the other 1000 pieces should 
 remain until called for by the purchaser, 
 upon a (lUOKtion of [)roperty in the re- 
 maining 1001) pieces between the assignees 
 of the vendor and the i)urchaser. it was 
 held that these loOOpieces not having been 
 selected by the buyer, or separated, or set 
 «[iart for him. but remaining minp.leil 
 with other pa|>er of same description, did 
 not become tlie property of the alleged 
 buyer, as against as assignment for the 
 benefit of the creditors of the vendor. The 
 principle advanced in that case seems to 
 be the sound one: "That the property 
 cannot pass until there be a specific iden- 
 tification in some way of the particular 
 gooils which the partv bargains for. The 
 law knows no such thing as a floating 
 right of property, which may attach itself 
 either to one parcel or the other, as may 
 be found convenient afterwards." The 
 case of Waldo v. lU'leher, 11 Iredell, c.o'.l, 
 was the case of a sale of corn by a vendor, 
 having in his store aiOO bushels of corn, 
 and selling INoo bushels of the same, l)Ut 
 the LNtKpiiushels were never separateii from 
 the:!loo, and the whole was. after the sale, 
 destroyi'd by (ire; and it was held that 
 the property in the L^Oo bushels <lid not 
 pass to the vendee, though it would have 
 been otherwise liad it been a saleof all the 
 corn in the crib. The ground of the deci- 
 sion was, that there had been no separa- 
 tion, that it could not be ascertained 
 which corn was the property of the ven- 
 dee until it was separated. The purchaser 
 could not bri:;g detinue, because he could 
 not dcKcribi' the particular thini;. This 
 would be ecpiallv so as to replevin. The 
 case of Merrill "v. Hnnnew?ll. l:M'ick. '.'l.-t. ' 
 hears strongly upiin the ((Uestion before [ 
 us. H was a sale of nine arches of bricks 
 in a kiln containing a larirer number, but 
 not separated from the residue, or specif- 
 ically designated. .\fter the vendor had.! 
 
 by other sales, reduced the quantity on 
 hand to IcFs than nine vrchts. upon « 
 Mnehlion of property between ihe\en.l«e 
 and au attaching creditor of the vendor, 
 it was held the (lurchaser took no prop, 
 erty in the bricks, the sale being of part of 
 a lj;rge niass. not delivered nor specitlcally 
 <lesit'nati(l, 
 
 Itlackburn. in his Treatise on .Sal'-». p. 
 I'O. piespiits the law on this subject thus: 
 "Until the ()arties are agrei'd /is to the 
 si.ecilic Identical goods, the contract can 
 be no more than a contract to su|iply 
 goods answering a iiarticular de»iriiition. 
 and since the vendor would fullil his part 
 of the contract by furnishing any parcel 
 of goods answering that deHcrlpti'on. It Is 
 clear there can be no intention to transfer 
 thepiopi'rty in any partiiular lot of goods 
 more than another, until it is ascertained 
 which are the very goods sold." 
 
 E.xamluing the facts in the case before 
 us, and applying the principles of therases 
 last cited, and the appioved elen entary 
 floctrine as to what is necessary to coimtl- 
 tute a sale of property not separated friira 
 the massof like kind. or designatecl liy any 
 descriptive marks, the court are clearly of 
 opinion that the pro|ierty in the spiH-illeil 
 ir)0 barrels of pork taken by the (dalntiff. 
 under his writ of replevin, had never 
 passed from the vendors, and therefore 
 this action cannot be maintained. 
 
 In the argument of this case on the part 
 of the plaintiff, the case was put as u case 
 of intermixture of goods, and It was ar- 
 gued that such intermixture having taken 
 place, the [dalntiff might, for that cause, 
 hold the |)roperty an bis. Itut. in fact, 
 there was no sucli case of intei nil.\ture. 
 The entire property was always In the de- 
 fendants. 
 
 It was also urged that the ilefendants 
 were estopped to deny that the I.Vi liarrels 
 of pork were the properly of the plaintiff, 
 having given a bill of sale of tli" same, 
 and under the circumstances stated In the 
 stalementOf facts. Had this been an ac 
 tion to recover damages for the value of 
 l.'O barrels of pork, this position niiulit be 
 tenable, and tin' defendants estoppeil to 
 deny the property of the plaintiff in suth 
 l.'iO "liarrels. Thiswouhl be so if an ac- 
 tion had been brought agaiast the defend- 
 ants as bailees of l.'iO barrels of pork, and 
 for not delivering the same. 
 
 r.ut the dintinction between the case of 
 an action for damages for not delivering 
 l.'.U barrels, and that of replevia, com- 
 niandini; the otficer to take from tlie pos- 
 session of the defendants l.'iO liarrels. and 
 deliver the san'p to plaintiff as his prop- 
 erty, is an obvious one. To sustain the 
 forn\er.it is only nere>sary to shown right 
 to l."iO barrels generally, anil not any spe- 
 cil'c l.'iO barrels: but to maintain replevin, 
 the plaintiff must be the owner of some 
 speci'ic ro barrels. If bought, they must 
 lif specitlcally set apart, or designated In 
 some way as hU. and not InterminRleil 
 with a larger mass of like kind owned by 
 the venilor. 
 
 .Indgnient for the defendants.
 
 SEITZ 0. BREWERS* REFRIGERATING MACH. CO. 
 
 709 
 
 BEITZ V. BREWERS' REFRIGERATING 
 MACH. CO. 
 
 (12 Sup. Ct. Hep. 46, 141 U. S. 510.) 
 
 Supreme Court of the United States. Nov. 9, 1891. 
 
 In prror to the circuit court of the Unit- 
 ed States for the eastern district of New 
 York. 
 
 Action by the Brewers' Rcfrifteriiting 
 Macliine Company uRaiiiHt Michael Seitz. 
 There was judK'nient lor i)laintiff on a ver- 
 dict directed iiy the court, and defendant 
 brings error. Judunient adirnied. 
 
 Staieincnt liy Fuller, C". J. This was 
 an action brou;iht by the Brewers' Be- 
 fr'^eratinK Machine Company a;<ainst 
 Michael Seitz ui)on the following con- 
 tract: "Tliis agreement, made this lltli 
 day of January, A. L). IST'.). between the 
 Brewers' I{efrigerating Machine (.'ompany 
 of Alexandria, Va., party of the first part, 
 and Michael Seitz, of Brooklyn, N. Y., par- 
 ty of the second part, witnesseth : That 
 the party of the first part hereby agrees 
 and contracts to supply tlie party of the 
 second part with a No. 2 size refrigerating 
 machine, as ciinstructed by the said party 
 of the lirst part, by tlie l.")th day of .March 
 next, or as soon thereafter as possible, the 
 machine to be delivereiJ at the depot f)r 
 wharf in I'hiladelphia, Fenn., and to be put 
 up and put in operation in the brewery of 
 the said party of the second part at L'.'iN-2(;4 
 Maujer street, at Brooklyn, E. U., N. Y., 
 under the superintendence of a competent 
 man furnished I)y the said party of the 
 first part. The party of the second [lart 
 hereby agrees and contracts to pay to the 
 <aid party of tlie lirst part for said ma- 
 chine the sum of nine thousand four hun- 
 dred and lifty dollars (.ti'.t.4.'i().ilU) in manner 
 as follows, namely : Four thous;ind seven 
 hundred and twenty-five dollars ($4,- 
 725.00) on the da.v when the ninehine is 
 put in operation at the l)reweryof thes;iid 
 party of the second part, and the balance 
 of four thousand seven hundred and twen- 
 ty-live dollars ($4,7l'')) in three et|ual in- 
 stallments: that is to say, oni' thousand 
 five hundred and sevenly-live dollars (?!,- 
 57.").0l)i for each installmi-at, payable, re- 
 spectively, in one, (1,) two, (2,) and three 
 (3) months after the day when the machine 
 is put in operation at the bi'ewery of the 
 said |)arty of the second part, for which 
 installments (he said party of the second 
 part agrees and contracts to give his 
 notes on the day last mentioned." 
 
 The complaint, after setting forth the 
 execution of the contract on tlie 11th of 
 January, .\. I). lf<7!l, alleged compliance 
 therewith in every respect bj- the plaintiff, 
 and breach of the promise to i)ay the pur- 
 chase price. 'l"he defendant stated in his 
 answer, among other things, "that the 
 niacliine placed in defctidant's brewery 
 was worthless, and incapalile of op?rat- 
 ing to produce the results represented by 
 plaintiff to this defendant as an induce- 
 nienl to enter into the aforesaid agree- 
 ment; that sai<l machine has not lieen ac- 
 cepted by this defendant, nor operated, 
 or at tempted to be opera ted. by defendant, 
 his agents, employes, nur any other per 
 son aetiiig liy or under his authoiity, and 
 did not i);iss"(.ut of theeoiitrol of theplain- 
 lii'f: nor has the said machine lieen useil 
 by him in his said brewery, because said 
 
 machine was worthlesB, nnil Incnpablp of 
 
 serving any iisefid piiriiose tliiTcln. " AnO 
 defendant also averred, by way of coun- 
 ter-claim, that he had susliiined' daniagea 
 by reason of false and frauduh'nt repn-- 
 sentutions by plaintiff as to what thi- ma- 
 chine would accomplish. In reliance upon 
 which he had permitted his brewery to be 
 subjected to the action of said miieldne. 
 and suffered loss accordingly, f'pon the 
 trial before the circuit judge and a jury, 
 plaintiff proveil thatn No. 2 nlze refrigiTnl- 
 ing machine, as constructed by the lirew- 
 ers' Befrigernting Machine ('oiiipany, was 
 supplied defendant, and put up and put in 
 operation in his bn-wery by it in accord- 
 ance with the terms of the contract. Iie- 
 fendant thereupon aBke(l to amend his an- 
 Bwer. "toset up that delendntit entered 
 Into that contract by reason of fraudulent 
 representations on the i)art of this '-om- 
 pany." The amendment was nllnweil. 
 and was in substance that plaintiff repr<>- 
 sented that tiie machine was capable of 
 cooling certain rooms in the brewery 
 which had lieen examined by piaintiff; 
 but the machine, when set up and operat- 
 ed, was n<^t so capalile. and failed to per- 
 form the work for which, upon the n-pre- 
 sentationsof theplaintiff. the machine had 
 been contracted for by defendant: that 
 defendant contracted to purchase the 
 machine upon the giiarant.v byplaintlfl to 
 defendant that it woulii cool certain 
 rooms, an<l it was u|ion that gu.iranty 
 alone that defeiid.int entered into the eon- 
 tract: that defendant entered into the 
 contract upon the representations <if the 
 plaintiff to tlie effect that the No. 2 iiiii- 
 chine referred to in the contract set forth 
 in the complaint would c«iol and was cap- 
 able of cooling a space of l."iO,aoii cubic feH 
 of air continuously to a temperature snifl- 
 cientl.v low for the purpose of bP'Wing or 
 manufacturing beer in the defendanfs 
 brewery or premises, that is to say, to a 
 temperature in the neighborhood of 40* 
 Fahrenheit: and that the plaintiff kni-w, 
 at and beftire the time when the con- 
 tract was niaile, that the representa- 
 ti<ins n):ide to tlie defendant werefalse and 
 unfonndi'd, and knew that the said \o. 
 2 machine was no*^ callable of perfdrming 
 the work which plaintilf represented It uti 
 being capable of performing, and knew 
 that the machine would be worthless to 
 the defendant for the purposes for which 
 defendant contracted for it and Intenili-d 
 to use It. 
 
 Kvideiice on defendant's behalf wnstlieii 
 admitted, tending to show that, pritir to 
 the execution of the cmitract, plaintiffs 
 agents had represented that the ma- 
 chine would cool 1,->0.(MI0 cubic feet to 40^ 
 Fahrenheit : that ih'f. mlaiit bad been 
 cooling his lirewery with Ice, and wished 
 the machine to cool the rooms to about 
 the same extent; and that the machine 
 did not cool the rooms as desired. On 
 cross-examination of the dctendanfn 
 agent, it apiieared that on January 13, 
 IsTO. he wrote to the secretary of the re- 
 frigerating company: "In speaking t«i 
 Mr. .M. Seitz to-day he said that your 
 agreement was very unsatisfactory to 
 him: in fact, that bcl.iie he would gi-t the 
 machine that he wanted a written gnar- 
 aatvfrom von that you woulil cool his 
 building, which you huvosceu, to 3)» 11.,
 
 no 
 
 SEITZ V. BREWERS' REFRIGERATING MACH. CO. 
 
 and keep it at that all the time; other- 
 wise lie would not have the machine, as he 
 would have no. use for it, as he would 
 liave to put himself to great expense and 
 •.jreat risk at the same time." To which 
 plaintiff respimded, January 2t)th : "I 
 regret to hear tliat Mr. Seitz fecJs dissatis- 
 faction with the contract made with him. 
 The guaranty he now asks for in addition 
 it would not lie proper for us to give, as 
 Mr. Seitz himself will see on further reflec- 
 tion, we think. The maintenance of a 
 certain temperature in his rooms is not 
 solely dependent upon our machines; in 
 fact,\here are a great many other things 
 entirely beyond the ccmtrol of the machine 
 which influence tliis temperature. The 
 mode of working tlie rooms, the water 
 used for washing, the fermentation, and 
 many other things might be mentioned in 
 this connection as matters which we can- 
 not control, and which nevertheless are 
 most important considerations In the 
 maintenance of a given temperature. We 
 are confident, from the experience with the 
 Portner machine during last summer and 
 fall, that the machine sold to .\Ir. Seitz 
 will not only give him the desired low 
 temperature, but will, in addition, give 
 him what he never before had in the 
 warmer montlis, namely, pnre and dry 
 air. The machine we are building for him 
 is in many respects far superior (aside 
 rom sizel to the Portner macliine, and 
 when he has had it a year we believe he 
 would not part with it for any money, if 
 lie could not replace it. That we must de- 
 cline to guaranty what Mr. Seitz asks for 
 is sim])ly for the reasons stated. There 
 are too many side considerations entirely 
 beyond the control of the macliines. We 
 would add that we have not in anj' in- 
 stance been asked for such a guaranty a.s 
 a condition of sale, but tliat all the par- 
 ties to whom we have sold bought on our 
 representations, and what they have seen 
 and hoard of the working of the Portner 
 machine." On January L"l, 1.S7!), defend- 
 ant's agent telegraphed plaintiff: "Will 
 you defend any infringement suits against 
 Mr. Seitz for usiiigyour machine?" and on 
 January 23, 11S7U, wrote: "The machine 
 sold to Mr. M. Seitz is all right, and can be 
 sent at any time that it is ready. " On the 
 Kith of March he again wrote plaintiff: 
 " Mr. Seitz would like to have you to com- 
 mence at once i)utting up his machine." 
 The defendant having rested, the court, 
 on motion, directed a verdict for tlie 
 plaintiff for the amount claimed. The 
 circuit judge remarked to the jury that 
 the only defense worthy of consideration 
 was that the machine was sold to the de- 
 fendant under fraudulent representations 
 by the plaintiff's agents, but that there 
 was no evidence of fraud whatever in the 
 case; that there was evidence to show 
 that the machine did n(jt work satisfac- 
 torily, and the jury were doubtless au- 
 thorized to infer that it did not have the 
 capacity of cooling 15(i.(iOO cubic feet to 
 the degree stated, but that there was a 
 written contract in the case, which con- 
 tained no warranty, and, consequently, if 
 the machine did not fulhll the expectations 
 of the defendant, or if it did not fulfill 
 verbal representations made at the time the 
 contract was entered into, nevertheless 
 
 defendant had no defense; that there 
 was no evidence that false or fraudu'ent 
 representations had been made; that the 
 machine had been built and put uj) pursu- 
 ant to the written contract ; and that the 
 defendant could not be iierniitted, upon 
 the general theory that the machine was 
 not a satisfactory article, to defeat the 
 plaintiff from recovery. The verdict hav- 
 ing been rendered as directed, and judg- 
 ment entered thereon, the cause was. 
 brought here on writ of error. 
 
 Esek Cuwen, for plaintiff in error, .liilin 
 H. V. Arvnld, for defendant in error. 
 
 FiiLr.ER, C. J. If the defense were solely 
 that the defendant was induced by false 
 and fraudulent representations to enter 
 into the contract in question, it is conced- 
 ed that the circuit court did not err in 
 directing a verdict for the [ilaintiff, as 
 there was no evidence of fraud in the 
 case. It is earnestly contended, however, 
 that, under the answer as amended, the 
 defendant was entitled to avail himself of 
 the breach of an alleged contract of war- 
 rant.v or guaranty collateral to the con- 
 tract of purchase and sale; or of an im- 
 plied warranty that the machine should 
 be reasonably fit to accomplish a certain 
 result. Assuming the sufficiency of tlit 
 pleadings to enable the questions indi- 
 cated to be raised, we are nevertheless of 
 opinion that the direction of the circuit 
 court was correct. The position of plain- 
 tiff in error is, in the first place, that the 
 evidence on his behalf tended to show an 
 agreement between himself and defendant 
 in error, entered into prior toorcontem- 
 poraneousl.v with the written contract, 
 independent of the latter and collateral to 
 it, that the machine purchased should 
 have a certain capacity, and should be 
 capable of doing certain work ; that the 
 machine failed to come up to the re()uire- 
 nients of such independent par<d contract; 
 that this evidence was competent; and 
 that tl.e case should therefore have been 
 left to the jury. Undoubtedly, the exist- 
 ence of a separate oral agreement as to 
 any matter on which a written contract Is 
 silent, and which is not inconsistent with 
 its terms, may be proven by [larol, if, un- 
 der the circumstances of theparticularca.se, 
 it may ijroperl.y be inferred that the jiar- 
 ties did not intend the written pajjer to be 
 a complete and final statement of the 
 whole of the transtiction between them. 
 But such an agreement must not only he 
 collateral, but must relate to a subject 
 distinct from that to which the written con- 
 tract applies; that is, it must not be so 
 clcjsely connected with the principal trans- 
 action as to form ]jart and parcel of it. 
 And when the writing itself upon its face 
 is couched in such terms as import a com- 
 plete legal obligation, without any un- 
 certainty as to the object or extent of the 
 engagement, it is conclusively presumed 
 that the whole engagement of the par- 
 ties, and the extent and manner of their 
 undertaking, were reduced to writing. 
 1 (ireenl. Ev. § 275. 
 
 There is no ijretense here of any fraud, 
 accident, or mistake. The written con- 
 tract was in all respects unambiguous and 
 definite. The machiue which the compa-
 
 SEITZ 0. BREWERS' REFRIGERATIXG MACH. CO. 711 
 
 ny sold, and wliieli Scitz boiiglit, was a [ rule.nscuprcssed in tlic fcx*-l>ook««n<I»iiii- 
 Nil. 2 size rcfriKcr.itiiiK iiiacliine, ok eon- | tainr-il by nutlmrilv. tlwit « luTt- a kni>wii. 
 Hlnictcil l)y the coinimiiy, and kucIi wjih , described, and ddinitc article Ih unlered 
 the inacliine wliicli wa^ ilelivercd. put up, i uf a inanufacUiier. altliou-li It Ih BtutuU 
 and opeinted in the brewery . A warrauty by tlie purchaHer tu be re.pilred for a par- 
 cir Kuaranty that tliat machine Hliouhl re- tieular purpoHe. kIIII. ir llie kiunvn, ile- 
 duce tlie temperature of tlie brewery to , Berieic.l. and deHnite thinw be ai-tuallv i.up- 
 4[p Fahreniieit, vvliiie in itself C(dlateral to , plied, there in no warrantv that it' hIiiiII 
 the Hale, wlilcii would be eoniplele with- nnstver the particular purpoKe Intemled 
 out it, would be part of the dcscri|>tioii, bythebuyer. IJeuj. SaleH. j t;:>7 ; Add.Coiit. 
 anil essential to the identity of the riiin;; i bk. -J. c. 7. p. *<>■;■;■, Chanter v. HopklnH. 4 
 Kold : and to admit proof of hucIi an en- Mces. & \V. :!!•'.); Ollivaiit v. Ha vlev. .". l^. 
 jraKi iiicnt by i)arol would be to add an- 15. I'ss; District of Colundda v. CUphanp, 
 other term to the written eontraet, con- 110 U. S lil'J. 3 Sup. ft. Itep. .".tis; lUhlKi) 
 trary to the settled anil salutary rule Co. v. ilaniilton. Ill) IJ. S. li»s, :i .Sup. Ct. 
 upon that subject. Wliether the written Rep. ."):!7; Hoe v. Saidioni, -Jl .V. V. .ViL'; 
 contract fully e.xpressed the terms of the lJeinin;r v. Fosler, -ll' .\. II. lii.'i. 
 agreement was a question for thecourt. In theeaseat barthe machine purchased 
 and since it was in this instance complete wasspecilically ileHi;;nated in Ihecoiitract, 
 and perfecton its face, withoiitainblfiiiity, and the machine so desiu'uateil wa-i dellv- 
 anil embracinti the whole subject-matter, ered, put up, and put in operation iti the 
 it obviously could not be determined to brewery. Tlie only impliiiilion in regard 
 be less comprehensive than it was. Ami to it was that it would perforin the work 
 this conclusion is unaffected by the fact the described machine was made to do, 
 that it did not allude to the capai'ity of and it is notcontended that there was any 
 the particular niMchiiie. To hold that failure in such performance. This is no"t 
 mere silence opened the door to jiarol evi- the case of an allejied delirt in the process 
 deuce in that regard would be to beg the of manufacture known to the vi-iidor. but 
 whole question. We are clear that evi- not to the purchaser, nor of presumptive 
 denee tenilinK to show the Jilleiicd inde- and justifiable reliance by the buver on 
 pendent collateral contract was inadmis- the judRuient of the vendor rather than 
 silde. .Martin v. Cole. 101 U. S, 30; (Jilbert j his own, but of a purchase of a spicille ar- 
 V. I'liniirh ('o..ll'.l U, S. J!)l, 7 Siq). Ct. Rep. tide, manufactured for a partiiular use, 
 ;;o."); The Dilaware, 14 Wall. IJ7!t; Nnuin- and fit, pro|ier. and ellicacious for that 
 herd V. Youns;.^-! -'^- ■' Law, :{:!! : Conantv. u-;e, but in respect to the operation of 
 Rank, I'-'l Ind. :!.;>. ".'l' N. K. Rep. LTiO; .Mast v. which, in ])roducin;j a desired result under 
 Pearce, 5S Iowa, .")7'.i, s N. W. Rep. r>:i2, and particidar circumstances, the buyer found 
 1:; .\. W. Rep. .5!)7; Thompson v, Lihby, 84 ] himself disappointed. In short, there was 
 Minn. 874, 'J(') N. W, Ri'i). 1 ; Wilson v. Deen, no express warranty that the machii:o 
 74 .\ . Y. .5:51 ; Robinson v. McNeill, ;">! III.L'iV would cool I."i0.it00cublc feet of atniosidiore 
 FailluK in respect of the alleged e.xpress to 40° Fahrenheit, or any other temper- 
 warranty, plaintiff in error ccmtends, see- ature, without referinice to the construc- 
 ondly, that there was an implied war- tion of the particular lirewery or other 
 ront.v, arising from the natureof the trans- surroundinsr circumstances, and. It there 
 actiiin. that the machine should be rea- were no actual warranty, none coidd he 
 sonably lit to accomplish certain results, imputed. We may add that, in the light 
 to effect which he insists the purchase was of all the evidence in the record, treated as 
 made. It isargued that the evidence tend- competent, we think no verdict could be 
 I'd to establish that the plaintiff knew that permitted to stand which proceeded upon 
 the defendant had been cooling his brew- the ground of the existence of such a war- 
 cry with ice, and that the object of obtain- raniy as is contended for. The alleged an- 
 ing the nuichine was to render unneces- tecedent representations as to whether 
 sary tlie expense of iiurchasing ice for that the machine possessed siillicient refrigerat- 
 piirpose, and that unle.-'s the machine ing l>ower to cool this brewery were no 
 would cool it to the same extent, or about more than expressions of opinion, confes!*- 
 the same, as thy ice did, it would be edly honestly entertained, and dependent 
 worthless, so far as he was concerned. It upon other elements tiian the machine Il- 
 ls not denied that the machine was con- self, concrrning which plaintiff In error 
 structed for refrigerating purposes, and could form an opinion as well as defend- 
 that it worked and oiierated as a refriger- ant; and the conduct of plaintiff In error 
 ating machine should; but it is said that in demanding, twodays after the contract 
 it did not HO refrigerate as to reduce tlie was executed, a written guaranty that 
 temperature of the brewerv to 40"Fahren- the machine coni|>any would cool hisbnlld- 
 lieit, or to a temperature which would Ing to :!S," Reaumur, (or 4ii- Fahrenheit.) 
 enable defeiidanl to dispense with the pur- and keep it at that all the time, ami in nc- 
 chase of ice. The rule invoked is that quiescing in the company 's refusal to give 
 where a manufacturercontracts to supply the guaranty for reasons stated, and In 
 an article which he manufactures, to be thereupon afterwards ordering thecoin- 
 applied to a particular purpose, so that pany to go on with the work, as exhllilt- 
 the buyer necessarily trusts to the judg- ed in the correspondence bet wivn rti<- par- 
 ment i")f the inanufne'turer, the law imitlies tics, seems to us to jiistifv no otliercon- 
 n promise orundertaking on his part that elusion than that reached by the ver- 
 the article so manufactured and sold by j diet. The judgment of the circuit court Is 
 him for a specillc |)iirpose, and to be used nfflrmed. 
 In a particidar wav, is reasonably lit and 
 
 liroperfor the pnrijo.se for which he pro- Ruai.i.kv and «. hay, .1.1, were not ppeii- 
 
 lesses to make it", and for which it is ont at the argument, and took uo part In 
 known to be required; but it Is also the I the Ueclaiou of this case.
 
 SEWELL V. BUHDICK. 
 
 in 
 
 BEWELL et al. v. BDRDICK et al. 
 
 (10 App. Cas. 74.) 
 
 English House of Lords. Dec. 5, 18S4. 
 
 Appfiil liy till- ik'fendnntH from an order 
 of till- I'inii-t of iippuol' i-fiversinjl h ileci 
 Kidii of Kirld .1. Till- factH an- fully Ht-t out 
 ill the jiiilj;ii;ciit of Field J.- lirielly they 
 were hH fnlluWH • — 
 
 In Si'ptcinher Isso NereeHsiantz Hliip))ed 
 ciiiicliinciy on the rewpoiideii I'h ship to lie 
 eiiiilcd Iriiiii Loiiilon to I'oti in the liliiek 
 hcii, under l)illM of Indiii;; wliereliy the 
 jroodH were nuide deliveriildi- t<j the Hliip- 
 per or iisKl;;nri, treiii'it. primage, un<l din- 
 l]iii'He:nentH to bo p.iid at deHtinution, In 
 ilcfivult the ownerH or a^ients to have /in 
 aliMohite lien on the noodw and liherty to 
 Ki'll liy auction and retain fn-inht and all 
 eh irnes. Tlie bill.s of ladinsr indorHeil in 
 Maiik were in November ISMI rlcposited by 
 NiTeeHsiantz with tlie apiiellantH, bank- 
 ers iu Manchester, UR seeiirity for a loan 
 of tUH) advaiieeil by them to NercesHiMntz. 
 The HJiip mean while liad ariived at I'oti 
 in September, and the yoodw were laii<led 
 niid \vareh<>use<l at the Uiissian ciiHtom- 
 lioiise in October. NerccKniantz diwap- 
 priired. and after a year the j;oo<ls in ac- 
 cordance ivitli l'u.«Kian law were .sold to 
 pay eustoni-liou.se <luty ami eliarnes, and 
 rcaliy.eii uo more than enough for that 
 purpose. Meanwhile the appellant.s hurl 
 indorsed tlie bills of l.idiiiy; to their 
 aRents a t 'I'itlis with instruitions to pro- 
 tect their interestH, and had Informed the 
 Hliipowners that if the ^('odH were sohi 
 to pay trciuht, etj., the ai'pellaiitselaimed 
 all the proceeds over and above the 
 amount due to the shipowners for fivisrht 
 etc.. but the appellants never claimed de- 
 livery of tlie j;oods. The resjiondent liav- 
 Int: brought an action for €174 ss. Dd. for 
 frelulit and charges, a^jainst the appel- 
 biiits as indorsees of the bills of lading:. 
 Field .1. who tried tile case without a jury 
 cave judgment for the defendants."' TTie 
 court of appi'al ( Hrett, .\1. K., and Ba«- 
 Kallay. L. .1., Iloweii L. J. diHsentinc) «et 
 aside this jiidnmeiit and^ave jud^iinent 
 for the plaintifi lor the amount claimed. + 
 The ilcfeiidauts appealed. 
 
 Sir F. Ilerschell, S. (i., ( DanckwertH, 
 with him, I for appellants. C. Hall, Q. C, 
 and ICilwyn Jone.s, for rec|)oudent. 
 
 Karl of SKLUOK.N'i:, !>.('.:— My lords 
 this appeal raises llie iiuestion whellier 
 under tlii' bills of ladins^ act of \<>'> 1 1N\- I'.l 
 Vict. c. Ill) every holder of a bill i>i lad- 
 in>r, indorsed in lilank. who has taken il 
 by way of security for an advaiiceof mon- 
 ev (and has not afterwards parted with 
 It) is liable, by reason of such indorsement 
 only, to an action for freight by the ship- 
 owner; although he may not have ob- 
 tained delivery of the^oods orderivedany 
 other benelit from his security. 
 
 The SToodH in this case were, by the 
 terms of the bill of ludinii, delivHral)le at 
 
 ' 13 Q. B. D. ir)9. 
 "UIQ, H. 11. ,1(13. 
 
 "1(1 g. H. I). :!(•>:(. 
 
 « 13 (J. 13. 1>. 159. 
 
 I'oti, a liuKsian port on the Itlark iien,iiiid 
 had liccii landed and warelioiised (lu-relD 
 a public warehouse ( no one appearini; to 
 claim or take cliarwe of tln-in | before the 
 date of the inilorseiiient. This was their 
 position when the prisent action wnn 
 broui;lit liy the respondent, the rihipown- 
 er, against the appellants, who were 
 bankers at ManeheHtcr, anil who had ii'l- 
 vanced t;!(i,i to the shipper upon the secu- 
 rity of the bill of lailiii^. In hisHta teuient 
 of claim the plaintur alN-u'ed that the 
 Koods still remaini-d at I'otl umler I he 
 v.irt_- of the Russian authoritii'M: that the 
 plaintiff hail under Kiissian law ni> power 
 of selling; them for the purpose of paylni; 
 hliiiKelf the amount claimed 111 the action 
 (tl7t Ss. 'Jd. and intcrcsti; and that the 
 Itiissiau authoriticH were about to sell the 
 same tor a sum barely suitioient to cover 
 the customs duties and Koveranient 
 chari^i'S thereon. Tlii-y were, in tact, sold 
 by tlie itiissian autlmrilii'S, and did not 
 realise more than the amount of those du- 
 ties and charKCH. 
 
 Fuller theseclreiimstaneeH, Field .J ( who 
 tried the case without a jury ) ita ve jiiiIk- 
 nient for tlie defendants (the appelbintH 
 here.) That jiidp;nient was reversed by n 
 majority ( Ilrett M. K. and Ha;:);anay L>. 
 J.) of the Jud);es in the court uf aiipeul. 
 liowen L. .1. dissentinjr. 
 
 The difference tietween thOHe learned 
 judues mainly (if not nltoRetherl turned 
 npoii the question, whether, accordlnir to 
 the aiithiirities from IJckbarrow v. .Ma- 
 son' downwards, the effect of an Indorse- 
 ment and deposit of a bill of lading, while 
 the ;;oods are in transitu, l>y way of si-rn- 
 rity for a loan, in to pass the whole leKal 
 title to the (joods. or only to pledge tlieui, 
 passin;; at law a "special properly " and 
 lea\iiiir »he"t;eueral [iroperty " in the ship- 
 per. TTint nuestion was much deba led in 
 (Myn .Mills & Co. v East and West India 
 Dock Company,"' where l<rett \t. .1. ex- 
 pressed the same opinion on whiih he 
 acted in the present case, liramwell I,. 
 .1. takiut; the opposite view. .My uolile 
 friend Lord Hlaekburu. in hix opinion on 
 that ca.se, when it readied this house ad- 
 verted to the point but thought It unnec- 
 essary to express any opinion upon It." 
 
 In the present rase the true i|iiestion Ih 
 whether "the property" in the coods 
 "passed to the indorsee upon or by reason 
 of the iudoisemeut," within the meiiiiiuK 
 of thos"! words, as used in the bills of lad- 
 in;; act of l>>:i."i? It »vas considered by 
 llrett M. K. and Ha^^jallay L. .1. that It the 
 effect of the iiiibirsemeii t and deposit was 
 (as they thoiiuhl) to pass the whole heal 
 title tothe jroods to the appellants as in- 
 dorsees, leavinir an equitable interes; on- 
 ly ill tliesliippei-.it was a necessary eonse- 
 queiice that "the property passed" to 
 them within the ineaniiitt of the statute, 
 and that the respondent, the shipowner, 
 was entitled to recover un.ler the statute 
 in this action. They clearly used the 
 words "lesal" and "equltatile" In that 
 technical sense which they have acqulreJ 
 in Enulisb law. 
 
 • 1 Sm. L. C. 753, 8th ed. 
 •B Q. B D. 4r.V 
 '7 App. Ciis. IWHJ.
 
 714 
 
 SEWELL V. BURDICK. 
 
 I am not in.VMolf sntislipfl that this con- 
 sequence is necessary ; Imt 1 ailinit that 
 there are dirticnlticH in the way of the con- 
 trary view; an there are also ditticnlties 
 (arisins from the strong and unciualified 
 lansiiage used by judges of great authori- 
 ty, from the time wlien Lickliarrow v. 
 Mason** was decided downwards) in the 
 way of the opinion that an indoraement 
 auii deposit of a l)ill of lading in a caselike 
 the present oi)erates by way of pledge, 
 and not as an assignment of the whole 
 legal title to the goods. The facts her(< 
 are sinip.ly an indorsement in blank and 
 tietiosit of the bills of lading, so indorsed, 
 by way of security for money advanced. 
 There "are no special circumstances, ex- 
 cept that the indorsee never did obtain, 
 and that it was never possible for him (in 
 fact) to obtain, delivery of the g.)ods. 
 
 I should not feel greatly embarrassed (if 
 there were no other authority) by the mere 
 terms in which the custom of merchants 
 was found in Lickbarrow v. Mason ;* 
 namely, that "bills of lading are after the 
 shipment, and before the vo.vage perforin- 
 eil, negotiableand transferable by theship- 
 per's indorsement and delivery, » » * 
 and that by such indorsement and deliv- 
 ery the propert.v in such goods is trans- 
 ferred." This, it maybe said, is the lan- 
 guage of the bills of lading act. But I do 
 not understand it as nece8saril.v meaning 
 more than that "the property " which it 
 might be the intent of the transaction to 
 transfer, whetherspecial orgeneral.iiasses 
 by such an indorsement, according to the 
 custom of merchants. The finding must 
 be reasonably understood ; it cannot (lor 
 instance) mean that the propert.v will be 
 transferred when thereisnoeonsideration. 
 
 But, although the custom as tound 
 seems to nie to beconsistent with the view 
 taken by Field J. and Bo wen L. J. in the 
 present case, I have more diliicult.y in say- 
 ing that the language of Buller J. in the 
 earlier stages of Lickbarrow v. Mason" 
 is HO. And, in some later cases, other 
 great judges have not only followed, but 
 have even gone beyond that language. 
 The court of queen's bench, in Ke West- 
 zinthus,io held that a right of stoppage in 
 transitu might be exercised ag.'oinst the 
 interest remaining in the shipper subject 
 to the security created by an inilorsement 
 and dei)oHit of the bill of lading, but they 
 did so on the ground, not that the ship- 
 per retained any legal title or interest, but 
 that he had an equity of redemption, of 
 which theformin which the question then 
 arose enabled the court to take notice. 
 And, although it is true that in Harris 
 v. Birchii the court of excheciuer, then 
 composed of Barons Parke, Alderson, Gur- 
 ney, anil Rolfe, decided a question of 
 Rtamp <lut,v ur>on the ground that an in- 
 dorsement and dp|)osit of a bill of lading 
 by way of securit.v operated as a pledge, 
 and Coleridge J. in Jenkyns v. Browne- 
 considered it to pass a special property 
 only to the indorsee, leaving the general 
 
 «.5T. R. 683. 
 
 n Sm. L. C. 75.3, 8th ed. 
 '».5 B. & Ad. 817. 
 "9M. & W. 591. 
 " 14 Q. B. 503. 
 
 property in the shipper, and in Meyerstcin 
 V. Barber'3 oil the judges of the comuicui 
 pleas and in the excheiiuer chamber con- 
 curred in that view, — yet, on the other 
 hand, when Meyerstcin v. IJarbercame to 
 the bouse of lords (where the judgments 
 of those courts were affirmed), I^ord llath- 
 erley and Lord Westbury used strong lan- 
 guage of an opposite kind. Lord Hather- 
 ley said: " I( anything could be supposed 
 to be settled in mei'cantile law, I appi'i'- 
 liend it would be this, that, when goods 
 are at sea the parting with the bill of 
 lading is parting with the ownership of 
 the goods;" and afterwards, "I a|)pre- 
 hend that it would shake the course of 
 proceeding between merchants, as sanc- 
 tioned by decided cases, if we were t(» 
 hold that the assignment of the bill of 
 lading, the goods being at the timeat sea, 
 does not pass the whole and complete 
 ownership of the goods, so that any per- 
 son taking a subseciuent bill of lading, be 
 it the second or be it the third, must be 
 content to submit to the loss which would 
 arise from the state of facts." These 
 words are hardly, if at all, qualified by 
 the context, "so that," etc. although in a 
 later sentence (as to which see the re- 
 marks of Lord Blackburn in 7 Appeal 
 Cases page 0114), the ijroposition is less 
 absolute: "'When the vessel is at sea, and 
 the cargo has not yet arrived, the part- 
 ing with the bill of lading is parting with 
 that which is the symbol of proi)erty, and 
 which for the purpose of conveying a right 
 and interest in the property, is the prop- 
 erty itself. "It 
 
 Lord Westhury's language is similar, 
 perhaps stronger: "No doubt" (he said) 
 "the transfer of it" (the bill of lading) 
 "for value passes the absolute property in 
 the goods." He quoted some words of 
 Erie C. J to which 1 shall afterwards refer, 
 as having the same sense; he spoke of tlie 
 first holder for value of the bill of lading 
 as having "the legal ownershi|) of the 
 goods," "the legal right in the pro]ierty," 
 "both the right of property and the right 
 of possession passing by a symbol, ihe bill 
 of lading, wliich is a I once both the symbol 
 of the property and the evidence of the 
 right of jtossessiim. ">5 
 
 To reconcile these expressions with 
 those used in the same case by the judges 
 of the common pleas and in the exchequer 
 chamber is scarcel.v possible, and yet no 
 dissent from the views of those learned 
 judges was expressed in this house; on 
 the contrar.v their reasoning, and espe- 
 cially that of Willes .1., was referred to with 
 apparent apiirijval, particularly by Lord 
 Ilatherley and Lord Chelmsford. In such 
 a contiict, not of decisions but of judicial 
 phraseology, if not doctrines, it becomes 
 important to remember that it is often 
 dangerous to infer, even from very strong 
 words, when used diverso intuitu, con- 
 clusions on other subjects which if they 
 had Iteen pi-escnt to the minds of the 
 speakers, might perhaps have led to their 
 being more guarded or qualified. None of 
 the cases to whic-li I have referred arose 
 
 "Law Rep. 3 C. P. 3S, B61. 
 » Law Rep. 4 H. L. 325, 326. 
 " Law Rep. 4 H. L. 335-337.
 
 SEWELL 0. BUUDirK. 
 
 715 
 
 ■npon the stntiito with wliieli yiiur loril- 
 HliiiiH have now Id ileal, tlii'.v iclntcil, 
 Home ti) llic rii;lit of Htoiipa^in In transini. 
 Home to roiii|ictiMi; claliiiM hetlveen hold- 
 erH for value of 'liftei-eal parts of the Harne 
 net of liill.s of lailiajj. It may well he that, 
 as a^alast ali Hueli elajniH. anil against 
 partleH Metlinir up interentH ailveiHe to the 
 title of the InilorHee for value, siieh wonls 
 iiH "the li'Kal ownerHliip," "the le^^iil 
 rijilit," "the rif;ht of property In the 
 KooiIh," mi(iht be nHeil, anil the property 
 whieh pawseil to the Indorsee nii>rht lie ile- 
 suriheil as " aliHolute" in a sense Hiihstan- 
 tially true, even thouKli Hiich (iroperty 
 ml;;lit, as lietweeii the inilorsee reeeiviun 
 anil the shipper depositing (he hill of lad- 
 ing by way of secniity.he speelal only anil 
 not }xeneral ; and thon^ih the most apt 
 term for a si-iintilie delinition of the trnns- 
 action as het weeii the borrower and the 
 lender, mav be, not nssiKninent or Irnns- 
 fer, hnt pledge. 
 
 It) HiK'ii a state of authority it is impor- 
 tJint to see how the matter Htands in prin- 
 ciple. 
 
 In principle the custom of merchants as 
 found in I.icl<harro\v v. .Mason seems to 
 he as much applicahle and available to 
 jiass a speci.il projierty at law by the in- 
 doi'senient (when that is the intent of the 
 fransnetion) as to jiass the general prop- 
 erty when the trnnsaction is, e. k., one of 
 sale. In principle also there seems to be 
 nothing in the nature of a conlrMct to 
 cive seiiKlty by the deliver.v of a bill of 
 ladlnir liidorHcd in blank, which reipiires 
 ii;ore in order to tcive it full effect, than n 
 pleily:e accompanied by Ji power to obtain 
 delivery of the Koods when tliey arrive, 
 and (if necessary) to realize them for the 
 purpose of the security. Whether the in- 
 dorsee when he takes delivery to himself 
 may not be entitled to assume, and may 
 not I.e helil to assume towards thesliip- 
 owner, the (losilion of full proprietor, is a 
 different (|uestion. lint, so Ions at all 
 events as they;oods are in transitu, there 
 Heems to be no reason why the shipficr's 
 title should be displaced .■my further than 
 thenntiiie and intent of the transaction 
 requires. This is not inconsistent with 
 what was said by ICrle, (". .1. in .Mcyerstein 
 V. Barbel', '•' that "the inilorscmeiit and 
 delivery of the bill of Indinir while tlie ship 
 is at sea, operate exactly the same as the 
 delivery of the u;oods themselves to the 
 ussisnee after the ship's arrival would 
 do." 'l'lu> learned judi^e cannot have 
 meant lluit piissession of the symbol isfor 
 every purpose the same thinjj as actual 
 possession of the floods : what he did 
 n\ean was. that the indorsement and de- 
 livery of the bill ofladinir by way of pledge 
 (which he considered to be the effect of the 
 transaction in that case) was ei|uivalent, 
 and not more than enuivalent. to n deliv- 
 ery by way of pledge of till' ;;oods them- 
 selves. Lord Hard wii'ke'" thonjiht that 
 there was a difference between an indorse- 
 ment of a bill of ladini; in blank and a per- 
 sonal indorsement, and (for some pur- 
 ]>oseH) I think there is much reason for 
 that o|iiniun. It, from a personal inilorsc- 
 
 "baw Hop. 2 C. P. 4.-1. 
 "Siico V. Prcscot. 1 Alk. 249. 
 
 ment. thf- inference ml;;ht pro|)eily ho 
 ilr.iwn that a title liy assignment, as dlH- 
 tin^uislicd from pled;;e, wiih meant to 
 pass to the Indoi'see, It would not, in my 
 opinion, follow that the same inference 
 ouKlit to be drawn from an indorsement 
 in l)lank. J'art of tlie custom of mer- 
 chants, found in Lickbarrow v. .Mason,''* 
 was that "IndorHementH of bills of lading 
 in blank may be tilled up by the person to 
 wliom they are delivered or t rnnsinitted, 
 with words ordering tlie delivery of kooiIh 
 to be made to sucli person : and, accord- 
 inu: to the practice of merchants, the Huir.e 
 when lilled uj) have the same opera tlon hh 
 if it had been done by tlie sliipper." 
 Whether it is or is not usual in practice to 
 (ill up the Idaiik with any name before 
 takin;t delivery, it Ih certainly not lo lie 
 implied from the custom as thus found 
 tliat the operation of the Indorsement, 
 while it remaias In blank, Is necessarily to 
 all intents and purposes the same as if It 
 were lilled up with the holder's name. 
 So loan as it remains in blank It may iiusH 
 from hand tu hand by mere delivery, or it 
 may be redelivered to the shipper witliont 
 any new transfer or indorsement, whirh 
 would not be the case if there were a per- 
 sonal indorsement. It would bestrani^e 
 if the bills of lailin;; act has made n per- 
 son whose name has never been upon the 
 bill III ladiiiii:, and who (as between him- 
 self and the shipo wnei) has never acted 
 upon it, liable to an action by the ship- 
 owner upon a contract to wliich he was 
 not a parly. 
 
 I am not however sure, thai, for the de- 
 cision of the present ajiiienl, it is really 
 necessary to rely, either upon any differ- 
 ence between a personal indorsement and 
 om- in blank, or upon the distinction be- 
 tween siich a form of secuiity as (in Eng- 
 lish lawl miiiht lie lielil t-> pass the whole 
 le;;Ml title, and a simple pledi-e. 
 
 The statute with which your lordships 
 have now to de.-il is introdnced by a pre- 
 amlile, the material part of which Is, that 
 "by the custom of merchants n bill -if lad- 
 Ins of (loods beinj- I ransfernbleby indorHe- 
 ment the property in the >;ooils may there- 
 by pass to the indorsee, but nevertheless 
 all riulits in respect of the contrnct con- 
 tained in tlie bill of bidini; continue in the 
 oriirinal shippiT or owner, and it is expe- 
 dient that such riiilits should pass with 
 the property." The 1st section enacts, 
 that "every consiuiiep of );<>"<ls named in 
 a bill 111 ladinu. and every indorsee of a 
 bill of lailiiij: to whum the properly in the 
 Roods theicin nientioiied shall pass, upon 
 orhyriasoa ol sucii cm slunment or in- 
 dorsement, shall have transferred to and 
 vested in him all riiihls of suit, and hesnb- 
 ject to tlie same liabiliiies in respect of 
 such iroods as if the contract contained In 
 the bill of ladlnK had been made with 
 himself." The "Jnd section |irovides that 
 "nothinir herein contained shall prejudice 
 or affect any rlKht of stoppaire in transi- 
 tu, or any rijiht to claim freight against 
 the orisinal shipper or owner, or any lia- 
 bility o! the consignee or indorsee by ren- 
 ,8011 or inconseipienceof his beliiK suchron- 
 al>;nee or Indorsi-e, or of his nvelpt of the 
 
 '■5T. R. I1S3.
 
 716 
 
 SEWELL 0. BURDICK. 
 
 floods lij' reason or in consequence of such 
 consitinnient or indorsement.'' Tliere is 
 notlilnK else niaterinl in tliat act. 
 
 The statute contemplates the passing of 
 "the i)roi)erty in the }jooil><" by the in- 
 dorsement of the bill of lading, as a 
 tliinn which may, or may not, happen, ac- 
 cordint; to the nature and intent of the 
 conli-.ict or d«*aliiis', for the purpose of 
 wliich that indorsement is made; and it 
 seen)s to provide for those cases only in 
 which tlie property so passes, as to make 
 it just and convenient that all rishts of 
 suit under the contract contained in the 
 Ifillof I ad int; should be" transferred to" the 
 indorsee, and should not any longer "con- 
 tiuue in tlie original shipper or owner." 
 One test of the application of the statute 
 may perhaps lie, wliether, according to 
 the true Intent and operation of the con- 
 tract between the shipper and the in- 
 dorsee, the shipper still retains any such 
 proprietary right in the goods, as to make 
 it just and reasonalile that he should also 
 retain righis of suit (the word is suit, not 
 action) against the shipowner, under tlie 
 contract contained in the l)ill of lading. 
 If h-^ does, the statute can hardly be in- 
 tended t() take from him those rights, and 
 transfer tlicm to the iadorsee. If they ore 
 not transferred to the indorsee, neither is 
 the indorsee sulijected to the shippers 
 liabilities. 
 
 It is very difflcnlt to conceive that vvhen 
 the goods are still in transitu, when the 
 substance of the contract is not sale and 
 ])urchase, but borrowing and lending, and 
 when tlie indorsement and deposit of the 
 bill of lading is only by w ay of security for 
 a loan, it can be the intention of either 
 party thereli.y, without more, to divest 
 tlie shipper of all tirojirietary right to the 
 goods, and to take from him and transfer 
 to the indorsee all rights of suit under the 
 contract with the shipowner. That some 
 proprietary right (his original right, sub- 
 ject only to the creditor's security) re- 
 mains in him is indisputablB. If that 
 proposition needed illustration from au- 
 thority it would be found in the cases of 
 Re Westzinthus,i» Spalding v. Itnding.^o 
 and Kemp v. Falk.^i Can it be that he 
 is by the statute dei)rived of all remedies, 
 legal and e(]uitable, under the bill of lad- 
 ing, as long as it remains in the liands of 
 the secured cre<litor'? The creditor, in the 
 ordinary course of tliines, will do nothing 
 until the time for payment or delivery of 
 the goods .nrrives. Can it then be mate 
 rial whether the proprietary right, thus 
 remaining in the shipper while the goods 
 are in transitu, is legal orequitable? The 
 statute relates to a subject of general mer- 
 cantile law, in which not Englishmen (inly 
 but foreigners also may lie, and often are, 
 C(mcerned. Foreign as well as British in- 
 dorsements of liills of lading by way of se- 
 curity for advances (which may be made 
 abroad, perhaps in countries notgoverned 
 by English laws) are lialile to be affected 
 by it, whenever recourse must be had to 
 British courts. It seems to iiie to be in- 
 conceivable that the construction of the 
 
 words "the propert.y in the goods," in 
 such a statute can liave been intended to 
 depend upon an.y such rechnical distinction 
 as that made in English law (but by no 
 means in the laws of all other countries in 
 which the customs of merchants prevail) 
 between legal and equitable titles. 
 
 It is to be observed furtlier that the 
 statute contemplates beneficinm cum 
 onere and not onus sine lienelicio. It 
 may be rensoiialilo if the indorsee has the 
 benefit (as he would if he wore a purchaser 
 out and out, or it under his title as in- 
 dorsee of the bill of lading ho obtained' 
 delivery of the goods to himself), that he 
 should take it with Its corresponding bur- 
 den, quoad the shipowner. But it would 
 lie the reverse of reasonable to impose 
 upon him such a burden, wlien he h»s 
 neither entered into any contract of which 
 it might be the natural resnli, nor (hav- 
 ing taken a mere securit.y) has obtained 
 any benefit from it. This oliservation is 
 fortiheil by the fact that the statute does 
 not ajipear to distinguish betwien in- 
 dorsements subsequentund those anterior 
 to its enactment. 
 
 On the other hand it seems impossible 
 to suiiiKise the legislature to ha ve jiassed 
 this statute without some reference to 
 the custom proved in Liickbarrovv v Ma- 
 son, and to the law (whatever may lie- 
 the true view uf it) estal)lislied on the 
 same suliject by later authorities in the 
 English courts. And if (as I think) it 
 ought to lie understood with some refer- 
 ence to that custom and to those author- 
 ities, I cann<it [lersuade myself that Its 
 operation is altogether restricted to cases 
 of out and out sale, or that an indorsee 
 of a bill of lading by way of security, who 
 converts his synilKdical into real posses- 
 sion liy oiitaiuing lielivery of the goods, 
 ought never to ileriva any benelit from it. 
 The authorities decided upon tlie statute 
 itself appear tome to be most easily recon- 
 ciled witli its apparent objects, mid with 
 e;?ch other, by a view whioli, if hardly 
 consistent with expressions to be found 
 in some other cases, nevertheless seeins 
 to me to have a real and substantial 
 foundation in reason and good sense; viz. 
 that the indorsee by way of security, 
 though not having "the property" passed 
 to him alisolutely and for all pmiioses i>.y 
 the mere indorsement and delivery of the 
 bill of lading while the goods are at sea, 
 has a title tiy means of wliich he is en- 
 abled to take the position of full pro- 
 prietor upon himself, with its corres|iond- 
 ing burdens, if he thinks fit; and that he 
 actually does so as between himself and 
 the sliiriowner, if and when he claims and 
 takes delivery of tlie goods by virtue of 
 that title. The authorities decided upon 
 the statute are Fox v. Nott^a, .Sinnrth- 
 waite v. Wilkins23, The Figlia MaggioreSi, 
 and The Freedom^-"). Another case, Hhcrt 
 V. Simpson^", was also cited during the 
 argument at vour lordships' bar. 
 
 In Fox V. Nott lA. D. I8«l) the only 
 
 "5 B. & Ad. 817. 
 
 »6 Beav. 376. 
 
 '■ 7 App. Cas. 573. 
 
 =2(1 H. &N. 637. 
 
 =»11 C. B. (N. S.) S-47. 
 
 " Law Rep. 2 A. & E. 108. 
 
 " Law Rep. 3 P. C. 504. 
 
 =« Law Rep. 1 C. P. 24S.
 
 SEWELL V. BURDICK. 
 
 ^17 
 
 qiu'Htidn (letertnineil was, that the Hhiii-' 
 uwinT rctaiiind IiIh renioily liy acliori 
 jijiiiiiiHt tlR" Kliippcr. after thn inclorHciiicnt 
 <if llie liill (jf ladiiiji (a oasi" providt'd for 
 liy till- 'Jnd Hf>cti(iiii: lint Home (jf tlip 
 leai'ML'il jiidH;cH exiiresHfd upinluiiH ln'Mriiit; 
 ii|ioii the general construction of tl'eHtat- 
 iite. I'ollocl; (.'. I?. Maid. "Tlie indopKce of 
 the bill of liidiiiK xiay lie Kiied under the 
 HtMtiile, liecauKc liy taking the ;?oodH he 
 aJHo takeH the lialillity to the frei^^ht." 
 Miirlin I!, said, " The Htatntc meauH an 
 actual vestin^r of the property an liy ha r- 
 Kain anil .sale;" anil Wilde 15. Kaid. " 1 
 a)iree with my Urotliei- Martin that the , 
 act applies only to an alisoUile iransfer 
 of the K""'l^. and was never in tended to 
 deprive a pcismi who made advances on 
 the HiTurity of the liiil of lulling of the 
 liemlit of the oriuinal ciintract of the 
 Hhipper to pav the freijiht." 
 
 In Smurthwaite v. WilUins (A. D. 1S(;2) 
 the indorsee oi a iiill of lading, who liad 
 indorsed it over to a third party, was 
 held not to lie lial.le to the Hhipowner. 
 Erie L'. J. said. " Tlie eonteniiiin on the 
 part of the plaintiff is, that, the property 
 in the jXKO'ls passing to the defendants l).\ 
 the asHignmeiit of the liill of lading;, under 
 tlie act, they are liable tor the freight, al- 
 thouK'i they never received the goods. 
 • * * Th? contention is, that the con- 
 signee or assignee shall alwa.vs remain 
 liable, liUe the cunsignor, although he has 
 parted with all interest and property in 
 the goods bj- assigning the bill of lading 
 to a third iiarty, before the arrival of tlu' 
 goods. The lonsiiini'iii'i's which this 
 Would lead to are so monstrous, so mani- 
 festly unjust, that I slniuld pause before I 
 consented to adopt this construction of 
 the act of parliament. The person who 
 received the goods was always consid- 
 ered liable for the freight: but that was 
 not by virtue of an original liabilit.v as a 
 contracting party, but on a contract im- 
 plied from his acce|itaiice of the goods. 
 Looking at the whole statute, it seems to 
 nie that the obvious meaning is, that the 
 assimiee it/jo receii-i's the airf^o" (the 
 italics are in the report) "shall have all 
 the rights and liabilities of a contracting 
 party; but that, if he passes on the bill of 
 lading by indorsement to another, he 
 passes on" all the rights and liabilities 
 which the bill of lading carries with it." 
 Sir ]•;. Vaughan Willianis agreed. " Loo'-c- 
 ing"(hesaid "at the preamble, and at 
 the general scope and intention of the 
 statute, I can entertain no doubt that 
 the view presented by my lord is the true 
 one:" and he explained the effect of " the 
 general scope" of the act to be, "that, 
 where the right of property leaves the 
 party, tlie rights ami liabilities under the 
 contract leave him also." .\ case like the 
 pri'sent, of a security on an indorsed bill 
 of lading, not acted upon (and which, in 
 fact, never could be ncte;l upon) by tak- 
 ing delivery of the goods, but at the some 
 time not transferred to any other per- 
 son, differs (in speoie) from that of a man 
 who has transferred the bill of lading by 
 indorsing it over to another. Hut I can- 
 not see that it would tie more reasonable 
 to make the holder of such a security, 
 which he has never realized, and never can 
 
 realize, liable under the statute, than if 
 he had parted with the bill of ladiiii; to 
 somebody else. 
 
 The cases of The P'lglia Maggiore and 
 The Freedom weredeterinined in the court 
 of adinii-alty under nnotherHtatutc, wlilcl. 
 (as l>r. Lushinuton and his succcHHor, in 
 my opinion, rightly held) gave that court 
 jurisdiction when, and only when, there 
 was. Independently of that statute, n 
 right of action or suit; and. In those par- 
 ticular cases, it appears to have buen 
 held, that there was no such right of ac- 
 tion or suit, unless it was given liy the 
 bills of lading act. In both of Iheiii the 
 [ilaiiitiffs. indorsees by way of security of 
 bills of lading, had claimt-d and obtaineil 
 delivery of the goo'ls, and then hail 
 brcnght actions against the shipowniTH 
 for damages wiiich they had su^taine<l 
 through breaches of the contracts cun- 
 taineil in the bills of lading; and they 
 were held entitled to recover. Ihis wad 
 right if an indorsee under such circ-uin- 
 stances may rightly he hcldentilled t<i the 
 benefit of the statute, as having elected 
 to complete hin potential and inchoate 
 title by taking possession of the goods, 
 and so placing himself towards the ship- 
 owner in the [losition of proprietor. .May 
 It not be said tliat"the property in the 
 goods" then (if not before I " passes" to 
 him " by reason of the indorsement"? The 
 Iirinciple of the liability, which umler 
 some "ircumstances was held, even before 
 the statute, to nttach to the indorsee tak- 
 ing dsliver.v, was regarded by ICrle ('. J. 
 in Snuirtliwaite v. Wilkins as elucidating 
 the iiolicv aad the objects of the statute 
 itself; and both he, and I'ollock C. It. In 
 Fox V. Xott 8|)oke of " taking the goods, " 
 and "receiving the cargo," as the test of 
 its r.pplication. The nuthorities on that 
 suliject iJesson v. Solly ;2" Stindt v. Itob- 
 erts;-8 Wegener v. .Smith ;2" Chappel v. 
 Comfort^" seem from this point of view 
 to deserve conshleration. 
 
 The decision in the court of ndiniralty in 
 the case of The Freedom was allirined liy 
 her majesty in council, upon the advice of 
 the judicial committee, and nltlnuigh it 
 was on a point as to which the admirnlty 
 had only a statut.iry jurisdiction concur- 
 rent with the courts ol common law, and 
 thoimh in all Kiiglish admiralty cases the 
 appeal now lies to this hoiist , still this, as 
 the decision of a court of linal appeal, 
 ought not, in any later case, to be lightly 
 departed from. 
 
 The case of Short V, Simpson^' <lid not 
 really require anything to be decided aa 
 to tlie effrct of the statute, and nothing 
 was in fact so decided. It was there hi hi 
 that.nuocnniiue moilo. whether under the 
 statute or Independen'ly of the statute 
 the shi|)per. to whom a bill of lading 
 which he had indorsed and delivered to 
 his creditor by way of security was reln- 
 dorseil and redelivered ui>on payiuent of 
 tlie loan, was remitted to his original 
 rights. 
 
 «'4 Taunt. 53. 
 »1TL. J. (Q. B.) 166. 
 » 15 C. B. 285. 
 »1(1C. B. (N. S.) Si>3. 
 >' Law Ucp. 1 C. r. 243
 
 718 
 
 SEWELL V. BURDICK. 
 
 Uijon the wliole I cnnnot diHsenilile that 
 thi.s case api'ears to nie to t)d utteiuleil 
 with some coiisideralile difficulties. But 
 tliose (litficulties are mainly technical, aris- 
 iiiS out of a comparison of the lanKiiase 
 of tlies til lute witli various ami not always 
 cousiMtent forms of exjiression found 
 in authorities not decidud witli a view 
 to any such eonsetitiences as those which 
 tlie statute would produce. 'J'liey deal 
 with questions between unpaid vendors 
 of Koods comprised in l)ills of lading and 
 bin\a fide indorsees of the same hills of 
 ladins; for value, or between compciins 
 and adverse claimants toiiriority as bona 
 tide liolders for value of the bills of lad- 
 ing tliems(>lves. The statute, on the other 
 hand, deals with questions between ship- 
 pers and indorsees of bills of lading; claini- 
 injj; under them, and lietween indorsees 
 and sliipowners. The i)reponderance of 
 princii)le and reason appears to me to be 
 against the jtroposition, that, as between 
 those parties, it can liave been intended 
 by, or can he the effect of, the statute to 
 make the creditor of the sliipper liable (in 
 effect) as his surety to the shipowner 
 (with whom he was never t)rousl't in coii- 
 tact), by reason onl.v of the deposit with 
 him, by way of security, of a bill of lading 
 indorsed in blank; his rijiht under tliat 
 deposit, being (whether at law or in eq- 
 uity) special and not general, and the 
 shipper retaining ( whether at law or in 
 equity) the real and substantial property 
 in the goods, subject to the security. It 
 had not, until the present case, been di- 
 rectlj' or indirectly determined b.v any 
 authority that such is the effect of tlie 
 statute. 
 
 My conclusion is, that the appellants 
 ought to be exonerated by your lordships' 
 judginent from the respondent's ncti(jn ; 
 and that the order of the court of appeal 
 ought to he reversed, with costs. 
 
 Lord BLACKBURN :-My lord^, the 
 jugdnient of Field J. was reverse<l by tne 
 order now under ap|)eal. The case was 
 tried l)efore liim witliout a jury, and I 
 think it is necessary to see what he had 
 to determine. There was no question be- 
 tween vendor and vendee, nor of stoppage 
 in transitu, raised, for there was neither a 
 vendor nor a stoppage. The law and de- 
 cisions as To stoppage in transitu might 
 he relevant in construing tlie statute IS & 
 19 Vict. c. Ill, but did not otherwise affect 
 the rights of the parties. 
 
 It will be seen bj' refeience to the state- 
 nientof claim and of defeucethat it wasnot 
 suggested that the defendants were, at the 
 time tlie goods were shipped, in any way 
 interested in thegoods; nor that tlie.v were, 
 either as undisclosed principals or other- 
 wise, parties to the contract in the bill of 
 lading until it was delivered to them, after 
 the ship had sailed and the goods were iu 
 thehand of theshipowners to becarried un- 
 der the bill of lading and were not yet de- 
 livereil, with an indorsement in blank by 
 Nercessiantz, the consignee named in the 
 bill of lading. 
 
 ] ilo not think that,eitherat the trial or 
 on the argument, it was at all disputed 
 tliat at common la w the remedy of the ship- 
 owner under a bill of lading was by en- 
 
 forcing his lien upon the goods, or bv 
 liringing an action on thecontract against 
 any one who, at the time when thegoods 
 were shi|iped, was a party to the bill ol 
 lading, eitiier as being on the face of it a 
 contracting party, or as being an unilis- 
 closed principal of such a party. In either 
 of these cases he might be sued as having 
 been from the beginning a party to the 
 contract. 
 
 Some attempts had been made to say 
 tliat the contract in a hill of lading might, 
 under some circumstances at least, be 
 transferred to an assignee in a manner 
 analogous to that in which thecontract 
 in a bill of exchange was transferred by 
 the indorsement of the bill of exchange; 
 but I think since the decision in Thomp- 
 son V. Dominyss jn ]s-l.'), it has been undis- 
 puted law that under no circumstances 
 could any one not a party to the contract 
 from the beginning sue on it in his own 
 name. Any action on the contract at 
 common law must be brought in thename 
 of an original contractor, and no action 
 could be brought on the contract against 
 one who was not liable to be sued as an 
 original contractor. 
 
 Batten years later the IS & 19 Vict, c. 
 Ill, was passed. The preamble states this 
 as one of the objects which the legisla- 
 ture had in view, " Whereas by the custom 
 of merchants a bill of lading being trans- 
 ferable by indorsement the propert.v in 
 the goods maj' thereby pass to the in- 
 dorsee" (which I think for a long time be- 
 fore the 18 & 19 Vict. A. D. ls.i5 was undis- 
 pute<l),"but nevertheless all rights in re- 
 spect of the contract contained in the bill 
 of lading continue in the original shipjier 
 or owner" I this, it is to my mind clear, 
 refers to Thompson v. Dotniny )3-, "and it 
 is expedient that such rights should pass 
 with the property." 
 
 The moiie in wliich the legislature carry 
 out the ol)ject thus expresseil in the pre- 
 amble is b.v sect. 1 : P^ver.v consignee of 
 goods named in a bill of lading, and every 
 indorsee of a bill of lading, to whom the 
 property in the goods therein mentioned 
 shall pass upon or by reason of such con- 
 signment or indorsement, shall have 
 transferred to and vested in him all rights 
 of suit, and lie subject to the same liabil- 
 ities in respect of such goods as if the con- 
 tract contained in the bill of lading had 
 been made with himself." 
 
 The case made on thestatement of claim 
 was that "the" projierty had passed upon 
 or b.v reason of the indorsement to the de- 
 fendants. Not that they were before that 
 a party to the contract in the bill of lad- 
 ing, biit that by virtue of the act IS & 19 
 Vict, when the property passed they be- 
 came subject to the same liabilities as if 
 the contract contained in tlie bill of lading 
 had been made with themselves. 
 
 It is not disputed that the delivery of 
 the bill of lading to the defendants with 
 the indorsement of the consignee on it in 
 blank was an indorsement, nor that 
 whatever interest then passed to them 
 still remained in them. What was in 
 issue ivas whether upon or by reason of 
 that indorsement "the" p'-operty passed. 
 
 = 14 M. & W. 403.
 
 SEWELL V. BUR DICK. 
 
 719 
 
 The firHt niid most important (inestiun 
 to be <leciil('(l in tliis cane Ih, what jh Hit- 
 true conHlnK-Uon of 18 &• 111 V ict. c. HI '.' 
 l)(iPK"tlrc iiroperty " In the goodn there 
 mciin any lej;iil property in tliej^oodH: ho 
 uH to lie KiitiKlieil l)y proof that n leiial 
 property pashed accompanied liy u rl^rht 
 of poKseHsion ho i\» to entitle the trans- 
 feree to maintain trovei-, tlioutrh it was 
 Intendeil l).v tlie partieM. and w uh as be- 
 tween tlieni, to l)e l)y way of Hecurity 
 oidy, the traiiwferor retaininir a rislit of 
 redemption either l)y way of a eonimon 
 law retention of the fieneral property, 
 thon^h tlie iiledjtep had a ri^lit to the 
 pOHscHsion and a property as pled;ieo. a 
 rijiht exceeding a lien: or the wi)ole prop- 
 erty at law liuvinf; passed l)y way of 
 mortuMfie the transferor retaining an 
 (•(liiity of redemption, »vhieli in iN.'i") was 
 an e(|nital)le rij^ht, ei)foreeal)le only in a 
 toiirl of einiily '.' 
 
 I thinit tiiat all the jixlRes below were 
 of opinion that if the litcht reserved was 
 the Keneial riy;ht to the property at law, 
 what was transferred beiiijr only a idedae 
 (conveying no doiil)t a ri^ht of properly 
 and an immeiliate ri(;lit to tlie possession, 
 ho that the transferee would be entitled 
 to brin;; an action at law against any 
 one who wron^fnlly interfered with his 
 ri»;lit). thonj^h ".•(" property, nn<l "a" 
 property a^iiinst the indorser, passed 
 "npon and by reason ot the indorsement," 
 yet the prooi'rty did not pass. And 1 
 a);ree with them. I do not at all proceed 
 on the Ki'onnd that this Ix'iiiK an indui-se- 
 ment in l)laiiU followed by a delivery of 
 the l:ill of lading; so indorsed, had any 
 different effect from what wonld have 
 lieen the effect if it lia<l lieen an indorse- 
 ment to the appellants by name. 
 
 The case of The Freedom was cited, 
 and 1 thinii there are expressions used in 
 the jiidKiiicnt delivered in that case by Sir 
 .lo.seph .Napier which indicate tliat the 
 judicial committee were not of that opin- 
 ion. It is said (Law Ke|>. 'i P. C p. .'lilll), 
 "The plaintiffs were consimieps for sale; 
 but as part of the transaction a bill of ex- 
 chanjie was ilra wn by t he consi^jnors for 
 nearly the fall value of the K'>ods, the bills 
 of liidinfr were indorsed liy them and for- 
 warded to the plaintiffs, by wliom the 
 draft of the consignors was accei)ted and 
 paid in due course." If that was the 
 transaction (siiid whether it was so or 
 not, the judicial committee prt)ceeded on 
 the assiiniptlon that suth was the trans- 
 action), the plaintiffs in The Freedom 
 were in exactly the iiosition of Clinrch, in 
 the case of Newson v. Thornton'''', the 
 case to which I shall ha ve to refer nftsr- 
 wurds. Church had th? 1)111 of ladiiiK in- 
 tlorsed to liiin as a factor, or consignee 
 for sale, and hail therefore a ri>rlit to iKdd 
 the Koods as against the indorser as a 
 security for all IiIh ad vances, and he had 
 aiithorit.v at common law t<i sell the 
 Koods, and before the arrival of the ship 
 to transfer the bill of IndlnK in further- 
 ance of a sale, but he had no authority to 
 pledge either the goods or the hill (if lad- 
 ing. It is true that by the factors' acts 
 
 tlie plaintiffs in The Freedom would hove 
 had a power, which Church had not, to 
 pledge the bill of ladinu, but as they did 
 not exercise thai-, power it could make no 
 difference. 
 
 'Ihe juilKment then proci-eds: "Thelecal 
 title to the property In the goods Hpecitied 
 in the bills of lading was thus transferred 
 t(j and vested in tlie plaintiffs; the riiiht 
 of suing upon the contract in the bills of 
 lading was transferred to tluin by force 
 of the statute Is & l!l Vict. c. 1 1 1. " The 
 juilgment then proceeds to shew, I think 
 correctly, that the dictum of .Martin 11., 
 reported in Fox v. Nott was nut neces- 
 sary for the ilecision in Fox v. Nott, and 
 goes on: "Their lordships are sallslied 
 Hint it was intended liy this act that the 
 rlKht of suing upon the contract nniler a 
 bill of lading should follow the property 
 in the goods therein specitied ; that is li) 
 say, the legal title to the goods as against 
 the indorser." It certainly seems to me 
 that their lordships thought that "Ilie" 
 property passed witliin the meaning of IS 
 & 1'.) Vict. c. Ill, if any legal right to hold 
 as against the indorser passed. 
 
 The statute which their lordships had 
 to construe was the L'4 Viet. c. 10 s. C. 
 which is in these terms, "The hi;:li court 
 of odmiraltv shall have jurisdiction over 
 any claim by the owner" (1. e. of the 
 goods) "or consignee or assignee of any 
 bill of lading of any goods carried Into 
 anv port in England or Wales in any 
 ship, (or damage done to the goods or 
 nny part thereof by the negligence or mis- 
 conduct of or for any breach of duty or 
 breach of contract on the part of the 
 owner, master, or crew of the ship, unless 
 it is sliewn to the sati.sfaction of the ccurt 
 that at the time of the institution of the 
 cause any owner or (inrt owner of the 
 ship is domiciled in Fngland or Wales." 
 It is not necessary to put a construction 
 on I'-l Vict. c. HI s. fi. 
 
 1 tliirik there are very good reasons for 
 contending that n person who has pos- 
 session of an indorsed bill of lading witli- 
 oiit any rit;lit at all to hold it against the 
 indorser, without being owner of any In- 
 terest in tlie gooiis, is not an "assignee" 
 within the meaning of this enactment, 
 and conse(iiiently that what 1 understand 
 to lie the actual decision of Dr. I.nshing- 
 ton in The St. Cloud'", that such a person 
 could not sue umler the admirnlly act. 
 may have been rielit enough. It Is not 
 necessary to decide that. Itut I agree 
 with what was said in The Nepoter"". 
 that it is contrary to all rules of construc- 
 tion to interpolate nny reference to the 
 bill of lading act into llie ndinirally act. 
 I think, therefore, that the actual point 
 decided in Tlie Freedom-'"' might be quite 
 right, for the plaintiff in that action had 
 a property, and a very sub«tan»ial prop. 
 erty,in thegoods.nsairainst theinilor-Jers, 
 anil every one else, and was In every sense 
 an assignee of the lilll of lading. The 
 opinion expressed on the constructiou ol 
 the is & lit Vlct.c. Ill, that in tliat act the 
 
 'GEiist, 17. 
 
 " Brow. 4 Lush. 4. 
 
 » Law Hep. J .^. & K. 370. 
 
 -UkW Rep. 3 P. C. 694.
 
 720 
 
 SEWELL 0. BUUUICK. 
 
 proporty nicant a le^al title as against 
 tho iiidoiHer, was iK'i'liai's iiuutce.ssary, 
 and. 1 tliiiik, not wound. 
 
 'I'lie words used in the statute are not 
 suel) as prima fucie to express sucli an in- 
 tention. No one, in ordinary language, 
 would say tliat when soods are pawned, 
 or money is raise(] by morfgase on an 
 estate, tlie property, eitlier in tlie goods 
 or land, passes to the pledgee or mort- 
 gagee, and I cannot tliinli that the object 
 of the eiiaetment was to enact that no 
 security for a loan should be taken on 
 the transfer of bills of lading unless the 
 lender incurred all the liabilities of his bor- 
 rower on the contract. That would 
 greatly, and I think unnecessarily, hamper 
 the business of advancing monei' on such 
 securities which the legislature has, by 
 the factors acts, shewn it thinks ought 
 rather to be encouraged. 
 
 It is not uncommon to reduce into writ- 
 ing the agreement between the banker 
 and his customers as to the terms on 
 which the bills of lading deposited by 
 them as securities are to be held. Such 
 was the case iu Glyn v. East and West 
 India Dock ('ompanyS'?, as to which I 
 shall have more to say hereafter. When 
 there is such a writing, it is, in the absence 
 of fraud, conclusive as between the par- 
 ties as to wliat they intended. And I do 
 not in the least question that such a writ- 
 ing may be so expressed as to shew that 
 between the parties the transfer was a 
 mortgage, though of goods, in the man- 
 ner with which ever.vone is familiar with 
 regard to lands. The equity of redemp- 
 tion in such a case was an equitable 
 estate only, and in 1S55 enforceable in 
 equity, not at law. 
 
 Where there is neither a symbolical de- 
 livery by a transfer of a bill of lading, nor 
 an actual delivery of the goods them- 
 selves, there may be (though there seldom 
 is) a substantial difference in the rights 
 of tlie lender according as the transaction 
 is of the one kind or the otlier. 
 
 In Howes v. Baliss, Ball sold and de- 
 livered a coach to John Howes (since de- 
 ceased) under an agreement in writing, in 
 which there vras this clause, "And furtiior 
 I, John Howes, do agree that Thoiuas 
 Ball do have and hold a claim upon the 
 coach until the debt be duly paid." John 
 Howes ilied vvitliout having paid the 
 debt. Ball, after his death, seized the 
 coach, for which seizure the action was 
 brought by the executor. Had that 
 agreement amounted to a mortgage by 
 John Howes to Ball, I take it there could 
 have been no doubt that the mortgagee 
 would have had as much right against 
 the executor of John Howes as he would 
 have had against John Howes himself. 
 But it was held that it did not amount 
 to a mortgage, but only to an agreement 
 that Ball should have a right of hypo- 
 thec, and, there having been no delivery 
 by Howes to Ball, the decision was that 
 though so long as .John Howes lived and 
 held the property in the coach I'.all might 
 have justified the seizure, as against hira. 
 
 "5 Q. B. D. 139; 6 Q. B. D. 475; 7 App. Cas. 591. 
 »*7B. &C. 481. 
 
 he could not justify a seizure as against 
 the representatives. In Flory v. Denuysa 
 where the agreement was "as an addi- 
 tional security f;ir a loan to assign all the 
 ilebtor's right and interest in a chattel, " 
 it was held to be a mortgage, and to op.er- 
 atescias to transfer the property, with- 
 out any delivery, as a bargain and sale 
 out and out of the goods would, though 
 an agi-ecnient to create a pledge would, 
 jiccordiug to Howes v. Ball, have con- 
 veyed no property of any kind in the 
 goods without a delivery. 
 
 But where the goods are at sea, and 
 there is a transfer of the bill of lading, 
 there is a delivery of possession. syiMliol- 
 ical, it is true, but all that can be given. 
 The question whether there was a mort- 
 gage or only a common law pleilge, or 
 h.vpothec. it being accompanied by deliv- 
 ery, might affect the question what was 
 the court in which those riglits were to 
 be enforced, but does not affect the sub- 
 stan e of the rights. The borrower if 
 ready and willing to pay the money, 
 might in the one case be able to liring iin 
 action at law against the lender who re- 
 fused to allow him to redeem, and in the 
 other have to sue in eqnitj', but as it 
 would e(iually be a pledge bis rights 
 would be the same in substance. 1 am 
 therefore strongly inclined to hold that 
 even if this was a mortgage there would 
 not have been a transfer of " the" prop- 
 erty within the meaning of 18 & 19 Vict. c. 
 111. This IS contrary to the opinions not 
 only of Brett M. R. and Baggallay L. J., 
 but of Field J. also. 
 
 Bowen L. J. who agreed with Field J. 
 in thinking that this was not a mortgage 
 but only a pledge, did not express any 
 opinion as to what would have been the 
 law it it liad been a mortgage. 1 believe 
 all the nolilc and learned lords who heard 
 tbeargument areagreed with him in think- 
 ing that in this case it was only a pledge. 
 I do not therefore intend toexpress a final 
 decision that an assignee of a bill of lad- 
 ing by way of mortgage is not as such lia- 
 ble ti) be" sued under 18 & 19 Vict. e. Ill ; 
 but only to guard against its being sup- 
 posed that even if Brett M. R. and Bag- 
 gallay L. J were right in holding this a 
 mortgage', I, as at present advised, shoiilfl 
 agree in their conclusion that the defend- 
 ants could l)e sueiJ. 
 
 I now proceed to consider the question 
 on which the court of appeal were divided 
 in opinion, but the majority made tho 
 order now appealed against. The ques- 
 tion is stated by Brett M. R. to be "Does 
 the indorsement of a hill of lading as a 
 security for an advance, by a necessar.y 
 implication which cannot be disproved, 
 pass the legal property in the goods 
 named in the bill of lading to the in- 
 dorsee witli an equity in the inilorser, the 
 borrower, to redeem the hill of lading by 
 |)ayment, or to receive the balance, if 
 any, on a sale?"*" 
 
 Field J. had held, and Bowen L. J. 
 agreed with him, that it might so oper- 
 ate, if so intended by the parties at the 
 
 
 »»T Ex. 5S1. 
 
 « 13 Q. B. D. 161.
 
 SEWELL c. 3U1{L)ICK. 
 
 time, ')iit (lifl not so opernte if it vvoh iii- 
 teii'lcil to Ix' no nioi'c tliiin ii pleOKo uh iIIh- 
 tlnfiiiiHJifd Iroiii ii niortt;iit;e. 
 
 J do not iindiTstiiiid tliat nny one of 
 tlio "jndKCH '>''low dlHputcd that if it wjih 
 a (iiii'Ktioii of intention dcpcndint; on the 
 evlilencc, tin' finiliiit: of Fii-Id .1. wjih riKl't; 
 but till' ninjorlty in tlic court of fippotil 
 proceeded on the prini-ipiew I'Ufl down l)V 
 Brett L J. in (Jl.vn v l';n8t and West Indiu 
 DocU ('(jnipiin.v." In that caHe tlie terniH 
 on which the hill of lading waH delivered 
 to Gl.vn >fc Co. were reduced to writins, 
 and the question therefoi'e whether It wan 
 Intended to deliver it h.v way of i)ledne 
 only, or hy way of a tnortt;a>;e, depended 
 on the constrnction of that writlnc. 
 Whether lirett L. J. tlioniilit that on the 
 conHlrnction of tlie written inHtrument 
 it WMH intended to l)e a inortf?"(ii' I do 
 not kni)w; I do not think he proceedeil 
 on that i;roiind. He naid it was a inort- 
 (Xiitiv. and that the effect of the Htatute l.'i 
 & 11) Vict. c. HI wa.s to tranHfer the rijjht 
 to Hne and the Iial)ility to be sued to tJlyii 
 & Co. 
 
 Lord Brainwell, then BrannvcU L. J., 
 woH of aj) opposite opinion on l)Oth 
 points. He 1honf;;ht that (ilyn & Co had 
 a special property and a rif^lit of posses- 
 sion anil no more. 
 
 In the honse of lordfl I said, " I do not 
 think it necessary to express any opinion 
 on a (|nestion much discussed li.v Hrett [>. 
 .)., I mean w het lier the property which the 
 batdiers weri' to linve -was the whole let;al 
 liropery in the ^oods, Cottaiil iV Co.'s in- 
 terest lioiny; equitable only, or whether 
 the liankers were only to have a special 
 I)roperty as pa wnees. Cottain & t"o. ha v- 
 inir the lenal Kcneral property. ICither 
 way the bankers had a le^al propert.v, 
 iirid at law the rinlit to the possession, 
 subject to the shipowner's lien, and were 
 entitled to maintain an action a;;ainst 
 any one who, wilhont justitication or 
 legal excuse, dc'iirived them of that 
 rijiht."'- All the noble and learned lords 
 agreed in this. I think therefore the de- 
 cision of this honse is a strong authority 
 in support of the position which I have 
 before advanced, that the rights of a 
 mortgagee having taken a hill of lading, 
 and the I'ights of a pawnee having taken 
 n bill of lading, are in substance the same. 
 
 I (lid not think It necessary to point out 
 that the question which the house in 
 Cilyn V. Kast and W.-'st India Dock Com- 
 pany had to decide. -and did decide, woulil 
 liave been just the same if is & 1<| \ict. c. 
 Ill had never been i)assed or had been re- 
 penlcd, and cons-Mjuently that it was un- 
 necessary to express any opinion on the 
 c(tnstrnction of that act, but it obviously 
 was so. 
 
 liefore proceeding further I wish to point 
 out what in my opinion isagreatmis- 
 api)reliensinn as to the effect of the de- 
 eision <>f this house in Lickliarrow v. 
 Masoir'''. and as to the weight to I)e 
 given to the opinion of liuller .1. delivered 
 in this house and reported in a note to (i 
 IChs(. 
 
 "BQ. B. D. 47.5. 
 
 *«" App. Cas. 5'Jl, «0C. 
 
 "6 East, 20, n. 
 
 LAW SAI,I-:S — to 
 
 I have already said thiit In thiH case 
 there is no sale, no vendor, and no ven- 
 dee, utid no stoppage in traiiNitu, mo that 
 (his inisapprehenHlon, us I think It Im, Ib 
 not MO material us it might be hi Hume 
 other cases. 
 
 A demurrer on evidence, as is pointed 
 out by Kyro C. .1. In delivering the unani- 
 mous opinion of the judges in (iibson v. 
 Hunter,'' not (Iibson v. .\llnet, as is by 
 mistiike said in the note in li Kast, though 
 not familiar In practice, was u [jroceedbiK 
 known to the law. He explains it, und 
 states his very conhdent expeotationH 
 (which liave been justitieil by the result) 
 that no rleiiMirrer on evidence would again 
 be brought before the house. 
 
 It may be well to point oi;t the dated. 
 The demurrer to evidence in IJrkbarrow 
 V. .Mason'-' was in 17s7. The only caMe of 
 !i demurrer on evidence In what were then 
 recent times, was Cocksedge v. Kan- 
 shaw,'o on which j.xlgment had been 
 given In this house In 17^:^. Neither In the 
 king's bench nor in the excheciuer cham- 
 ber was any ((uestion raised in Lickbnr- 
 row v. .Niason as to the mode In which the 
 questions iliscnssed ivere raised. In 1790 
 the writ of error from the decision of the 
 exchccpier chamber was brought liefore 
 the house of lords. The law peers lit that 
 time were Lord Thurlow. Lonl Lough- 
 borough, and Lord Kenyoii. When it was 
 argued does not ap|)ear. but It was ar- 
 gued, anil the same question as had been 
 asked of the judges In Cocksedge v. l-aii- 
 shaw was asked of the judges. Sixjudgen 
 (inclnding all the survivors of tliose who 
 had joined in Lord Loughborough'M judg- 
 ment in the exchequer cliamber) answered 
 In favour of the restiondent. The three 
 judges who had given judgment in the 
 king's bench answered in favourof the ap- 
 Iielliint. This house delayed giving itH 
 opinion till 17'.Kl. In the meantime, In I7'.I1, 
 there was a demurrer to evidence in (iib- 
 son V. Hunter, which was brought before 
 this house. The case in this house Is re- 
 imrted, 1' H. I!l. 1S7. On the 7th of Kebrn- 
 ary 17!io this house gave jinlgment award- 
 ing a venire de novo- One week after- 
 wards, on the 14th of February \''.n, this 
 house delivered judgment in the long 
 pending case of LIckbarrow v. .Mason, 
 awarding in that case also a venire de no- 
 vo. Lord Loughborough wan himself at 
 that time lord chancellor. 
 
 1 should have thought, if anything was 
 (dear.it was that this house did not de- 
 ride anything, exce|it that on that demur- 
 rer to the evideine no judgment could be 
 given: certainlv the last conclusion that 
 I should lira w is that stated bv Field J., 
 that the house ill wliiidi Lord Loughbor- 
 ough was chancellor decided "presuma- 
 bly" on the (qiinion delivered by liuller. I. 
 against the judgment of Lord l.ouglilior- 
 ough, which six judges to three had 
 thought right. .Neither cai\ 1 at all agree 
 in the opinion expressed by Field .1. that 
 the opinion of liuller. 1. has always been 
 taken as the law. and been adopted and 
 followed as the law up to thepresentduy. 
 
 "2H. Bl. '.'0.5, 206. 
 
 "5T. a ti>>3. 
 
 "1 Doug. ll!i, 134.
 
 722 
 
 SEWELL V. BUUDICK. 
 
 It never was publislicd till ISlto in a note 
 to (i East 20. 1 have for many years been 
 of opinion, anfl still remain of opinion, 
 that niueli of what Buller J. exprcssoK in 
 that opinion as to stoppaf^e in transitu 
 was peculiar to himself, and was never 
 adopted by any other judge, and is not 
 law at the present day. But it is not nec- 
 essary to pursue the subject further, as I 
 agree wi til Bowen L. .J. that neitlier the 
 statement of the custom of niercliants in 
 the special verdict in Lickbarrow v. Ma- 
 son, nor the opinion of Bullei' .J., justifies 
 the inference that the indorsement of a 
 bill of ladiua for a valuable consideration 
 must pass the entire legal property, what- 
 ever was the intention of the parties. 
 
 In Lickbarrow v. Mason, Turing was an 
 unpaid vendor to Freeman. He had in- 
 dorsed the bill of lading to Frecnian, and 
 had not therefore any right, except that 
 of stopping the goods while in transitu if 
 Freeman became insolvent without having 
 paid for the goods, and that right he had, 
 though the inilorsed bill of lading had been 
 sent on to th? vendee, so long as that bill 
 of lading remained in the vendee's hands. 
 But before any such stoppage Freeman, 
 for valuable consideration, indorsed the 
 bdl of lading to Lickbairow, who wheth- 
 er as mortgagee or pledgee, had a legal 
 property acconii)anied by a right of pos- 
 session. The point which I understand to 
 have been decided in Lickbarrow v. Ma- 
 son was, that on the transfer of the bill of 
 lading to Lickbarrow the goods ceased 
 to be In transitu, the shipownerfrom that 
 time no longer holding them as a middle- 
 man to carry the goods from the unpaid 
 vendor, Turing, to Freeman his vendee, 
 but holding them as agent for Lickbar- 
 row. It was held, first in Re Westzin- 
 thus-f? and then in Spalding v. Ruding.'s 
 that where the transitus was thus put an 
 end to by what was in reality only a 
 pledge, the stoppage might be made avail- 
 able ill equity so far as the rights of the 
 pledgee jjid not extend. I thought, and 
 still think, that the reason why the stop- 
 page could not be made available at law 
 was because the shipowner no longer held 
 the goods as a middleman, as the trans- 
 feree of the bill of lading for valiiable con- 
 sideration and bona tide so as to give him 
 a security whether by way of mortgage 
 or by way of pledge, had a legal property 
 in the goods which he could enforce as 
 against the shipowner. Such being my 
 view of the law, whether it was right or 
 wrong, I expressed myself accor<lingly in 
 Kemp V. Falk,*" so as to shew that I 
 thought so; lint there wasnothiiigin that 
 case to call for a decision on the point 
 now before this house. 
 
 In Nev.'sou v. Thorntons" Lord Ellen- 
 borough says: "I should bo ver.v sorry if 
 anything fell from the court which weak- 
 ened the autliority of Lickbarrow v. Ma- 
 son as to the right of a vendee to pass the 
 property of goods in transitu by indorse- 
 raent of the bill of lading to a bona fide 
 holder for a valuable consideration and 
 
 « 5 B. & Ad. 817. 
 "6 Beav. 381. 
 «7 App. Cas. 573. 
 "6 East. 40. 
 
 without notice. For as to Wright v. 
 Campbell, 3i.though that was tlie case of 
 an indorsement of a factor, it was an out- 
 right assignment of the property for value. 
 Scott, the indorsee, was to sell the goods 
 and indemnify himself out of the |)roiluce 
 tlie amount of the debt for which he had 
 made himself answerable. The factor, 
 at least, purported to make a sale of the 
 goods transferred by thebill oflading.and 
 not a pledge. Now this was a direct 
 pledge of the bill of lading, and not in- 
 tended by the [larties as a sale. A bill of 
 lading, indeed, shall pass the property 
 upon a bona fide indorsement and delivery 
 where it is intended so to operate, in the 
 same manner as a direct delivery of the 
 goods tliemselves would do if so intended. 
 But it cannot operate further." 
 
 Lawrence J., at page 4;i, says, speaking of 
 Tiickbarrow v. Mason : "All that thatcase 
 seems to have decided is, that where the 
 property in the goods passed to a vendee, 
 subject only to be devested by the ven- 
 dor's right to stop them while in transitu, 
 such right must be exercised, if at all, be- 
 fore the vendee has parted with the prop- 
 erty to another for a valual)le considera- 
 tion and bona tide, anil by indorsement of 
 The bill of lading given him a right to re- 
 cover them." And Le Blanc J. says that 
 what they then determine " will not lireak 
 in at all on the doctrine of Lickliarrow v. 
 Mason that the indorsement of a bill of 
 lading upon the sale of the goods will pass 
 the properly to a bona tide indorsee, the 
 property being intended to pass by such 
 indors»nient." 
 
 In Glyn v. East and West India Dock 
 Co. ,52 Brett I... J. says (speaking of an 
 opinion of Willes J.), "To say that an 
 indorsement of a bill of lailing for an ad- 
 vance is only a pledge, seems to me to be 
 inconsistent with what has always been 
 considered to be the result of Lickbarrow 
 V. Mason, namely, that such an indorse- 
 ment passes the legal property, "by which 
 I understand him to mean tlie whole legal 
 property. But neither in that case nor in 
 the case now at bar does he refer to any 
 authority to that effect. Expressions used 
 by judges have been cited which, 1 think, 
 only shew that tliey did not carefully 
 consider their language, where no ques- 
 tion of the kind before us was under dis- 
 cussion. And, as far as 1 know, there is 
 no decision subsequent to I/ickiiarrow 
 v. Mason which proceeds on such a 
 ground, whilst Newsom v. Thorntonss 
 proceeds expressly on the ground that the 
 indorsement of a bill of lading, when in- 
 tended to be a pledge only, is ncit valid if 
 made by one who has no authority to 
 make a pledge. 1 do not know that 1 am 
 justified in saying that it is a decision 
 that, if it was made by one who had au- 
 thority to make a pledge, it would be 
 good as such, though I think that ap- 
 pears to have been Lord EUenborough's 
 opinion, and I do not think any authority 
 was cited on the argument at the bar to 
 shew that such is not the law. No case 
 was cited at tlie barnoram I aware of 
 
 'H Burr. 2047. 
 '=6Q. B. D. 480. 
 '3 6 East, 17.
 
 SEWELL V. BUHDICK. 
 
 723 
 
 any in which It hiiH l)een helij tliat a 
 triwiKfcr o( tlie hill of lailiiiK f<>r viiliic iicc- 
 eBHiirily, wliatover iiiiKht l)i' flio intention, 
 paHsed the whole IckjiI property. The 
 raaHter of tlio roll Hayn: — "If the general 
 underHtandintt of nierflinnts had not tieeii 
 in accordoncc with tlie verdict of tin- jury 
 in Lickbarrow v. Mason, ''^ accepted in its 
 larKest sense, there would, one wonld 
 Ihlnlf.liave l)een e-ines In tliebooks raising 
 the (iiiestioii."''^ With siit)niisslon to the 
 master of tlio foIIh, 1 tliink no weight can 
 l)e>;lven to this al)sence of authority un- 
 til it is shewn that there have Ijceii cases 
 in which it became material to consider 
 whetlier an indorsement intended to lie 
 and o|)eratinji as a pledge at law had a 
 less eff(!Ct than an indorsement operrttlnp; 
 against the intention as a nuirtgage. I 
 have already given m.v reasons for think- 
 ing that ill substance the rights would l)e 
 the same. Without, therefore, (lecidln;r 
 the question whether a mortgage would 
 render the mortgagee liable under 18 & 
 19 Vict. c. 111. I decide that, mainly for 
 the reasons given by Uowen L. .1., this 
 transfer did not operate as a mortgage. 
 
 I therefore am clearly of opinion that 
 the order made by the court ol appeal 
 sliould be reversed with costs, and tlie 
 judgment of Field J. restored. 
 
 Lord B1{A.\!\VELL:-My lords, I con- 
 cur. This action would not have been 
 maintninalde at common law. Is it main- 
 tainable under is & 111 Vict. c. 111? Tliiit 
 depends ujion whether tlie appellants are 
 indoisees of the bill oflailing"to whoni 
 the propert.v in the goods therein men- 
 tioned has passed iijion or liy reason of 
 such indorsement." It is found as a fact, 
 and rightly fonn<I, as is ailmitted. that 
 all that was intended in the transaction 
 was a pleilge. This would give the appel- 
 lants a [iroperty, but, as i>nt by Howen 
 L. .1., not " the" property. .\s 1 under- 
 stand the master of the rolls, if tliis could 
 lie, then the appellants are right; but he 
 thinks it could not lie— tliat IJcUbarrow 
 V. Mason, or rather the opinion of liuller 
 J., shews that when a bill of lading is in- 
 dorsed to give any title to the transferee 
 the entire property is passed, and that in 
 such a ease as this notliing but an e()uita- 
 ble right to redeem remains in the trans- 
 feror. It is for those who assert this to 
 prove it. I cannot prove the negative 
 that it is not so: and logically and rea- 
 sonably I might content myself witli say- 
 ing that it is not proved to me: that I see 
 no reason and no authority In BUi)|)ort of 
 it. Hut I go further: 1 think that au- 
 thority aiiii reason are against it. Tlie 
 cases do not, in m.v opinion, justify the 
 contention. 1 will not discuss or examine 
 them in detail; that has been done by the 
 lord chancellor. I understand his con- 
 clusion to be that the expressions of 
 learned judges which have l)cen relied up- 
 on should be reail and interpreted secun- 
 dum subjectam niateriani. I agree. In 
 no case has the present matter been under 
 consideration. .\8 to the reason and prin- 
 ciple which should govern, I ask why 
 
 " 1 SiB. L. C. 753, Sth ed. 
 » 13 Q. B. D. 103. 
 
 I should the transfer of the bill of lading 
 have a greater effect, contrary tii the par- 
 tics' intention, than the handing over ol 
 
 j the chattels themselves? They could be 
 pledged if <in shore, but belni; at sea nu 
 
 I actual delivery, which is necessary to u 
 common law pledge, can take place." There 
 
 • can, however, be u symbolical delivery bv 
 transferring the bill of lading. Why 
 should the effect be different? 
 
 Then consider the inconvenience of hold- 
 ing that the |)le(lgor has only an e(|uitu- 
 ble right: that he may repay the loan at 
 the (lay apiiointed, but tlierc-by acquire 
 no legal title to the possession of the 
 goods: that the pledgee may sell and pasM 
 the entire property ro one not having no- 
 
 i tice of the ecpiilable title. Consiiler what 
 dillicultios would be put on those who 
 lend on such securities if tills action whh 
 niaintainable. The banker who lentmon- 
 e,v on a bill of lailing for goods which ar- 
 rived in specie, but dnmageil by iierils of 
 the s'.'as so as to be worthless, might lose 
 
 'the money lent and the freight. .Another 
 conse(|ueiice would be that the transferee 
 
 I of the bill of lading, though only interefit- 
 
 ! ed to the amount of the loan on it, would 
 be the |>erson to bring actions on the con- 
 tract to carry. It is true that unless be 
 
 I can do so in all cases, he can in none, even 
 
 I where hisinterest is to theexlent of the full 
 value of the goods. Either tliis was not 
 tliou;;ht of li.v the le;;islature, or, if It was, 
 they thought that no case could be in- 
 cluded unless all were, and tliat it was 
 better to incluile none than all. It is to 
 be observed that the st;itute In its pream- 
 ble says that liy indorsement the property 
 "may" pass. It is to be reniemberetl also, 
 as pointed out by my lord chancellor, 
 that this law bears upon forei«ners out of 
 the kingdom. 
 
 lam the more surprised at this conten- 
 tion on the ])art of the master of the rolls, 
 as he has always so aldy and powerfully 
 contended that mercantile la ws. contracts, 
 
 , and usages should be free as possible from 
 technicality. I am of opinion that the a|>- 
 peal should be allowed. I cannot truly 
 say that I have any doubt on the matter, 
 i take this opportunity of sayini; that I 
 think there is some Inaccuracy of expres- 
 sion in the statute. It recites that, " by 
 the custom of merchants a bill of lading 
 being transferable liy indorsement the 
 propert.v in the goods may thereby pass 
 to the indorsee." Now the truth is that 
 the (iroperty does not pass by the indorse- 
 ment, but by the contract in pursuance of 
 which the indorsement is niaile. ll a car- 
 go alloat is sold, the iiroperty woulil pass 
 to the vendee, even though the bill of lad- 
 ing was not Indorsed. 1 do not say that 
 the vendor might not retain a Hen, nor 
 that t!ie noii-iiidorseiiieiit and non-hand- 
 ing over of the bill of lading wouhl not 
 have certain otherconseqiiences. .\ly con- 
 cern is to shew that the pri)|ierty passes 
 l>y the contract. .So if the contruet was 
 oiie of security — wiiat would lie a pledge 
 if the property wa-i handed over— a con- 
 tract of hypiithecatlon, the property 
 would lie bouml by the contract, at least 
 as to all who hail notice of It, though the 
 
 I bill of lading was not handed t>ver. 
 
 There U, 1 think, another Inaccuracy in
 
 724 
 
 SEWELL V. BURDICK. 
 
 the statute, which indeed is universal. 
 It speaks of the contract contained in the 
 bill of lading. To my mind there is no 
 con tract in it. It is a receipt for the goods, 
 stating the terms on which they wei'e de- 
 livered to and received by the ship, and 
 therefore excellent evidence of those terms, 
 but it is not a contract. That has been 
 made before the bill of lading was given. 
 Take for instance goods stripped under a 
 charterparty, and a bill of lading differing 
 from the charterparty; as between ship- 
 owner and shipper at least the charter- 
 party is binding: Gledstanes v. Allen. ^8 
 These distinctions are of a verbal char- 
 acter, and not perhaps of much conse- 
 quence; but I am strongly of opinion that 
 precision of expression is very desirable, 
 and had it existed in such cases as the 
 present there would not have been the 
 contradictory opinions whicli have been 
 given. 
 
 Lord FITZGERALD:— My lords, Field 
 J. in the court below came to the conclu- 
 sion that the tJ'ansaction under investiga- 
 tion was intended by the parties to oper- 
 ate us a pledge onlj-. There can be no 
 doubt that the inference thus drawn by 
 
 "12 0. B. 202. 
 
 the learned judge was correct in fact. It 
 seems to follow that the pledgees acquired 
 a special property in the goods with a 
 right to take actual possession, should it 
 be necessary to do so for their protei'tion 
 or for the realisation of their securitj'. 
 They acquired no more, and subject thei-e- 
 to the general property remained in the 
 pledgor. 
 
 1 am of opinion that the delivery of the 
 indorsed bill of lading to the defendants 
 as a security for their advance did not by 
 necessary implication transfer the proper- 
 ty in the goods to the defendants. They 
 were not therefore "indorsees of a bill of 
 lading to whom the property in the goods 
 passed by reason of the indorsement," so 
 as to make them without more "subject 
 to the same liabilities in respect of such 
 goods as if the contract contained in the 
 bill of lading had been made with them." 
 
 The judgments which have been just de- 
 livered are so very full, and so able and sat- 
 isfactory, that it would be mere affecta- 
 tion on my part to attempt to do more 
 than express my concurrence. 
 
 Order appealed from reversed. Order 
 of P^ield .1. restored. Respoadent to pay 
 the costs in the court below and in this 
 house. Cause remitted to the queen's 
 bench division.
 
 8IIAW1IAX c. VAX NEST. 
 
 SHAWHAN V. VAN NEST. 
 
 (25 Ohio St. 49(1.) 
 
 Supreme Court of Oliio. December Term, 1S74. 
 
 Motion tor leave to file a petition in 
 error. 
 
 Action by Peter Van Nest aKiiiiiHt Keaisin 
 W. Sliiiwluin to r('(;over on a contract by 
 wl)icli lie auri-ed to iiiaki- for Sliawhan a 
 carriase in acconJance with hi.s (lirectionn 
 for IJFTOO, anil have the same reaily for di-- 
 livcry at lii.s Kliop ()ctol)er 1, IsTI, in con- 
 Bideration whereof Shawlian aurcecl to ac- 
 cept the cnrriaKe at the shii|) and pay the 
 af;;''ef<l price, lie alle^ted the tender of the 
 carriaKe October IhI, and the refn.sal of 
 8huwhan to accept or pay for it. The ev- 
 idence establishccl the alh'fjations (jf the 
 complaint. The court i'i«tnicted the jury 
 tliat, if they found thr- iwnucH for the 
 plaintiff, they should uive him a verdict 
 for the contract ])rice of the carriage, witli 
 IntercHt from the time the money shonlil 
 have l)een paid. Shawhan requested the 
 court to frive to the jury the following 
 Ki)eeial instructions: (l| "If, in this case, 
 the evidence shows that the defendant or- 
 d( red the plaintiff to make for him a car- 
 riage, and agrceil to take or receive it, 
 when liiiislie<l, at the plaintiff's shoji, and 
 to pav a reasonable price therefor, and 
 the plaintiff did, in pursuance of such or- 
 der and agreement, make such carriage, of 
 the value of seven hundred dollars, and 
 have the same in readiness for delivery at 
 his sliop, of which the defendant had no- 
 tice, and the defendant then failed, neg- 
 lected, anil refused to take, receive, or pay 
 for said carriage, though rciiuested so to 
 do by the plaintiff, these will not author- 
 ize you to render a verdict for the plain- 
 tiff for the price or value of the carriage. " 
 IL') " If the plaintiff has proveil the mak- 
 ing of the carriage for the defendant, and 
 the refusal of the latter to receive and pay 
 for it, as alleged in the petition, then he 
 can only recover tor the damages or 
 losses he lins actually sustained by reason 
 of this refusal of the defendant, which is 
 till' difference between the agreed price 
 and the actual value." These instruc- 
 tions the court refused to give, and .Shaw- 
 han e.xcepted. 'i'he jnry found for Van 
 Ni'st, and gave him the contract price of 
 the carriage, with interest. 
 
 W. I'. N(d)le, for plaintiff in error. U. E. 
 Seney, for Uefeudant in error. 
 
 (ilLMORR, .T. The only (luestion to be 
 determined in this case is : Did the court 
 err in refusing to give to the jury the spe- 
 cial instructions reiiiiested by the defend- 
 ant on the trial below? The authorities 
 cited liy counsel for the parlies respective- 
 ly, aie not in harmony with ea'di other on 
 tli's (ju'-stion. Some of those cited by the 
 plaintiff in error (d(>fcndant below I show 
 clearly that under the pleadings and prac- 
 tice at comm')n law, there could be no 
 recovery nnder the common counts in 
 assumpsit, for goods sold and delivered, 
 or for goods bargained and sold, where 
 no dejiverysulliciei.t to pass the title from 
 ♦ he vendor to the vendee had been made. 
 And further, that in this foiin of action. 
 
 proof of a tender of the goodH by the ven- 
 ilor to the vendee, or leavinK them with 
 him against his remonstrance, would not 
 constitute such a delivery as would pass 
 the title and enable the vendor to recover. 
 While these may l)e regarded as setding 
 the rules of t)leading and evidei in tin- 
 trial of particular cases, and theri-lore not 
 decisive of the iinestiun when raised under 
 issues soformed as to present it freed from 
 the tichnicaliticsof pleading. Rtill thereare 
 other cascM cited on tlie same side, which 
 declare the rule to lie as followH: Where 
 an action IS hrouglit by the vendoragaiiiHt 
 the vendee, for refusing to receive ni.d (iiiy 
 for goods purchased, the measure of diiin- 
 nges iH the actual Ions riiistained by the 
 vendor in consei|uence of the vendee refus- 
 ing to taki- and pay for the koimIh, or, in 
 other words, the difference lietw-en the 
 contract price and the market price at the 
 time and place or delivery. In the author- 
 ities cited by tlie plaintiff in ern.r, no ills 
 tiiiction is drawn, or attempted to l)e 
 • Irawii. between the sale of gnods and 
 chattels already in existence, and an 
 agreement to furnish materials and iniin- 
 ufacturn a specilic article inn particular 
 way, and according to order, which is not 
 yet in existence: the theory being, that in 
 neither case would the title pass, or prop- 
 erty vest in the pnrchaser, nntil there had 
 lieen an actual delivery, and that natll 
 the title had passed, tlie vendor's remedy 
 was liiniteil to the damages he had suf- 
 fered by reason of the breach of the cun- 
 tract liy the vendee, which were to be 
 measured by the rule above Mlated. In 
 this case it is not necessary to determine 
 whether or not n dlstiiiction, resting npun 
 principles of law. can lie drawn between 
 ordinary sales of goods in existence and 
 on the market, and goods innde to order 
 in a particular way, in pursuance of a con- 
 tract lietween the vendor and vendee. 
 The case here Is of the hitter kind, and the 
 <|Uestion is. whether the plaintiff l>elo\v 
 was entitled to recover the contract price 
 of the carriage, on proving that he hni) 
 furnished the materials, and made and 
 tendered it in imrsiiance of the terms of 
 the contr;ict. 
 
 Counsel for thedefendnnt In eri-or( plain- 
 tiff below) has cited a nninber of authori- 
 ties, in which the (luestions presented and 
 decided arose n|ion facts similar to those 
 in this case, nnd upon issues presenting 
 the (|iiestii>n in the same v« ny ; and ns the 
 conclusions we have arrived at, are based 
 npon this class of authorities. Home of 
 them niav be parlicnlarlv noticed. 
 
 laltemeiit v. Smith, l.'i Wend. -I'.i:!, thede- 
 fendnnt employed the plaintiff, a carriage- 
 maker, to build a sulky for him. for which 
 he promised to pay eighty dollnrx. The 
 plaintiff made the sulky according to r<in- 
 tract, and took it to the residence of llie 
 defendant, and told hinr he delivered It to 
 him, and deiiiiinded |iaynient. in pnrsn- 
 ance of the tei nis of the contract. Tlit 
 defendant refused to i-cceive It. Whereup- 
 on the plaintiff told him he would leave it 
 witli .Mr. He Wolf, who lived near; wlilch 
 he did. and commenced suit. On tlie trial 
 It was proved the sulky was worth eighty 
 dollars, the contract price. The court 
 charged the jury, that the tender of the
 
 726 
 
 SHAWIIAN V. VAN NKST. 
 
 corriuue was substantially a fulfillnienl; of 
 the contract on the part of tho plaintiff, 
 and that he was entitleil to wustain hi^ 
 action for tlie price aj;rec(l upon between 
 the parties. The defendant's counsel re- 
 quested til? court to charge the jury that 
 the measure of damages was not the 
 sulky, but only the expense of taking it to 
 the residence of the defendant, delay, loss 
 of sale, etc. The judtje declined to so 
 charge, and reiterated the instruction that 
 the value of the article was the measure of 
 damages. The jury found (or the plain- 
 tiff, with eiphty-three dollars and twenty- 
 six cents damages, l)eing the contract 
 price with interest. The charge to tlie 
 jury was sustained by the supreme court 
 of New York. 
 
 In Hallentine et al. v . Robinson et al., 
 46 Penn. St. 177, an agreement was made 
 between the plaintiffs and defendants, 
 whci-eby the plaintiffs were to provide 
 materials, and construct for the defenrl- 
 antsa six-inch steam-engine, with boiler 
 and Gifford injector and heuter. in consid 
 eration whereof tlie defendants were to 
 pay plaintiffs five hundred and thirty-five 
 dollars in cash on the completion thereof. 
 The plaintiffs conii)lied with and complet- 
 ed the contract in all resjiects on their 
 part, but the defendants refused to pay 
 according to contract. On the trial, the 
 plaintiffs proved the contract, and the jier- 
 formance of it on their part, and that the 
 engine was still in their hands. 
 
 The defendants' counsel asked the court 
 to Instructthe juri' "that the proper meas- 
 ure of damages in this case is ihe difference 
 between the price contracted to be paid 
 for the engine and the market price at the 
 time the contract was broken." The 
 court declined to charge as requested, and 
 instructed the jury that the measure of 
 damages was the contract price of the 
 engine, witli interest. There was a ver- 
 dict for the plaintiffs for the contract 
 price. The case was taken to the supreme 
 court, and the error assigned was the re- 
 fusal of the court to give tlie instructions 
 requested by the defendant. 
 
 The sui)reuie court atfirined the judg- 
 nient in the case below. It will be seen 
 that these cases aie very similar, and pre- j 
 senteil th.e same question, and in the same 
 manner that the question is presented in 
 this case. Graham v. Jackson, H East, 
 498, decides the |)oint in the same way. 
 Mr. Sedgwick, in his work on Damages, 
 side page I'SO, in speaking on this subject, 
 says: "Where a vendee is sued for non- 
 performance of the contract on his part, 
 in not paying the contract i)rice, if tlie 
 goods have been delivered, the measure of 
 damages is of course the price named in 
 the agreement; but if their possession has 
 not been changed, it has been doul>ted 
 whether the rule of damages is the price 
 itself, or only the difference between the 
 contract price and the value of the article 
 at the time fixed for its delivery. It seems 
 to be well settleil in such cases that the 
 vendor can resell them, if he sees fit, and 
 charge the vendee with the difference be- 
 tween the contract price and that realized 
 at the sale. Though perhaps more pru- 
 dent it is not necessary tliat the sale 
 should beat auction; it is only requisite 
 
 to show that tlie [troperty was sold for a 
 fair price. But if the venilor does not pur- 
 sue this course, and, without reselling the 
 goods, sues the vendee for his breach of 
 contract, the question arises ■which we 
 have already stated, whether the vendor 
 can recover the contract price, or only 
 the difference between that price and the 
 value of tha goods which remain in the 
 vendor's hands; and the rule appears to 
 be that the vendor can recover the con- 
 tract price in full." 
 
 In Hadly v. Pugh et al., \A' right, 554, the 
 action was "assumpsit on a written ngree- 
 nient between the parties, for the defend- 
 ants to take all the salt the [ilaintiff man- 
 ufactured between the '2t] of June, 1X31, 
 and the 1st of January, 1.S3L', to be deliv- 
 ered at the landing in Cincinnati, from 
 time to time, as the navigation of the 
 Muskingum and Ohio should permit, and 
 to pay forty-tive cents a bushel." The 
 plaintiff proved the agreement, and the 
 offer to deliver to the defendants three 
 hundred and fifty barrels of salt, which 
 the defendants refused to receive. Tliere 
 was an issue in tliecHBe,a8 to whether the 
 contract had been previously fulfilled and 
 abandoned by the parties. The court 
 (Lane, J.) charged the jury that if the 
 contract had not been "fulfilled or aban- 
 doned, and the plaintiff tendered the salt 
 under the contract, which was refused, he 
 had a right to leave it for the defendants 
 and recover the value." 
 
 The only case I have examined in which 
 the authorities on this point are reviewed, 
 is that of Gordon v. Norris, 4!) N. H. 370. 
 The case is too lengthy and complicated 
 to attempt to give an abstract of it here, 
 but the point under coiisiileration was in- 
 volved ; and although the learned judge 
 criticises the law as laid dcnvn by Mr. 
 Sedgwick, and even shows that the au- 
 thorities he quotes in suiiport of his posi- 
 tion do not sustain him, for the reason 
 pointed out, yet he says that there is a 
 distinction between the case of Bement 
 V. Smith, and the ordinary cases of goods 
 sold and delivered — viz.. " the distinction 
 bet ween a contract to sell goods then in 
 existence, and an agreement to furnish 
 materials and manufacture an article in a 
 particular way and according to order, 
 which is not yet in existence." He recog- 
 nizes Benient's''ase and others of thesame 
 class as exceptions to the general rule 
 whicli is to be applied in the sale of ordi- 
 nary goods and merchandise which have 
 a fixed market value; and in the syllabus 
 of the case, the distinction is kept up and 
 stated as follows : 
 
 " When the vendee refuses to receive and 
 pay for ordinary goods, wares, and mer- 
 chandise, which he has contracted to pur- 
 chase, the measure of damages which the 
 vendor is entitled to recover is not ordi- 
 narily the contract price for the goods, 
 but the difference between the contract 
 price and the market price or value of the 
 same goods at the time when the contract 
 was broken. 
 
 "But when an artist prepares a statue 
 or picture of a particular person to order, 
 or a mechanic makes a specific article in 
 his line to order, and after a particular 
 measure, pattern, or style, or for a partic-
 
 SIIAWIIAN V. VAN NEST. 
 
 729 
 
 ular uHe or purpose— when he has fully 
 perfDi'mcfl his purl of tlio contract, iiinl 
 tendered or offered to deliver the article 
 thus moiiufactured according to i-ontruct, 
 anil the vendee refuses to receive and pay 
 for tlie same, he may recover as daniaKes, 
 in an action against the vendee for breacii 
 of the contract, the full contract price of 
 the manufactured article." 
 
 As has been said, we arc not called upon 
 now to determine whether the distinction 
 as drawn in the clauses quoted, is sound 
 on principleor not: but bethat as it may, 
 we recognize the law applicable to the 
 case before us as being correctly stateil in 
 tbe clause last quoted. 
 
 Judge Swan, in his excellent "Treatise," 
 (loth ed. 7H0), in speaking of the effects of 
 a tender upon the rights of fl-.e buyer and 
 seller, and of the damages in such case, 
 says. "The general rule in relation to the 
 rights of a seller, under a contract of sale, 
 where he has tendered the property, and 
 the buyer refuses t<i receive it, is this : The 
 seller may leave the property at some se- 
 cure place, at or near the place where the 
 tender ought to be and is made, and re- 
 cov-er the contract price; or ho may keep 
 it at the buyer's risk, using reasonable dil- 
 igence to preserve it, and recovt-r the con- 
 tract price and expenses of preserving and 
 keeping it; or ho may sell it, and recover 
 from the buyer the difference between the 
 contract price and the price at which it 
 fairly sold." The rule as thus laid down 
 was first published in ls;jG, two years after 
 the decision in Hadly's Case, above re- 
 ferred to, which was substantially fol- 
 lowed by .Judge Swan in laying it down. 
 It does not appearthat either the deci.sion 
 
 or the rule as laid down hoR ever been 
 questioned in Ohio. It will be pi-rcelved 
 that .Jud^e .Swiin lays down the rule gen- 
 erally as applicable to all sales of chnttels 
 in the ordlnari" course nt trade, without 
 intimating any such distinrtion as that 
 drawn in Gordon v. Norris. We sanction 
 and n[»ply the rule In the determination of 
 the particular (•a^le before iis. Whc-n the 
 Iilsinlift below had completed and ten- 
 dered the carriage in strict pcrfijrmance of 
 the contract <in his part, if the defendant 
 below had accepted it, as he agreed to do, 
 there is no (luestlon but that he would 
 have been liable to pay the full contrnct 
 price for it, and he can not bo permitted 
 to place the plaintiff in a worse condition 
 by breaking than by performing the con- 
 trnct according to its terms on his part. 
 When the plaintiff had completed and ten- 
 dered the carriage in full performance of 
 the contrnct on his part, and the defend- 
 ant refused to accept It, he had the right 
 to keep it at the defendant's risk, using 
 reasonable diligence to preserve It, and 
 recover the contract price, with Interest, 
 as damagi's for the breach of the contrnct 
 by the defendant. Or, at his election, he 
 could have sold the cirriage for what It 
 wouhl have brought at a fair sale, and 
 have recovered from the defendant the 
 difference between tbe contract price and 
 what it sold for. 
 
 The court behjw did not err In refusing 
 to give to the jury the special instructions 
 requested by the defendant below. 
 
 Motion overruled. 
 
 McIlvV.MNH. C. .7., and WELCH, 
 WlIITt:, and HKX, .TJ., concurred.
 
 SHELDOX V. CAl'liOX. 
 
 731 
 
 SHELDON et al. v. CAPRON. 
 
 (8 R. I. 171.) 
 
 Supreme Court of Rhode Island. Sept. Term, 
 1855. 
 
 Heplcvin by Slielilon & Bart«ri nuninst 
 Cliarle.s S. ('apron. Verdict for plainliffn, 
 and (Iffeiulaiit exrepts. ExceptiuiiH over- 
 ruled. 
 
 PlaintiffH were nucfioneers, and in De- 
 cember, ]s.'>:}, Hold at aiictioii a Inrjre i|iihii- 
 titj of jewelry, arrantred for sale in boxes 
 and packaKeB numbered fr<jin 1 to ."Jli. 
 Printed cutaloKues were distributed, and 
 the packanen and boxes, as siieees«ivel.v 
 offered for sale by auniber, were exhibited. 
 Hox No. L'4, eontainiifj; 14 1-0 dozen liard 
 solder rinus, worth $:!,:;.") (ler dozen, were 
 struck off to Mathewson & .Mlrn ; and No. 
 L'.'),coiitaininj;; s l-d dozen soft solder rinfis, 
 was struck (jff at $2.S7 per dozen, to (le- 
 fendant. After the sale, plaintiffs' clerk, 
 by mistake, delivered to defendant box 
 No. L'4. which defendant paid for as beiUK 
 the box on wliicli he bid, and there was 
 some eviilence that the hox passed around 
 at the sale as No. I'.'i wf.s that which plain- 
 tiffs claimed to have been No. :.'4, struck 
 off to Mathewson & Allen. Plaiiitiffs 
 broHt;ht this action on defendant's relusal 
 to return No. '_'4 and its contents, they 
 tenderint; him No. "J."!. The court charged 
 the jury tliat if they were Butisfied that. 
 throuKh a mistake at the sale or in the 
 delivery, defendant obtained the wi-onft 
 box, and thus jjot more than he payed for, 
 or a superior article, ami that he, on de- 
 mand for box No. 24 and a tender of box 
 •Jo bein^ made, had refused to correct the 
 mistake, plaintiffs wereentitled to recover. 
 
 Laphnm, for jjlnintiffs. .James 'i'lllin^- 
 hast, for defendant. 
 
 STAPL.EIS, C. J. — We see no error in the 
 charij;o of tlie court which will justify us 
 in directing a new trial to be hud in this 
 case. 
 
 It the plaintiffs handed out box No. J.'i, 
 which did contain s l-G duz. tilled ami 
 chased soft solder rin;r'<. and put It up at 
 auction culling it No.lM which did contain 
 14 1-6 uozens Idled and chased liard solder 
 rinus, and it was bid upon and finally 
 struck off by them to ilathewson & .Mien, 
 it cannot be pretended that the purchasers 
 would be recpiired to take it as their bid. 
 The minds of the parties never met. No 
 
 contract was made between tliem. Tim 
 plaintiffs were sellinK one thiaK atid Ntnth- 
 ewson & .Mien purchasiiiK or rather bid- 
 dint; upon anolhcr. 
 
 So, too. if plaintiffs did set up h«)x .No. 
 2.") and strike it off to .Mnthewson 4 Allen 
 at their bid for it, tl'i-y could not compel 
 M. & A. to take box No. -.'4, and that sim- 
 ply iKK-ause .\I. & A. never bought It, unJ 
 never l)iil anythinu for It. The HUpposcd 
 purchasers in both iUHtances. would deem 
 it very hard to be compelled to take what 
 they did not purchase nor bid for, nor 
 want, an article of inferior ({uallty and 
 value to that contained in box .No. 'l.>4. If 
 thatsupposed purchasercould not becom- 
 pelled to fulfil his supposed liarKain under 
 these circuniHtances, neither <-ould the 
 plaintiffs, where box No. L'4, the box o( 
 ;rreater value, was by mistake substituted 
 for box No.L'."i. oneof less value. The same 
 reason would govern both casi-s. and that 
 is one mimed in the chnr>;e excepted to 
 by the defendant, the mistake of the par- 
 ties. 
 
 When the plaintiffs set up box No. 24, it 
 was box No. 24 un their catalogue, the 
 sale beini; by catalogue and the number 
 having referen<'e to it. It was No. LM with 
 the contents describeil In No. 24 on the cat- 
 alogue. II box No. Jj on the same cata- 
 logue were exhiltited as box No. 24 and so 
 bid upon anti purchascil. still the pur- 
 chaser would have a right to box No. 24, 
 and no other. That was the box which 
 tlie plaintiffs set up at auction, and that 
 till' <ine the purcliasers bid upon and 
 bouiiht. If any other box should after- 
 ward be delivered or offered to the pur- 
 chaser, he would of riclit turn to his cata- 
 logue and lequire the liox .No. 24 of the 
 calaUjgue Willi its contents, as he would 
 not be bound to take as liox Ni>. 24, one 
 which was «)f h-ss value and contained 
 different articles from f liecntnlogue.No. 24. 
 So he could not legally keep them. If they 
 proved of greater value. II on calling for 
 his purchase the plaintiffs shoulil offer him 
 the trueb>)X .No. 24, which they sold, but 
 wliii-h in fact was not the box nhicli iliey 
 exhibited, and which hebid forand boimht 
 as box .N'o. 24, he could refuse to ri-ceive it on 
 the ground of mistake, as he supposed he 
 bought one and the plaintiffs suppose*! 
 they had sidil another. Neither the one 
 nor tlie other was sold, but the title to 
 each remained unchanged. 
 
 New trial refused.
 
 SUEinvooD c WAI.KEU. 
 
 733 
 
 SHERWOOD V. WALKEK et al. 
 
 (3:t N. W. Rep. 919, 66 Mich. 50^.) 
 
 Supremo Court of Micbigau. July 7, 18S7. 
 
 lOrror to circuit court, Wayne county ; 
 
 .loiiniHon, Juil^c. 
 
 C. J. Reilly, l«r plaintiff. \Vm. Ail^miin 
 .Jr., (D. C). Holhrook, of couhhcI,) for de- , 
 fendantH and appolliintH. 
 
 MOHSlC, J. Itoplcvin for n cow. Suit j 
 coinnicnccd in juHtioo's court; ju<l(^iiit'iit 
 for plaintiff ; appealed to circuit court of 
 Wayne county, and verdict, and juiljiuii-nt 
 for plaintiff iu tliat court. Tlieilcfeiidants 
 briug error, and set out 25 aHHiRnnientH of 
 the Hanie. 
 
 The main contr4)verHy depetnlH upon the 
 construction of a con tract for the Hale of 
 the cow. The plaintiff claims iliat tlie 
 title pa.ssed, and linseH hi« action upon 
 Huch claim. The defendnntH contend that 
 the contract was executory, and liy itM 
 terms no title to the animal was aciiuireil 
 liy plaintiff. The defendants reside- at 
 Detroit, l)ut are in husiness at WalUerville, 
 Ontario, and have a farm at Greenfield, 
 in Wayne county, upon which were some 
 blooded cattle supposed to he liarreu as 
 breeders. The Walkers are importers and 
 breeders of polled Aukum cattle. The 
 I)lalntiff is a banker living at I'lymoutli, 
 in Wayne county. He calk-il upon the de- 
 fendants nt Walkerville for the i)urcliase 
 of some of their stock, but fouud none 
 there that suited him. Meeting; one of the 
 defendants afterwards, he was informed 
 thattliey had a few head uiion this (Jreen- 
 lield farm. He was asked to Ko out and 
 look at them, with the statement at the 
 time that they were probaldy barren, a. id 
 would not breed. May r>. isso, plaintiff 
 went out to (jreenfieUl, and saw the cat- 
 tle. A few days thereafter, he called u|ion 
 one of the defendants with the view of 
 purchasing a cow, known as " Kose ".'d of 
 riberlone." After consiilerable talk, it 
 was agreed that defendants would tele 
 phone Sherwood nt his home in (Mvmouth 
 in rc^feience to the price. Thesecond morn- 
 ing alter ttiis talk he was called up by tele- 
 phone, anil the terms of the sale were 
 linally agreed upon. He was to iiay live 
 and one-half cents per pound, live weight, 
 fifty pounds shrinkage. He was asked 
 how he intended to take the cow home, 
 and replied that he might sliii) her from 
 King's rattk'-yard. He reiiuested defend- 
 ants to conlirin the sale in writing, wliicii 
 tliev did bv sending him the following 
 letter: "Walkerville. May !.">. IS-ti. T. (;. 
 Shei'wood, President, etc.— Dear Sir: We 
 confirm sale to yon of the cow Kose '2i\ of 
 Aberlone, lot ')« of our catalogue, at (Ive 
 and a half cents per pound, less (ifty 
 |)()unds shrink. Wo in.dose herewith or- 
 der on Mr. (Iraliam for the cow. Yon 
 might leave (diecli with him, or mail to us 
 her(>, as you prefer. Yours, truly, Itlram 
 Walker & Sons." The order upon (ira- 
 ham inclosed in the letter read as follows. 
 "Walkerville, May l.">, 1^>^I",. Ceotge 
 (irahnm: You will pleasedeliverat King's 
 cattle-yurd to Mr. T. C. Sherwood, IMyni- 
 
 nnth. the cow Kohp '.'d of Aberlone, lot 
 iV; of our cntaiogiie. Send l.alter willi the 
 cow, ami have her weighed. Yours trulv. 
 Hiram Walker & Sons. " On ihe twenty- 
 first of tlie same month the |ilaintirf went 
 to ilefenilanls' farm at (Jreenlield. and 
 presenlerl the order and letter to liralinin, 
 who informed him that the ib-fendantH 
 had instructed hini not to deliver the row. 
 Soon after, the pl;iintjff tendered to Hiram 
 Walker, one of the derenilnatH, $•>(). and 
 demanded the cow. Walker relnseil to 
 
 take the i ley or deliver the cow. The 
 
 plainlilf then instituted this suit. After 
 he had Mccured pohm'shIoii of the cow un- 
 der the writ of reiilevin, the plaintiff 
 caused her to be weighed by the constable 
 who served the writ,nt a placeother than 
 King's cattle-yard. She weiuhed 1,4J0 
 pounds. 
 
 When the plaintiff, upon the trial in the 
 cir<-nit court, had sulimltted his proofH 
 showing the above transaction, defend- 
 ants moved to strike out niKl e.xcbiile the 
 t<-stirnony from the case, for the reason 
 that it was irrelevant and did not lend to 
 show that the title to the cow passed, 
 and tliat it showeil that the contract of 
 sale was merely executory. The court re- 
 fused the motion, and an exception was 
 taken. The defendants then Introduced 
 evidence tending to sliow that at the time 
 of the alleged sale it was believed by both 
 the plaintiff and themselves that the cow 
 was barren aii<l would not breed; that 
 she cost $s."il), and if not barren would lie 
 worth fioiii *7.'(l to ?l.(l(lu; I lint after the 
 date of the letter, and the order to (ira- 
 liani. the defendants were inrorine<l l»y 
 said Graham that in liin judgment tliecow 
 was with calf, and therefore they In- 
 structed hini not to deliver her to 
 l)laintiff. and on the tweniietli of May, 
 IsMi. telegraphed to the plaintiff what 
 Graham thought about the c>iw being 
 with calf, and that coiiHciiuently they 
 could not sell her. The cow had a calf in 
 the month of October following. On the 
 nineteenth of .May, the plaintiff wrote 
 Graham as follows: " I'lymouth, .May lit, 
 Is.sd. Mr. George Graham. Greenfli-ld — 
 Dear .Sir: I have bought Itose or I ucy 
 from Mr. Walker, and will be there for her 
 I'riday morning, nine or ten n'idock Do 
 not water her in the morninir. Yimrs. 
 etc.,T.t'. Slierwooil." IMaintiff e.vpbiineil 
 the mention of the two cows in tlils letter 
 by testifying that, when he »■ rote this let- 
 ter, the Order ami letter of ilefendiints 
 were at his house, and, writing in a hurry, 
 and being uncertain as to the nniue of 
 the cow, and not wishing his row wn- 
 leved. he tli<iuglit it would ilo no harm to 
 name them both, as his bill of sale would 
 show which one lieliad purchased, riain- 
 tiff also tcKtilled that he axked ilpfendants 
 to give him a price on the lialance of their 
 herd nt Greeiilleld, as a friend thougli: of 
 buying some, and riH-eived a letter dated 
 .May IT. l>v*«i. in which they named the 
 price of live cattle, including I. ucy. at f'.K». 
 and Kose I'd at ?mi. When he received the 
 letter he called d.fcmlanis np by tele- 
 phone, >ind iixked tlicMiwhy they put Kose 
 ■_M In the li-l. as he lia<l iilready | iin-hnsed 
 lier. They replied that they knew he hod.
 
 734 
 
 SHKRWOOD D. WALKER. 
 
 but thoiiRl-.t it would make no difference 
 if plaintiff and his friend concluded Intake 
 the whole herd. 
 
 The (oretcuinK Is the substance of all the 
 testimony in th(! case. 
 
 The circuit judse instructed the jury 
 that if they believed the defendiints, when 
 they sent the order and letter to plaintiff, 
 meant to pass ilie title to the cow, and 
 that the cow was intended to be delivered 
 to plaintiff, it did not matter whether the 
 cow was weighed at any particular place, 
 or by any particular person; and if the 
 cow was weighed afterwards, as Sher- 
 wood testified, such weiKhinji would be a 
 sutiicient compliance with the order. If 
 they believed that defendants intended to 
 pass the title by the writing, it did not 
 matter whether the cow was weighed 
 before or after suit brought, and the 
 plaintiff wouhl l>centitled to recover. The 
 defendants submitted a number of re- 
 quests which were refuted. The substance 
 of them was that the cow was never de- 
 livered to plaintiff, and the title to her did 
 not pass by the letter and order; and 
 that under the contract, as evidenced l)y 
 these writings, the title did not pass until 
 the cow was weighed and her price there- 
 by determined; and that, if the defend- 
 ants only agreed to sell a cow that wouhi 
 not breed, then the barrenness of the cow 
 was a condition precedent to p^issing title, 
 and plaintiff cannot recover. The court 
 also charged the jury tliat it was imma- 
 terial whether the cow was with calf or 
 not. It win therefore be seen that the 
 defen<lants claim that, as a matter of law, 
 the title to this cow did not pass, and 
 that the circuit judge erred in submitting 
 the case to the jury, to be determined by 
 them, ui)on the intent of the parties as to 
 vvhetlier or not the title passed with the 
 sending of the letter and order by the de- 
 fendants to the plaintiff. 
 
 'J'his (juestion as to the passing of title 
 is fraught with difticulties, and not al- 
 ways easy of solution. An examination 
 nf the multitude of cases bearing upon 
 this subject, with their infinite variety of 
 facts, andat least apparent conflict of law, 
 oftimes tends to confuse ratlier than to 
 enlighten the niind of the Inquirer. Jt is 
 best, therefore, to consider always, in 
 cases of this kind, the general principles 
 of the law, and then apply them as best 
 we may to the facts of the case in hanil. 
 
 The cow being worth over SiJd, the con- 
 tract of sale, in order to be valid, must be 
 (jne where the purchaser has received or 
 accepted a part of the goods, or given 
 something in earnest, or in part payment, 
 or where the seller has signed soraenoteor 
 memorandum In writing. How..St. § (ilSli. 
 Here there was no actual delivery, nor 
 anything given in payment or in earnest, 
 but there was a sufficient memorandum 
 signed by the defendants to take the case 
 out of the statute, if the matter contained 
 in such memorandum Is sufficient to con- 
 stitute a completed sale. It is evident 
 from the letter that the payment of the 
 purchase price was not intended as a con- 
 dition precedent to the [.assing of the 
 title. Mr. Sherwood is given his choice 
 to pay the money to Graham at King's 
 cattle-yards, or to send check by mail. 
 
 Nor can there be any trouble about the 
 delivery. The order instructed (Jraliam 
 to deliver the cow, upon presentation of 
 the order, at such cattle-yards. But the 
 price of the cow was not determined upon 
 to a certainty. Uefore this could be as- 
 certained, from the terms of the contract, 
 ! the cow liad to be weighed: and, by the 
 I order inclosed with the letter, Graham 
 I was instructed to have her weighed. If 
 the cow had been weighed, and this letter 
 i had stated, upon such weight, the expiess 
 I and exact price of the animal, there can 
 I be no doubt but the cow would have 
 I passed with the sending and receipt of 
 I the letter and order by the plaintiff. Fay- 
 ; meat was not to be a concurrent act 
 with the delivery, and therein this case 
 differs from Case v. Dewev, 5o Mich. Il(j, 
 L'O N. W. Kep. S17, and 21 N. W. Hep. Ull. 
 Also, in that case, there was no wiitten 
 memorandum of the sale, and a delivery 
 was necessary to pass the title of the 
 slieep; anil it was held that such delivery 
 could only be made by a surrender of the 
 : possession to tlie vendee, and an accept- 
 ance by him. Delivery by an actual traus- 
 : fer of the property from the vendor to the 
 vendee, in a case like the present, w here 
 the article can easily be so transferred by 
 ;a manual act, is usually the most signifi- 
 [cant fact in the transaction to show the 
 intent of the [larties to pass the title, but 
 it never has been held conclusive. Neither 
 the actual delivery, nor the absence of 
 such delivery, will control the case, where 
 the intent of the parties is clear and mani- 
 fest that the matter of delivery was not a 
 ! condition precedent to the passing of the 
 title, or that the delivery did not carry 
 ■ with it the absolute title. The title may 
 pass, if the parties so agree, where the 
 statute of frauds does not interpose wlth- 
 I out delivery, and jiroperty may be deliv- 
 ' ered with the understanding thsit the title 
 shall not pass until some condition is jier- 
 formed. 
 
 And whether the parties intende'l the 
 I title sliould pass before delivery or not is 
 ! generall.v a question of fact to be deter- 
 mined by the jury. In the case at bar the 
 question of the intent of the parties was 
 submitted to the jury. This submission 
 Was right, unless from the reading of the 
 letter and the order, and all the facts of 
 the oral bargaining of the parties, it Is 
 perfectly clear, as a matter of law, that 
 the intent of tlie parties was that the cow 
 should he weighed, and the price thereby 
 accurately determined, before she should 
 become the property of the jjlaintlff. I 
 do not think that the intent of the i)arties 
 in this case is a matter of law, but one of 
 fact. The weighing of the cow was not 
 a matter that needed the presence or any 
 act of the defendants, or any agent of 
 theirs, to be well or accurately done. It 
 could make no difference where or when 
 she was weighed, if the same was done 
 upon correct scales, anil by a competent 
 person. There is no pretense but what 
 her weight was fairl.v ascertained by the 
 plal!!tiff. The cow was Bpeclticall.v des- 
 ignated by this writing, and her delivery 
 ordered, and It cannot he said, in ray 
 opinion, that the defendants intended 
 that the weighing of the animal should be
 
 SHERWOOD V. WALKER. 
 
 735 
 
 done bpfore the delivery even, or the pbhr- ' 
 ins of the title. The order to GrahHm Ih 
 to deliver her, ami then followH the in- 
 struction, not that he xhnll wei^h her 
 hiniHelf, or weiKh her, or even have her 
 weitilied, before delivery, tint Hiiuply, 
 ".Send halter with the cow, and have her 
 weighefJ. " 
 
 It is evident to my mind that they had 
 perfect confidence in the integrity and re- 
 HpouHibility of the plaintiff, and that they 
 considered the sale perfected and com- 
 pleted wlien they mailed the letter and 
 order to plaintiff. They did not intend 
 to place any cotiditions precedent in the 
 way. either of payment of the price, or the 
 weiKhiiifT of the cow, before the passinj; 
 of the title. They cared not whether the 
 money was paid to Graham, or sent to 
 theui afterwards, or whether the cow was 
 weiRhed before or after she puuHed into 
 the actual manual Krasp of the plaintiff. 
 The refuhul to deliver the cow frrew en- 
 tirely out of the fact that, before the plain- 
 tiff called upon Graham for her, they dis- 
 covered she was not barren, and therefore 
 of greater value than they had solJ her 
 for. 
 
 The following cases in this court sup- 
 port the instruction ot the court below as 
 to the intent of the parties RoverninK and 
 controlling the question of n completeil 
 sale, and the passing of title: Linghain 
 V. KKgleston, 27 .Mich. 324; Wilkinson v. 
 Holiday, 33 Mich. 3S(;; Grant v. Mer 
 chants' & Manufacturers' i'.ank, 3.1 Mich. 
 r)27; Carijcnter v. Graham, 42 Mich. l'.)4, 3 
 N. W Rep. !>74: Brewer v. Salt .Vss'n, 47 
 .Mich. .'■)34. II N. W. Rep. 370; Whitcomb v. 
 Whitney, 24 Mich. 4><6: Bvles v. C'olier, ,54 
 Mich. 1. 1!) N. W. Rep. 5(ir»; Scotten v. 
 Sutter, 37 Mich. 527, 532; Diicey Lumber 
 Co. v. Lane. .iS Mich. .520, ,'125.25 N. W. Rep. 
 .5GS; Jenkinson v Monroe, fil Mich. 454, 2S 
 N. W. Rep. 663. 
 
 It ai)pears from the record that both 
 partie.-( supposed this cow was barren and 
 would not breed, and she was solil by the 
 pounil for an insljinilicant sum as com- 
 pare<l with her real value if a breeder. She 
 was evidently sold and purchased on the 
 relation of her value for beef, unless the 
 plaintiff had learned of her true condition, 
 and concealed such knowledge from thede- 
 fendants. Before theplaintiff secured pos- 
 session of the animal, the defendants 
 learned that she was with calf, and there- 
 fore of great value, and unilertook to re- 
 scind the sale by refusing to deliver her. 
 Tlie question arises whether they had a 
 right to do so. The circuit judge ruled 
 that this fact did not avoid the sale 
 and it made no difference whether she 
 was barrt-n or not. 1 am of the opinicm 
 that the court erred in this holding. I 
 know that this is a close (piestion, and 
 the dividing line between the adjudicated 
 cases is not easily discerned. But it must 
 he considered as well settled that a party 
 who has given an afiparent consent to a 
 contract of sale may refuse to execute It, 
 or he may avoid it after it has been cv»m- 
 pleted, if the assent was foumled, or the 
 contract made, u|>ou the mistake of ji ma- 
 terial fact, — such as the subject-matter of 
 the sale, the price, or some collateral face 
 
 materially inducing the agreement; and 
 this can be done when the mistake is ma- 
 tual. 1 Henj. Sales, 55 (;05, OWJ; Leake, 
 t'ont. :«U; Story. Sales, (4th Kd.)§J3r7, 
 14S. See, also, <"utts v. (Juilil, 57 N. Y. 
 220; Harvey v. Harrln, 112 .Mass.. ■J2; <Jurd- 
 ner v Lane, 9 .\llen. 4'JJ, 12 Allen, 44; 
 Ilnthmacher v. Harris' Adm'rs, .3s Fa. St. 
 4'.»l : liyers v. thapin, 2s Ohio St. 300; Gib- 
 son v l'elkii-.:!7 .Mich. 3SI». ond cnse!* cited; 
 -Mien v. Haniraond, 11 I'et. ^'{-71. 
 
 If there is a difference or ndsapprehen- 
 sion as to the substance of the thing bar- 
 gained for; if the thing actually dellven>d 
 or rei-eived is different in snbhtnnce from 
 the tiling bargained for, and inten'led to 
 be Bolcl,— then there is no contract; but 1( 
 it be oidy a difference in some quality or 
 accident, even though the niistake may 
 have been the iictuating motive to the 
 purchaser or seller, or both of them, yet 
 the contract remains binding. "Tlie dldi- 
 culty in every case is toiletermine whether 
 the mistake or mlsa|>prehensio!! is n8 tu 
 the substance of the whole contract, go- 
 ing, as it were, to the root of the mat- 
 ter, or only to some pcdnt, even though a 
 material point, an error as to which 
 does not affect the substani'e of the wbide 
 consideration." Kennedv v. I'annma. 
 etc., .Mad Co., L. R. 2 Q. "R. .5M(. 5s7. It 
 has l)een held, in accordance with the prlti- 
 ciples above (Stated. th;i t where a horse 
 is bought under the belief that he is sound, 
 and both vendor and vendee honestly 
 believe him to l)e sound, the purchaser 
 must stand Ity his barg.iin, and pay the 
 full price, uidess there was ji warranty. 
 
 It seems to n)c'. however, in the case 
 made by this record, that the mistake or 
 uiisapitrehension of the parties went to 
 the wlude substance of the agreement. 
 If the cow was a lireeder, she was worth 
 at least $7.50; if barren, she was wortli 
 not over $s(i. The fiarties would not 
 have made the contract of sale except 
 upon the nnderstandingund Ix-lief thatshe 
 was iuca|)able of breeding, and of no useas 
 a cow. It is true she is now the identical 
 animal that they thought her to be «vhen 
 the contract was made; there Is no mis- 
 take ns to the iih'Utity of the creature. 
 Vet the mistake was not of the mere qual- 
 ity of the animal, but went to thi- very 
 nature of the thing. A liarren cow is onli- 
 stantially a different creature than a breed- 
 ing one. There is as much difference be- 
 tween them for all purposes of use as there 
 is between an ox anil a cow that iscapal>le 
 of brc'ding and giving milk. If the mu- 
 tual ndstake had simply related to the fact 
 whethe" she was with calf t)r not for one 
 season, then it might have been a good 
 sale, but the mistake affected the char- 
 acter of the animal for all time, and for 
 her present and ultimate axe. She wan 
 not in fact the aniiual. or the kind of ani- 
 mal, the defi'ndantrt intentleil to sell or 
 theplaintiff to tiny. She was not a bar- 
 ren cow, and. if this fact had tiei-n known, 
 there would have been no i-ontract. The 
 mistake affected the substance of the 
 whole cimsideration, and It mustbecon- 
 sidcred that there was no contract to sell 
 or sale of the cow as she actually was. 
 The thing sold and bought had in fact uo
 
 7:56 
 
 SHERWOOD V. AVAI.KER. 
 
 f 
 
 existence. She was sold aa a beef crea- 
 ture would be sold ; she is in fact a breed- 
 ing cow, and a valuable one. The court 
 shoulil have instructed the jury that if 
 they found that the cow was sold, or con- 
 tracted to be sold, upon the understand- 
 inn of both parties that she was barren, 
 and useless for the purpose of broedinji, 
 and thnt in fact she was not barren, but 
 capable of breeding, then the defendants 
 had a right to rescind, and to refuse to de- 
 
 liver, and the verdict should be in their 
 favor. 
 
 The judgment of the court below must 
 he reversed, and a new trial granted, with 
 costs of this court to defendants. 
 
 CAMPBELL, C. J., and CHAMPLIN, 
 J., concurred. 
 
 SHERWOOD, J., delivered a dissenting 
 opinion.
 
 SHIELDS V. PP;TTIE. 
 
 73J 
 
 SHIELDS et al. v. PETTIE el al. 
 
 (4 N. Y. 123.) 
 
 Court of Appeals of New York, 1850. 
 
 AsBumpsit to recover a quantity of plj? 
 iron. Tlie contract between the partiea 
 waw in these wofiIh: 
 
 "New York, July 1», 1847. Sold for 
 MesKTH. Georije \V. Shields &Co., to Mchhi-s. 
 Petteo & .\liuin, one hundred and fifty 
 tons (Jurtslierrie pig iron, No.l, ut $2!) per 
 ton, one-half at six months, one-half cash, 
 lesB four per cent., on board Siddons. 
 
 "ThoniuH Ingham, Broker." 
 
 On the arrival of the ".Siddons" tlie de- 
 fendants received sixty or seventy tons of 
 tlie iron, but on ascerlnininK its inferior 
 quality, declined to accept and pny for it, 
 or the residue, as of the qualiti' required 
 by the contract. Tlie plniutiffs offered to 
 deliver the residue, which was declined, 
 and then demanded payment for the por- 
 tion delivered at the contract |)iice, which 
 was also refused, as was a demand torthe 
 return of the iron delivered. The price of 
 No. 1 iron liad by this time advanced 
 about $:iS)i) per ton above the contriict 
 price. The defendants had parted with a 
 portion of the iron before its return was 
 demanded. 
 
 The jury were instructed that under the 
 circumstances the defenilants were liable 
 by an implied contract to pay for the iron 
 received at its then market value. Tlie 
 plaintiffs had judKnient on a verdict for 
 $2,197.3!). Thedefendants brouj^ht this ap- 
 peal. 
 
 W Hall, for appellants. N. Hill, Jr., for 
 respondents. 
 
 HORLBnT, .1. In my judcment the 
 contract was not a sale but an agree- 
 ment to sell, which was not executed, and 
 which could only be required to be execut- 
 ed upiiU the arrival of the ship with the | 
 iron on board. The arrival of the vessel 
 without the iron would have put an end 
 to the contract, which was conditional 
 as a sale, to arrive. The vessel was at sea 
 at the time, this was known to both par- 
 ties, and neitlier could be certain, either of 
 her arrival or of her brinjiln^^ the iron. If j 
 a |)art only had arrived, the plaintiffs! 
 would not have been bound to deliver norj 
 the defendants to accept it. There was 
 no warranty, express or iniplied. either! 
 that any iron should arrive, or that arriv-j 
 inn. it should be of a iiartlcular (luality. 
 One hundred and lifty tons of (iartsherrie \ 
 pifi iron of the quality denominated No. 1 
 was expected to arrive by the "Siddons." 
 and the contract was to the effect, that 
 if that (juaiitity and quality of iron did .so 
 arrive, one party should sell and the otli- 
 er should receive it at a certain price per 
 ton. The Iron called for by the contract I 
 did not arrive, but iron of a different iiual- 1 
 ity, and I think the contract wna at an 
 end. ( IJoyd v. Siffkln. 'J ("amp. N. 1' '.vy<: 
 Alcwyn v. Tryor, 1 Kyan & .Moody, 4()(i; 
 Lovatt V. Hamilton, .'> .Mees. & Wels. C.ii'.t; 
 Johnson v. Mucdouald, l) id. GOO; Hussell 
 V. NicoU. 3 Wend. 112.) 
 
 The jury were instructed that, under the 
 
 circumstances of the cobc, the law implied 
 a contract on the part of the detendantH 
 to pay for the iron which they receive<l at 
 the then value of the same In the market, 
 and they found accordingly; which, in 
 effect compelled the defendants to pny for 
 an inferior article a grenterprlce than that 
 stipulated for In the contract. This arose 
 from the circumstance of a riseln the mar- 
 ket, intermediate the contract and the time 
 ofilelivery. Hut this ought not to affect 
 the rule of damages which cannot b<-nd to 
 an accident of this nature, but must re- 
 main the same in a case like the present, 
 whether the commrjdity rise or fall, or re- 
 main stationary in the market. Where, 
 upcjn a sale of goods, there is no agree- 
 ment as to the I, rice, the law implies a 
 contract on the part of the buyer to pay 
 for them at the market value. The (>reii- 
 ent case cannot be excepted from the oper- 
 ation of this rule. There was no error In 
 the charge of the learned judge, (irovided 
 the law iniplieii a promise on the part of 
 the defendants to pay any thing whatev- 
 er for the iron which they received. This 
 they had taken in good faith. Hupposlng 
 that it answered the contract, anil intend- 
 ing to pny for it nccurdingly : but finding 
 it to be of an inferior quality, they de- 
 clined to pay the contract price, and upon 
 a denian<l of the iron were not in a conili- 
 tion to restore it, us they had parted with 
 a portion of it. They, however, had re- 
 ceived (he iron rightfully, in the character 
 of vendee.-*, and up to the time of the de- 
 mand liy the plaintiffs, the ca^e exhibits 
 notliing In the nature of a tort, but sa- 
 vors altogether of contract. .After the de- 
 mand and refusal, tlie case was so far 
 modified u.<to assume, tcclinli'ally at least, 
 the comfilexion of a tort, so (hat trover 
 might have beeti maintained by the plain- 
 tiffs. Hut although they might have 
 done so, were they boimd to bring their 
 action in that f-irm. or were they at lib- 
 erty to disregard the tort and to treat the 
 defendants as still retaining their oriuinal 
 characters of purchasers of the Iron and 
 to charge them accordingly? I perceive 
 no reason why they may not be permitted 
 to do so. The goods were neither wrong- 
 fully taken, nor do the defendants claim 
 title to them. The case rested originally 
 in contract, and the only difference be- 
 tween the iiartles related to the price of 
 the article delivered. If the (ilaintiffs had 
 brought trover, the rule of damages 
 would not liave been more fa vorable to 
 thedefendants than the on<> lai<l down at 
 the trial, anil I am unable to perceive In 
 what respect the\ can be injured by the 
 present form of action. In general It 
 woulil be the most favorable to thedetend- 
 an(. Iti Young v. .Marshall (S Iting. 43), 
 Tindal, Cli. J., declared that no party was 
 bound to sue in tort, when by converting 
 the action Into one of contract hedocsnot 
 prejudice the defcmlnnt. Itis not necessa- 
 ry to go this length, nor as far as the 
 court went in Hill v. Davis (3 N. H. :IS4). 
 (or th.? pur|)ose of determining tlie ques- 
 tion before us; nor Is the point presented 
 in the last case of much importance, since 
 the distinctions which obtninecl at com- 
 mon law in the forms of action have been 
 abrogated In this state. I, therefore, al>-
 
 740 
 
 SHIELDS V. PETTIE. 
 
 stain from expressing any opinion upon 
 it. It is cnousb for our present purpose, 
 that, in the case 'oefore us, the cause of ac- 
 tion arose out oi an imperfect sale anJ 
 delivery ot Roods, and not out of a wrong- 
 ful tafung of them by the defendants; 
 that the tortious feature in the case is 
 scarcely one ot substance, but is rather of 
 a technical character; that in effect the 
 parties must be deemed to hape agreed as 
 
 to every thing except tlie price of the 
 goods; and that this being so, the plain- 
 tiffs were at liberty to disregard whatev- 
 er might savor of tort, and require the de- 
 fendants to respond in their substantial 
 characters as purchasers ot the iron for 
 what it was worth in the market. 
 
 The judgment of the superior court 
 ought to be affirmed. 
 
 Judgment affirmed.
 
 SHUFELDT c. PEASE. 
 
 743 
 
 SHUFELDT v. PEASE et aU 
 
 (16 Wis. 659.) 
 
 Supreme Court of Wisconsin. January Term, 
 1863. 
 
 Appeal ■from the circuit court for Rocli 
 county. 
 
 Action against Pen ho & BiiUou for tlie 
 recovery of personal property unlawfully 
 <ietaineil. A verdict was rendered for 
 the |)laintiff. and the defendantH apponled. 
 It was claimed on the part of the plaintiff 
 that the defendiint Ballou, Ueintt inwol- 
 vent, fraudulently purchaned the Rood.s 
 with tlie intention of not fiayingfor them, 
 and that he Hold and delivered them to 
 tlie defendant I'eane in payment of a pre- 
 existinu debt which he owed Pease, and 
 that Pease therefore wa.s not a purchnHer 
 in pood faith. The circuit court instruct- 
 ed the jury, amon« other thlnes, "that a 
 person who receives goods in i)aynient of 
 a precedent debt from a fraudulent ven- 
 dee who has jjurcliased them with a i)rc- 
 coiiceived design of not paying for tliern, 
 being inRolvent at thetime, could not hold 
 them HH against the vendor of such fraud- 
 ulent vendee, and that a person who 
 takes such goods in fiavment of a i)rior 
 indelitedneesls not a bona tide purchaser. " 
 
 B. B. Eldridge, for appellants. Bennett, 
 Cassoday & Gibbs, for rosjiondent. 
 
 PAINE, .1. The court instructed the 
 jury, among other things, " that a person 
 who receives goodsin fiaynientof a preced- 
 ent debt, from a fi'audulent vendee, that 
 is, from a vendee who has purchased them 
 with a preconceiveil design of not paying 
 for them, being insolvent at the time, can- 
 not hold them as against the vendor of 
 such fraudulent vendee; thata person who 
 takes such goods in fiayuient of a |)rior 
 indelitedness is not n bona tide purchaser, " 
 
 Assuming that the fraudulent vendee 
 who obtained the goods in the m;inner 
 specified in the instruction, would be 
 guilty of a fraud that the wale might be 
 avoided as between him and his vendor, 
 we still think the instruction erroneous 
 in holding that a purchaser in good faith 
 from such fraudulent vendee, who took 
 the goods in payment of a jjre-existing 
 debt, was not a purchaser for value, with- 
 in the rule entitling such to protection. 
 This court has held that where negotia- 
 ble paper was taken in good faith In pay- 
 ment of a pre-existing del)t, and the pur- 
 chaser surrendered a prior security, he 
 
 I was a purchaser for a value within the 
 rule; Stevens vh, Campbell, V.i Wis., Xio. 
 
 1 There i.i, however, a distinction l)etwe<-n a 
 case where the purchaser surrenders a 
 former security, and a case wherehe mere- 
 ly receives the profierty on a verltal agree- 
 ment that it shall be in |>uynient of a prior 
 debt. In the former case, he changes hiB 
 position, and gives up something of value 
 to him on the strength of the property he 
 recoives. In the latter case he docs not, 
 that is, assuming that if Ids title should 
 fail by reason of his vendor's fraud in get- 
 ting the goods, his debt would still remain 
 unsatisfied. I( therefore the rule protect- 
 ing bona fide purchasers for value cf>uld 
 be said to rest upon the fact that the 
 purchaser has actually paited witli the 
 value whieh constitutes theconsideration, 
 solely on the faith of the gou'l^ received, 
 there is a distinction between cases where 
 the goods are taken merely in payment of 
 a pre-existing debt, and those where the 
 purchaser advances the consideration at 
 the time of the sale, or surrenders prior 
 
 I securities. There are several cases that 
 have urged with great force, that in the 
 former case, the purchaser is not within 
 
 I the reason of the rule, ''odflington vs. 
 Bay, 20 Johns, (i37; opinion of Walwortli, 
 Chancellor, in Stalker vn. McDonald, 6 
 Hill, 93. 
 
 But the authoritiea seem to have reject- 
 ed the distinction and to have settled 
 down by a decided pre|)onderance on the 
 conclusion that such a purchaser is within 
 the rule. Youngs vs. Lee, 2 Kern., .">.jI ; 
 .Marbled Iron Works vs. Smith, 4 Uuer, 
 .'tTli; Gould vs. Segee, 5 Duer, l'i;o : Boxbor- 
 ough vs. Messick et al., Ohio St.. 452; 
 Payne vs. Bensley, 8 Cal., 2<jU; McCnsky 
 vs. Sherman, 24 Conn., GO,'); Blanchard vs. 
 Stevens, 3 Ciish., 1G2. 
 
 These Ciises relate mostly to purchases 
 of promissory notes. 
 
 But the question whether one Is a 
 bona fide purchaser for value must he 
 decided in the same way, ui)on the same 
 facts, whether he purchases one thing or 
 another. .'Vnd it i.s not disputeil that a 
 bona fide imrchuser for value from a 
 fraudulent vendee, who ac(|uired the 
 goods through a note not void, but void- 
 able only by reason of his fraud, will hold 
 them against the original owni'r. The 
 court having erred in holding that one 
 taking such goods In payment of a pre- 
 existing debt, was not such a purchaser, 
 the judgment is reversed, and a new trial 
 ordered.
 
 SIXCLAIIJ 0. MATirAWAY. 
 
 745 
 
 SINCLAIR v. HATHAWAY. 
 
 (23 N. W. Rep. t'''*. •■>7 Mi.li. m.) 
 Supreme <;!ourt of Mi(lii«au. May 13, ISSo. ' 
 Error to Wa.vue; JeniiiHon, .Indite. 
 
 Cha|)nnan & Stiiitli, for apl't^Hunt. Hclj- 
 ert Laidlaw, f<»r apiifllee. 
 
 CAMPBELL, J. Plaintiff sued defend- 
 ant for a halance claimed to be dde for! 
 breai). Defendant claimed that the ac- 
 count had been balanced l)y bad bread re- 
 turned, and by a sum (jf $111 paid in settle- 
 ment of accountH. Plaintiff was u bal<er, 
 and <lefendanf8 buHiness was to supply 
 bread to ciistomiTH about the city. It 
 appears that for a period defeniiant was 
 employed l)y |ilaintiff to sell his bread, 
 an<l make returns and iiuy for the bread 
 furnished dally. Defendant claims tluit 
 on several occasions the bread furnished 
 was bad and unwholesome, and tliat he 
 returned it to a sufficient extent to over- 
 balance his payments, and that there was 
 an understanding^ t(» that effect. The par- 
 ties are directly at variance on the facts. 
 There was a ^ood dealof testimcjuy show- 
 ing that bread was often made unfit for 
 use, and that plaintiff had to sell it for 
 feeding animals. Jle swore there was 
 never any such thing. The court below 
 rightly excluded evidence of a Sunday 
 contract l)efore the business was entered 
 into. l!ut tliere was testimony of subse- 
 <iuent dealings tending to prove the the- 
 ory of the defense. 
 
 Thecaee being an n()pcal from a justice, 
 it was shown and seems to liave been ad- 
 mitted that in the justice's court plaintiff 
 swore tliat the amount due liim was only 
 ?(>.■), wlule in the circuit he swore to 
 :^l();i.7!), and recovered it. The court was 
 asked to charge the jury that if plaintiff 
 so swore below, anil so changed his tes- 
 timony without explaining wh.v, that 
 circumstance shoulil weigh witli the jury 
 against the good faith of the claim. The 
 court refused so to charge, l)ut in the 
 charge the court made this remark: "De- 
 fendant also states that tlie complainant 
 only claimed $(i5 in justice court, but the 
 complainant uadertakes to explain it li.v 
 saying that he made a ujistake, as he did 
 
 not have his bnokn of aronunt witli him 
 at the time." This had a decided tendency 
 to induce the jury to regard thr- point un 
 of no consequenre. IJut It is not a small 
 matter for a person who goes into court 
 to swear to his claim, to [lay ho little re- 
 gard to his oath as to take no pains to 
 find out what is due. And beyond this, 
 there is nothing in the pIcintiff'H testi- 
 mony to show any Huch explanation 
 given by him on oath. The error wuh 
 material. 
 
 The court also refused to charge that 
 plaintiff was subject liy law to an implied 
 warranty that tlie bread was wholesonip, 
 and in the charge stated the defendant's 
 objections to apply chiefly tr> itH market- 
 able quality, anil to Its being sidled ex- 
 ternally by getting ilirty on the door. 
 There was, however, testimony from sev- 
 eral sources that the bread was unlit for 
 food, apart fi-om its external appearance. 
 It was held in Hoover v. Peler^. IH .Mich. 
 .51, that there is an Implied warranty of 
 wholesomenesH in the sale of provisiona 
 for direct consumption. This question Is 
 not di.scussed In plaintiff's brief, ami wos 
 left entirel.v out of view by the court, and 
 the only reference to it was in connection 
 with an express contract. 
 
 In this case defeniiant was, as plaintiff 
 claims, in his emph'.v as a peddler, bound 
 to pay for his bread, at a discount, and 
 his connection with the sales brings the 
 case within the same principle. Defend- 
 ant cannot l)e treated as apurchnscr from 
 a wholesale dealer of articles sold in the 
 market for purposes of commerce. Bread 
 is an article sold for immediate consump- 
 tion, and never enters into commerce, and 
 as one of the prime necessaries of life is of 
 no use unless it is good for food. Defend- 
 ant, as a mere middle-man between the 
 baker and the consumer, and actitig in 
 his employment, had a right to expect bad 
 bread to be made good, and the court 
 should have so held. Mere externals he 
 could see for himself, but bad quality 
 would not always be detected without 
 Ruch a minute examination as the circum- 
 stances of such a business woulJ render it 
 dillicult to make. 
 
 The judgment must be revemed. and a 
 new trial grante-i. 
 
 The other justices concurred.
 
 SMITH c. FEKOUSON. 
 
 747 
 
 SMITH V. FERGUSON. 
 
 (90 Ind. 223.) 
 
 Supreme Court of India 
 
 May Term, 1883. 
 
 .1. M. La Hue, V. B. Everett, W. C. W'il- 
 Hoii. nii<l J. H. AilaniH, for appellant. B. 
 VV. Laiif^don, for uppclleo. 
 
 IIOWK, J. — In liiH complaint in tills ac- 
 tion, tlio appellant, the plai'itiff hcluvv, 
 ulle»;i'(l in HuhKtuncc, that, as the adiiiiniH- 
 trator of tlicostati- of Maliala T. .Shu w, 
 OeccaHed, lie was the owner anil entitled 
 to the pos.ses.sion of eifilit proruiHKor.v 
 notes, each t""'t'<^'i'l'»''lv descrihed, anil 
 all of the value ot $:.',.')0U; and that the 
 appellee had possession of said notes with- 
 out I'iK'it, and unlawfully detained the 
 same from the appellant, at Tippecanoe 
 county; wherefore, etc. The cause was 
 put at iHsue and tried by the coui't, and 
 a findint; was made for the appellee, the 
 defendant helow: an, 1 over the appellant's 
 inotion for a new trial, and his exception 
 saved, the (-ourt rendered judgment on its 
 linditJi'. 
 
 !n this court the appellant has assij^ned 
 as errors the followiiiK decisions of the 
 trial court : 
 
 1. In overruling his demurrer to the 
 tliiril paragraph of appellee's answer; 
 and. 
 
 U. In overruling his motion tor a new 
 trial. 
 
 In the third paragraph of his answer, 
 the appellee alleged in substance, that 
 Maliala T.Shaw, the appellant's decedent, 
 
 on and befoie the day of .luly, 1^7.'l. 
 
 was the owner and holder of eight prom- 
 issory uotes, particularly describing them ; 
 that on said last named day the said 
 Mahala T. Shaw delivered and entrusted 
 all of said notes into tht- hands and pos- 
 session of the apiiellee; that contempora- 
 neously with lier delivery jf said notes to 
 hin.. the said Maluila declared t(j aad di- 
 rected the aiipellee to take the said notes 
 anil do the ' est he could with them, and 
 furnish her, the said Mahala, with what 
 means she needed to live on, and, after her 
 death, pay what debts he knew she owed, 
 and erect a monument for her like the one 
 that had been ordered for her lirother. Sol- 
 omon, and what was left was Clarinda V. 
 Ferguson's, who was then and since the 
 wife of the appellee, and that the appellee 
 should give what was left to her, the said 
 Clarinda. 
 
 The appellee said that he then and there 
 received and took possession of said notes 
 from said Mahala, under the said declara- 
 tion and terms; that afterwards, in 
 March, 1S7(), the appellee e.xchangi'd one 
 of the notes for live other notes particu- 
 larly described; and that, in .lanuary, 
 l.sTT, ap|)ellee surrendered Carr's note for 
 $•)() to said Carr on account of a debt due 
 him from said Mahala. 
 
 The appellee further said that the notes 
 described in the complaint were the notes 
 described in hin answer; that afterwards, 
 on the 7th day of October, isTT, the appel- 
 lee was hobling, and in the possession of, 
 the notes described in the complaint, and 
 thesnid Mahala T. Shaw being then dan- 
 
 gerously sick and ailing, nnd In the appre- 
 hciiHion of her death, said to nnd charged 
 the appellee to do with what was left o( 
 the iioleH. or the prnceeds ihereiif, as she 
 had told him when she delivered the uoten 
 
 to liiin as aforesaid, on the day of 
 
 .luli', ls7,">, us thereinbefore alleged, unil 
 the appellee then and there [ironiised the 
 said .Mahala that l:e would do ho; that 
 afterwards, on the ^ith day of dctolier, 
 1^77, the said Mahala died of saiil sicKnesH. 
 The appellee charged, that, by n iiHon of 
 the iireuiises, he was entitled to said nolex 
 to deal with them as best lieeuuld,to pay 
 the decedent's lawful debts, and alter 
 building the mnnuiiient, as thiTi-inbefore 
 described, to give and deliver what might 
 be left of such notes, or their proceeds, to 
 the said ('l:irinda. Tin* appellee said that 
 the note first described in the roiuplahit, 
 he did not have or hold at the commence- 
 ment of this action, nor at any time since; 
 and that the estate of saiil .Mahala T. 
 .Shaw, deceased, was solvent. Wherefore 
 the appellee said that the appellant was 
 not entitleil to said nod-s, and he prayed 
 judmnent for his costs herein. 
 
 We are of opinion that the facts stated 
 in this paragraph of answer arc not sufli- 
 cicnt to constitute a cause of defence to 
 the appellants action. It is admitted in 
 the paragraph tnat the notes in contro- 
 versy were, on the day of ,luly. Is7.">. 
 
 the notes of .\l-.hala T. Shaw, at the time 
 she delivered and entrusted thi'in to the 
 appellee; and it is not shown by any 
 avei-ment therein, that she ever parted 
 with I.er title to any ijf the notes durin;; 
 her natural life. She made him her attent. 
 with directions to do the best he could for 
 her with the notes, and to furnish her with 
 what means she needed to live on during 
 her life. Her declaration and direction to 
 the appellee, which must be assumed to 
 have lieen veriial or oral, because they 
 were not alleged to have been* in writing, 
 went further anil provided that alter her 
 death he was to pay what debts he knew 
 she owed, and erect n monument for her 
 like the one that had been ordered for her 
 brother .Solomon, nnd what was led was 
 Clarinda V. I'erguson's, the wife of the ap- 
 iiellee, and that he should give what was 
 left to his wile, the said Cbitinda. This 
 is the substance ot what transpired be- 
 tween the appellee and .Mahala T. Shaw, 
 her declaration and direction, in relation 
 
 to tlie notes in controversy, on tin 
 
 day of ,lnly, ls7,'i. It is not shown there- 
 by" as it seeu's to us, that on that day 
 there was any gift, by or on the part of 
 .Mahala T. Shaw, during her life, of the 
 notes or any part thereof to the appellee, 
 or his wife or to aii.v one else. There was 
 
 no gift inter vivos of any of th« tes or 
 
 of any |iart of the proceeds thereof. The 
 dei'laration and direetions of Mahala T. 
 Shaw lo the appellee in .luly, |s7.'>.as stat- 
 ed in the answer, did not constitute or 
 show a gift In pra-icnti. or durinu her life, 
 of the notes incontroversy; hut they wer<> 
 testamentarv In their tern)H, ami, without 
 the form of solemnity of a will, attempted 
 to make a ;.'i[t of whatever nii^lit be left, 
 aftercertain things had Iuhmi done, to take 
 effect as a gift only after her death. 
 
 In Smith v. Dorsey. aS Ind. 4,'.l. this
 
 748 
 
 SMITH V. FERGUSON". 
 
 court said: "To constitute a valid sift 
 inter vivos it is essential that the article 
 given should he deliveri'd alisoliitely and 
 unconditionally. The Kift must takeeffect 
 at once and completely, and when it is 
 made perfect and complete hy delivery and 
 acceptance, it then becomes irrevocable 
 by the donor. (Jifts inter vivos have no 
 reference t<) the future, but ro into imme- 
 diate and absolute effect. .\ court of 
 equity will not interfere and jjive effect to 
 a gift that is inchoate and incomplete." 
 In Sessions v. Moseley, 4 (lush. 87, the su- 
 preme court of Massachusetts held that a 
 Kift inter vivos must be delivered in the 
 lifetime of the donor, because, if delivered 
 to a third person, with instructions to de- 
 liver to the donee, the authority to deliver 
 may bo revoked, and until delivery the 
 donor retains dominion. 1 Pars. Con. 284; 
 2 Kent Com. 4:5S; Bouv. Law Diet., Til. 
 Gifts inter vivos; Bedell v. Carll, 33 N. Y. 
 5S1; Irish v. NuttiuK, 47 Barb. 370; Dex- 
 heimer v. Gautier, 34 How. fr. 472. 
 
 It follows from what we have said, that 
 the averment of appellee's answer in refer- 
 ence to what was said and done by and 
 between him and Mahala T. Shaw on the 
 
 day of July, ISiit. of and concerniuf"; 
 
 the notes in controversy, utterly fail to 
 show a valid >j;iit inter vivos of the notes, 
 or of any of them, or of any i)nrt of the 
 proceeds thereof, to the appellee's wife or 
 to any other person. They fail to show 
 that she parted or in tended to part during? 
 her life with her title to or ownership of 
 any such notes. If the title to the notes 
 remained in her, if sUe continued to be the 
 owner thereof, and if she mifrht have as- 
 serted and maintained aRainst the appel- 
 lee or the appellee's wife, lier rij^ht to the 
 possession thereof during her natural life, 
 it must be that upon her death her title 
 to anil ownership of the notes, and her 
 riKht to the, possession thereof, passed to 
 and vested in the appellant, as the ad- 
 ministrfitor of her estate. We have hith- 
 erto considered only the averments of the 
 answer in regard to what transijired be- 
 tween the appellee and Mahala T.Shaw, 
 concerning the notes in controversy in 
 .Inly, 187."). At that time, it must T)e as- 
 sumed, as nothinu' was alleged to the con- 
 trary, Mahala T. Shaw was in gocid 
 health, and we have reached the conclu- 
 sion that the allea:ations of the answer 
 did not show tliat she then made a valid 
 Kift inter vivos of the notes to appellee's 
 wife or to any one else. 
 
 The question remaining for considera- 
 tion is this: Do the averments of the 
 answer show a valid uift cai.'sa mortis of 
 the notes in controversy? A gift causa 
 mortis is tlins defined : A donatio causa 
 raortis is a Rift of a chattel made by a 
 person in his last illness, or in periculo 
 mortis, subject to the implied conditions 
 that if the donor recovers, or if the donee 
 die first, the Rift snail be void. 2 Schonl. 
 Pers. Prop. p. 122, note 1. In 3 Bedf. "Wills, 
 320, it is aaid, inter alia, that thoi'e must 
 be an actual delivery of the chattel to the 
 donee, so as to transfer the possession to 
 him, in order to constitute a Rood Rift 
 inortis causa. In the third paraRraph of 
 appellee's answer in the case in hand, it 
 was uot alleged that on Octolier 7th, 1876, 
 
 there was any actual delivery of the notes 
 to the donee, or any transfer of the pos- 
 session thereof. In theclose of hisanswer, 
 the appellee alleged that cm the 7th day 
 of October, 1877, the said Mahala T. Shaw 
 being then dangerously sick, and in the 
 apprehension of her deatli, charged the np- 
 I)ellee to do with what was left of the 
 notes, or the proceeds thereof, as she had 
 told him when she delivered the notes to 
 him in .luly. 187."i, vphich notes he was still 
 holdiuR and in the possession of, and the 
 appellee then ami there promised tlie said 
 Mahala that he would do so. We do not 
 think that these allegations weresufticient 
 to show a gift then made, causa mortis, 
 of what was left of tlie notes or (>f the pro- 
 ceeds thereof. They show rather, as It 
 seems to us, an unwritten will, whorebi' 
 she attempted to dispose of whatever 
 might be left after her death of the notes 
 or the viroceeds thereof. 
 
 The cliarRe of Mahala T. Shaw to the 
 appellee on October 7th, 1877, in her last 
 illness and in apprehension of her death, 
 did not constitute a gift, either intei' vivos 
 or causa mortis, of the notes or of what 
 might be left of the proceeds thereof, to 
 the ajjpellee's wife. It was simply an in- 
 junction or direction that, after her death, 
 the appellee, as her agent and the custo- 
 dian of her notes, should carry out her 
 wishes in relation thereto and dispose of 
 the same, as she had directed in July, 1875; 
 that is, he should pay whatever debts he 
 knew she owed and erect a monument 
 for her like the one ordered for her brother 
 Solomon, and then he should give what- 
 ever might be left of the notes, or of their 
 proceeds, to his wife, Clarinda V. Fergu- 
 son. In 2 Schouler on Personal Property, 
 P. 82, it is said: "An agency is revokeil by 
 the principal's death: therefore, the agent 
 of one who intends a gift inter vivos must 
 have performed what was incumbent up- 
 on him to make the transfer complete 
 during the donor's lifetime: otherwise the 
 gift fails, as though the donor himself had 
 failed to make a reasonable delivery. Nor 
 can a gift inter vivos be sustained which 
 contemplates a postponement of delivery 
 by the agent or trustee until tlie donor's 
 decease: for a gift of personalty made 
 j after this fashion must stand, if at all. as 
 a gift causa mortis, or else on the footing 
 of a testamentary disposition, with all 
 the formalities of a will." Sessions v. 
 Moseley, supra; Allen v. Polereczky, 31 
 Me. 338; Phipps v. Hope, Hi Ohio St. 586. 
 (.lonstruing together all the allegations 
 of the third paragraph of appellee's an- 
 swer, we are of opini(»n they wholly fail 
 to show that Mahala T. Shaw parted, or 
 intended to part, during her lifetime, by 
 gift inter vivos or causa mortis, with her 
 title to or right to the possession of the 
 notes in controversy or the proceeds 
 thereof. Notwithstanding all that was 
 said or done by or between her and the 
 appellee, of and concerning such notes or 
 their proceeds, they remained her prop- 
 erty and estate, we think, until and at 
 the moment of her death, and as such the 
 title thereto and the right to the posses- 
 sion thereof passed to the appellant as 
 the administrator of her estate, to be ad- 
 ministered according to law. The alleged
 
 SMITH V. KEUOUSON. 
 
 749 
 
 solvency of her estate furniHlics nu ronHon 
 whatever for tlie uppellet-'n (li'teiitiiiii of 
 the noteH uh aji'iiiist her uclininiMtnitor. 
 It seeniH to iin, therefore, that the eourt 
 erred in overriilin;; the deiinirrer to the 
 third piirnKraph of tlie Hppellee'M uiiHwer. 
 
 This coiiclUNion renders it unnecessar.v 
 for ua to consider or decide any of the 
 questions arisin^i under the alleged error 
 of the court in overruling the appellant's 
 motion for a new trial. We may prop- 
 erly remark, however, that the evidence 
 in the record does not. in our opinion, 
 sustain the averments and theory of the 
 third paraKriiph of appellee's answer. 
 The appellant gave in evidence a written 
 receipt, executed hy the appellee to Ma- 
 hala T. Shaw, in suhstance as follows: 
 
 "Battle (Ground, Ind., March L'l'd. ISTC. 
 Received of Mahala T.SIuiw the followint; 
 notes, to be held in trust for her:" ( Here 
 follows a description of the notes in con- 
 troversy In this action.) (Sijined) " W. R. 
 Ferjiuson. " 
 
 It will be observed that this receit)t, 
 from its date, was executed by ajipellee to 
 Mahala T. Shnw, about eif;ht months 
 after her declaration and direction to him, 
 in July, 1S75, upon which the appellee 
 
 I founded the third parat;raphof his answer. 
 
 1 If, by this rerelpt, the- appellee became the 
 trustee of Mahala T. Shaw, and so held 
 
 [ the notes, by the terms of the rec<'ipt he 
 held them "in trust for her," as tlie solo 
 cestui que trust, from and after the date 
 thereof, and any prior parol trust. In re- 
 
 I latiiin to the notes, was thereliy abro- 
 trnted. It was shown by the evidence that 
 this receipt was in the pocket-buok of 
 
 ' Mahala T. Shaw, which pocket-liook waa 
 
 I found under her pillow immediately after 
 ber ileath. It may lie assumed, therefore. 
 
 I as it seems to us, that the notes were held 
 by the appellee under such receipt, at the 
 time of the death of Mahala T. .Shaw, and 
 the consequent determination of the trust 
 thereby created. This beini; sr), the appel- 
 lant as her administrator was entitled to 
 the notes and the possession thereof, as 
 aKxiust the appellee. 
 
 The Judgment is reversed with costs, 
 and the cause is remanded with instruc- 
 tions to sustain the deniurrer to the third 
 paragraph of appellee's answer, and for 
 further proceedings not inconsistent wltb 
 this opinion. 
 
 Petition for rebcarin(r overruled.
 
 SMITH 0. LYXES. 
 
 751 
 
 SMITH V. LYNES et al. 
 
 (5 N. Y. 41.) 
 
 Court of Appeals of New York. July, 1851. 
 
 ThiH was an action of replevin to recov- 
 er certain pieces of caipetinc claimed by 
 the iilaintiff as Mis property. Tlie follow- 
 ing: facts were proved on the trial: 
 
 The defendant I^ynes had coiitructed to 
 purchase all the car|)et8 uianufactiin-d by 
 the plaintiff with a certain number of 
 looms during; a specified time, and to pay 
 for the same, except $2,000 worth, with 
 his notes indorsed by Thompson & Co. 
 
 Tlie carpets were manufactured and de- 
 livered accordingly, and notes tor a part 
 were duly given. On the 7th of March, 
 iNJs, Lynes' clerk nave the plaintiff a re- 
 ifipt for nine pieces of carpeting, upon 
 which a memoranduni was indorsed by 
 Lynes as follows: " .\le.ssrs. Thorn pso.i & 
 Co. are up to Thompson ville, but e.xpect 
 to be down on Wednesday or Thursday,; 
 and 1 will have them ready. B. L." 
 Meaning, as he testified, that ha would 
 have the notes ready. 
 
 By an agreement between Tvynea and 
 Thompson & Co., the latter agreed to take 
 the carpets purchased frotn the plaintiff, 
 and a part of those delivered to Lynos 
 were by him deliver.^d to Thompson & (>>. 
 On the 15th of March, 1S4S, the plaintiff 
 called upon Lynes and demiinded of him 
 the goods, or payment of his notes, which 
 was refused. He also demanded of 
 Thompson & Co. the goods in their pos- 
 session received from Lynes, which was al- 
 so refused. Thompson & Co. admitted 
 tliat $.")00 or $000 worth of the goods had 
 not been iiaiil for. A balance of over $2,- 
 800 was then due the plaintiff. 
 
 On motion of the defendant a nonsuit 
 was granted on tliefollowinggrounds: 1. 
 That the delivery to Lynes was absolute 
 and vested the litle in him. 2. That there 
 had been no proper demand or refusal of 
 the notes. 3. That the sale to Thompson 
 & Co. vested the absolute title in them of 
 such goods as were sold by L.-nes to 
 them. 
 
 An application to set aside the nonsuit 
 having been denied the plaintiff brought 
 this appeal. 
 
 C. \V. Sundford, for appellant. B. W. 
 Bonney, for respondents. 
 
 PAIGE, J. Where gootis are sold on 
 condition of being paid for on delivery in 
 cash or commercial paper, or on condition 
 of receiving on delivery security for pay- 
 ment, on absolute and unconditional de- 
 livery of tlie goods by the ver.dor without 
 exacting at the time of delivery a perform- 
 ance of the condition, or nttncliing any 
 otiier condition to the delivery, is a waiv- 
 er of the condition of the sale, and a com- 
 plete title passes to the purchaser, if there 
 is uo fraudulent contrivance <in the part 
 of the latter to obtain possos.-iioii. Where 
 there is a condition preceilent attached to 
 a contract of sale and delivery, the prop- 
 erty does not vest In the venilee on deliv- 
 ery, until he performs thecuiulition. or the 
 seller waives it. An absolute ami uncon- 
 ditional delivery is rcKanled as a waiver 
 of the condition. By an absolute delivery 
 
 without exactini; the performance of tbe 
 condition, the vendor Is preioiraed to 
 have abandoned the security he had pro- 
 vldeij for the payment of the purchase- 
 money, and to have elected to trust to 
 the pernonal security of the vendee. (2 
 Kent's Com. 4!l(>-'.i"; Chapman v. Lathrop, 
 •J Cow. Uo. and Il.'i, notea; Lupin v. .Marie, 
 Wenrl. so. iti error, .Marcy, .1.; Kurniss v. 
 Hone, S Wend. 247, in error; Carleton v. 
 .Sumner, 4 I'ick. rdO; Hussey v. Thornton, 
 4 .Mass. 40.J: Smith v. Denide, C Pick. 2fJ2; 
 People V. Hnynes, 14 Wend. .'i(>2; in error, 
 per Chancellor, ."jfiC, per Tracy. Senator; 
 .Shindler V. Houston, 1 Denio, ."il, .lewett, 
 .1.; Buck v.(irin)shaw.l Kclw.Ch. 144.) The 
 vendor, to avoid a waiver of the condi- 
 tion of the sale, must cithern-fuse todeliv- 
 er thegoods without a ijcrformance o( the 
 condition, or he must make the delivery 
 at the time (|ualihed and conilitiiuiul. 
 (Lupin V. Marie, Wend. Si. in error, Mar- 
 cy, .1.; llussi'y V. Thornton, 4 .Mjiss. 4ito; 
 14 Wend. ."lOO, Tracy. Senator. I .lustice 
 Nelson in Furniss v. Hone (S Wend. 2.'ii;), 
 says, whether the delivery isabsiduteor 
 conditional must depend upon the Intent 
 of the parties at the time thegoods are i|e- 
 livered. .\nd in Smltli v. Dennie (<! Pick. 
 20(1), Parker, Ch. .!., held, that this was 
 a question of fact for the jury. He savH. 
 "We do not think after a conditional 
 bargain has been maile and a delivery im- 
 meiliately takesplace upon the expectation 
 that tlie" contemplateil security shall be 
 produced, without an express din-laration 
 that the delivery is also conditional, that 
 the sale, ipso facto, lieconies absolute, be- 
 cause there is an implied umlerstandinK 
 that the vendee, "' etc., will furnish the se- 
 curity," eti-., "as soon as he shall have an 
 opportunity to procuie it." In that case 
 the sale was on the express conditbin that 
 the vendee should give an inilorsed note 
 for the price, and the goods were delivered 
 by the clerk of the vendor to the vendee 
 without any express reference to the con- 
 dition, anil Vemnined in the posseswion of 
 the vendee for eight ilays, during « liich 
 time no claim was made by the vendorfor 
 the notes or the goods; and it was held 
 that there was a waiver of the condlilon, 
 and a verdict to the contrary was set 
 aside by the court as against evidence. 
 I'arker," Ch. J., in giving the opinion of 
 the court, says, "There is nothing in the 
 case from which an intention to hold on 
 upon the condition can be inferred.no dec- 
 laration at the time, which thouuli not 
 necessary is important, and no call for se- 
 curitv lintil it was forgotten or aban- 
 doned, and perhaps never w.iuld have 
 been recurred to if the goods hail not been 
 attached." .According to this decision as 
 well as the intimation of .Tnstice .Nelson In 
 Kurniss v. Hone, and the language of 
 Chancellor Kent lo his Commentaries (2 
 Kent, 4'.Mi), it does not siH'm to be neees- 
 sarv to a i|ualilieil or conditional delivery, 
 that the nualilicatlon or condition intend- 
 ed to be annexed to the delivery, should 
 at the time bediidared by the vendor in 
 express terms. The delivery will be con- 
 ditional, if the intent of the |inrties that it 
 should be so can he infern'd from their 
 acts and the circuiustances of the case. 
 The learned Judge who tried this cause
 
 752 SMITH V. LYNES. 
 
 was evidently mistaken in the proposition 
 advnneed bybini. that to moke u delivery 
 conditional'it must be declared to be so in 
 
 tionof theKOodsHold to the purchaser, and 
 asked tlie latter for his note for the quan- 
 tity delivered, and the purchaser rei)lied 
 
 express terms. Where the delivery is ah- that he would give his note for the whole 
 solute without any contemporaneous dee- ! when the remainder was delivered, and 
 laration (lualifviiip; it, the onus of the: that the parcel then delivered could re- 
 proof of the condition rests upon the ven- ; main till that time. The court of er- 
 dor. If no such proof is offered, the deliv- 1 rors held that the delivery of the parcel 
 ery will be deemed absolute, and the title j was conditional. Senator Edwards, with 
 to the Roods will pass to the vendee. (S i whom the majority of the co\irt con- 
 Wend. 2.'>(), Nelson, J. ; Buck V. Urimshaw, curred, put the question of waiver of the 
 1 Ed w. Ch. 140.) Every absolute delivery I condition of the sale on the intention of 
 of soods sold on condition is presumptive I the parties at the time of the delivery; 
 evidence of a waiver of the condition by j and trora the facts of that case, he came 
 the vendor, and of an intention on his to the conclusion that neither party in- 
 part to rely wholly on the personal seen- tended that the condition of the sale 
 rity of the vendee for the paynient of the should be waived. Senator Wager took 
 price of the goods. The cases cited by a similar view of the question. If the 
 the counsel of the appellant do not con- memorandum indorsed on the receipt of 
 flict with the forej^oin;^ propositions, in , the 7th of March tends to show a s.ate of 
 the cases of Russell v. Minor i'2'2 Wend. ' facts which will bring this case within 
 659), and of Keeler v. Field (1 Paige, 312), j the princii)leof the case of Itussell v. Minor 
 express conditions were annexed to the de- 1 (which 1 think quite clear), the nonsuit of 
 livery of the goods. In Palmer v. Hand the plaintiff was erroneous so far as re- 
 (13 Johns. 4o-l), the delivery of the timber ; lates to the goods delirered on the 7th of 
 was not comi)!ete before payment was ' March ; and the judge who tried the cause 
 demanded. In Haggerty v. Palmer (0 ! erred in not submitting it to the jury to 
 Johns. Ch. 437), the delivery was held to determine whether the goods delivered on 
 be conditional in accordance with a usage that day were delivered absolutely orcon- 
 of the city of New York, known to the ditionally; that is, whether the plaintiff 
 purchaser, and the validit.v of which was intended to deliver them absolutely and 
 not called in question by the parties to the : thereby to waive the condition on which 
 BUit. the sale was made. (6 Pick. 266-7.) 
 
 In the case now under review, the goods There is no evidence in the case to show 
 were sold on condition of being paid for that the goods found in the possession of 
 (excepting f 2,000 worth), on delivery, by ; Thompson & Co., and replevied by the 
 indorsed notes. The goods were delivered [ sheriff, were a part of the goods delivered 
 in parcels at the purchaser's store on on the 7th of March. These goods they 
 several days in Januar.v, February and purchased from B. Lynes, without any 
 March. There is no evidence to show \ notice, for aught the case shows, of the 
 that the delivery of any of these parcels : nature of the contract of sale between 
 was in express terms made subject to any him and the plaintiff. As to all the 
 condition. 'I'he delivery being shown, it goods, therefore, purchased by Thompson 
 belonged to the plaintiff to prove that it & Co. from B. Lynes, and paid for by 
 was conditional. No questirin can arise them, thsy are entitled to the protection 
 as to any of the parcels except the one de- of bona fide purchasers without notice, 
 livered on the 7th of March, i-ieveral par- even if the delivery to Lynes was condi- 
 cels had been delivered previous to that ; tinnal. (6 Johns. Ch. 437; 1 Paige, 312, 1 
 day without exacting the delivery of the Ed w.Ch. 146. ) As it does not appear that 
 indorsed notes stipulated in the contract, any part of the gooils taken by the sheriff 
 As to these parcels the delivery must be ^ from the posses.siou of Thompson & Co. 
 deemed to be absolute, and the condition ' were a part of the goods delivered on the 
 regarded as waived. Tlie memorandum 7th of March, although a part of these 
 indorsed on the receiptgivenfor the goods goods should not have been paid for bv 
 delivered on the 7th of March, in which i Thompson cSf Co. to Lynes, they can, never- 
 Lynes declares in substance, that on [ theless, justify under Lynes, whose title 
 AVednesday or Tliur.-fday he will "have i to all the parcels delivered previous to the 
 thera ready" (which Lynes swears re- 1 7th March is undoubtedly perfect, in conse- 
 ferred to the note.s), tends to show a ! quence of the absolute and unconditional 
 promise on the part of Lynes to procure delivery to him by the plaintiff of all such 
 the mdorsed notes and deliver them to the parcels. The nonsuit was, therefore, be- 
 plaintiff, and that the goods delivered on ' yond all question correct as to the defend- 
 the 7th of .March were delivered on the : ants Thompson, Schoonmaker and Dean, 
 condition of the subsequent delivery by I the members of the firm of Thompson & 
 Lynes to the plaintiff of such notes. IftheCo. But, for the reasons before assigned, 
 goods were delivered <m the faith of that ; it was erroneous as to Benjamin Lvnes. 
 promise, and in expectation that it would 1 It must, therefore, be set aside, and the 
 be performed, this ca.se resembles that of ! judgment (jf the superior court must be 
 Russell v. jMinor (22 Wend. 062). [ reversed. 
 
 In that case the seller delivered a por- I Ordered accordingly.
 
 SMITH 0. SMITH. 
 
 755 
 
 SMITH T. SMITH. 
 
 (2 StraDge, 9."i5.) 
 
 Court of King's Bench. At Nisi Prius. Michael- 
 mas Term, 7 Geo. 2. 
 
 The pluintiff'H lntPHtatel()(lf;i;(l at thede- 
 fendant'H houBc, uutl had furiiiturft and 
 plate there, and was proved to have snid, 
 that whatever he broiiRht ii-to thoKc 
 lodKinjrs he never intended to take away, 
 but y;nvc directly to the defendiiiit's wife. 
 And now in trover for the Koods which 
 were there at the intestate's death, it was 
 
 ruled, that a parol gift, without some act 
 of delivery, would not alter the property, 
 and that nuch an act waH neecHsary to 
 establihth a donatio cauHa niortiH. I'poii 
 tills opinion It came to the question, 
 whether there was any delivery. And to 
 prove one, the defendant nhewed, that 
 the intestate, when he went out of town, 
 used to leave the key of his rooms with the 
 defendant: and that was insisted to be 
 Htich a mixed possession, that the law will 
 a<ljud(j;e the possession to be in him who 
 has the riKht. And the chief justice ruled 
 it so, aad the Jury found for the defcadaDt.
 
 SPOONER 0. CUMMINGS. 
 
 757 
 
 SPOONER V. CUMMINGS. 
 
 (23 N. E. Rep. 839, 151 Mass. 313.) 
 
 Huprume Judicial Court of Massachusetts. 
 Middlesex. March 11, IbflO. 
 
 Exceptions from STiporior court, Middle- 
 eex county; P. E.moky Aldrich, Juiljjc. 
 
 Keplevinof a horse. AnKwer.geneml de- 
 nial. Plaintiff proved ownership prior to 
 May 2(), ISSS, and identified the lioi-so as 
 the one described a8"oue black horsecallod 
 'Jenks horse,' " delivered to I). F. Pojie, 
 l)Ut never paid for, under the followinncon- 
 tract: "Hudson, May -'(), Isss. deceived 
 of L. R. Spuoner, this day, one gray mare, 
 called 'Uorton mare;' one pray horse, 
 called '.leaks horse;' oneblaclt liorse.called 
 'Jenks horse;' one white-nose liorse, called 
 'Boston horse;' for which I promise to 
 pay said L. R. Spooner or order live hun- 
 dred seventy-live dollars, one month from 
 date, at City National P>ank, with interest 
 at 7 per cent. Said horses and mare to be 
 and remain the entire and absolute prop- 
 erty of said Spooner until paid iu full l)y 
 me. And I hereby agree to l<eep said horses 
 and mare in good order and condition, as 
 the same now are. And should said horses 
 and mare die before said sum is fully i)aid, 
 I herel)y agree toi)ay all sums due thereon. 
 And should said horses or mare be returned 
 to or taken back by said Spooner, I agree 
 that all payments made thereon may bo 
 retained by said Spooner for the use of said 
 horses and'mare. DamklF. Popk. " Plain- 
 tiff kept a livery and sale stable in Worces- 
 ter, and had sold horses to Pope largely 
 within the past three or tour years. I'lain- 
 tiff asked the court to rule that under the 
 answer defendant could only show that 
 the contract relied on was not made, or j 
 that the horse had been paid for; but the 
 court ruled that defendant might show, I 
 also, that plaintiff gave Pope authority, j 
 express or implied, by the course of deal- 
 ing, to sell the horse before he paid for it. 
 Against his objection, plaintiff was re- 
 quired to answer, in cross-examination, 
 the following question: "What was the i 
 course of dealing between you and I'ope 
 in the year Isss, about May :.'iith, ami ex- 
 tending back alittle and forward a little?" 
 and the following evidence from plaintiff, 
 in cross-examination, was admitted: "1 
 sold Pope fifty horses, perhaps, in the year 
 ISSS. I supposed that Pope wouldn't use 
 fifty horses in liis livery stable unless he 
 sold some. He usually kept from twenty- 
 five to thirty. Naturally he would want i 
 to sell some that he had, or some other 
 ones, to make room. I didn't expect he 
 would sell any of mine until he paid for 
 them. I would have made objections to 
 his selling one of my horses, even if he sent 
 me the money the next day. " Pope was 
 permitted to testify that "the course of , 
 dealing between plaintiff and me was Pd I 
 buy horses and give these contracts, and [ 
 Pd" send him money, and he'd apply it 
 where he saw fit, on any of thesecontracts. I 
 
 He used to urge mc to sell, that he hart a 
 barn full. Sometimes Pdti-ll hltn I wanted 
 a horse for a particular person. I told 
 him this time I wanted a horse fora teairi- 
 ster." J. A. Trull was permitted to tc»tlfy 
 that about t he middle of June, ls«>i, Spoon 
 told him to tell Pope that he had a ear- 
 load coming, and to sell as many as he 
 could. Hefendant bought this horxe of 
 Pope, June 2, 18S8, and paid cash at tho 
 time. 
 
 C. \V. Wood and F. A. GnukiU. for plain- 
 tiff. J. W. MeDvnuld, lor defendant. 
 
 K.Nowi.To.N, J. Under the answer of the 
 defendant, any evidence was competent 
 which tended to contradict the contention 
 of the plaintiff tliat the title to the horse 
 and the right of possession were in him. 
 Verry v. Small, 16 <iray, I"-':.'; Whltcher v. 
 Shattiick. ;f Allen. Itl'J. The defend.iiit was 
 not a party to the written contract be- 
 tween the plaintiff and Pope, but clalme<I 
 outside of it, and in support of his own 
 title he might show by parol what was 
 the real arrangemrnt betwi'en tlir-in, even 
 if itdiffere<l from that contained in the writ- 
 ing. Kellogg V. Tomiisiin. 141' .Mass. 70, 
 (i N. E. Rep. SCO. If the plaintiff expressly 
 or impliedly authorized the sale by Pope 
 to him, he, liaving bought in good faith 
 from the apparent owner, acfjuired a good 
 title. It is immaterial whether his right 
 dependsupon an actual authority to make 
 the sale, or upon facts which estop the 
 plaintiff from denying the validity of the 
 sale. Rurbank v. Crooker, 7 <iray, 159; 
 Haskins v. Warren, 11.') Afass. .514. 5US ; "Tracy 
 V. Lincoln, 145 Mass. 357, 14 N. E. Rep. ll".'; 
 Bank v, Bufiinton, 97 Mass. 4!»S; Fowler 
 V. Parsons, 143 Mass. 401, 9 N, E, Rep. 799. 
 
 The testimony as to the course of dealing 
 between the plaintiff and Pope, involving 
 a long series of transactions, all of the 
 same kind, and conducted generally in the 
 same way, was competent, a.s tending to 
 show an expectation and understanding 
 on the part of both that Pope would sell 
 the horses which he bought of the plaintiff 
 as he had opportunity, and that he was 
 impliedly authorized to sell this horse to 
 the defendant. Hubbell v. Flint. 13 <irny, 
 277; Bank v.(ioodsell,107MaB8. 149; Lynde 
 V. McCiregor, 13 Allen, 172; Bragg v. Rail- 
 road Corp., 9 Allen, 54. The testimony of 
 Trull, as to the message sent to Pope by 
 the plaintiff about the middle of June, was 
 of a conversation so soon after the sale of 
 June I'd to the defendant that the judge 
 might well admit it in his disi-retion. It 
 related to the general course of dealing, 
 of which the sale to Pope of the hors"- n.'- 
 plevied was a part. The jury were rightly 
 permitted to lind that theplaintiff Impli.Hlly 
 authorized the sale l)y i'ope to the defend- 
 ant, and that he was estoppe*! to deny tlie 
 validity of the title which the defendant 
 acquired, relying on I'ope's possession and 
 apparent ownership. Exceptions over- 
 ruled.
 
 SPOON ER V. HOLMES. 
 
 759 
 
 SPOONER V. HOLMES. 
 
 (102 Mass. 503.) 
 
 Supreme Judicial Court of Ma.ssachusetts. Plym- 
 outh. Oct. Term, 1869. 
 
 Tort to rerover the value of certain in- 
 terest cou|)oiiH of United .StnteH hunilH, 
 payable to lieanM- in Kiild, iind ullf>;ed to 
 have heen converted liy the defendant to 
 hiH own use. The hill of exceptions states 
 the case as follows: "The plaintiff's evi- 
 dence tendeil to show that the coupons in ' 
 question were stolen from the plaintiff by i 
 a servant in his einploi', and by tliat serv- 
 ant Kiven to her sister, who was a servant 
 in the family af the cashier of one of the 
 national banks in PljMiiouth; and that 
 the defendant purchased the con|ions of 
 the servant in tlie cashier's family, and 
 under circumstances whicli would nat- 
 urally e.xcitt' suspicion that they were 
 stolen. The defendant'.sevi<leuce tended to 
 show that they were handed to him merely 
 to lift them changed, that there was no 
 suspicious or unusual circumstances at- 
 tenillntr the transaction, and that he was 
 simply the agent of the servant. Amoni; 
 the evidence introduce<l by the defendant 
 was a letter received by him from Nova 
 Scotia, i)urportlnK to be from the said ser- 
 vant of the cashier, she havinj;, before 
 that time, fione thitlier. In said letter 
 were inclosed two of the coupons in ques- 
 tion, which were sold by the defendant. 
 The plaintiff objected to the introduction 
 of this letter in evidence without proof of 
 tlie handwriting; but the jnd};.? ruled it 
 to be admissible without such prcjof, for 
 the pur[)ose of showing the manner an<l 
 circumstances of the defendanfs receiving 
 tlie two coupons which it contained. 
 Some of the coupons were sold liy the de- 
 fendant to tlie I'lymouth National Hank, 
 some were sold to brokers in Itoston, and 
 one was sold to a personfrom Lynn, witli 
 whom the defendant tra<led, and who 
 happened to be at his shop in I'lynioutli, 
 at the same price which he had received 
 for others from the bank. Th,- evidence 
 tended to show that the defi-ndant re- 
 ceived pay for his ccjupon in j;oods from 
 the Lynn man, anil paid the servant the 
 price thereof in money. The judge in- 
 Htructed the jury, among other things, as 
 to the rules of 111 w applicable in cases of 
 good.s an<l merchaiKlise stolen or other- 
 wise lost, and coming into tlie possession 
 of persons other than the true owners, in 
 terms not objci'led to; but then ruled and 
 instructed the jury tint the same rules 
 did not apply to money or the currency 
 of the country, and did not apply to such 
 coniions as those in (lucslidii. which to 
 some extent formed a part of the cur- 
 rency; that the jury were to consider 
 whe'tlipr the defendant purchased the cou- 
 pons in question or wlietlier he merely rv- 
 ceived them to sell for the servant, and 
 acted in regani to tliiiii as her agent; 
 th.it. if they found the former to be true, 
 and that tlie defendant purchased thi'ni 
 under such circumstances as would have 
 put a person t)f orilinaiy pruuence on his 
 guard, and woultl have led su'h .-i person 
 to refuse them, they sliouM Iind for the 
 plaintiff; that, if they found that the de- 
 
 fendant was acting an agent merely, to 
 get the coupons turned into money f<ir the 
 servant, then the pl/ilntiff could not re- 
 cover, unless lie satisfied the Jury that the 
 defendant either knew that the servant 
 had come dishonestly by tliem, or niiiiht 
 so have known except for Ids grosH negli- 
 gence; and that gross negligence was tlie 
 carelessness of a very cari'lo'S periiou. 
 The plaintiff requested the judge to In- 
 struct tlie jury that paying out the ct)n- 
 pons in his business, or exchanging tln-m 
 for goods, was inconHlstent with agency, 
 unless the articles receiv<'d In exchange 
 were delivered to the prlm-lpal; and that, 
 to entitle the defendant to the benefit of 
 the defence of agency, if there were any 
 sus|)icious facts or cIrcunislanceH which 
 came to his knowledge, he mti.-^t have dis- 
 clo.siii them or di.sclosed his agency. The 
 juilge decliui'd to give either of these in- 
 structions. The verdict was for the de- 
 fendant, and the jury, in ri'ply to a qiies- 
 tion of the juilge, said they found the de- 
 fendant to have been acting uh agent." 
 
 P. KimmonH, for plaintiff. L. W. Howe«, 
 tor defendant. 
 
 GHAY, J. This is an action of tort. In 
 the nature of trover, for certniu coupons 
 of United States bonds, alleged in the dec- 
 laration to be the pnii'iTty of tl;e plain- 
 tiff and to liave been converted by tlie de- 
 I fendunt to his own use. The undisputed 
 1 evidence at the trial sliowed that the 
 ' bonds liad bel'Miged to the plaintiff, and 
 ! had been stolen from him, and delivered 
 I by one who received them from the 
 I thief to The defendant, and by him scdd 
 and turned into money, which heisadmit- 
 I ted to have paid over to his principal, 
 j Hut the jury have found that in so doing 
 the defendant acted only as agent of the 
 person from whom he received them, and 
 did not know, and was not guilty of 
 gross negligence in not knowing, that 
 tliat person had come dishonestly by 
 them. It does not appear tliat the plain- 
 tiff ever demanded of the defendant per- 
 sonally either the coupons or their pro- 
 ceeils,or that the delend.int personally 
 derived ony benetil from his nets. The 
 principal question in the case is, whether, 
 under tliese circumstances, he is liable Id 
 this action. This is nn iujportant ques- 
 tion, and has received great coiisiderotlou 
 from the court. 
 
 1 An action of tort for the conversion of 
 I personal property, under our iiM^sent sys- 
 I tem of pleading, requires such evidence to 
 support it as w<iuld have proved a con- 
 version in an action of trover at common 
 law: and cannot lie maintained without 
 proof that the defendant either ilid some 
 positive wrongful act witli the Intention 
 to appropriate the property to himself or 
 to deprive the rightdil owin-r of It, or ilo- 
 stroved the property. l"oiildes v. Wll- 
 lougliliv, ^ M.vV:\V..".40. Ileald V. Carey, 
 11 ('. H. !>7T. (ieii.Sts. c. I •-'•.•. S SI. Hob- 
 inson v. .\uston, L' tJrny. ."<>4. Loring v, 
 .\Iiilcahv. :! Allen. .'>?.'>. Parker v. Lom- 
 bard. 101) Mass. 4ii.">. In the last case. .Mr. 
 .lustice Hoar says that If a bailee, being 
 intrusted witli the possession merely, 
 translers the possession according to lh«
 
 760 
 
 SPOONER V. HOLMES. 
 
 (lireotioua of the person from he received 
 it, \vith(jut notice of any better title, and 
 witliout nnilertalvins to convey any title, 
 this does not appear to have been held 
 any evidence of a conversion; and cites 
 «tricl<lund v. Barrett, 2(1 Pick. 415, and 
 Leonard v. Tidd, 3 Met. 6. So where 
 chattels were delivered by the owner to 
 a bailee, with the ri^ht to purchase thera 
 by pavinfi a certain price, so that he had 
 the actual legal and rightful possession, 
 although he ha 1 not performed the condi- 
 tion on which he was to have the abso- 
 lute title, and he sold them to a third rier- 
 son, who resold them before any demand 
 made upon him and without notice of the 
 agreement between his vendor and the 
 original owner, he was held not to be lia- 
 ble to the latter in trov3r. Vincent v. 
 Cornell, 13 Pick. 294. See, also. Day v. 
 Bassett, 1(12 Mass. 44.5. And trover will 
 not lie against a servant for takMng goods 
 by his master's command and for his 
 master's use, when the command is nut 
 to do an api)arent wrong, and the serv- 
 ant's i)os8essiou is lawful. Bui. N. P. 47. 
 Powell v. Hoylaud, G E.\ch. C7. 
 
 In the case of a sale of goods, indeed, 
 the purchaser is bound to look to his title, 
 and, if he obtains them from one who is 
 not the lawful owner or his authorized 
 agent, cannot hold them against liim. 2 
 Kent, Com. (Gth Ed.) .324. Jf the goods 
 have been stolen, the property does not 
 pass by delivery and a person who de- 
 rives his title from the thief gains no 
 rights as against the lawful ewner, and if 
 he either refuses upon demand to deliver 
 them u]), or sells them and turns them 
 into mone.v, or otherwise converts chero 
 to his own use, he is liable to the lawful 
 owner in trover. Pame v. Baldwin, S 
 Mass. .518. Heckle v. Lurvey, 101 Mass. 
 344. Upon this principle, it is held that 
 an auctioneer, who receives and sells 
 stolen goods, not knowing nor having rea- 
 son to believe that they were stolen; or 
 a person who in good faith buys a 
 stolen horse, and afterwards exercises 
 dominion over him by letting him to a 
 third person ; is liai)le to the rightful 
 owner in trover, without a previous de- 
 mand. Hoffman v. Carow, 22 Wend. 2S5. 
 Coles V. Clark, 3 ("usli. 399. Gilmore v. 
 Newton, 9 .\llen, 171. Yet even in the case 
 of stolen goods, a mere naked bailee, who 
 does no act, and has no intent, to con- 
 vert them to his own use, or withhold 
 them from the owner, and, before any 
 demand upon him, delivers them back to 
 the person from whom he received them, 
 is not guilty of a conversion, although he 
 knew that they were stolen. Loring v. 
 Mnlcahy, 3 Allen, 575. 
 
 But, in the opinion of a majority of the 
 court, the coupons in question do not 
 stand upon the same ground as chattels. 
 They were negotiable promises for the 
 payment of money, issued by the govern- 
 
 ment, payable to bearer and transferable 
 by mere delivery, without assignment or 
 indorsement. They are therefore not to 
 be considered as goods, but as representa- 
 tives of money, and subject to the same 
 rules as bank bills or other negotiable in- 
 struments payable in money to bearer. 
 VVookey v. Pole, 4 B. & Aid. 1. (Jorgier v. 
 Mieville, 4 D. & R. 641 ; S. ('. 3 B. & C. 45. 
 Commonwealth v. Emigrant industrial 
 Savings Bank, 98 Mass. 12. The rule of 
 caveat emptor does not apply to them. 
 It is now well settled that the bearer of 
 a bank bill which has been stolen from the 
 bank may recover the amount from the 
 bank, unless it is proved that he did not 
 take it in good faith and for valuable con- 
 sideration; and thathis knowledgeof sus- 
 picions circumstances is immaterial, un- 
 less amounting to proof of want of good 
 faith. Worcester County Bank v. Dor- 
 chester & Milton Bank, 10 Cush. 4.SS. Wyer 
 V. Dorchester & Milton Bank, II Cush. 51. 
 Kaphael v. Bank of England, 17 C. B. IGI. 
 And, according to the great weight of au- 
 thority, the same rule applies to bills of 
 exchange or promissory notes payable to 
 bearer. Goodman v. Simonds, 20 How. 
 343. 
 
 The jury have found that the defendant 
 took these coupons in good faith, without 
 gross negligence, and as agent of his 
 employer. He thus acquired a lawful pos- 
 session of them, which was no evidence of 
 a conversion He then, before any de- 
 mand or notice from the rightful owner, 
 transferred them by delivery, and ex- 
 changed them for money, the amount of 
 which ho paid over to his employer. This 
 case does not present thequestion whether 
 the defendant could have been held liable 
 to the rightful ownerfor thecouponsor the 
 proceeds while in his own hands, nor 
 whetlierhecould beheld to have paid value 
 for them. The single (juestion is, whether 
 he has been guilty of a wrongful conver- 
 sion , and, considering the natureof the in- 
 struments, and the fact that thedefendant 
 was acting in good faith, without gross 
 negligence, as agent only, without himself 
 receiving any benefit from the transaction, 
 a m.ijority of the court is of opinion that 
 neither taking the coupons by delivery, 
 transferring them by delivery, nor paying 
 over the proceeds to his employer, consti- 
 tuted a conversion for which he can beheld 
 liable in an action of tort in the nature 
 of trover. .Addison on Torts, (3d Ed.) 
 317. The instructions to the jury were 
 therefore quite favorable enough to the 
 plaintiff. 
 
 The letter admitted against the objec- 
 tion of the plaintiff was competent evi- 
 dence of the manner in which and the cir- 
 cumstances under which the defendant 
 received the coupons, although it did not 
 of itself prove that it was written by his 
 employer. 
 
 Exceptions overruled.
 
 SPHAIGIITS V. H.VWI,KV 
 
 76» 
 
 SPRAIGHTS V. HAVVLKY. 
 
 (39 N. Y. 441.) 
 
 Court of Appeals of New York. June Term, 
 
 1>)0S. 
 Aftidii lo rt'i-ovor (lutnaKt'H (.•aused by 
 u Hnlf of ccrtiiiii jewelry by (lefetidaiit bh 
 agent of the owners, wlio had niortgaKed 
 the jewelry to plaintiff. 
 
 Geo. F. Com.Htoek, for a|ii>'.-llant. R. 
 Wooaworth, tor respondent. 
 
 WOODRUFF,.!. The facts in this ease 
 show title in the plaintiff to the property 
 in question, and a disposition thereof by 
 the defendant avowedly and solely as 
 agent for Eugc^iia Ashby, the former own- 
 er anil one of tin- mortgagors. 
 
 The defendant's answer avers that he 
 acted ap such agent, vvilhout any interest 
 or claim of interest in the same, or its 
 proceeds. The referee lin<ls as u fact that 
 lie acted simply as the agent of Charles 
 Ashby, or of Charles Ashby and his said 
 wife. 
 
 The title of the plaintiff was valid, both 
 upon the facts found, and upon the legal 
 conclusions stated by the referee. 
 
 It follows that the disposition of the 
 proi)erty l>y Ashby and wife was a tor- 
 tious conversion thereof, and so the ref- 
 eree finds. 
 
 No question of fraud in the mortgage to 
 the plaintiff or otherwise, nor any failure 
 to iiiace his mortgage on tile pursuant to 
 the statute, was deemed by the referee or 
 by the supreme court, nor by the counsel } 
 for the appellant, to arise in the case; he- 
 cause as against the mortgagors and their 
 mere agent, the bona fides of the rr.ort- 
 gage and the tiling thereof were regarded 
 as wholly immaterial, and as against 
 them the" mortgage was held valid, even 
 though made to defraud creditors, and 
 whether tiled or not. It is however more 
 satisfactory to say that l)oth good faith 
 and due filing, and renewal of the mort- 
 gage, are facts in the case duly proved 
 and found. 
 
 The case therefore raises the single (|ups- 
 tion, whether the possession of the mort- 
 gagors is such evidence of ownership or of 
 authority to make sale of the i)roperty, 
 thai the defendant, acting in good faith as 
 Iheir agent, in the belief that they were 
 owners, is |)rotected thereby against the 
 claim of the plaintiff to recover for a sale 
 and disposition thereof. (Some stress was 
 said upon tlie fact that this transaction 
 was more than a year after the mortgage 
 debt became payable, and the continued 
 pos.'icssion of the mortgagors during 
 that time is claimed to i)e hiclies on t he 
 part of the plaintiff, warranting the de- 
 fendant in trustiu'i to their apparent own- 
 ership and e.xecuting their direction to 
 sell the property. 
 
 This reasoning, sought to he applied to 
 this case, seems to nie to overlook the 
 fact found by the referee, tliat for more 
 than a year of that period the plaintiff 
 had been in the actual prosecution of an 
 action to enforce his rights against the 
 mortgagors; and thefurthercircnmstnnce 
 that the defendant is In nowise shown to 
 
 have been affected by or to have had any 
 knowledge whether the mortgagors hail 
 been in the iiossession of the pro|.erty one 
 year or one day. Me was not nii-N'iihito 
 any trusting to a long-continued posReH 
 sion. for it does not appear that he ever 
 saw or henril of the property until the 
 day on which it was brought to him for 
 sale. 
 
 I do not however attach importance 
 to this, for I am not a ware of nny prin- 
 ciple or any authority whii-h makes 
 such mere possession, in the absence of 
 fraud, amount to a jUHtltlcadon to tlie 
 ug<-nt in u fraudulent cllsponlli<in of the 
 property. 
 
 It is placed by the appellants upon some 
 general idea, that because the mortga- 
 gors had i)ossession, and the defendant 
 honestly believed they were owniTs, and 
 in that belief, innocent of any wrongful In- 
 tent, solil tiie property an<l paid over the 
 |)roceeds, it is not just th.'it he should lie 
 held responsible. In other words, it Is 
 as to the defendant a hard case. 
 
 Now all this would be very well l( it 
 were true that mere possession of perscmnl 
 pro|ierty was such evidence of ownership 
 or of authority to dispose thereof, that 
 all persons were at liberty to assume such 
 ownership or authority, and act in reli- 
 ani-e thereon. Lnfortun.'itely for the ap- 
 pellant, this is not so. Indeed, the cases 
 in which possession imports such author- 
 ity are very few, and the mere fact of pos- 
 session, unaccompanied by other circum- 
 statices. giving it a specilic charucter. In- 
 dicative of authority, never does. 
 
 Inileed, every consideration which Is 
 urged for the ijrotection of the defendant 
 would have aiipealed as strongly in his 
 behalf if it iiad appi-ared t nat .\shliy had 
 stolen the pr()|)erty from the pWiintirf. 
 Ashliy's possession would have borne the 
 same aspect ol apparent ownership, and 
 the defendant's sincere g I faith and in- 
 nocence of wrong would have been equal, 
 ly deserving of consideration. 
 ' ' True, in such case, the possession of 
 Ashby would have been against the will 
 Of tlie plaintiffs; but even then, why 
 should it not be said that the plaintlft 
 should have taken care that his property 
 be not stolen and not suiter the innocent 
 defendant to become a sufferer? 
 
 But take a stronger case : suppose the 
 property had been loaneil by the plaintiff 
 to .\shby; it would n4)t in that case lie 
 claimed, any more than if stolen by the 
 latter, that Ashby's possession woulil 
 lirotect the delendant, and yet the hard- 
 ship of holding him responsible would bo 
 in all respects the same as in this casi-. 
 
 I consider that it is hard .n one sense 
 that the defendant should be compelled to 
 indemnifv the pl.iintiff. It is so, because 
 it is not easy always to be perfectly sate 
 in one's dealing. 
 
 Hut chattels are not neRotinble. Pr«- 
 session is not, ns in the case of mercantile 
 paper and money, assurance of title « r of 
 authority to dispose of. The servant In- 
 trusteil with the possession o( his master's 
 Iproiiertv, does not thcrel>y give •luthorlfy 
 , to sell it or to authoiiie anol her tosell it. 
 I The borrower of a chattel or the ordl- 
 nnrv bailee does not by his possession
 
 764 
 
 SI'KAIGHTS V. HAWLEY. 
 
 Rain any such power. And in short, the 
 rule thiit no one can bo (Ipi)riv('(l of his ti- 
 tle without Ilia own consent has no sucli 
 flxception as is thought to be created in 
 this cane. And tlie converse rule, that he 
 who fissnnies to deal or intermeddle with 
 personal proi)erty which is nut his own, 
 must see to it that he has a warrant 
 therefor from some one who is authorized 
 to give it, has no such application. An- 
 derson V. Nicliolas, 5 liosw. l:!l), and cases 
 cited. If lie buys from or consents to act 
 by direction of another, he must see to it 
 that in tlis responsibility of such other 
 he can find indemnity if his confidence is 
 misplaced. 
 
 All there is therefore of hardship to the 
 defendant is that he has undertaken to 
 execute a commis.sion for Ashby or Ashby 
 and wife, and if, in consequence of actintr 
 upon tlie fraud or misrepresentation, he is 
 subjected to liability to the plaintiff, lie 
 will have to look to them for indemnity. 
 Perhaps the findins of the refereeindicates 
 that Ashby is insolvent; if so, tliat makes 
 the hardship. But even that is not a jie- 
 <;uliar case; it is most common in the 
 affairs of business; and having, as the ref- 
 eree finds, heard that Ashby was insolvent 
 when he undertook the commission, he 
 might have known that his recourse to 
 him for indemnity might fail. 
 
 The doctrine of the cases cited in the 
 prevailing opinion in the supreme court 
 <loes not appear to be controverted by 
 the counsel for the appellant, and yet they 
 seem to me decisive in this case of the prin- 
 ciple that the agent, in a tortious conver- 
 sion of another's property, is liable when 
 his principal is guilty of the tort; and 
 even though the agent act innocently in 
 good faith, relying on the possession and 
 apparent authority (if possession bo 
 deemed sncli) of his principal. Perkins v. 
 Smith, 1 \v'ils. 3iS. An innocent clerk sold 
 goods for the use of his master (Stephens 
 V. L:iwall,4 M. & S. 2,")9) ; an innocent clerk 
 received goods from his master's agent 
 and sent them to his master abroad. In 
 this case the (disprvati(jn of Lord Rllen- 
 borough covers this whole case: "The 
 only (]uesti(>n is, whether this is a conver- 
 sion in the clerk which undoubtedly was 
 so in the master. The clerk acted under 
 an unavoidable ignorance anil for his 
 master's benetit when he sent the goods 
 to his master, but nevertheless his acts 
 ma.v amount to a conversion, for a person 
 is guilty of a conversion whointermeddles 
 Willi my property and disposes of it, and 
 it is no answer that he acted under the 
 authority of another who had himself no 
 authority to dispose of it." Mct.'ombie 
 V. Davies, 6 Kast, .i3S; Baldwin v Cole, 6 
 Mod. 212; Thorp v. Burling, 11 Johns. 
 2S5; Farrar v. Chauffetete, 5 Don. .527; 
 Pearson v. Graham, 33 E. C. L. -IGS; Ever- 
 ett V. Coffin, 6 Wend. 609; 22 Am. Dec. m\ ; 
 •Spencer v. Blackman, 9 Wend. 167; Wil- 
 liams V. Merle, 11 Id. >>0; 25 Am. Dec. (i04. 
 
 .And these cases recognize and affirm the 
 more general rule .-ibove stated, that he 
 who intermeddles with personal property 
 not his own must see to it that he is pro- 
 tected by the authority of one who is him- 
 self by ownership or otherwise, clothed 
 
 with the authority lie attempts to confer. 
 
 Recurring again to the able and ingen- 
 ious argument in support of the appeal, 
 and to the point that the plaintiff was 
 guilty of laches, and that by suiiposing 
 the mortgagors to be in possession he en- 
 abled them to deceive the defendant and 
 produce the result. This assumes that it 
 is negligence in the owner of personal 
 property to permit it to be in the posses- 
 sion of another. I am not jiware of any 
 warrant for such assumption. So long 
 as it is true that a mortgage given in 
 good faith and for sutticieut considera- 
 tion is valid, notwithstanding possession 
 may he in the mortgagor, so long such 
 possession no more involves culpable neg- 
 ligence or lachesin themortgage, than the 
 possession of a servant, hirer, or other 
 bailee, imports negligence in the owner. 
 In truth so long as mere fiossession does 
 not import authority to sell the negli- 
 gence, if any, is on the part of him whore- 
 lies upon it, and not on the owner who 
 permits it. 
 
 And the suggestion gains no strength 
 from the observation that if the plaintiff 
 had not supposed the mortgagors to bo 
 in possession it would not have been in 
 their power to deceive the defendant, and 
 where one of two innocent persons must 
 suffer by the wrong of anotner. the one 
 who enables such other to commit the 
 wrong must bear the consequences. 
 How did the mere possession of the mort- 
 gagorsenable them tocommit the wrong? 
 Only by giving them physical i)ower to 
 deliver the property. The maxim is not 
 true in the sense in which it is sought to 
 be here applied. If it were, then as in the 
 other cases above referred to, whenever 
 an owner suffers his property to go out 
 of his manual keeping or presence, he is 
 liable to lose it by the same means em- 
 ployed here, and is exposed to the maxim 
 here invoked for the defendant's protec- 
 tion. It is only when the owner has part- 
 ed with the legal title upon some secret 
 trust or condition, or has done something 
 calculated to mislead, upon which a third 
 person has a right to rely, and on which 
 he does rely as evidence of authority, that 
 such maxim could have any application. 
 And the attempt to apply it here begs the 
 whole question. SeeCowen, J., in Ash v. 
 Putnam, 1 Hill, 307. Mere possession of 
 another's property is not such evidence of 
 ownership or authority to sell, that third 
 persons have a right as against the true 
 owner, to rely thereon. 
 
 They may act in faith thereof if they 
 please, but they must rely uiion the fiarty 
 with whom they deal, and look to him 
 for indemnity if the title fails, or they be 
 deceived or defrauded into a condition of 
 responsibility 
 
 This is the defendant'ssituation ; he has 
 trusted the representations of Ashby. He 
 has been deceived thereby, and he must 
 look to him for indemnity. 
 
 The order of the general term of the su- 
 preme court granting a new trial should 
 be affirmed, and in pursuance of the de- 
 fendant's stipulation judgment absolute 
 for the plaintiff must be rendered. 
 
 All concur.
 
 STANTON 0. EAGER. 
 
 767 
 
 STANTON et al. v. EAGER. i 
 
 (16 Pick. 467.) | 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk and Nantucket. June 2, 1835. 
 
 Trover to recover (JninaRi's for the tak- 
 ing and conversion of a quantity of to- 
 bacco pipes. I 
 
 The parties stated a caBO. ' 
 
 WillinmB, Putnam & Co., of Roston, In 
 October IS!!;!, wrote to C. Morrall & Son, 
 a houHo in Liverpool, reqnt-HtinK tlieni to 
 Bhi]) tlie pi[)es in riin'stion to NVilliunis, 
 Putnam & Co. and on tlioir account, by 
 tliBHliii) Morea. In compliance with tliiH 
 order, .Morrall & Son, on December 4, IH.i;), 
 Bliipped the pipes on board the Morea, 
 for th(! account of Williams, Putnam & 
 Co., and the master Hi(;ned four bill.s of 
 lading, in whicli he a>j;ree(l to deliver the 
 pipes to Williams, Putnam & Co. or their 
 assigns. .Morrall & Son addresseil a let- 
 ter to Williams, Putnam & Co., dated 
 December 7, ISo.'}, in which they stated 
 that they encloHed an invoice and bill of 
 lading of the pipes "at their debit," but 
 in fact the bill of ladinjionly was enclosed. I 
 This letter was retained and afterwards 
 sent under cover of a letter to the defend- 
 ant, dated December 23, 1)533, liereafter 
 mentioned. 
 
 On the 2l8t of the same December, Mor- 
 rall & Son aKain wrote to Williams, I'ut- 
 nani & Co., but without mentiouin^ the 
 pipes. 
 
 On December 23d, Morrall & Son wrote 
 to the defendant as follows: "Inconse- 
 quence of a very unfriendly letter just re- 
 ceived from Messrs. WillijimH, Putnam & 
 Co., we have withheld the invoice of 
 pipes from them, and now enclose It with 
 the bill of lading, to be delivered up how- 
 ever on their paying yuu Hie amount by 
 a bill on England; but should they decline 
 to receive the pi()es on this condition, j'ou 
 will please to sell them on our account, 
 and remit us the proceeds. We have writ- 
 ten to Messrs. Williums, Putnam & Co. 
 to the above effect, .it the same time it 
 is due to them to mention, that in the 
 course thus adopted, we are solely in- 
 fluenced l)y the very natural desire of self 
 protection against hostile parties." In 
 a postscript, dated on the '.Mth, the defend- 
 ant was requested to insure the pipes, in 
 case Williams, Putnam & Co. had not 
 done so, and to add the cost to the in- 
 v<iice in settling with them. In this letter 
 was enclosed the letter of Morrall & .Son 
 to Williams, Putnam & Co., dated Decem- 
 ber 7, 1S33. 
 
 It appeared, that in the letter of Wil- 
 liams, Putnam & Co. which was referred 
 to in the above letter, and which was 
 dated November 21, 1S3:!, they stated, 
 that they should hold .Morrall * Son re- 
 sponsible for the difference between the 
 net proceeds of the sale of a (piantity of 
 cotton consigned by them to .Morrall & 
 Son, and its value a short time after such 
 sale, the sale having been made contrary 
 to their orders. The defendant objit-ted 
 to the admission of this letter in evidence. 
 
 On .January 3, 1S34, Williams, Putnam 
 & Co. became Insolvent, and assigued their 
 property to the plaintiffs for the benefit 
 
 of such of their creditors on ahoald, by 
 becoming parties to the indenture of as- 
 signment, release their demands. The in- 
 denture declared the Insolvency of the as- 
 signors, but [irovlded that they should 
 be consulted in the dlspoRltion of the 
 propr-rty. The pipes were described In a 
 schedule which was anne.xed to the as- 
 signment and which purfiorted to convey 
 all balances In the hands of divers per- 
 sons, naming .Morrall & Son, subjtvt to 
 all such liens as they might have for ad- 
 vances, &c. The definilant e.xeouled the 
 assignment, as the attorney of .Morrall 
 & Son. The letter of .Morrall * Son to 
 Williams, Putnam & Co., date>l Dwember 
 7, 1S33, and covering the bill of lading, 
 was handed by the defendant toWilllamH. 
 Putnam & Co. with a copy of the envel- 
 ope, on or about February 24, ls:il, Ht 
 which time the pipes had not arrived. 
 This bill of lading was immediately hand- 
 ed by Williams, Putnam & Co. "to the 
 plaintiffs, l)ut was not endorsed until 
 after the commencement of this action. 
 In the assignment, the assignors cove- 
 nanter! to execute further asnurances, and 
 to deliver all doeuments relating to the 
 property assigned, as soon as they should 
 receive them. 
 
 The .Morea arrived on or about March 
 3, ls;i4, and was entered by the defendant, 
 who was the sole owner and consignee of 
 the ship, and also the agent of Morrall & 
 Son. The |)i|ies were insured by the <le- 
 fendant, and were enterecl at the custom- 
 house by him. It being agreeil that this 
 should be done without prejuillce to the 
 rights of the. plaintiffs, and were taken to 
 the defendant's store. The defenilnnt re- 
 fused to deliver them to the plaintiffs 
 when demanded; and they were after- 
 wards sold by agreement, without prej- 
 udice to the rights of any persons; hut 
 the plaintiffs never (laid to the defendant, 
 nor tenderi'd luiyment of their value. At 
 that time Williams, Putnam & Co. were 
 indebted to Morrall & Son In a much 
 larger sum than the value of the pipes. 
 
 On April !(), 1n34, Morrall & Son wrote 
 to the defendant, confirming IiIb doings. 
 
 The defendant could prove. If the court 
 should ileem the facts ndmlsslbli' In evi- 
 dence, that when he hanili'd to Willinins, 
 Putnam & Co. the letter of December 7th, 
 he informed them that he should retain 
 the tiill of lading ami invoice, and should 
 not deliver the pipes until the purchase 
 money was paid; that he subsequently 
 offerell to deliver to them the pipes if thi-y 
 would l>ay the purcha^^e nione.v, which 
 they ngreell to do, tint the plnlntirfs olr 
 jected, claiming the pi|ies as their own by 
 virtue of the assignmi-nt and bill of lad- 
 ing: anil that the defendant subsequently 
 wrote to the plaintiffs, sayltig that he 
 should not deliver the pipes until the 
 amount of the Invoice and expenses was 
 l)aid. The plaintiffs objected to thcndniis- 
 sion of tbesefaits inevldence. If the court 
 should be of opinion, that the plalntlfTs 
 were entitled to recover, judgment was 
 to lie rendered in llieir favor for the value 
 of the pliies at the time of Iheir arrival, 
 with Interest; otherwise the ilefeudant 
 was to have judgment for his costs. 
 I The case was arguetl In writlnic-
 
 768 
 
 STANTON V. EAGER. 
 
 C. G. LorinR and F. C. Loring, for plaiu- 
 tifls. Cooke, for defeudant. 
 
 SHAW, 0. J. Until the parties to this 
 suit are creditors, or representatives of 
 the creditors, of an insolvent mercantile 
 house, and the question is, which shall 
 have the benelit of the small amount of 
 merchandise, which is the subject of this 
 action; and this question depends upon 
 another, which part.v can estaDllsh the 
 better legal title. It seems to have been 
 thousht by Williaiiis, Putnam & Co., at 
 the time of their assignment, that Morrall 
 & Son were indebted to them; j'et it is 
 now found as a fact in the case, that at 
 that time a considerable balance, inde- 
 l)endent of tliecostof the pipes, wasdue to 
 .Morrall & Son. 
 
 The facts appear sufficiently in the 
 agreed statement, and it will not be nec- 
 essary to reeapitnlate them. It was con- 
 tended, on the part of the defendant, that 
 by the shipment of the pipes in Liverpool, 
 the bill of lading having never been deliv- 
 ered or forwarded to the consignees, but 
 retained by the consignors and forwarded 
 enclosed to their own agent, the property 
 never legallv vested in the vendee. But 
 the court are strongly inclined to the opin- 
 ion, that the orders of Williams, Putnam 
 & Co. to ship the pipes for their. account, 
 and the actual shipment of the goods, 
 pursuant to surh order, on board of a 
 vessel ilesignated by the vendees for that 
 purpose, and for their account, and ob- 
 taining from the master a bill of lading 
 for the goods, making them deliverable 
 to the vendees, constituted a good con- 
 tract of sale, and a good constructive de- 
 livery, so as to Vest the property in the 
 goodM, in the vendees, and place them at 
 their risk. This conclusion is founded, 
 not upon the sui)posed specific effect of ex- 
 ecuting or delivering a bill of lading, or 
 the peculiar character supposed to be at- 
 tached to a bill of lading as a quasi nego- 
 tiable instrument, but upon the general 
 principle of the common law, applicable to 
 the sale of personal property. 
 
 We are to understand, that the Morea 
 was tor this purpose a general freighting 
 ship, and the master was acting in regard 
 to goods on freight, as a common carrier; 
 and this being the case, the fact, if it were 
 BO, that the vessel was for some purposes 
 con.signed by the defendant, the owner, 
 to the house of Morrall & Son, made no 
 difference in regard to these goods. It 
 then appears that the delivery of the 
 goods on board the vessel was not condi- 
 tional, and nothing was then done hy the 
 consignors, to prevent the general prop- 
 erty in the goods from vesting in the con- 
 signees. The withholding of the bill of 
 lading, and enclosing it to their own 
 agent to be delivered only in case the ven- 
 dees should pay for the goods, could not 
 convert the absolute deliver3' into a con- 
 ditional one, or divest the property in the 
 goods, which liad vested by the delivery 
 of them on board the vessel designated, 
 pursuant to the order of the consignees. 
 
 But though by these proceedings the 
 property vested in the consignees, it was 
 subject to the well established right of 
 the vendors, to stop the goods in tran- 
 
 situ, in case the goods are sold on credit, 
 and the consignees become insolvent; and 
 this right may be exercised at any time 
 before the goods reach their ultimate des- 
 tination and come to thepossession of the 
 consignees. And the consignors have a 
 right to judge for themselves of the dan- 
 ger of such Insolvency, and to take meas- 
 ures to guard against it by stopping the 
 goods in transitu, should the insolvency 
 occur before the goods come to the pos- 
 session of the consignees. The effect of 
 such stoppage in transitu is not to rescind 
 the contract, or to revest the general 
 property in the vendors, but to reinstate 
 them in their lien and right to hold the 
 goods in security for the price. 
 
 The consignors might have exercised 
 this rigi't at Liver[)ool,if they ha.l groimd 
 to apprehend the insolvency of the con- 
 signees before the arrival of the goods, 
 and such insolvency had occurred accord- 
 ingly; and perhaps the change of the des- 
 tination of the goods, after the shipment, 
 by enclosing the bill of lading to their 
 own agent, with directicjns not to deliver 
 the goods to the vendee, without receiving 
 payment or security, might amount to 
 such a stoppage. But it is not necessary 
 to consider this point, because the court 
 are of opinion, that the acts done by the 
 :lefendant here, under the express author- 
 ity and direction of tlie shijipers, especially 
 as the defendant was the ship-owner and 
 obtained actual possession of the goods 
 before they could reach the hands of the 
 vendees, or their assignees, was an effect- 
 ual e.xercise of the right to stop in tran- 
 situ, if it existed as against the plain- 
 tiffs. 
 
 And the court are of opinion, that the 
 plaintiffs, in this respect, stand precisely 
 In the place of the original vendees, and 
 not in the place of bona tide i)urchasers. 
 claiming under a bill of lading, without 
 notice of any lien, set-off, or adverse 
 claim. The plaintiffs were assignees, with 
 full notice of the insolvency of the assign- 
 ors. Had there been a balance due on 
 general account from Morrall & Son, to 
 Williams. Putnam & Co., at the time of 
 the execution of the order, as it is said the 
 assignees supposed there was, it would 
 have presented a very different question. 
 In that case, shipping the goods, pursu- 
 ant to the order of the vendees, and char- 
 ging them in account, would have l)een no 
 more than an appropriation of their own 
 funds, according to ttieir own order, and 
 not a sale upon credit, and the right to 
 stop in transitu would not have existed. 
 But although the assignees so supposed 
 and believed, and were entirely without 
 any imputation of blaiue in taking a con- 
 veyance of the goods, yet when it turns 
 out, as upon the facts it appears to have 
 been done in this case, that Morrall & 
 Son were already creditors of Williams. 
 Putnam & Co., that the goods were or- 
 dered and put on board ship solely on the 
 pei'sonal credit of the vendees, the right 
 to stop in transitu is shown to be com- 
 plete, against the vendees. And that 
 right is equally perfect against all others, 
 except a purchaser taking bona fide, by 
 indorsement of the bill of lading, in the 
 usual course of trade, without notice of
 
 STANTON t>. EAGEB. 
 
 769 
 
 the consignor's right to atop the goods in 
 traiiHitu. In tlie tiresentcase tlu'HP con- 
 (litioHH are all wanting. The plain tiffs did 
 not tiiko under an indorsement of the liill 
 of lading, the l)ill of lading not having 
 been indorsed until after the action was 
 commenced. It is aaid in answer, that at 
 the time of the assignment, the (-(jn- 
 signees had not received a liiil of lading, 
 but they stipulated to indorse and deliver 
 the bill (jf lading aa soon as they should 
 receive it, and that they did It accordingly. 
 This is all very true, but it does not an- 
 swer the oljjection. It shows that the in- 
 solvent house, in making their assignment 
 for the l)ene(it of creditors, intended to 
 make as good a title as they could make 
 to these goods, with the rest of their prop- 
 erty, and entered Intostipulations accord- 
 ingly, 15ut it leaves the case as it wau 
 before, that the assignees took aa as- 
 signees all the interest which the assign- 
 ors had in the goods, subject to all claims 
 of lien and set-off, and not as indorsees 
 of 11 bill of lading in the usual course of 
 trade, or as purchasers, advancing money 
 or giving credit upon the faith of such bill 
 of lading. Indeed the consignors had 
 taken effectual care to prevent thera from 
 thus transferring the bill of lading by in- 
 dorsement to a bona fide [jurchaser, by 
 enclosing the bill of lading to their own 
 agent, to be delivered to the consignees 
 only on payment made or security given. 
 Nor can the jilaintiffs be considered pur- 
 chasers without notice. No money was 
 paid for the goods, no new credit given, no 
 new dealings had upon the faith of this 
 shipment of goods. The plaintiffs knew 
 that the consignees were insolvent; this 
 is admitted, and indeed the whole pro- 
 ceedings were founded upon that assump- 
 
 LAW SALES— 49 
 
 tion, and they took the conveyance, aa 
 that of a party declared to be Insolvent ; 
 the.v knew that the consignors were de- 
 scribed as creditors, in the same instru- 
 ment under which they claimed: they 
 knew that by the general mercantile law, 
 if these goods had been shipped on credit, 
 the vendors had a right to stop tht-m In 
 transitu. This was <|uite sulMclent to 
 I)ut them fully on inquiring, and to bind 
 them to the state of facts, ns it should 
 idtimately turn out. The effect Is, that 
 they took all the title which the assignora 
 had, and no more; that is, a title to the 
 goods subject to the right of the vendora 
 to stop the goods in transitu. And yet It 
 was highly proper that these goods 
 shouhl be included in the assignment. It 
 might turn out, that there was a balance 
 due from Morrall ik Son, and that tlie 
 goods were not shipped on credit, within 
 the meaning of the rule, or that the con- 
 signors would not attempt to exercise 
 their right of stop|)age, or might not have 
 an oi)portunity to do so, or n)lght obtain 
 security for the purchase money In some 
 other wa.v. In any of these cases, these 
 goods would proijerly have gone into the 
 general fund, provided for the vendees' 
 creditors. I'ut in the events that have 
 happened, it appears, that the vendora 
 had the right of stoppage, anil did sea- 
 sonably and legally e.\ercl8e It; that un- 
 der the circumstances. It was er]ually 
 available against the aRsignees as against 
 the original consignees; and therefore 
 that the plaintiffs, without tendering pay- 
 ment for the price o( the goods, could not 
 take them out of the custody of the de- 
 fendant, rightfully holding them for the 
 consignors. 
 Plaintiffs nonsuit.
 
 STATE OF VKIIMOXT v. O'XEIL. 
 
 771 
 
 STATE OF VERMONT v. O'NEIL, (two cases.) 
 
 SAME V. FOUR JUGS OF INTOXICATINO 
 
 LIQUOR, (NATIONAL EXPRESS 
 
 CO., Claimant.) 
 
 SAME V. SIXTY-EKiHT JUGS OF INTOXI- 
 CATING LIQUOR, (NATIONAL EX- 
 PRESS CO., Claimant.) 
 
 (3 Atl. Rep. 5S6, 5S Vt. 140.) 
 
 Supreme Court of Vermont. Rutland. Feb. 5, 
 1S8C. 
 
 ExcuptioiiH from Rutland county. 
 
 TlicHO four cnHt'H were licanl to^ftliPr. 
 The tirHt two were proceedin^tH, com- 
 menced before a justice of the peace, for 
 the conli.scation of intoxicating li(|uorH 
 Hhipped from several towns in .\ew Vorl< 
 to Rutland parties, who had ordered 
 them, and were marked "C O. I).," and 
 which were seized at tlie otlices of the Na- 
 tional Expres.s Company, in Hutlarx), and 
 in Center Rutland, liy the slieriff of the 
 county and one of his deputies, under tlie 
 authority of No. 4:5 of the Acts of IKSJ, sec- 
 tion 2 of which is as follows: "In all 
 case.'i where now, b.v any of the provisions 
 of said chapter, [Ki'J, Rev. Laws,] an offi- 
 cer is authorized to seize iutoxicatint; lirj- 
 uors, or the casks or vessels containing 
 the same, Ijv virtue of a warrant therefor, 
 he may seize the same without a warrant, 
 and keep the liiiuors, cask.s, or vessels so 
 seized in some safe place, and sliall forth- 
 with prticure such warrant, and he shall 
 thereuixin make return of his dolnits un- 
 der sai<l warrant in the same manner >is 
 he would have done had the issuinsi of the 
 warrant preceded such seizure." The Na- 
 tional Express Company n|)pearcd hefore 
 the justice of the peace, and made claim to 
 the several packages of li(iuor, claiiuluK 
 that the sales in question were made in 
 New York, where such sales were lawful, 
 and that the seizure in (jnestion was a 
 viidation of section s of tne I'nited Slates 
 constitution; and several other claims, 
 asapiiearin the opinion. .Judirment hav- 
 ing been rendered against the express com- 
 pany, upon their claim to the lifjuors, and 
 the same having been ordered to becontls- 
 cated, both before the justice and the 
 county court, the express company took 
 these cases to this court for <letermina- 
 tion. The other two cases were criminal 
 prosecutions begun liefore a justice of the 
 peace, — one for keeping intoxicating li<|- 
 uors in \'erni(jnt with intent to sell and 
 furnish the same contrary to law. and the 
 other for welling and furnishing intoxicat- 
 ing liipiors in \'eiiiiont contrary to law. 
 The respondent is a wholcsalt! licpior 
 dealer in Whiti'liall, New York. The sales 
 comjilained of were all upon orders re- 
 ceived by OW'eil from parties in Rutland, 
 and sent C. O. D. to such parties i;; Rut- 
 land through the National Express Com- 
 pany, where payment therefor was made 
 to the express company. The respondent 
 was founil guilty, on the complaint for 
 keeping, of one offense as of second con- 
 viction, the |)unisliment for which is S-h 
 and one month's imprisonment, and, on 
 the complaint fur selliug, of 3U7 uffenses as 
 
 of second conviction, the punishment for 
 which is f<;.Ul), (*:.'0 for each otlense, I 
 together with one month's imprison- 
 ment; an<l, in both tiises, if the line Is 
 not pail) within '24 hours, the respondent 
 is to be committed to the house of cor- 
 rection for three times the number of ilayB 
 us there are dollars of costs and fines, 
 which alternative sentence is in addition 
 to the month's imprisonment. The re- 
 spondent claimed that the judgment 
 shoidd be only as of the lirst con victioii. in 
 which case the line is only ?ll) for each 
 offense, without the month's imprison- 
 ment, because the record of the lirst con- 
 viction offereil in evidence was more than 
 three years before tlio commencement of 
 the present complaint, and the statute 
 provides that all prosecutions for viola- 
 tions of the liquor la w must beconimcnced 
 within three years. 
 
 J. C. Maker, for respondent. I'rout & 
 Walker, for claimants. \V. C. 9unton and 
 L. h. Tliompsun, for the .State. 
 
 ROYCE, Ch. J. The first and most Im- 
 portant question presented by these cases, 
 is whether or not the intoxicating liquors 
 in (juestion were (in the lirst two cases) 
 in contemplation of law sold, or furnisheil, 
 by the respondent in the county of Rut- 
 land and state <if Vermont; or (in the last 
 two cases) held and kept for the |>urpose 
 of sale, furnishing, or ilistribution con- 
 trary to the statute, within said county 
 and state. The answer de|iends upon 
 wliether the .National Express Company, 
 by which some of said liquors were deliv- 
 ered to the consignees thereof, and in 
 whose possession the remaintler were 
 found and seized before delivery, was in 
 law the agent of the vendors or of the 
 vendees. If tlie purclinse and sale of the 
 liquors was full.v completed In the state of 
 New York, so that upon delivery of them 
 to the exi)res8 L-oin[)any for transporta- 
 tion the title vested in the consignees, as 
 in the case of a completed and uncondi- 
 tional sale, then no offense against the 
 laws of this state has b<>en committed. 
 If, on the other hand, the sale by its terms 
 could only become complete so as to pass 
 the title in the li()iiors to the consignees 
 upon the doing of some act. or the fulfill- 
 ing of some condition precedent after they 
 had reached Rutland, then the rulings of 
 the county coiirt upon the <|uestion of the 
 offense were correct. 
 
 The liquors were ordered by residents of 
 Vermont from dealers doing business in 
 the state of .New Y'ork. who selected fiom 
 their stock such (luantitles and kinds of 
 goods us they thought propi-r in compli- 
 ance with the terms of the onlers, put 
 them up in packages, directed them to the 
 consignees, and delivered them to the ex- 
 press comi)any as n common carrier of 
 goods lor transportation, acnonpanled 
 with a bill, or invoice, for cidlection. The 
 shiptuent was in each Instance, which it 
 is necessary here to consiiler. "C. (). !>."; 
 and the cases show that the effivt of the 
 transaction was adircctiou by lheshlpi)or 
 to the express company not to deliver the 
 goods to the consignees except upon |>ay- 
 meut of tlie omount specl'ied In the C. O.
 
 772 
 
 STATE or VEP.MONT v. O'NEIL. 
 
 D. hills, together with the ehiirses for the 
 transportation of the packages and for 
 tlie return of the money paid This direc- 
 tion vvas understood by the express com- 
 pany, which received the shipments 
 coupled tlierewith. 
 
 Wljotlier cr not, and when, the legal 
 title in jiroperty sold passes from the ven- 
 dor to the vendee, is always a question of 
 tlie intention of tlie parties, whicli is U) be 
 gatliered frtjm tlieir aets, and all tlie facts 
 and circumstances of the <-ase taken to- 
 gether. In order that the title may pass, 
 as was said tjy Morton, J., in Mason v. 
 Tliompson, IS Picli. ;iOu: "The owner 
 must intend to part with liis property, 
 and the purcliaser to become the immedi- 
 ate owner. Tlieir two minds must meet 
 on tliis point; and if anything remains to 
 be (lone before either assents, it maybe 
 an inchoate contract, but it is not a per- 
 fect sale." The authorities seem to be 
 uniform upon this point; and the acts of 
 tlie parties are regariled as evidence by 
 wliich tlie court or jury raa.y ascertain and 
 determine their intent. Itenj. Sales, ss. 
 ;!ll, :519, note (c). When there is a condi- 
 tion precedent attached to the contract, 
 tlie title in the projierty does not pass to 
 the vendee until nerformance or waiver of 
 the condition, even tliough there be an 
 actual delivery of possession. Benj. Sales, 
 s. 321), note (d). Tlie Vermont cases to 
 the above points are referred to in Koli- 
 erts's Digest, (JIO et se()., and need not be 
 specially reviewed liere. 
 
 In the eases under consi Jeratioii the 
 vendors of the liiiuors shipped them in ac- 
 cordance with the terms of the orders re- 
 ceived, and tiio mode of shipment was as 
 above stated. They delivered the pack- 
 ages of liquors, properly addressed to the 
 several persons ordering the same, to tlie 
 express company, to be transported by 
 that company and delivered by it to the 
 consignees upon fultillraent by them of a 
 spei-ihed condition precedent, namely: 
 payment of the purcliase price and trans- 
 portation charges, and not otherwise. 
 Attached to the very body of the contract, 
 and to the act of delivery to the carrier, 
 was the condition of payment beforedeliv- 
 ery of possessi'-.n to the consignee. With 
 thisconditionunfultillcd and not waived, it 
 would be impossible to say that a deliv- 
 ery to the carrier was intended by the 
 consignor as a delivery to the consignee, 
 or as a surrender of the legal title. The 
 goods were intrusted to the carrier to 
 transport to the idace of destination 
 named, there to present them for accejit- 
 ance to the consignee, and if he accepted 
 them and paid the accompanying invoice 
 and the transportation charges, to deliver 
 them to him; otherwise, to notify the 
 consignor and hold them subject to iiis or- 
 der. It is difficult to see how a seller could 
 more positively and unenuivocally express 
 his intention not to relinquish his right 
 or property or [lossession in goods until 
 payment of the purchase price than bv 
 this method of shipment. We do not 
 think the case is distinguishable in princi- 
 ple from that of a vendor who sends his 
 clerk tir agent to deliver the goods, or for- 
 wards them to, or makes them delivera- 
 ble upon the order of, his agent, with in- 
 
 structions not to deliver them except on 
 payment of the price, or performance of 
 some otiier speciHed condition precedent 
 by the vendee. The vendors made the ex- 
 press company their agent in the matter 
 of the delivery of the goods, with instruc- 
 tions not to [lart with the possessitin of 
 tlieiii except upon prior or contemporane- 
 ous receipt of the price. The contract of 
 sale therefore remained inchoate or exec- 
 utory while the goods were in transit, or 
 in the hands of the express company, and 
 could only become executed and complete 
 by their delivery to the consignee. There 
 was a completed executory contract of 
 sale in New York; but the completed sale 
 was, or was to be, in this state. 
 
 The aiitlioriti;^s upon the above points 
 and principles are so numerous, and are so 
 fully collated in the brief of the learned 
 counsel for the state, and in the text and 
 notes of 2 Benj Sales (4 Am. ed.i, that we 
 refrain troin specific references in support 
 of the conclusions at wliicli we have ar- 
 rived. These are fully supported by the 
 decision of the United States district court 
 in Illiniiis in People v. Shriver, ;il Alb. L. 
 J. l(i:!, 2'-'> Fed. Rep. 134, a case involving 
 precisely the same question. Treat, J., 
 says in the opinion : " In the caseof li(jiior 
 sliipped by the defendant to Fairtield liy 
 express, C. O. U., the liquor is received by 
 the express company at Shawneeiown as 
 theagentof theseller.and not as theagent 
 of the buyer, and on its reaching Fairfield 
 it is there lield by the company, as the 
 agent of the seller, until the consignee 
 comes and pays the money, and then the 
 coiii[)ani', as tlie agent of the seller, ile- 
 livers the liquor to the puichaser. In 
 such case the possession of the express 
 company is the possession of the seller, 
 and generally the right of property re- 
 mains in the seller until the payment of 
 the price. An order from a person in Fair- 
 field to the defendant at Shawneetown for 
 two gallons of liquor, to be shipped to 
 Fairfield, (_'. O. D., a mere offer by the per- 
 son seniiing such order to purchase two 
 gallons of lirjuor from the defendant, and 
 pa.v him for it when he delivers it to him 
 at Fairfield, and a sliipraent liy the defend- 
 ant according to such order is practically 
 the same as if the defendant had himself 
 taken two gallons of liqnor from his store 
 in Shawneetown, carried it in person to 
 Fairfield, and there delivered it to the pur- 
 cliasHT, and received the price of it. It 
 would be different if the order from Fair- 
 Seld to the defendant was a simjile order 
 to ship two galliiiis of liquor by express 
 to the [lerson ordering, whether such 
 or<ler was accoirpanied by the nionej' or 
 not. The moment the liijiior under such 
 an order was delivered to theexpresscom- 
 pany at Shawneetown it would become 
 the property of the person ordering, and 
 the possession of the express company at 
 Shawneetown would be the possession of 
 tlie pun-haser — the sale would be a sale at 
 Shawneetown — arid if it were lost or de- 
 stroyed in transit the loss would fall upon 
 the pur-chaser. But in the ease at bar the 
 shipping of theliqucjrto Fairfield. C. O. D., 
 the defendant ma<]e no sale at Shawnee- 
 town ; the right of property I'emained in 
 himself, and the right of possession, as
 
 STATE OF VERMONT r. O'NEIL. 
 
 77:1 
 
 well aH the nctujil poHHeRHlon, rcmulnerl In 
 liiin tliroiiKli lii>4 iiii'Hit- ilni] it been loHt 
 or (leHtroyed in IrniiKit the Iohh would 
 have fallen on hlniseir. lie simply acted 
 ii|ii)n the request of the piinha.ser. and 
 sent the li(|iior to Kairhi'ld liy IiIh own 
 flKent, mill there effected a Hale liy receiv- 
 inir tli(^ money anil d.'li vi-riiit; the liquor. " 
 
 II. It Ih in«iHteil on the part of the clnini- 
 ant in IhecuKeof the State v. (is .Iuj^m. &c., 
 that Hce. 2 of No. -t.'i of the .\cts of l.ss:.', 
 under which the liiiuoi-H in that case were 
 Kei/.ed, Ih uiiconHtitutional. Concedinn the 
 pointM eontendeil for liy the learned coun- 
 sel for tlie claiinnnt, tliat there Ik a well 
 rccoKid'-fd rinht of piopetty in inlo.xirat- 
 ins' liiiuiirH, that thej' are not nialuni in 
 He, and that their use Ih not liy law jiro- 
 hihitiii to citizensof this Htate. tlieHe piop- 
 ositioiiH are neverthelewH clearly wuliject to 
 the nualification, that when kept and 
 intended for unlawful ukc, hucIi liquors 
 fall at once under the ban of the law, and 
 become subject to seizure and contiHca tion 
 by such methods as are provided by law 
 in conformity with the couHtitution. 
 That into.xicatinjf liquors, when once 
 branded with thisuidawful intent on the 
 part of till- owner or possessor, become 
 sulijcit to cnnliscation by the f>overn- 
 nieiil : and that the methods and means of 
 their seizure and conilemnalion are with- 
 in the poMce powers dele(;ated lotheley;is- 
 lature by Art. .5, (lart 1. of the constitu- 
 tion, is too well settled in this state and 
 elsewhere to require extended discussion. 
 iSpaldiuK V. rreston. L'l \"t. !l; Stale v. 
 Oonlin, L'7 Vt. •.US; Id. rsi'.'.. :!.'"; State v. 
 Ootnstoik, Id. :V.:!: (iill v. Tarkpr. 31 Vt. 
 (ilO; I'ott. Dwarris, c. 14; Cooley Con. 
 Mm. (led.) 714. 7L'7. 
 
 This section tjives the officer the power 
 to seize without warrant liquor found 
 "under circumstances warrantiuir the be- 
 lief that it is intended for sale or distribu- 
 liiiii "■ contrary to the |)r(ivisionH of chap. 
 I(i'.) U. L. It does not purport to confer 
 the power of search; nor does anything 
 appear to show that the officer assumed 
 to e.\-ercis(> such power in this case. It 
 simply provides for the seizure, without 
 warr.-int previously issued, of soiiiethitijr 
 which the law has declared siiliject to s-i- 
 zure and condemnation, under the police 
 power delejiated by the constitution, as 
 an instrument iiiteiided by the owner or 
 ]iiisse!.sor fill- a use unlawful by e.xpress 
 statute, and dangerous to the peace, 
 health, ami y;ood morals of the communi- 
 ty. That the article in itself may be In- 
 nocuous, may bo the subject of lawful 
 owiiersliip, or may even be siisceiitible of 
 beneficial use. can no more affect the ques- 
 tion tlian could the fact, that certain tools 
 were susceptible of lawful and benelicial 
 use in mechanics, save them frmn becom- 
 iiijj suliji'ct to seizure and conliscation, if 
 intenilid hy their owner or possessor for 
 use as the instruments for accomplishing 
 a contemplated burglary; i.r theharmless 
 charact'r of the nielal and its owner's 
 ri^iht of priqierty therein protect his 
 ownership when fashioned and intended 
 for passinir as counterfeit coin. It cannot 
 lie doubted in this state, since the case of 
 SpaldiiiR v. Preston, lil Vt. it, and lins not 
 been elsewhere, so far as we are aware, 
 
 ' that articles or instrunieiitalltlcs once liti- 
 pressed with the eharacteristii's of adap- 
 tation and intended u.se for purposes pr<i- 
 hibited by law and coiitri.ry to public 
 peace, health, or morals, are subject to 
 suniiiiary seizure under statutory or even 
 general police ret'ulations. That the liq- 
 uors in qiiesiion were intended for such 
 use has been determined in this case as a 
 (pieslion of fact by thetriliunal designated 
 by law. and that adjudication Is conclu- 
 sive. 
 
 The scope and application of Art. 5, 
 liart I, of the constitution have been tie- 
 lined by this court in the cases above re- 
 ferred to, and in In re I'owers. '2'i Vt. 2()5, 
 which hasever since been rejrardeiJ as con- 
 clusive against such application of that 
 section of the bill of riuhts as is heie con- 
 tended for bv the claimant. See (iill v. 
 Parker, ;!l Vt.CKl: Stale v. Peterson. 41 
 Vt. .-,(14; State v. Intox. I-bv .V, Vt. sj In 
 Massadiiisetts a statute practically idcii- 
 tii-al with the one in question has beeii 
 held not to contravene a similar consti- 
 tutional provision. Jones v. Knot. t> 
 Oray, 4;!."i; Mason v. I.athrop, 7 (irny. :154. 
 The decisions in Maine are to the same 
 effect. State v. McCnnn. .V.i Me. :iK;( ; State 
 V. Howley, (')."> Me. Inn. 
 
 HI. Concerninjr the claim that sec. S of 
 the federal constituticm. conferrinK upon 
 conjiress the exclu-jlve riiilit to re;rulate 
 commerce amonir the states, has applica- 
 tion, it is sufficient to say that no reRulfl- 
 tion of or interference with inteistate 
 commerce is attempted. If an express 
 company, or any other carrier or person, 
 natural or corporate, has in possession 
 within this state an article in itself dan- 
 frerous to the com muni t.v. or an art iile in- 
 tended for unlawful or criminal use with- 
 in the stale, it is a necessary incident of 
 the pidii'e powers of the state that such 
 article should be subject to seizuie for the 
 [iiotection of t he community. It would 
 certainly be a strangle perversion of laii- 
 Kuaue to claim that if this express com- 
 pany were to hold In possession within this 
 state clothiiiK infected with the small- 
 pox or yellow fever, or to(ds with which 
 it was intended to oomniit a biinilary, the 
 state fro^'eriiment should be powerless to 
 protect its citizens by selzinK and ri-nder- 
 int: harmless such articles, simply because 
 they misht have been brought in Iheordl- 
 n.'iry course of business from another 
 state. If the express company h.'is In pos- 
 session within Ihe state liqiinr, with In- 
 tent to make unlawful use or disposition 
 of it. then the rifiht to seize it and prevent 
 such unlawful use attaches. If it were 
 competent for persons or companies to 
 become superior to state lau s and police 
 reiiulntions, and to override and defy 
 them under theshield of the federal consti- 
 tution simpl.v by means of condnctins an 
 interstate traffic, it would indeei! be a 
 strange and deplorable condition of 
 thin)j;s. The rijrht of the states to regu- 
 late the trallic in intoxieatinii linuors has 
 been settled by the I'liiled States supreme 
 court in tlie License Cases. .'> How. .'■)77. 
 
 1\'. Proof of the formerconvlction In the 
 rases of State v. O'Nell was properly ad- 
 mitteil, notwithstanding the conviction 
 a|>penred to have l)eeii more than three
 
 774 
 
 STATE OF VERMONT v. O'NEIL. 
 
 years before the trial. No provision of the 
 statute requires that the former convic- 
 tion must liavp been within three years, 
 an<i we have no authority to add such a 
 provision to the law, as it is plainly and 
 unambiguously framed l)y the legislature. 
 The reason for the limitation of prosecu- 
 tions for the offenses charged in these 
 cases to a period within tliree years from 
 the time of commission, as for all similar 
 limitations, is that a person should not 
 be called upon to answer to a legal accu 
 sation after such a long time has elapsed 
 as would, in the estimation of the law, 
 make it dillicult or impossible, by reason 
 of the death or removal of witnesses, the 
 loss or destruction of evidence, or the va- 
 rious embarrassments likely to arise from 
 a considerable lapse of time, for him to 
 establish his innocence. This reason has 
 no application to a case where the only 
 proof that can be used on the one side or 
 the other is matter of record. We should 
 therefore have no justification, even if we 
 deemed it within the scope of our power 
 and duty, for making applications of a 
 rule of limitation by analogy in these 
 cases. 
 
 V. The constitutional inhibition of cruel 
 and unusual punishments, or excessive 
 fines or bail, has no application. The 
 punishment imposed l)y statute for the 
 offense with which the respondent, O'Neil, 
 is charged, cannot be said to be excessive 
 or oppressive. If he has subjected himself 
 to a severe penalty, it is simply because 
 he has committed a great many such 
 
 offences. It would scarcely be competent 
 for a person to assail the constitutional- 
 ity of tlie statute prescribing a punish- 
 ment for burglary, on the ground that he 
 had conuuitted so many burglaries that, 
 if i)unishment for each were inflicted on 
 him lie might be l<ept in prison for life. 
 The mere fact that cumulative punishments 
 maybe imposed for distinct offences in the 
 same prosecution is not material upon 
 this question. If the penalty were unrea- 
 sonably severe for a single offence, the con- 
 stitutional question might be urged; but 
 here tlie unreasonableness is only in the 
 number of offences which the respondent 
 has committed. 
 
 The iuevital)le deduction from what has 
 been said under tlie first point is, that the 
 respondent, O'Neil, by what he did in re- 
 spect of the transactions in question, made 
 the express company his agent; and as 
 what was done by such agent in the exe- 
 cution of the autliority and instructions 
 directly given by him committed offences 
 against the statute, O'Neil must beheld 
 responsible. That he was innocent of 
 any purpose or intent to break the law, 
 and was unaware that what he did was 
 contrary to la w, cannot avail him in de- 
 fence. State V. Comings, 28 Vt. 508. 
 
 The result is that in the cases of the 
 State V. O'Neil, numbers 27 and 28, the re- 
 spondent takes nothing by his exceptions; 
 and in the cases of the State v. Intoxicat- 
 ing Liquor, National Express Company, 
 claimant, numbers 25 and 26, the judg- 
 ments are affirmed.
 
 8T0LLENWERCK v. TIIACHICa. 
 
 777 
 
 STOLLENWERCK et al. v. THACHER et aL 
 
 (115 Mass. 2^.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk. June 18. 1S74. 
 
 Tort for the coiiverhion of 189 bnlcs of 
 cotton. At the triul, Itefore Morton, J., 
 the jury were dircctccl to (ind ii verdict for 
 the plaiiitiff.s, and tho euHe \va» rc[)orted 
 for tile consideration of the full court. 
 
 S. I'.artlettand 1). Thaxter. f(jr plaintiffs. 
 H. VV. Paine and U. I). Smith, for defend- 
 antH. 
 
 GRAY, C. J. Thi.s in an action of tort 
 for the conversion of a number of hales of 
 cotton. A verdict has been ordered for 
 the plaintiffs, and the case reserved for 
 till! determination of the full court upon a 
 report containing an abstract of the evi- 
 dence Riven at the trial, and a number of 
 letters and documents. But the facts 
 material to the decision, assuming all the 
 controverted ones to be according to the 
 testimony introduced by the defendants, 
 are not many; and a l)net statement of 
 them will tend greatly to narrow the dis- 
 cussion of the principles of law by which 
 the case is governe*!. 
 
 The plaintiffs, being buyers of cotton in 
 Mobile, made an arrangement with .Jo- 
 seph I. Caker, a cotton broker in I'.oston, 
 by which they agreed to pay him. upon 
 such orders on them as he should obtain 
 from lii.s custonii^rs here, fifty cents a bale, 
 out of their own commission of one and a 
 half per cent., furnish him witli types of 
 their classification of cotton, and keep 
 him advised at their own expense of the 
 condition of the cotton market in iMobile; 
 he agreed to procure and transmit the 
 orders, and inform his customers of their 
 acceptance or rejection; and the invoices 
 were to be sent by the plaintiffs to, and 
 the drafts for the price drawn upon, the 
 customers, and the bills of lading at- 
 tached to the drafts. 
 
 In pursuance of an order given liira by 
 (jorhain (Jrn.v & Company, linker tele- 
 graphed to the plaintiffs to buy for them 
 two hundred bales of cotton. The plain- 
 tiffs replied, refusing to negotiate on any 
 other basis than that the bill of lading 
 should be att;u-lie<l to the draft. They 
 bought the cotton in .Mobile, drew a bill 
 of exchange on liray & Company a;;ainst 
 the cotton, took the bill of lading in their 
 own name, indorsed it in l)lank, attached 
 it to the bill of exchange, procured th_> lat- 
 ter to be discounted at a bank in Moliile, 
 informed Baker of what they had done, 
 an<l instructed him, on receiving the draft 
 and bill of lading, to bold the bill of lad- 
 ing until the draft was paid. Baker by 
 telegram and letter assented to all this. 
 The in voice sent by the plaintiffs totJray & 
 Coiu|>any showed that the cotton was 
 consigned to the i)laintlffs' order. The 
 Mobile Bank transmitted the draft, with 
 the bill of lading attache<l. to a bank in 
 Boston, which presented the draft to (iray 
 & Company for acceptance. Upon such 
 presentment, (Iray & Company asked for 
 the bill of lading, and were told that Ba- 
 ker w;.s to receive it. (Jrny iVc Company 
 then accepted the draft, the bank deliv- 
 
 ered the bill of lading to Baker, and he att 
 erwards delivered it to (iray and Compa- 
 nj', who obtained the cotton from the car- 
 riers, gave them a check for the amount of 
 the freight from Molille to Boston, and 
 pledged the cottim and dell vcreil the 1)111 of 
 lading to the rlefendants as security for 
 the payment of advances on the cotton. 
 Gray testified that he accepted the draft 
 upon Baker's assurance that he would 
 hand him the bill of lading as soon as It 
 came to Baker's possession, that Baker 
 shortly afterwards delivered to him the 
 bill of lading unconditionally, and that he 
 transferred the cotton to the defendanta 
 believing that lie owned it; and his testi- 
 mony though contra<licted by Baker's, 
 must lie assutned to be true for the pur- 
 pose of deciding whether a verdict was 
 rightly ordered for the plaintiffs. 
 
 Baker and the plaintiffs were not part- 
 ners as between t/icmselves. and (Jray & 
 Company did not deal with Baker as a 
 partner of the i)laintiffs. His relation to 
 the i)laiiitirfs was that of a tjroker only. 
 He looked to them, and not to the cott<jn, 
 for tlie payment of his commiHsion. The 
 case is not within tlie (Jen. .'^ts. (•..'>4.* Ba- 
 ker was not a fiictor. or a general agent 
 intrusted with the goods for the puriKise 
 of sale; but a special agent, with p<jHitlve 
 and restricted instructions to receive the 
 liill of lading on the acceptance of the 
 draft, hold the bill of lading and the cot- 
 ton until the draft was paid, and then de- 
 liver them to Gray & Comiiany. He had 
 no right of possession of the bill of lading 
 or the cotton for any other purpose, and 
 no title in or lien on the cotton. Tins is 
 not a case of 8topi)age in transitu. Gray 
 i^c ("ompany were not naineil In the l)ill of 
 lading as consignees of the c<itton. and 
 the plaintiffs ha ve never been divested of 
 their ])roperty in the cotton as agnlnst 
 Gray & Con)i)any or any persons claiming 
 under them. 
 
 The nuraeroua case.4 cited at the bar 
 diffi'r in their circumstances rather than 
 in the statement of principles. \ hill of 
 lading, even when in terms running to 
 order or assigns, is not iicgotiable, like a 
 l)ill of exchange, but a symbol or repre- 
 sentative of tlic goods themselves; and 
 the rights arising out of the transfer of a 
 bill of laiiing correspond, not to those 
 arising out of the indorsement of a nego- 
 tiable promise for the payment of money, 
 but to those arising out of a delivery of 
 the property itself under sin. liar circuui- 
 stances. If the 1)111 of lading is once as- 
 signed or indorsed generally l)y the orig- 
 inal holder, upon or with a view to a sale 
 of the property, any subsei)uent transfer 
 thereof to a bona tide purchi\ser may In- 
 deed give him a good title as against the 
 original owner. But so long as the bill 
 of la<ling remains in the hnnils of the orig- 
 inal party, or of an agent intrusted with 
 It for a special purpose, and not author- 
 
 'Gon. Sts. c. 54, § 2, proviiie that, "Every factor 
 or other agent intrusted with the pos>ci«»ion of 
 merchandise, or a bill of Inding consicnlnc mer- 
 chandise to him. for the purpose of siilo. shall be 
 deemed to bo the true owner Ihoreof so far as to 
 give validity to any bona tide contract mado by 
 him with any other jwrson for the sale of the whole 
 or any part of such merchandise, "
 
 7V8 
 
 STOLLENWERCK v. THACHER. 
 
 izptl to sell or pledge the goods, a person 
 who f;et8 i)ossession of It witliout the au- 
 thority of the owner, althotish with the 
 assent of tlie a(?ent, ac'uiires no title as 
 against the principal. National Bank of 
 Green Bav v. Dearborn, 115 Mass. 219. 
 (Jurncy vl Behrend, 3 E. & B. 622. 632. 
 Pease V. Gloaliec, L. H. 1 P. C. 219, 228. 
 
 In tlie present case, Baker, being a spe- 
 cial agent authorized to deliver the bill of 
 lading only up.on payment of the bill of 
 exchange drawn against the goods and 
 attached to the bill of lading, could not 
 bind his principals by a delivery made 
 withont such payment. To hold other- 
 wise would be to allow a person, intrust- 
 ed with goods merely for the purpose of 
 oollecling the price and then delivering 
 then), to sell them on credit. The author- 
 ity of Baker, being special and limited, 
 could not be enlarged by his own declara- 
 tions. Mus.sey v. Beecher, 3 (Jush. .'ill. 
 
 It follows that Gray & Corai)any, not 
 having paid the draft, nor acquired pos- 
 session of the bill of lading with the plain- 
 tiffs' consent, had no property in the 
 goods, and could convey none to the de- 
 fendants, so as to defeat the plaintiffs' ti- 
 tle. The plaintiffs are thereforeeutitled to 
 recover. 
 
 This is not an action in the nature of as- 
 sumpsit for the proceeds of a sale of the 
 
 propert.v, in which the plaintiffs might be 
 deemed to have waived any tort, and be 
 obliged to submit to a deduction of the 
 expenses of the sale by which such pro- 
 ceeds hud been obtained. It is an action 
 in tlie nature of trover for the conversion 
 of the goods, in which tlie jjlain tiffs are 
 entitled to recover their market value at 
 the time of the conversion by the defend- 
 ants, and are not obliged to allow a com- 
 mission to Gray & Company for doing an 
 act which is not shown to have been for 
 the interest or according to the intent of 
 the plaintiffs. Bartlett v. Bramliall, 3 
 Gray, 257. 
 
 But the amount paid by Gray & Compa- 
 ny to discharge the lien which the carriers 
 had against the jdain tiffs for the freight 
 on the cotton enured to the benefit of the 
 plaintiffs, and should he deducted from 
 the market value of the goods. Adams 
 V. O'Connor. 100 Mass. 515. Whitney v. 
 Beckfonl, 105 Mass. 267. That amount 
 must therefore, unless the parties agree 
 upon it, he ascertained by an assessor, 
 pursuant to the terms of the report, the 
 verdict amended accordingly, and 
 
 .ludgment rendered thereon for the plain- 
 tiffs. 
 
 WELLS, COLT, and DEVENS, J.T., ab- 
 sent.
 
 STUAUS c. WESSEL. 
 
 781 
 
 BTRAU8 et al. v. WESSEL et al. 
 
 (30 Ohio St. 211.) 
 
 Supreme Court Commission of Ohio. December 
 Term, 1S70. 
 
 Error to superior court of Cincinnuti. 
 H. H. WeHHcl, doiiiir buHiiiewH in <-'incin- 
 iiati as H. II. Weasel & Co., aOvunced to 
 Steplieiis & Bro., pork itackers in Jndiann, 
 $.>,UOU, under uf;reeuient tliat tliu latttr 
 would sliip to tliem all tliepork they would 
 cut during the season to be 8(dd by H. H. 
 Wessel & Co. on coinniission, the proceeds, 
 after paying freight and commissions, to 
 be applied on the indtbtedne.ss, and any 
 balance to be pain to Stephens & Bro. ! 
 Stephens & Bro. made several shi|)nients! 
 to I!. H. Wessel & Co., but without send- 
 ing bills of lading. The consiKuee, beinj;; 
 well known, obtained the goods on their 
 arrival In Cincinnati. March 24, 1S70, 
 Steidiens & Bro. made a shipment to II. 
 H. Wessel & Co., retaininj^ the bill of lad- 
 ing, but sendinR the folio wing letter of 
 advice, which was received March 2'!, 1S70. 
 "Shoals. Ind., .March 24, INTO. Messrs. 
 H. H. Wessel Co. — Gents: Shipped to-day 
 car No. 761 : 
 
 7 tierces lard, No. 1 2,164 
 
 1 bbl. grease -00 
 
 4 bbls. cracklings 913 
 
 353 hoKs' heads, ( with the fat) 1.970 
 
 14:1 smoked jowls 74.5 
 
 rJO bacon hams 1,413 
 
 183 hogs' heads, (skinned) l,4tW 
 
 12S bacon shoulders 1,S05 
 
 "Tlie balance of meat we will ship when- 
 ever you order. We think it best to holil 
 the fard. I send you two kinds of hogs' 
 heads,— one with fat on, tlieothcrskinned, 
 which notice. We deliver you this load 
 on our indebtedness. Do tlic best you 
 can. Yours truly. Stephens & Brother. " 
 
 On March 2.S, 1S7U, while in the posses- 
 sion <if the railroad company at Cincin- 
 nati, it was attached by . I. 1'. Straus & 
 Co. on a claim aBainst Stei)hens & Bro. 
 H. H. Wessi'l paid the freight bill in the 
 usual way, and brought replevin against 
 the sheriff and .J. P. Straus & Co.. an<l re- 
 covered judgment, and defendants bring 
 error. 
 
 Stallo & Kittrcdge, for plaintiffs in er- 
 ror. John Johnson, for defendant in er- 
 ror. 
 
 SCOTT, J. It is clear that the rights 
 and interests of the iiiaintifJs in error, in 
 the property which they, as creditors of 
 Stephens & Bro., caused to be attai-hed. 
 can be no greater than those of their al- 
 leged debtors, Stei)h"'ns A: Bro. They 
 could attach only the interest of their 
 debtors, in the prop"rty. and in this con- 
 troversy must stand in theirshoes. Now, 
 for whom was the (xirk in question held 
 by the carrier at the time of the levy of the 
 attachment? It had bc<'n delivered by 
 Stephens & Bro., to the carrier for trans- 
 portation to Cincinnati and delivery to 
 the consignee, 11. H. Wessel & Co. By the 
 express terms of their bill of liiding.it was 
 the duty of the carrier to deliver it oidy 
 to the consignee named therein. By the 
 invoice and letter of advice sent to the 
 
 coDHlgnees, iiunu'diately before the Rhlp- 
 mcnt, it is very clear that the conBlgnurs 
 had a|)propriated the pork shipiied and 
 the net proceeds of its sale to the (lartial 
 discharge of their indebtedness to the con- 
 signees, for cash previously advanced. 
 They expressly say: "We deliver you this 
 load on out indebiednesB." 
 
 The consignors of this shipment had not 
 only the right, but, under their contract 
 with the consignees, it was their duty ao 
 to a|)propriate it. 
 
 The relation of the parties to this Hhl|)- 
 ment differed ;n no substantial respi-ct 
 from that of the case in *'hich goods are 
 shipped by a vendor to u purchaser, who 
 has jjreviously ordered and paid for 
 them. And iu such n case it is wellsettled 
 that the delivery of goods to a common 
 carrier for conveyance to the purchaser is 
 equivalent to a delivery to the purchaser 
 himself. The carrier is, in that case, in 
 contemplation of law, tlie bailee of the 
 person to whom, not by whom, thegoorls 
 are sent; the latter, in employing the car- 
 rier, being considered as the agent of the 
 f.irmer for that purpose. Ueuj. on Sales, 
 sec. J81, and the numerous authorities 
 there cited. By the terms of the letter of 
 advice, in this case, there can be no doubt 
 that Stephens & Bro., by delivering the 
 pork to the carrier, intended thereby t<i 
 invest the consignees, Wessel & Co., with 
 the full and rightful pcissession. and the 
 absolute jus disponendi of the property, 
 for the purposes of their contract. 
 
 They intencU'cl to retain no interest even 
 in tlie proceeds of its sale, other than the 
 right to have the net amount applied In 
 partial satisfaction oi their indebtedness 
 to the consignees. .\nd to this intention 
 a controlling effect must l)e given. Kro- 
 erv's Sons v. Irving National Bank, 25 
 Ohio St. oGO. 
 
 It is claimed, however, by rounsel for 
 plaintiff in error, that. Irrespective of the 
 intention of Stei)hens & Bro .in their slnp- 
 inent of the pork, by taking the bill of 
 lading in their own name, and retaining 
 its pcssessicn, they rescrveil forthemselves 
 ttie power to dispose of the |iroperty, and 
 vest the title thereto in any bona tide pur- 
 chaser by a simple delivery of Hie bill of 
 lading, and that they, therefore, remained 
 the owners of the property, in contem|ila- 
 tion of law, until It came to the actual 
 possession of the consignees. But we 
 think this position can not be maintained. 
 A bill of lading, though transferable by 
 delivery, like commercial pai)er. "is unlike 
 commercial paiier in this— theassigneecan 
 not ac(|uire a better title to the property 
 thus symbolically delivered, than his as- 
 signor" had at the time of assignment. " 
 Kmery's Sons v. Irving National Hnnk, 
 supra', p. y(i>>; BenJ. t>ii Sales, sec. StM. 
 
 Hence, as Ste|d)ens & Bni.. uniler the 
 circuuistnnces of this case, had parted 
 with all right of control over the proper- 
 ty in (jui-stion, they could confer no such 
 right on anolher by n trniisfer of the bill 
 of lading. 
 
 We think the evidence in the rase shows 
 tlirit at the time of the levy of the attach- 
 ment, the property in (juestlon was con- 
 structively in the possession of delendant
 
 782 
 
 STRAUS V. WESSEL. 
 
 in error, who had the full and sole power 
 of disposition over it, and the right to re- 
 tain the proceeds of its sale. 
 The authorities cited by counsel for de- 
 
 fendant in error fully sustain these views, 
 and justify us in saying that the judgment 
 of the court below must be affirmed. 
 Judgment affirmed.
 
 STUAKT V. WILKINS. 
 
 785 
 
 STUART V. WILKINS. 
 
 (1 Doug. 18.) 
 
 Court of King's Bench. Michaelmas Term, 177S. 
 
 The two first counts in the dccliirntioii 
 in tliis CHBo were nH tolloWH:—" David 
 Stuart cuniplaluK (if JanieH WilkinH lieinj;, 
 &c. For tliat whrreaH tlic said .lami'.'*, 
 on tlic (ii-Ht day nf Feb i' nary, in the year 
 of our I-oril 177s, at llatlield, in the coun- 
 ty of Ilertfurd, offered to Hell to t he Haid 
 David, u certain niaro of him the naid 
 JanicH, and wliereupon afierwarilH, to 
 wit, on tlie (lay and year aforenaid. at 
 Hatfield aforesaid, in the touniy afore- 
 Haid, in consideration that tlietsaiil David, 
 at tlie Hpecinl instance and re(|neHt of the 
 said JanieH, would liuy of liini the waid 
 .JaniCK, the said mare, at and for n certain 
 lar;j;e priceor Kuni, to wit, tlie price or sum 
 of j;:!l. IOh. of lawful money of (ircat I'.rit- 
 ain, to he paid by tlicHaid I)a\ id. to tlicKaid 
 .lanjCN, when he the said David HJiould he 
 thereiint(j afterwards rciiuested; In- the 
 said .lames undert(jok, and then and there 
 faithfully promised the sain David, that 
 the said mare was sound, and the said 
 ])avid in fact saith, that he, conlidint; in 
 the said i)r(in)ise and nndertakinK of ilie 
 Haid .lames, ko hy him made a8 aforesaid, 
 afterwards, to wit, on the same dn.v and 
 .vear aforesaid, at llatlield aforesaid, in 
 the county aforesniil, at the sfiecial in- 
 stance and reiiuest of the said .lames, did 
 buy of tlie said .James the said mare, at 
 and for the said price or ■sum oi i;;Jl lOs. 
 and did then and there pay to tin; said 
 .lames the sum of t.'.") .">s. part of the said 
 sum of iljl Ids. an<l <lid then and there un- 
 dertake and faitlifully promise the said 
 .lames to pay him the further sum of t'i 
 ."is. residue of tlie said sum of VM Ihs. when 
 he the said David should be thereunto aft- 
 erwards reiiiiested. Yet the ssiid .lames, 
 not reRardinsj his said promise and nuder- 
 tnkint; so hy him made as aforesaid, hut 
 eontrivinK, and fraudnlently intending to 
 injure the said Daviil in this tiehiilf, did 
 not regard his said piomise and undertak- 
 ing so l(y him made asaforesaid, hutcraft- 
 ily and snbtilely deceived the said David 
 in this, that the said mare, at the time of 
 the niakini: the said promise and iinder- 
 takiiiK of Ihe sni<l .lan;es, was not sound, 
 but, on tlie contrary thereof, was un- 
 sound, and was atllirlecl with a certain 
 mnliidy or disease, called the windyialls, 
 to wit, at llatlield aforesaid, in the coun- 
 ty aforesaid; whereby the said mare then 
 and there became, and Is of no use or 
 viiUh! to the said David.— .\nd whereas 
 also the said .lames, afterw arils, to wit, 
 the same day and year aloresaid, at llat- 
 lield aforesaid. In the county aforesaid, in 
 consideration that the said David, at the 
 like instance and reiiuest of the said 
 James, boufiht of him the said James, a 
 certain other mare of him the said James, 
 at and for a certain other larire price or 
 sum, lo wit, the sum of .CM 10s. of like 
 lawful money, and had then and there 
 paid to the said James, the sum of V2T> ."is. 
 in part of the said last mentioned sum of 
 .V.n 10s. and had then and there undertak- 
 en and promised to pay to the said James 
 LAW SALKS — 50 
 
 the further sum of £(> 5s. residue of the Hald 
 last mentioned sum ot £:)! lUs. when he the 
 said David should be thereunto afterward* 
 i'e(|uested, he the said .lames undertook, 
 and then and there faithfully promised 
 him the saiil David, that the said last 
 nientioned mare was sound.— Yet the said 
 James, not reKardinj; Ids said last men- 
 tioned promise and undertakinuso by him 
 made as lant aforesaii!, but contriving 
 and fraudulently intcndliiK to injure the 
 said David in this behalf, diil not retiard 
 his said promise and undertaking ho liy 
 him made as last aforesaid, but craltily 
 and subtilely deceived the said Dutiil In 
 this, that the said last inentluiii'd mare, at 
 the time of the mnkiiiK the said last inen- 
 tioudl promise and uudertakiim of the 
 sail! .James, was not sound, but then was 
 unsound, whereby the said last mentioned 
 mare became, and is of no use or value to 
 thesaid David." — To these wcie add-d a 
 count for money laid out and expenih-d. 
 and an(jther for money had and received. 
 — The cause was fiiecl at the assizes at 
 Hertford, before Lord Manslield. and a 
 verdict found for the pluintift; but theev- 
 idencetti%en beinKof an express warranty, 
 and a doubt bein^ raised, whetrier, in such 
 a case, this was a proper f(irm of action, 
 the verdict was taken subject to the olilu- 
 i(ni of tlie court on that (luestion. 
 
 Cpon a motion for settimr aside the ver- 
 dict, anil entering a nonsuit. Lord .Mans- 
 tiild said, that it had been su«ueste(l, that 
 the form of this deiliiration arose from a 
 determination of his at the same place 
 about twentv years niio, but that, he 
 said, was a case of a clear fraud, and was 
 declared on a." a fraud. 
 
 Cause was now shewn ajjainst makiiiK 
 the rule alisolute. 
 
 Kenipe, Serjeant, and MorKnn. for de- 
 feudnot. 
 
 Lord M.\.VSF1ELD,— The declaration 
 struck me as particular, in depurtinj: from 
 the old rule of deelnrinK e.xpiissly on the 
 warranty. A warranty extends to all 
 faults known and unknown to the seller. 
 Selling for a sound iirice without warran- 
 ty nin.v lie a jj;ii>und for an assumpsit, buS, 
 in such a case, it oujiht tn be laid that the 
 defendant knew of the unsoundness, [n] 
 I left it to the jury as on a warranty, sub- 
 ject to the opinion of the court, whether 
 a nonsuit should not be entered. I aiii 
 told bv the learned judjies on my left hand 
 (.\SIIIIFUST, and lULLKIt, Justices,) 
 that this sort ot declaration, wherea war- 
 ranty is to be proved, has been practised 
 for twenty years, and that it Is made use 
 of with a View to let in both proofs, if nec- 
 essar.v. 
 
 ASimrUST, Justice,— Whatever may 
 have been the old form. 1 lielleve It liaa 
 been lonn settled that this form of action 
 is rlitlit: and. havini: lieen lonK estal)- 
 lished. I am of opinion that it ouKhC to be 
 supported. There may lie cases where tlie 
 count for monev had and n-eeivcd may t>e 
 of use to the plaint iff. and the warranty 
 including a promise, u.ay btj declared oD 
 as such.
 
 786 
 
 STUART V. WILKIXS. 
 
 BOLLER, Justice,— This mode bas been 
 ID use ever Hinee I have known any thins 
 of practice, and ray Brother ASHIIUKST 
 remembers it much lonser. Tliere is no 
 objection to It, in point of form, which 
 could prevail even on a wppcial demurrer. 
 Promises are not all executory. Uo not 
 «II our books make a distinction between 
 Ijroraisea executed, and promises executo- 
 ry; — that in one you may traverse the 
 
 consideration, in the other not? Because 
 another action would lie, it does not fol- 
 low that this will not. It was determined 
 in Slade's Case, that there may be differ- 
 ent actions for the same injury. i 
 The rule discharged. 
 
 >T. 44 Eliz. 4 Co. 
 son. 2 East, 446. 
 
 1 b. See Williamsoa v. Alii-
 
 STUBBS V. LUND. 
 
 789 
 
 STUBBS V. LUND. 
 
 (7 Mass. 453.) 
 
 Supremo Judicial Court of Massachusetts. Cum- 
 berland. May Term, 1811. 
 
 Itoplevln of a (luaiitity of hhU and coals. 
 
 TlKMli'fcnilant ploatlH inbartliat tliusaiil 
 Halt and (M)alH were the iiropci- (;oo(ln and 
 chattels of Letnucl Weeks ami Williain ('. 
 WeckK. travePHi'M the properly of tlie 
 plaintiff, and |)rn.v« a return to lie nd- 
 jiii1i;imI him. with his ilaiiiaues and costs. 
 — 'I'lie plaintiff tenders an issue on llie 
 traverse, which Is j(iine<l \)y the defendant. 
 
 This issue was tried before Tiia teller. .1. 
 at an adjournineni of the last .May term 
 in this county, and a verdict found for 
 the plaintiff, aKreeatily to the ilirections 
 of I he jtidue, to which directions the de- 
 fendant tiled his exceptions, which were al- 
 lowed hy the jiidjre. 
 
 From the exceptions it appears that the 
 Jionse of Losan, Lenox A- (Jo. nt Liverpool 
 in KtiKland, of which the plaintiff was 
 one, had shipped thecarjio of salt and 
 coals on hoard the sliip Henry, .Joser>U 
 Weeks master, on the credit, and on the 
 acccnint ami risk of the said I^. A: W. C. 
 Weeks, and consigned the same to them 
 or their assif^iis. for which the nuister has 
 Klxned hills of ladin;;: but hefore the ship 
 had left the port of Liverpool, the shij)- 
 I)ers, lieinK informed of the insolvency of 
 the consisnees. refused to let the ship sail 
 under the said sliipment of the car^o. 
 Afterwards on the master's siKnintr other 
 Mils of ladinu;, ackn<»wled!;inn the cari;o 
 to be shipped by the siiine persons, con- 
 filKiied to the plaintiff, the master was 
 permit ted to sail. 
 
 There was shewn in evidence to the jury 
 an agreement between Lotran, Lenox & 
 Co. and L. & W. ('. Weeks, by which the 
 former contracted to accept t he drauirhts 
 of the latter, or to advance them carjioes 
 on credit, to a limited amount; — also a 
 to|iy of an account current, in which the 
 carno in (lU'-'stion was char;j:ed by the 
 former to the latter. The defendant Is a 
 flepufy sheriff of this county, and had at- 
 tached the Roods in question as the prop- 
 erty of the said L. & W. C. Weeks, nt the 
 suit of Daniel Tucker, in an action brt)U{;ht 
 Mlion seveial iiromissory notes. 
 
 Tlie motion of the defendant for n new 
 ti lal. iiroundi'd on the supposed misdirec- 
 tion of the judne, was arj^ued by Whit- 
 man and Hopkins lor the defendant, and 
 Mellen and ICmery for the iilaintiff. 
 
 The action was continued nisi, and the 
 otiinlon of the court was delivered in llos- 
 ton, at an adjournment of the last March 
 term, by 
 
 r.MSS'tN.S. (". .L The title of the |dain 
 
 tiff is .idniitted to be K 1. '>" "le consi>;n- 
 
 or.s hail umler the circumstances of this 
 case, a rlulit to stop the <;oods in ((uestion 
 in transitu. 
 
 To this riy:ht the defendant has made 
 two obie<'tions. 
 
 1. That the Kencrnl credit Riven to the 
 original consignees by the consignors, 
 whicli is stated ut large In the exceptions. 
 
 had excluded the conslRnoni from the 
 rlRht of stopping In transitu goods 
 shipped and conslgneil pursuant to that 
 agreement. — Hut In our opinion this ob- 
 jection cannot prevail. That agreement 
 cannot bind the consignors after the In- 
 solvency of the consiRnees: the credit con- 
 templated being |»redicated upon the sup- 
 posed ability of the consignees to pay at 
 the expiration of the credit. And a credit, 
 given under such an agreement, can have 
 no other effect on this i|uestion. than the 
 credit given under the first bills of lading. 
 
 L*. The i)tlier objection Is, that tie con- 
 signees being either the owners or the 
 hirers of the ship Hi'nry, as soon as the 
 goods were received on board Hint ship, 
 and bills of lading signeil by the master. 
 there was no further transit, the goods 
 being In the possession and custody of the 
 consignees. And to support this olijec- 
 ti<in, it was urged by theilefendant 'scoun- 
 sel, that the right to stop in transitu ex- 
 tends only to gufjds ship|ied on board u 
 general ship. 
 
 We tliink this objection cnnufit prevail. 
 The right of stopping all goods shipiied 
 on the credit and risk of the consignee re- 
 niains until they c<ime into his actual pos- 
 session at the termination of the voyage, 
 unless he shall Iiave previously sold them 
 bona tide, and endorseil over the bills of 
 lading to the purchaser. And In our opin- 
 ion, the true distinction is. whether any 
 actual possession of the consignee or his 
 assigns, after the termination of the 
 voyage he. or be not provided for in the 
 bills of lading. When such actual posses- 
 sion, after the termination of the voyage, 
 is so provideil for, then the right of stop- 
 ping in transitu remains after the ship- 
 ment. Thus if goods are consigned on 
 creilit,and delivered on board a ship char- 
 terecl by the consignee, to be importeil by 
 him, the right of stopping in transitu ccn- 
 tinues after the shipment [Hohlllngk v. 
 Inglis. a ICast. :!S1] : but if the goods are 
 not to be imported by the consignee, but 
 to be transported from the place of ship- 
 ment to a foreign market, the right of 
 stopping in transitu ceases on the ship- 
 ment, the transit being then completed : 
 because no other actual posscsKMui of the 
 goods hy the consignee Is provided for in 
 the lulls" of lailing, which express the 
 terms of the shipment [Hodgson v. Loy, 
 7 I), vt K. MJ.] 
 
 The same rule must govern, if the con- 
 slgm-e be the shipowner. If the goods are 
 delivereil on board his ship, to be carried 
 ■to him. an actual i)os(-cssion by him after 
 the delivery is provided for by the terms 
 of the shipment : but if the goods are put 
 on board his ship to be transported to a 
 forelirn market, he has on the shipment 
 all the possession contemplated in the 
 bills of lading. In the former case the 
 transit continues until the termination of 
 the voyage; but in the latter case the 
 transit ends on the shipment. 
 
 We think also Hiat the same distinction 
 must exist In the case of a general ship.— 
 If a ship sail from lids country to (Ireat 
 Itiitain, with the intention of taking on 
 board goods for divers persons on freight, 
 tt) be transported to a foreign market, as
 
 790 
 
 STUBBS V. LUND. 
 
 the mercantile adventurosof different ship- 
 pers—if goods are so shipped by tlie Bev- 
 eral consiKiiorH, there is no triinsit to the 
 consignees after the shiptuciit; and no 
 right of stopping remains with tlie con- 
 signors. But it is otiiprwise when several 
 persons import goods in a general ship on 
 
 their own credit and risk, for a future 
 actual possession by them is provided for 
 in the bills of lading. 
 
 Upon the best view wo have been able 
 to give the case before us, we are satisfied 
 that the verdict is right, and that judg- 
 ment must be entered upon it.
 
 STURTEVAXT v. OUSER. 
 
 793 
 
 eXURTEVANT v. ORSER. 
 
 (24 N. Y. SaS.) 
 
 Court of Appeals of Now York. June, 1802. 
 
 Actinn to recover a (|iiiintiry of oil nt- 
 taehed in the IuiikIh of a WiirehoiiHcinun 
 l)y creditorH of tin; vendee. I'iniiitiif had 
 u verdict for the value of the oil, the gen- 
 eral term iillirined the judgment, and de- 
 fendant appealed. 
 
 W. IIMhh, for appellant. K. Terr^', for 
 renpondent. 
 
 SMITH,.!. The delivery of the oil on 
 board the vendee's ship at New Bedford 
 waH un(|nestional)ly « delivery to Wiiii;. 
 and vested the proi>erty in him. 'I'lie 
 IH'operty, it Ih trne, wan to be tranKported 
 to New York for wale, hut it waw to lie 
 tran.siported by the vendi e liiniHeK, who 
 could have changed itH dcstina tiiin or Hold 
 it aliKolutel.v on Khiplioard. After Kuch 
 delivery it was not nnliject to Hto|;pajj;e in 
 tranHltu. for it was not in tl)e handn of a 
 carrier or iniddle-nian. (lngli.s v. Iwher- 
 wood, 1 ICa^t. ."il"): Turner v. TruHteeH of 
 Liverpool 1>oc1<h, (i Knu. Law & Ki\. .")15; 
 ()y:le v. Atkinwon. .") Taunt. ".">'.».) 
 
 But if this were not so, tlie vendee could 
 not exercise the rislit "' stoppage in trans- 
 itu, and the venilor made no utti'm|)t fo 
 do so. (Story Cont., § nK;.) The plain- 
 tiff's right to recover the oil must, there- 
 fore, lie put upon other grounds to lie sus- 
 tained. 
 
 The case is quite parallel to that of At- 
 kin v. Marwick (1 Strange, ic..".). In that 
 case the defendants were mercers, living 
 in London; and Cripps & Co.. the assign- 
 ors of the plaintiff, were traders at I'cn- 
 oyer, in Cornwall. On the 7th of April, 
 171."). the ilcfcndants, upon the order of 
 Cripps iV: Co., sent them the goods in con- 
 troversy, and gave lliem credit (intheii* 
 books for the amoiinl. On the Istli of 
 iMay.Cripps \- Co., without the knowledge 
 of the defendants, deposited the goods 
 with a third person for the use of the de- 
 fendants. On the tith of .lune, Cripps \- 
 Co. wrote a letter to the defendants, 
 staling that theii- affairs were in a bad 
 condition, and that, for that reason, they 
 thought it not rciisunable that the last 
 goods should goto other creditors; and 
 that they had, therefore, not entered tlem 
 in tlieii' liooks, hut left them with a .Mr. 
 Penhallow, who had orders to deliver 
 Ihcm to the defendants. On .Inne !tth a 
 couimission of liankruptcy was issued 
 against Ciipps & Co., and their effects as- 
 signed to the iilninliffs. The letter of 
 Cripps \ Co. to the defendants ivas not re- 
 ceived by them till the l.lth of .lune, which 
 was the first notice they had of the deliv- 
 ery to I'enhallow; and they immediately 
 Klgiiitied their consent to tr.ke the goods 
 again. 
 
 This case, in all its essential particulars, 
 is like the present case. The good-i, as in 
 this c;ise, were delivered to, and the title 
 vested in. the vendee: they were deposited 
 with a third person by the vendee for the 
 use of the vendor before the riglits of the 
 creditors at Inched, and w ritten noticeof 
 RHch deposit and of the failure of the ven- 
 
 dee slven to the vendor, and the Roods 
 aetiinlly attached before the vendor at- 
 tempted to reclaim Ihr-m. 
 
 In the decision of the case of Atkinv. 
 Uarwick. the chief justice hold that " the 
 delivery to I'enhallow to the use of the 
 ilefendants before the oct of linnkruptcy, 
 and grounded on a good consideration, 
 transferreil the absolute property to 
 them." Fortescue, .1., said that payment 
 in satisfaction of the debt was a good con- 
 sideration, and "we will intend an accept- 
 ance till the contrary appears." Ivy re, J., 
 said: "The precerlent delit is a siillicient 
 consideration, and it vests before notice 
 [the title he means]; for, it being to his 
 iienetit, a disagreement shall not be pre- 
 sumed. " 
 
 I have quoted this case thus fully be- 
 cause it is a leading one, and. If good law, 
 is quite conclusive of the case now under 
 consideration. This case of Alkin v. Uar- 
 wick has been mucii discussed and much 
 questioned, lint not in any case overrulecL 
 In Ilarman v. Fishar (1 Cowp. rj.")|. Lord 
 Mansfield said of it, tliat. " with respect to 
 the case of .\tkin v. Itarwick the judgment 
 f.ecmed right, but the reasons wrong." 
 In Neate v. Hall {2 ICast. Il7i. Lord Ken- 
 yon discussed it, and said that Lord Mans- 
 field had extracted the true ground on 
 which that judgment, if it did not proceed, 
 ought to have proceeded; naiuMly. that 
 the trader, finding himsilf in failing cir- 
 cumstances, very honestly did not accept 
 the gooils. but relnrni'd them. I!ut this 
 distinction is obviously unsound and un- 
 tenalde. Tlie bankrupt had the goods In 
 possession for some time. They were sent 
 him the 7th of April, and were in his pos- 
 session, and sent by him for deposit with 
 a third person on the isih of .May, more 
 than forty days after being delivered to 
 the vendee, or to the carrier for him ; and 
 were in his actual iiossession when so de- 
 Iiosited. The title to them had alisolutely 
 vested before s\ich deposit. They were 
 not intercepted by the way, or the order 
 of purchase countermanded before the 
 actual receipt of the goods. Hut Lord 
 Kenyon, and the whole court of king's 
 liench. did recognize the case of Atkin v. 
 Uarwick as sound law in Suite v. Field 
 (.") T. K. I'll). Speaking of the case under 
 consideration. Lord Kinyon there said: 
 "I cannot distinguish this case from .Atkin 
 V. lii.rn ick on principle; for in that case 
 there hi.d been a d< livery of the goods by 
 the seller, with the coticurrence cf all the 
 |)artieB interested. liut the ugreen cut of 
 the jiarties to rescinil that contract put 
 an end to the siile. as if It had never taken 
 place." Aslihnrst, .1., said : "The case lu 
 Strange appli«'.s to the present case." 
 Ituller, .1.. saiil • "The prineiiile on which 
 the case of .\tkln v. Itarwick was ilecideil 
 governs this." InSmitli v. Field (.'■ T. !{. 
 Ai)'2) the same court again atHrmed the 
 case ft .\tkin v. Itarwick. ami recogidzed 
 it as sound law. The case has also been 
 questioned in our courts. In Iti-rly v. 
 Taylor (.'■ Hill, .'AD, Judge Hronson dis- 
 cusses it, and. after referring to the vari- 
 ous cases, says of it. that, "although It 
 seems never to have been overruled. It 
 would be ditlicnlt to suppoi't It ui)on prin- 
 ciple without altering some of the facts "
 
 794 
 
 STUKTEVAXT v. ORSER. 
 
 But this was in a dissentius: opinion. 
 Anfl ill the same case, Judge IJowen, who 
 gave the opinion of the court, conHider.s 
 and discusses the case. !uul decliires tliat 
 It has never been overrnleil, adopts its 
 reaH(inin<>;, and atlinns the p!inci[)le upon 
 whifli il was decided, as the same leanied 
 judtfe lia(i done liofore in Ash v. Putnam 
 (1 Hill, 310), where there was no dissent 
 to the decision oroi)inion. Speaking then 
 of thecase of Atkin v. ISarwick, he says: 
 "There was either a resale or rnscissinn, 
 or a refusal liy the vendee to accept, fall 
 it which .vou please, the effect is the same. 
 In one case, the ijioperty is revested in the 
 vendors; in the other, it was never di- 
 vested." 
 
 The difficulty in all the class of cases hke 
 the present has been to Hx the point of 
 time w lien the title of the vendor became 
 revested. The right of rescission, or re- 
 Hale, is undoubted; but the (luestion is, 
 whether the rescission or resale is con- 
 summated before the as«pnt of the vendor 
 to such rescission or resale is actually 
 given or expressed. The moment the 
 minds of the vendor and vendee meet on 
 the question, it is conceded, the contract 
 is rescinded, or the jiroperty resold and 
 the title revested. If the vendor was pres- 
 ent at the same place with the vendee, 
 delivery to him by the vendee in .-elinqnish 
 meat of the contract c)f purchase would, of 
 course, completely restore hiu) to his orig- 
 inal rights of iiroperty; but when the ven- 
 dor and vendee live in different places.it 
 has been claimed in many cases that the 
 purpose of the vendee to restore the prop- 
 erty was ineffectual, till the consent of the 
 vendor to the rescission of the contract 
 was given, and that, intermediate that 
 period, the title remained in the vendee, 
 and was subject to attachment or est-cu- 
 tion at the instance of his creditors. That 
 is the precise question now presented in 
 this case. 
 
 rpon llie principles which apply to 
 sales, it is abstractly true that no title can 
 pass till the bargain is comi)lete, and that 
 a contract is not consummated till the 
 minds o! the parties meet; and. strictly, 
 this sale must also apply to agreements 
 for the rescission of a contract. It is only 
 upon the doctrine of relation, in such 
 cases, that the title can be held to pass at 
 the time of the deliverj- of the goods to 
 the tliird person. This doctrine is gen- 
 erally alleged to apply in cases of trust; 
 and it is upon this ground that the title 
 can be held to iiass at the moment the 
 trust is created, as with cases of assign- 
 ments in trust. Lord Mansfield in Alder- 
 son V. Temple (4 liurr. I'l'o'Ji, puts the 
 case of Atkin v. Barwick on the proper 
 ground. He said: "The court of chan- 
 cery would have interposed and said ' the 
 assignees should not have thegoods with- 
 out paying the price.' I think the deter, 
 mination was right; and there was an 
 actual delivery to a person who became a 
 trustee." 
 
 The direction to hold in trust for the 
 vendor, and to deliver to him, accompa- 
 nied by a delivery to the warehouseman, 
 as was done in this case, and that of Atkin 
 V. Barwick, is a tarol transler or assign- 
 meut of the property to the vendor, and 
 
 vests the property. The doctrine of rela- 
 tion in such case. Judge Cowen says, in 
 Berly v. Taylor (supraj api)lics to a deliv- 
 ery of goods in trust. The delivery was 
 held, he says <if Atkin v. llarwick, to vest 
 the property of the goods in then) (the 
 vendors) immediately, sul)ject to lie di- 
 vested by the dissent. This was on the 
 ground that the trust was beneficial, and 
 the presumption was allowed although 
 the vendors at the time knew nothing of 
 the transaction. 
 
 This. I think, presents the true ground 
 upon which the plaintiff's claim may se- 
 curely resf. The <lelivery of the oil to 
 Kelly, with directi<in to deliver it to the 
 plaintiff, was a delivery by Wing to the 
 plaintiff, and vesteil the title in liim, unless 
 he expressly disaffirmed the trust in his 
 favor. The trust was irrevocable by 
 Wing. He parted with all claim in or 
 title to the property. He ilid all in his 
 power to restore the property to the ven- 
 dor. He acted with an honesty which 
 ought to be encouraged and commended, 
 not overreached and nullified by any 
 manner of teclmical rule at variance with 
 equity and common justice. 
 
 Rut tlie plaintiff's title to this oil can be 
 sustained upon the narrow ground men- 
 tioned by Lord Mansfield in Harman v. 
 Fishar (1 C(j%vp. ]!'.">), and stated by Lord 
 Kenyon in Neate v. liall (2 East, 124 1, that 
 tlie vendee "did not accept the goods." 
 Wing, in this case, before the goods ar- 
 lived in New York, refused to take them 
 upon the purchase, provided for their 
 storage with Kelly and delivery to the 
 plaintiff, and immediately advised the 
 plaintiff of tlie fact. Wing then had the 
 gdods under his personal control after 
 they arrived at their place of destination. 
 He restored them to the plaintiff in the 
 only «ay practicable under the circum- 
 stances. 
 
 « I think the judgment below right, and 
 that the same should be affirmed. 
 
 DE.NIO, J. The law of stoppage in 
 transitu has no application to this case. 
 The oil was delivered to the purchaser on 
 board his own vessel; and, moreover, 
 supposing it had ever lieen in the hands of 
 a carrier, it had arrived at its destination, 
 and ha<J i)assed into tlie actual posses- 
 sion, or at least had come under the abso- 
 lute control of the plaintiff ; audit was in 
 no sense on its passage to him. 
 
 If the judgment can be sustainel, it 
 must be either upon the ground of a rescis- 
 sion of the contract by the mutual con- 
 sent of seller and purchaser, or of a recon- 
 veyance ami redelivery of the goods to 
 hiui, or to a third person for his use, in 
 pay .Tien t of the debt contracted by their 
 purchase, and by way of preference in fa- 
 vor of the plaintiff as acreditor; and I 
 think it can be sustained on the first of 
 these grounds. The statement of facts is 
 not as precise as could be desired ; for it 
 is not stated in it whether the plaintiff's 
 clerk had or had not such a control of the 
 business of his principal as authorized him 
 to act u[)on the communication of Wing; 
 nor what determination became to upon 
 the r(»ceipt of Wing's letter; or what he 
 said to Wing when he saw him on the
 
 STURTEVANT v. OU.SEK. 
 
 795 
 
 loth of July. If helind thegeneral author-' 
 ity of a inanat;lii« clerk, in the ahHCiifi- of 
 bin principal, anil if he inutu'iliatfly electeil 
 to take back the Ko'xlft in (iiirHiiance of 
 tlio offer of V'.'inji. ami cuniinunicuted that 
 (leterniination to Win;?, and went ahout 
 HccurinK the actual possi^ssion without 
 unncoeHsary delay, I tliiiik that would he 
 a HUllicient resiindiiiK of the Male. An the 
 letter of Wins did not nicnliou the place 
 where, or the perwon with whom, the oil 
 waH stored, the only tiling which the clerk 
 could do waH that which, in effect, he 
 did do, namely, to Bee Wins, and «hcer- 
 tain these necPHHary fact.s. 'I'lilHcould not 
 he brought about in time to send to New 
 York until after the sc^rvice of the attach- 
 ment. l!nt if the clerk, with Mullicient au- 
 thority, consented to receive back the oil, 
 and comniuuicate<l such determination 
 to Winjr on the 10th, when he went to 
 Falmouth, I think the sale wa^ rescinded; 
 and althou^ih the attaciiTuent was levied 
 on the same day, it does not appear that 
 it was ijrior to the interview with Wing. 
 The cases of Salte v. Kiehl (5 T. H. L'll) and 
 Smith V. Field (Id. 4(tL') are in point. 
 
 By the application of the rules by which 
 we examine cases brought here upon 
 statements of facts, I think we ought to 
 intend that the circumstances which I 
 have suggested as necessary to a perfect 
 rescission existed in this case. It is in- 
 cumbent on the party apjieallng, to show 
 that the judgiuent is contrary to law; 
 and It is not sutlicienl that the case is so 
 imperfectly stated that the law ui)plica- 
 ble to it cannot be ascertained. If we ap- 
 jilied to such cases the principles by which 
 special verdicts are tested, scarcely a judg- 
 ment which is brought before us could be 
 sustained. In cases of special verdicts the 
 inquiry is, whether facts enough are found 
 to sustain the judgment. If not. It is re- 
 versed. But in such cases as the present, 
 the question is, whether, upon the facts 
 stated, we can adjudge that the judgment 
 is contrary to law. Unless we come to 
 
 such a conclusion, the Judgment must be 
 an uflirmance. The facts which arestated 
 in this case are perfectly conslHlent with 
 those which I have considered as essential 
 to constitute a rescission of the sale. The 
 clerk acted as though he hud authority to 
 accept tlie offer of Wing, contained in the 
 letter; for he sent a message to .New York 
 to the plaltitlff's corrcsponilent to take 
 possession of the oil as soon as he uscer- 
 tained where it was storeil. He acted 
 througliKUt as though cletermitied to ac- 
 cept the offered abandonment of the pur- 
 chase. It is not found, in so many words, 
 that he told Wing that he woulil take the 
 property hack ; but it is stated tlint the 
 object of his journey to Falmouth, where 
 Wing was, was to ascertain where, that 
 is, in what storehouse, or with what per- 
 son, tlie oil was storeil; and immediately 
 on his return hedispatched theielegraphic 
 message to New York to take the deliv- 
 ery of it lor the plaintiff. Tlie idea that 
 the message to those correspondents was 
 to make a seizure under the law of stop- 
 page in transitu is not found in the case; 
 and it is itnprobable, upon the facts which 
 are found. It would l»e ai)surd to 9t- 
 temiH to make a seizure under the law of 
 stoppage in transitu when the goods had 
 reached the purchaser's hands at the place 
 of destination, and he had placed them in 
 the bands of a third person for tlie use of 
 the seller, and hud given him notice to 
 come and take lliein. The facts actually 
 found being in harmonj- with the suppo- 
 sition that the clerk notilied Wing that 
 the plaintiff accepted his offer, it was the 
 business of the defendant, if he would Im- 
 peach the jiidgmenl, as being against law. 
 to liave procured a statement which 
 should have altlrmed the disputed fact to 
 be such as he assumes it to be. For these 
 reasons, and without examining the fur- 
 ther questions ulluiled to, I am for the 
 Htllrmnnce of the judgment of the supreme- 
 court. 
 All concur in the judgment.
 
 SWAN WICK 0. SOTHEKN. 
 
 797 
 
 8WANWICK et al. v. SOTHERN et al. 
 
 (9 Adol. & E. S95.) 
 
 Court of Queen's Bench. Hilary Term, 1839. 
 
 Trover for Hii's buHholB of outn. PleaH. 
 1. Not Kiiilty 2. That the oiitH were not 
 the (ironerty of the pliiiiitiffH in niiinnet 
 JUKI form, iScc. iHsueH tliereon. t)n tlie 
 trial l)efore I'attt'Hon, J., at the [..iverpiiol 
 spriMK assizes, ls;!7, the material farts ap 
 peared to l)e as follows. The [iliiiiitifrs 
 were ciirn dealers at Manelie.ster ; the de- 
 feadants carried on the hiisiriess of whurf- 
 intters at the Duke's tjiiay, in the same 
 town. The oats in (lUPKtion, beinj; in a 
 warehouse of the defendants, were sold 
 by Turner and Co.. the owners, to .John 
 Marsden, anil the following delivery order 
 Siven, addressed to tlie warehouse keeper. 
 
 "Mr. \Vm. ICaton, Duke's 'iuay, deliver 
 Afr, .I(din Marsden IOl's IL' 4.'i bushel oats, 
 bin ■II). (). W., anil you will please wei^li 
 them over and charne us the expense. 
 Oct. od, ls:i(>. Joseiih Turner and Co." 
 
 The warehouse keeper entered this or- 
 der in his book: and on Oetolier .'ith he 
 received the following order from John 
 Marsden. 
 
 "Mr. \Vm. Eaton, Duke's Quay. Deliver 
 Messrs. .Swan wiek and Hall lO'JS rj-4.'ibtish- 
 el oats in bin 4(1. (). Warehouse: and let 
 them be wei;;heil over and send a note up: 
 I will see it i)aid. Fr. and .Ino. Marsden, 
 Manchester, 5tli Oct. ls:!i). " 
 
 Swanwick and Hall, the plaintiffs, ac 
 cepted a bill drawn, by Marsden, (_)etol)er 
 7tii, l.s:!(i, for the value of the oats, which 
 was dul.v honoured. Eaton entered the 
 order of October ."«th in his Ijook. and said 
 to the party delivering it, that all would 
 be right, and he woulil attend to the cir- 
 der. The oats were transferreil to the 
 plaintiffs in the defendants' books, but 
 williont weighing over. There were no 
 oats in bin -la but the iiuautity nientior.ed 
 in the order. ICaton stated, at the trial, 
 that from the .".th to the I'Jth of October 
 the oats would have been delivered to 
 the plaintiffs if reipiired. .Marsden hecom- 
 iug ins(dvent. Turner, on October IL'th, 
 gave the defendants notice not to part 
 with the oats; and, on the 14th, the de- 
 fendants gave them >ip to Turner on an 
 inileninily. At that tia-.e, iuid not before, 
 they were weighed over, and they were 
 found to be two bushels short of the 
 weight mentioned in the orders. It was 
 proved at the trial that thedefendants did 
 not consider themselves bound to weigh, 
 and were not used to weigh, till delivery, 
 when the grain was weighed to ascertain 
 any loss of (inantity. The (IUl''*^""" ""'*• 
 whether, without weighinj;, tlie property 
 was sutliciently transferred to vest in the 
 l)laintirfH: or whether, on Octolier 14th, 
 Turnerstill had a right to stop in transitu. 
 
 Potteson .1.. thought that, on the atmve 
 state of facts, the plaintiffs were entitled 
 to recover, but he gave leave to move for 
 a nonsuit: and the iilaintiffs had a ver- 
 dict. In Easter term, ls;!7, u rule nisi was 
 obtained for u nonsuit or a new trial. In 
 Hilary term, 18:il». 
 
 CresHwell and Tomlinson showed cause. 
 Wightman and \V. H. Watson, contra. 
 
 Lord DE.V.MAN, C. ,J. The .luestion In 
 this case turns upon th- construction of 
 two delivery orders. [His lordship then 
 rea<l the orders set out, p. IJl'l, ante.] The 
 oats were all that were in bin 10. They 
 were transferred to the plaintiffs In the 
 defendants' books, but never weighed 
 over. The plaintiris had accepted a bill 
 for the price, which tln^y duly honoured. 
 On Mnrsdcn's failure, .Messieurs Turner 
 s.)iiglit to stop them; and the oidy ipies- 
 tion Is, whether weighing over was in this 
 case necessary, in order to ve.st the prop- 
 erty In the plaintiffs and defeat the stop- 
 page in transitu. .Neither of the conlraetg 
 of sale were given in evidence. 
 
 The cases on this subject establish the 
 principle that, wherever any thing re- 
 mains to be done by the seller, which is 
 essential to thecomiiletion of thecoiit ract, 
 a syniliolical delivery by triin^fiM- in the 
 whartiimer's books will not defeat the 
 right of stoppage in transitu as between 
 liuyer and seller. Hanson v. .Meyer. fi East, 
 f;i4; Sheplev v. Davis. ."> Taunt. (;17, (1 E. C. 
 L. IC -Jll ;) "liusk v. Davis,:; .M. & S. :t".t7. 
 abundantly show this. Therefore, if part 
 of a bulk be sobi, so that weighing or sep- 
 aration is necessaiy to determine the iden- 
 tity or individuality (as Eord lOllenbor- 
 ougli expresses it in I'usk v. Davisi of the 
 article, or if the wh(de of a ?('.mniodity be 
 sold, but weighing is necessary to ascer- 
 tain the price, because the i|uantity is un- 
 known, the weighing or nieasnrinir must 
 lirecede the delivery; and the s.vmb<dical 
 delivery withi>ut such weighing will not 
 be sullicient. 
 
 I!at where the identity of the goodHand 
 the (|uantiiy are known, the weighing 
 can oal. be for the satisfaction of the 
 buyer, as was held In Hainmond v..\nder- 
 soii, 1 New Kep. (HI; an<l in such case the 
 transfer in the books of the wharlinger is 
 sullicient. We are of opinion that the 
 present case is of the latter description, 
 and that this |tropert> passed as between 
 buyer and seller. We have therefi)re no 
 occasion to resort to the doctrine of es- 
 toppel, which is Hti-oiigly enforced in 
 Hawes V. Watson, L' It. A: C. r>40; but we 
 do not iiiean. in so saying, to cast any 
 doulit upon the authority ol that case. 
 I'nder these circumstai.ces, the rule for a 
 nonsuit must Ite dii-charjiod. 
 
 Uule discharged.
 
 SAVIM 0. WILSON. 
 
 799 
 
 SWIM V. WILSON. (No. 12,0.34.) 
 
 (27 Pac. Rep. 33, 90 Cal. I2H.) 
 
 Supreme Court of California. July 1, 1891. 
 
 In bank. Appeal from Riipcrlor court, 
 city and county of San Francisco; Joh.v 
 Hi; .NT, Judge. 
 
 Wilson & Wilson, tor appellant. TilOeii 
 & TUdea, for respondent. 
 
 De Haven, J. The plaintiff was tin 
 owner of 100 shares of stock of a niininr 
 corixjration. issued to f)ne II. 15. Parsoiih 
 trustee, and pi-ujierly imlorsed liy liin 
 Tliis stock was stolen from plaintiff hy aii 
 employe in his oltice. and (lclivere<l (or s;ili 
 to the defendant, who was cnKa;;ed in tlu 
 liusiness of buyiiiK and selling stocks oi 
 commission. At the time of placing tli 
 stock in defendant's possession, tlie thie 
 represented himself as its owner, and the 
 <leleiidant relyiiK ujion this represent.-i 
 tion, in tcood faith, and without any no 
 tice that the stock was stolen, sold tli 
 same in the usual course t)f husiness, am' 
 Knl)se(iiiently, still without any notice th,i 
 the ])ersf)n forwhom he had acted in nial; 
 iuf:: the sale was not the true owner, paii 
 over to luni the net proceeds of such sale 
 Thereafter the plaintiff hrou(?lit this ac 
 tion to recover the value of said stock, al 
 Iefj;inK that the defendant had convertei 
 the same to his own use, and, the facts as 
 atiove stated appeariim. the co\irt in 
 which the action was tried save judt;ment 
 against defendant for such value, and 
 from this judsment. and an order refusing 
 him a new trial, the defendant appeals. 
 It is clear that the defendant's i)riiicipal 
 did not by stealinc plaintiff's property ac- 
 ipiire any legal rlnlit to sell it, and it is 
 eciually clear that the defendant, jictinR 
 for him and as his rijient, did not have 
 any Rreator riiy;lit, and his act was there 
 fore wholly unauthorized, and in law wji> 
 a conversion of plaintiff's property. "Ii 
 is no defense to an action of trover tliat 
 the defendant acted as the nf^ent of an 
 other. If the jirincipal is a wrouK-doer. 
 the ay.ent is a wrong-doer also. A person 
 is guilty of a conversion who sells the 
 propei'ty of another without authority 
 from the owner, notwitlistamling he act> 
 under the authority <jf one claiming to hi 
 the owner, and is ignor.Mut of such per- 
 son's waiit of title." Kimliall v. Billing- 
 .">r, Me. U7; Coles v. Clark. :$ Cash. :;'.i'.i 
 Koch V. I'.raindi. 44 Mo. .''ill'. In .Stephen- 
 v. IClwall. 4 M;iule i: S. L'.MI. this principli 
 Was aiiulied where an innocent clerk re 
 ceived goods from an agent of his em 
 ployer, and forwarded them to such em- 
 ployer abroad ; and, in renilering his de 
 eision on the case presented. Lord Ki.i.i.N- 
 Monoroil uses this language: "The only 
 (piestion is whether tiiis is a conversion in 
 the clerk, which nndoubtedl.v was so in 
 the master. The clerk acted under an un- 
 avoid;ible ignorance and fcjr his master's 
 beiu'lit, when he sent the goods to his 
 master; but, nevertheless. Ins acts may 
 amount to a conversion: for a persiui is 
 guilty of conversion who intermeddles 
 with my property, and disposes of it. ami 
 it is no answer that lie acted under the 
 authority of another, who had himselt 
 
 no authority to dispose of It." To hold 
 the defendant liable, under the circum- 
 stances disclosed here, may seem upon 
 first impression to be n hardship ujion 
 him. IJut it is a matter of i-very-<lny ex- 
 perience that one cannot always be per- 
 fectly secure from loss in his dealings with 
 others, and the defendant hero is only in 
 the iiositlon of a person who has trusteil 
 to the honesty of anothr>r, and has been 
 deceived. He undertook to act as agent 
 for one who it now appears was a thief, 
 and, relying on his represeiitatli;nH, aid- 
 ed IiIh principal to convert the plain- 
 tiff's property into niomw, and it is no 
 greater hardsliip to reipiire him to pay 
 to the plaintiff its value than It wouhl 
 be to take the same away from the In- 
 nocent venilee who iiurcdiased and jjaid 
 for it. Ancl yet it is universally held that 
 the purchaser of stolen chattel's, no mat- 
 ter how innocent or free from negligence 
 in the matter, aequireH no title to such 
 property as against the owner, and thirt 
 rule has been applied in this court to the 
 case of an innoeent iiUTchaser of shares of 
 stock. Harstow v. .Mining Co.,<)4 Cal. :}S>«, 
 1 I'ac. Itep. [H'.); Sherwood v. Mining Co., 
 .'iOCal. 4i:(. 
 
 The precise question Involved here arose 
 in the case of liercieh v. Marye. !l Nev. :i\'2. 
 In that case, as here, the defendant was a 
 stockholder who had made a salt- of stolen 
 certilicates of stock fvr a stranger, and 
 paid him the procee<ls. He was held lia- 
 ble, the court in the course of its opinion 
 saying: "It is next objected thiit. as the 
 defendant was the Innocent agent of the 
 person for whom he received the shares 
 of stock, without knowltMlge of the felony, 
 no judgment should have been rendered 
 against him. It is well settled that 
 agenc.v is no defense to an action of tro- 
 ver, to which the present acti'm is anal- 
 ogous." Tlie sameconelusion was reaclu'd 
 in Kimball v. Hillings, ."m .Me. 147, the 
 property sol<l in that case by the agent 
 being stolen goveriunent l)onds, payable 
 to bearer. The court there said : " Nor is 
 it an.v defense that the property sold was 
 government bonds payable to beaivr. 
 The l)oii;i tide purchaser of a stolen bond 
 payable to bearer might perhaps defend 
 his title against even the true owner. Hut 
 there is no rule of law th.'il secures initnu- 
 nity to the agent of the thief in such cases, 
 nor to the agent of one not u bona tiijf 
 holder. • • • 'rii,. rule of law pro- 
 tecting hoitii tiilo purchasers of lost or 
 stolen notes and bonils payable to liearer 
 has never been extended to persons not 
 linim lidf purchasers, nor to their agents. " 
 Indeed, we discover no difference in prin- 
 ciple between the case at bar anil that of 
 Rogers V. Iluie, 1 Cal. ."I. in which case. 
 IJk.wktt. .1., speaking for the court, said : 
 ".\n auctioneer who receives and selKs 
 stolen property is liable lor the conver- 
 sion to the same extent as any other mer 
 chant or individual. This is so both tipon 
 principle and authority. I'pon principle, 
 there is no reason why he should be ex- 
 empted from liability. The person to 
 whom he sells, anil who has paid the 
 amount of the purchase money, would 
 be compi-lled to deliver the property to 
 the true owner or |>ay him Its full value; 
 aud there Is no luure hardship lu requiring
 
 800 
 
 SWIM V. WILSON. 
 
 tlic auctioneer to account for the value of 
 the floods than there would be in compel 
 liiifl the right owner to lose them, or the 
 lunrhasor from the auctioneer to i)ay for 
 them." It is true that thin same case 
 afterwards came before the court, and it 
 was held, in an opinion reported in 2 Cal. 
 ."iTl, that an auctioneer, who in the regu- 
 lar course of his Ijusiness receives and sells 
 stolen goods, and pays over the proceeds 
 to the felon, without notice that the 
 goods were stolen, is n<it lialtie to the true 
 owner as for a conversion. This latter 
 decision, however, cannot lip sustained on 
 principle, is op])osed to the great weight 
 of a\itliority, and has been practically 
 overruled in the later case of Orkel v. 
 Wateiman, (!:! Cal. 34. In that case the 
 defendants, who were commission mer- 
 chant's, sold a (luantity of wheat, suppos- 
 ing it to bo the jiroperty of one Williams, 
 and paid over to liim the proceeds of the 
 
 sale before they knew of the claim of the 
 plaintiff in that action. There was no 
 fraud or bad faith, but the court held the 
 defendants there liable for the conversion 
 of the wheat. It was the duty of the de- 
 fendant in this case to know for whom he 
 acted, and, unless he was willing to take 
 the chancfcs of loss, he ought to have sat- 
 isfied hiniself that his principal was able 
 to save him harmless if in the matter of 
 his agency he incurred a personal liability 
 hy the conversion of property not belong- 
 ing to such principal. Judgment and or- 
 der affirmed. 
 
 Gahoutte, McFari.and, and Suahp- 
 STEiN, JJ., concurred. 
 
 Beatty, C. J., and Pathrso.n', J., dis- 
 sented. 
 
 Rehearing denied.
 
 TALCOTT V. IIENDKUSOX. 
 
 803 
 
 TALCOTT V. HENDERSON. 
 
 (31 Ohio St. 103.) 
 
 Supremo Court of Ohio. Dec. Term, 1877. 
 
 Motion for leave to file a petition in er- 
 ror to the (iistrict court of Cuyaliojra 
 ccMiiity. 'llie original action wjih lire iiik lit 
 ill tlic court of common pieaH of ('uyuliof^a 
 loiinty liy .lames Talcott aKainHt John M. 
 Henderson, nissiKnee of !)<! Forrest & Son, 
 to recover the possession of certain Kootls. 
 Tlie issue in tlie case was in relation t(j 
 tilt! ovvnership of the Koods, whicli the 
 court foiiiul to 1)0 in the defendant. On 
 (letltion in error the district court uf- 
 tirined the judgment of tlieconiinon pleas. 
 The real (iuesti<in in the case is whether 
 there was fraud in the jinrchase (jf the 
 jfoods in controversy from the plaintiff 
 l)y the defendant's assifjiiors, l)e Forrest 
 & Son. The fiillovvin}; facts were proved: 
 Ahout the middle of June, lN7:i, an a^reiit 
 of the pluintiff ( who was a merchant in 
 tlie city of New York) solicited an order 
 for (ioods suitable for the fall trade from 
 I)e Forrest & Son, in Cleveland. An order 
 was Kiven for the floods in dispute to he 
 shipped on or liefore th(? 1st of Septem- 
 lier following;, to be paid for at four 
 months from that date. Do Forrest & 
 Son had kiiowlediie at the time of their 
 insolvency, but the plaintiff was i^fnorant 
 of it. No information was smi<;ht or 
 Riven as to the responsibility of the pnr- 
 cluiscrs. On the L':id of .July, shortly after 
 the goods had been received, I)e Forrest & 
 Son a!-siy;ned to the ilcfcndant, for the 
 benelit of their creditors, all their prop- 
 erty, and the goods in (|uestion, with 
 other goods, were delivered to the as- 
 signee. The stock of goods in the store 
 delivered to the assignee was appraised 
 at fNS.OOO. l)e Forrest showed that the 
 condition of l>e Forrest & Son had not 
 materially changed for 18 months jirevi- 
 ous to the assignment. Their principal 
 creditors were 11. 15. ( laflin & Co., of New 
 Vork, who had extended to them during 
 that period a line of credit to the amount 
 of l|!-'(M),(K)(t, under an arrMngement that it 
 would be continued as long as ('lalliii & 
 Co. could use the paper of l)e Forrest & 
 Son. Mr. De Forrest furthertestitied that, 
 at the time of purchasing the goods in 
 controversy, "my jiurpose was t<i comply 
 with the terms of the purchase we maih' 
 to )icy for them." "I liad no reasun at 
 that time to think that we would not be 
 able to do so. I knew, and had known 
 for the last year, if Clatlin & Co. did not I 
 continue the arrangement, we could not 
 continue to buy; fell we wei'e carried by, 
 a strong party, and I was in hones to see i 
 the trade improve. I should think we 
 were selling at the rate of half a million 
 a year,— $J."),Ol)0 per mouth." Without 
 previous notice, Clatlin & Co., on the L'lst 
 of .Inly, l<S7;i, refused to extend the ar 
 rniigenient with De Forrest & Son any 
 longer; and, on the '2'Ml of the mt>ntli, 
 the general assignnient waa executed as 
 above stated. 
 
 Hutchins & rnniplie'l. for the motion. 
 Henderson & Klein, contra. 
 
 .McILVAINE, J. Tlie contention of the 
 plaintiff in error is, that the failure of De 
 Forrest & .Son, at the time of making the 
 purchase, to disclose the fact that their 
 liabilities were largely in excess of the 
 value of their assets, wa-«, in law, such a 
 fraud upon the plaintiff as warranted 
 iiini in a voidiiigthe contract, and reclaim- 
 ing the goo(Js. 
 
 An intention on the part of tlie pur- 
 chaser of goods not tf) iiay for thens. ex- 
 isting at the time of [lurchase, and con- 
 cealed from the vendor, is, nni|Uestion- 
 ubly, such a fraud as will vitiate the con- 
 tract. I'.ut it Is as certainly true, on the 
 other hand, that, where iii; such fraudu- 
 lent intent exists, tin- mere fact that tlitt 
 purchaser has knowledge that his debts 
 exceed his assi'ts. though the fact lie un- 
 known and undisclosed to the vendor, 
 will not vitiate the purchase. 
 
 Whether, therefore, a contract of r<ur- 
 chase, where the purchaser fails to dis- 
 close his known insulveiicy. is fraudulent 
 or not. depends on the intiMition of the 
 purdiascr; and \\lietlicr that intention 
 was to pay or not to [lay. is a ijuestion 
 of fact, aii'l not a (|uestlon of law. 
 
 In thesolution of tiiisi|uestion, though it 
 be one of fact, it is true, iiowever, that cer- 
 tain presumptions arise which are entitled 
 toconsideration and force. 'I'hus. while it 
 may be said that fraud must be [iroved, 
 and will not be presumed, there is a pre- 
 sumption that every reasonable person 
 anticipates and intends the ordinary and 
 probable coiiseiiueiices ol known causes 
 and conilltions. llnice. if a purchaser of 
 goods has knowledge of his own insol- 
 vency, ami of his iiiMliility to pay fur them, 
 his intention not to pay sliould be pre. 
 sunied. I would goastepfarther.and hold 
 that an insolvent purchaser, without rea- 
 sonable exiM'ctations of ability to pa.v. 
 should be presumed to intend not to pay. 
 Indeed, I would not deny that an intention 
 not to pay might be inferred from the 
 mere fact that the |)urchaser had uuUis- 
 dosed knowlcilge ol his gross insolvency; 
 but, in such case, the infereni'e may be re- 
 butted by otiicr facts and circumstances. 
 
 it is claimed that, in good morals, a 
 liurchaser, knowing himself to be insol- 
 vent, should not accept cre(lit from one 
 ignorant of the lact. WlietluT this prop- 
 osition be true or not, it is enough to sny 
 that the law, in its practical morality, 
 does not afford a remedy for the viula- 
 tion of every moral duty. While, there- 
 fore, a purchase of goods by an insolvent 
 vendee, who conceals his insolvency, 
 with intent to injure the vendor, is fraud- 
 ulent and voidable, yet n purchase un- 
 der like circumstances, save only that such 
 intent is nnsent. is not, in law, fraudu- 
 lent. 
 
 If the rule of law be not as stated, and 
 the intent to injure be not of the essence 
 (if the fraud in such case, then it would be 
 wlirilly immaterial whether the insolvency 
 of the purchaser was known to hiiunelf; 
 and the rule would lie that all sales to nn 
 insolvent puri-liMser, where the insolvency 
 is unknown to the vendor, are framlulent 
 and volilable. For such a rule, no one 
 would coutenil. .Ml would admit that 
 knowledge by the purchaser of his own
 
 804 
 
 TALCOTT V. HENDERSON. 
 
 insolvency is necessary to establish the 
 fraud. But such knowledge, of itself, is 
 entirely innocent. It is only where con- 
 nected with the eoncealnient of the frtct, 
 that fraud is shown. The simple failure 
 to disclose a fact, nowever, is not equiva- 
 lent to Its concealment. The latter im- 
 plies a purpose— a design ; the former does 
 not. It, tlien, such kuowledKe on the part 
 of the purchaser be necessary to make out 
 a fraud, it is because it becomes the predi- 
 cate of an intent— an intent to injure. 
 
 True, the decisions of different courts 
 upon this question are not uniform. The 
 discrepancies, however, are not so much 
 on the point whether a fraudulent intent 
 on the part of the purchaser is necessary 
 to avoid the purchase, as to the question 
 of conclusiveness, under the circumstances 
 ofeacli case, of the inference of fraudulent 
 intent, from the facts that the purchaser 
 had knowledge of his insolvency, and 
 failed to disclose it to the vendor. There 
 is no well-considered case, so far as I have 
 examined the authorities, which holds 
 that fraud is conclusively presumed from 
 these facts alone. Where, in addition, it 
 is shown that the appearance and circum- 
 stances of the purcha.ser indicate solvency 
 and wealth, thers are cases which hold 
 the inference of fraudulent intent to be 
 conclusive. Of course, we admit that if 
 the appearance of solvency be assumed 
 for the purpose of deceiving, as in Ford 
 V. At water, 1 Root, 58, the e.\istence of 
 fraud is actually shown; but, we think 
 that where such appearance is entirely 
 innocent, the question of the existence of 
 fraud is still open to further inquiry. 
 
 From these views, how stands the case 
 liefore us? At the date of the contract, 
 I)e Forrest & Son were largely insolvent. 
 They had knowledge of the fact, and did 
 not disclose it to the plaintiff, wlio was 
 ignorant of it. They were also in pos- 
 session of a large stock of merchandise, 
 and were doing an extensive business. 
 From these facts, it might well be inferred 
 
 that they intended to obtain the plain- 
 tiff's goods without paying for them; at 
 least, that thej' had no reasonable expec- 
 tation of being able to pay for them at the 
 maturity of their promise. If thecourt be- 
 low had so found, we would not disturb 
 the finding; and, for aught that a|)pear8, 
 thecourt would have so found, if no other 
 fact had appe.-ired in the case. 
 
 But there was other testimony, tending 
 to prove that De Forrest & Son did, in 
 fact, intend to pay for the goods, accord- 
 ing to the terms of their agreement, and 
 that, under all the circumstances, they 
 might reasonably have expected to be 
 able to do so. It is quite sure that they 
 could not reasonably have expected to be 
 able, at that time, to i)ay all their indebt- 
 edness; but, in our opinion it was not 
 essential to the good faith of the transac- 
 tion, that there should have been reason- 
 able grounds for the latter expectation ; 
 it was enough, if they reasonably expect- 
 ed to be able to pay for tlie goods in ques- 
 tion at maturity. 
 
 It is quite clear, from the evidence, that 
 the appearances of wealth which sur- 
 rounded the purchasers were entirely in- 
 nocent. It may be that the plaintiff was 
 misled by these appearances; hut, upon 
 this ground, he can not complain of fraud. 
 Where an insolvent merchant is engaged 
 in an honest effort to retrieve his fortunes, 
 the appearance of wealth indicated by his 
 stock in trade is not equivalent to a repre- 
 sentation of solvency ; and one who gives 
 him credit, v;;thout inquiry, has no right 
 to complain of fraud. 
 
 It was the duty of the court of common 
 pleas, discharging the functions of a jury, 
 to weigh all the testimony; and having 
 done so, and found that there was no in- 
 tent to defraud in the transaction, we, as 
 a reviewing court, can not say that the 
 district court erred in not finding that 
 the judgment of the common pleas was 
 manifestly against the evidence. 
 
 Motion overruled.
 
 • TALVER p. WEST. 
 
 807 
 
 TALVER et al. v. WEST. 
 
 (Holt, 17S.) 
 
 Nisi Prins, Common Pleas. Hilary Term, 1816. 
 
 This was an action to recover the price 
 of Hoinc trefoil sold by plaintiffs to defend- 
 ant; the invoice delivered to the di'fend- 
 ant was as lollows: " Bought of Talver 
 and PrcHtwieh the halt quantity of four 
 hundred sacks of trefoil, to be made up to 
 twenty-seven tons, at £10 per ton." On 
 the other side credit was given for Kome 
 hops sold by the defendant to the plain- 
 tiffs, and a balance stated to be due to 
 them of £208. The hops were taken in 
 part payment of the trefoil, which re- 
 mained in the plaintiffs' warehouse; no 
 sample or delivery was made of any part 
 and no money was paid; but the invoice 
 had been delivered to the defendant, who 
 read it at the time of the sale. Some 
 months after, the defendant came to the 
 warehouse and asked for his seed ; It was 
 at that time set apart for him in thestore, 
 but it had no particular mark to denote 
 to whom it belonged. Defendant took 
 samples of it, and inquired if it had not 
 
 bsen thrown down and mixed; he finally 
 refused it. 
 
 Best, Serjeant, and Comyn, for plain- 
 tiffs. Vaa^han and Copey, tierjeanta, (or 
 defendant. 
 
 GIBBS, C. J. If the trefoil were Bold to 
 be paid for in part by the delivery of the 
 hops, the plaintiffs should have declared 
 specially, and not for floods sold and de- 
 livered ; but I consider this rase not with- 
 in the statute. The delivery of a sample, 
 which Is no part of the commodity, will 
 not take the case out of the statute; but 
 if the sample <leli\ered Is to be considered 
 as part of ti.e thing sold, it then binds the 
 contract. It is then an execution of the 
 bargain. The sale in this case was com- 
 plete when the invoice was delivered, and 
 the defendant afterwards took samples. 
 He took them for his own use; they were 
 delivered to him as part of the bulk ; not 
 as an ordinary sample to guide his judg- 
 ment previous to a purchase, but in order 
 to give him possession of the thing itself. 
 The statute therefore does not apply. 
 
 Verdict for plaintiff.
 
 TARLIXG V. BAXTEU. 
 
 809 
 
 TARLING V. BAXTKR. 
 
 (6 Barn. & C. 360.; 
 
 Court of King's Bench. Hilary Term, 1827. 
 
 AHsuinpsit to recover back £145 paid 
 by the plaintiff to the defendant'H use. 
 The declaration containei] couiitH for 
 money had and received, and the other 
 common counts. Flea, general iKsuc, 
 with a notice of Het-off tor kooiIs Hold 
 ami delivered and bargained and Hold. .At 
 the trial before Abbott C. J., at the Lon- 
 don HittinKH after Hilary term, Isi'ij, a ver- 
 dict was found for the plaintiff for £U.j, 
 Hul)ject to the opinion of this court on tlie 
 following case. 
 
 On the 4th of January 1.S2.'), the plaintiff 
 bouisht of the defendant astaclc of hay be- 
 loajrinK to the <lef(ndunt, and then stand- 
 iufj ill u liild b("l()n>;in« to the defendant's 
 brotlicr. The note Hi^ned by the defend- 
 ant, and delivered to the plaintiff, was in 
 tlitse words: "I have this day agreed to 
 sell James Tarlin^ a stacii of hay, stand- 
 ins in Canonbury Field, Islinjxton, at the 
 sum of one hundred and forty-live pounds, 
 the same to be |)aid on the 4th day of Feb- 
 ruary ne.\t, and to be allowed to stand 
 on the jircmises until the first day of 
 May next." And the following; note'was 
 signed by the plaintiff, and delivered to 
 the defendant. "I have this day agreed 
 to buy of Mr. John Uaxter.a stacli of hay, 
 standing in Canonbury Field, Islinjiton. 
 at the sum of £145, the same to be jjaid 
 ou the 4th day of February next, and to 
 be allowed to stand on the premises until 
 the lirst day of Maj' next, the same hny 
 not to be cut until paid for. .lanunry 4th, 
 1><25. " At the meeting at which the notes 
 were signed, but after the signature there- 
 of, the defendant said to the plaintiff, 
 " You will particularly oblige me by giv- 
 ing me a bill for the anuiunt of the hay." 
 The plaintiff rather objected. Tlie defend- 
 ant's brother, S. liaxter, on the Nth of the 
 same month of January, took a bill of 
 exchange for £145 to the plaintiff, drawn 
 upon him l>y the defendant, dated the 4th 
 of January ISL'5, payable one inonth after 
 date, which tlie plaintiff accepted. The 
 defendant afterwards indorsed it to 
 Geoige Haxter, and the plaintiff paid it 
 to one Taylor, the holder, when it liecame 
 due. The stack of hay remained on the 
 same field entire until the 20th of .lanuary 
 1S25, when It was accidentally wholly con- 
 sumed by fire, without any fault or neg- 
 lect of either party. 
 
 A few days after the tire, the plaintiff 
 applied to the defendant to know what he 
 meant to do when the bill becamedue; the 
 defendant said, "I have paid it away, and 
 you must take it up to be sure: I have 
 nothing to do with it, why did you not 
 remove the hay." The plaintiff said, "he 
 could not, because there was a memoran- 
 duin 'that it should not be removed until 
 the bill was paid;' would you have suf- 
 fered it to be removed?" and the defend- 
 ant said, "certainly not." The defend- 
 ant's set-off was for the price of the ha.v 
 agreed to be sold as aforesaid. The ques- 
 tion for the oiiinion of the court was, 
 whether the plaintiff under the circum- 
 
 stances was entitled to recover the sum of 
 £145 or any part thereof. 
 
 Chitty, for plaintiff. 
 
 BAYLEYJ.— It Is quite clear that the 
 loss must fall upon him in whom the 
 property was vested at the time when it 
 was destroyed by tire. And tlie (juestion 
 is. in whom the property in this hay was 
 I vested at that time? By the note of the 
 contract delivered to the plaintiff, the de- 
 fendant agreed to sell tlie plaintiff a stack 
 of hay standing in Canonbury Field at the 
 sum of £145, the same to be paid for on 
 the 4th day of I'ebiuary next, and to be 
 allowed to stand on thepreniises until the 
 first day of .May next. Now this was a 
 contract for an immediate, not a (iro- 
 H[iectivesale. Then thequestlon is, in whom 
 did the proiierty vest by virtue of this 
 contiact? The right of property and the 
 riglit of possession are distinct "from each 
 other; the right of posKession may lie in 
 one person, the light of propeity in an- 
 other. A vendor may have a qualified 
 riglit to retain the goods unless payment 
 is duly made, and yet the property in 
 these goods may be in the vendee. The 
 fact in this ease, that the hay was not to 
 be paid for until a future period, and that 
 it was not to be cut until it was paid for, 
 makes no difference, provideil it was the 
 intention of the parties that the vendee 
 should, by the contract, immediately ac- 
 quire a right of property in the goods, and 
 the venilor a right of property in the 
 price. The rule <jf law is, that ivhere there 
 is an immediate sjile. ami nothing remains 
 to be done by the vendor as between him 
 and the vendee, the property in tlie thing 
 sold vests in the vendee, and then all the 
 conse()uences resulting from the vesting of 
 the propeity follow, one of which is. tliat 
 if it be destroyed, the loss falls upon the 
 vendee. The note of the buyer imports 
 also an immediate, perfect, absoluteagree- 
 meat of Rale. It seems tome that the true 
 construction of the contract is, that the 
 parties intended an immediate sale, and 
 if tliat be so, the property vested in the 
 venJee. and the loss must fall upon him. 
 The rule for entering a nonsuit, must 
 therefore be made absolute. 
 
 HOLHOYD J.— I think that in this case 
 there was an immediate sale of the linv, 
 accompanied with a stipulation on the 
 part of the vendee, that he would not cut 
 it till a given period. Now in tlie case of 
 a sale of gooils, if nothing remains to bo 
 ilono on the part of the seller, as between 
 him and the buyer, before the thing pur- 
 chased is to tin delivered, the jiroperty In 
 the goods iiniiitdiately passes to the 
 liuyer, and that in the price to the seller; 
 but if any act remains to be done on the 
 part of the seller, then the property does 
 not pass until that act has been done. 
 I am of opinion, tlierefore. in this case, 
 not only that the propert.v immediately 
 passed to the buyer by the contract, but 
 that the seller thereby immediately ac- 
 (] Hired a riiilii in the price stipulateiito be 
 paid for the goods, although that was 
 nut to be paid until n future day. The
 
 810 
 
 TAULIXG V. BAXTER. 
 
 property having passed tf) t 
 and liavinK been accidentally 
 before tlie day of payment, tlie 
 
 to tlie vendee, 
 lly destroj'ed 
 lie losa must 
 
 lief(.. 
 
 fall upon lilui 
 
 LITTLEDALE J.— The parties on the 
 4tli of January stipulated for the sale and 
 purchase of a stack of hay, to tie paid for 
 in a month.— Thus the case would have 
 Btood but for the note of the contract de- 
 livered to the buyer, and iu that there was 
 
 a stipulation, that the purchaser would 
 not cut until the money was paid, but 
 the property in the hay had already 
 passed by the contract of sale to the pur- 
 chaser, and the latter afterwards merely 
 waived his risht to the immediate posses- 
 sion. Then the property having passed 
 to the buyer, the loss must fall upon him, 
 and consequently, this rule for entering 
 a nonsuit must be made absolute. 
 Rule absolute.
 
 TERKY 0. WHEELER. 
 
 818 
 
 TERRY V. WHEKLER. 
 
 (35 N. Y. 520.) 
 
 Court of Appeals of New York. June Term, 
 
 Action to recover tlie price of n quantity 
 of luniher purchuKod by plaintiff's uswixnor. 
 On the trial it appeared, that on the l'4th 
 of AnRust, 1H,")4, the defendant sold to tine 
 KImore, a quantity of lumber, at the price, 
 and upon the terms set forth in the follow- 
 ing bill of sale: 
 
 "Troy,N. Y., August 24,1.S54. Mr. Lewis 
 Elmore, Bought of E. B. Wheeler. (Terras 
 — Three months from date of sale.) 
 
 4,lG0feetclear pine, $34 $141 44 
 
 4,779 " 4 " 24 114 l.'.l 
 
 7.319 " box " 20 146 3S 
 
 J^ Inspection 2 03 
 
 GOO pieces boards, 17c 103 00 
 
 $506 54 
 
 Cr. 
 
 By deduction for cash $ 5 00 
 
 Aug. 25. By cash 2.">0 00 
 
 Your note due Nov. 3S. .. 2.jl 54 
 
 $.506 54 
 
 "Rpc'd payment as above. E. B. Wheeler, 
 Per Wni. A. Craig. To be delivered to the 
 cars free of charge. E. I!. Wheeler, Craig. " 
 
 The memorandum "To be delivered," 
 etc.. was made after the completion of the 
 sale. 
 
 Before its delivery as agned upon, and 
 within a short time after and on the day 
 of sale, the lumber was, witl:out fault on 
 defendant's part, accidentally consumed 
 by tire. 
 
 The trial court held that there was no 
 i-ontlict in the evidence as to the delivery ; 
 though re()uested to pass upon the credi 
 bility of the witnesses declined so to do. 
 
 Uefendnnt'.s counsel e.tceptcd to the find- 
 ing of fact, conclusions of law. and to the 
 refusal of the court to pass upon the creil- 
 ibility of the witnesses. 
 
 Plaintiff had judgment, the general term 
 affirmed thesnme, and defendant appealed. 
 
 William A. Beach, for appellant. Wil- 
 liam L. Learned, for respondent. 
 
 SELDEN, J. There may be some doubt 
 whether the parol evidence in regard to 
 the agreement to deliver the lumber was 
 admissible, but if it were necessary to de- 
 cide that question, I should regard it as 
 admissible, on the ground that what is 
 called the bill of sale was, in substance, a 
 mere receipt for the purchase-money, and 
 did nt)t purport to be a contract. (Dunn 
 V.Hewitt, 2 Den.ri37; Blood v. Harring- 
 ton. 8 Pick. .")."):.': FilUins v. Whyland, LM 
 N. Y. 33S.) If the lumber had not been 
 paid for, and the instrument, omitting the 
 recpii)t. had been signed by the defendant 
 and delivered, as a note or memorandum 
 of the sale, it would then have been the 
 evidence of a contiact, executory on one 
 l)art at least, and not open to explana- 
 tion by parol. I!nt looking at the whole 
 instrument, I tliink it is to be regarded as 
 n receipt, and not a contract, within tiie 
 cases above cited. Of course, in this 
 view, the memorandum at the foot of the 
 hill is not regarded as a part of It; if it 
 were, its character would be changed from 
 
 a receipt to an executory contract, con- 
 clusive ufon the parties, except 8o far an 
 it was still a receipt. (Kgleston v. Knlck- 
 erbacker, C Barb. 458.) 
 
 The point which Is made upon the con- 
 tradictory character of the evidence in re- 
 latiiin to th" contract to deliver the lum- 
 iKT <m the cars, and its sufficiency to e«- 
 tablish such contract, presents only h 
 question of fact which this court cannot 
 review. Where f lie finding of a court or 
 referee upon a question ot fact is anibigu- 
 oiiH, the evidence may be refcrrccl to (or 
 the purpose of removing the ambiguity, 
 but not to revf-rse or modify a di.stinct 
 finding, or to rstablish an inde|<endent fact 
 not found. ( Hovt v. 'I'hompson's Ex'r.. 
 T.< .\. Y. 210; Carman v. Pultz, 111 id. .'S.'O; 
 Grant v. Morse, 22 id. .■!24 ; .Sanford v. 
 Railroad Co., 2:5 id. ;J44.) We can no more 
 review the decision of the court, that the 
 testimony was not conllicting, than we 
 can the conclusion that it was sufficient ; 
 an<l we can do neither without making a 
 precedent which would oiien to review 
 here the details of the evidence in all cases. 
 
 But in the view wliich I take of tiie re- 
 maining question, it becomes Immaterial 
 whctiuT there was a contract to ileliver 
 at the cars or not. The lumlier had not 
 been actually delivered, Ijiit remained in 
 the possession of the vendor. In the ab- 
 sence of any express contract to deliver, 
 there was an implied one to deliver at 
 the yard of the vendor, when calle(l for. 
 In either case the lumber did not remain 
 nt the risk of the vendor, if the title did 
 not remain in him. The risk attenils up- 
 on the title, not upon the possession 
 where there is no special agreement upon 
 the subject. (Tarling v. Baxter, (i liarn. 
 4: Cress. SCn ; Willis v. Willis, ti Dana. 41t; 
 Ilinde v. Whitehonse. 7 Kast, .j.')S ; .loyce 
 V. .\dams,8 N. Y. 21tii; 2 Kent Com. -J!t2, 
 41)0: Noy's .Maxims, 8S.) I entertain no 
 doubt that uptm the facts found In thie. 
 ease, the title was in the vendee. The 
 lumber was selected by both parties and 
 designated as the lumber sidd to KImore, 
 except the six hundred pieces which were 
 selected by the parties, and the jjrecise 
 pieces sold designated with as much pre- 
 cision as if the purchaser had marked ev- 
 ery piece witli his name; that which was 
 sold by meas\irement was inspected and 
 measured, and the (juantity ascertained ; 
 the price for the whole was agreed upon 
 and paid and a bill of parcels receiiited 
 and delivered to the purchaser. These 
 facts, 1 think, vested the title in the pur- 
 chaser, notwithstanding the agreement 
 of the seller to deliver th<« lumber free of 
 charge, at the cars. "The sale of a spe- 
 cific chattel passes the property th'-rein to 
 the venilee without delivery." (Chitty 
 Contr. [sth .\m. ed.] .TJ2.) "It is a gener- 
 al rule of the common law that a mere 
 contract for the sale of goods, where 
 nothing remains to be done by the seller 
 before making delivery , transfers the right 
 of property, although the price has not 
 lieen jiaid, nor the tiling sold delivered to 
 the purchaser." (Olypliant v. linker. 5 
 l)cn.:^^2.) The authorities are numerous, 
 where the expression is used that if any 
 thing remains to be done by the seller, the 
 title does not pass: but the caeeu which
 
 814 
 
 TEKRY V. WHEELER. 
 
 are refprred to to eiistoin that position, 
 only K" tl't" length of showinj; that whore 
 something is to he clone by the seller to 
 ascertain the identity, quantity or qual- 
 ity of the artlele sold, or to put it in tlie 
 condition wliicli the terms ;jf the contract 
 require, the title does not pass. (2 Kent 
 Com. 4!)(i; Hanson v. Meyer, li East, (ji-l; 
 Simmons v. Swift, 5 Barn. & Cress. S57; 
 .Joyce V. .'Vdanis, 8 N. Y. 2!)1 ; Field v. 
 Moore, Lalor's Siip.41S.) The list of cases 
 to thi.s effect might be indefinitely in- 
 creased; but no case has been referred to 
 by counsel, nor have I discovered any, in 
 which, where the article sold was perfect- 
 ly identified and paid for, it was held that 
 u stipulation of the seller to deliver at a 
 particular place prevented the title from 
 passing. If the payment was to be made 
 on or after delivery, at a particular place, 
 it might fairly be inferred that the con- 
 tract was e.xeciitory, until such delivery; 
 l(ut where the sale appears to be abso- 
 lute, the identity of tlie thing fixed, and 
 the price for it jmid, I see no room for an 
 inference that the property remains the 
 seller's merely because lie has engaged to 
 transport it to a given point. 1 tliini: in 
 such cases the property passea at the time 
 
 of the contract, and that, in carrying it, 
 the seller acts as bailee, and not as own- 
 er. The questions which arise in such 
 cases, as to sales, are questions of inten- 
 tion, such as arise In all other cases of the 
 interpretation of contracts; and when the 
 facts are ascertained, either by the writ- 
 ten agreement of the parties or by thefind- 
 ing.s of a court, as they are here, they are 
 questions of law. That the parties to the 
 contract in this case intended to pass tlie 
 title to the lumln-r immediately, appears 
 very clear; nor do I suppose tnat any one 
 would question it, were it not for the ap- 
 parent hardship of the case to the pui- 
 chaser. If the property, instead of being 
 lumber, had been sheep or cows, capable 
 of increase ( wliicli follows thoownership), 
 and there had been a sudden, and large 
 increase to the flock or drove, before they 
 could be delivered at the point agreed up- 
 on, I think no one would have said that 
 tlie defendant could have discharged his 
 obligation to deliver, aud yet retained the 
 increase. Such, however, must be the 
 conclusion, if the plaintiff's position is 
 maintained. The judgment should be re- 
 versed, and a new trial granted. 
 All concur.
 
 THOMreOX D. GAIUJINEU. 
 
 817 
 
 THOMPSON V. GARDINER. 
 
 (1 C. P. Div. rr7.) 
 
 Common Pleas Division. June 28, 1876. 
 
 Action for not acrupting butter pursu- 
 ant to coiitrjict. 
 
 Tile cause vva.s tried beforn Urett, J., at 
 the luHt spriiifr flHsize at Liverpool. The 
 contract was made by one I'rice actinR as 
 broker for the seller, and he delivered 
 notcH to both buyer and seller. Hi>;nin}' the 
 note which he sent to the seller, but not 
 that which he sent to the buyer. He, how- 
 ever, entered the contract in his book, in 
 wliiuh he signed both the bought and the 
 si)l(l-note. Thedefendaiit kept thebought- 
 note without complaint or remonstrance 
 for two or three weeks; and, when culle<l 
 ui)on to accept the butter, ho repudiated 
 the contract, not on the ground that he 
 had not entered into it, but on the ground 
 that it was unsigned, writing to the bro- 
 ker "You did not sign it." 
 
 It was objected, on the part of the de- 
 fendant, that there was no sullicient 
 nienioranduiu of the contract within the 
 Htatute of frauds. 
 
 The learned judge ruled otherwise, ob- 
 serving that, after receiving and keeping 
 the bought-note, the defcntlant could not 
 allege that Price was not an agent to 
 make a niemoranduni ; and ho directed 
 judgment to be entered for the plaintiff, 
 liut gave the defendant leave to move to 
 enter judgment forhim.if the court should 
 be of o[)inion that there was no suHicicnt 
 memorandum within the statute. 
 
 Gully moved for judgment accordingly. 
 T. H. .fames shewed cause. 
 
 The judgment of the court (BRETT, 
 (JKOVK, and ARCHIBALD, JJ.,) was de- 
 livered by 
 
 I5HKTT, J. This was an action for not 
 accepting butterpursuant to contract. It 
 was tried before me, and I directed judg- 
 ment to l)e entcreil for the plaintiff. A 
 motion has been made (o enter judgment 
 for the defendant in ])ur8iiance of leave 
 reserved by me for that ])urpose, on the 
 ground that there was no evhletice of any 
 nieaioranduni of the contract within the 
 Htatute of frauds. The facts were these: 
 — The contract was made with a person 
 who must l<c taKcn to bo a l)roUer, anil 
 who was acting for the seller only, and 
 not for the buyer. The defendant agreed 
 upon the terms of sale with the bi'oker. 
 These terms were not disputeil. If there 
 was a sullicient memorandum in writing 
 signed by or on behalf of the party to be 
 charged, the defendant had unjustifiably 
 refused to accept the butter. 'J"he broker 
 sent a note of tlie contract to the buyer 
 and also to the seller. He signed the note 
 which was sent to the seller, but he did 
 not sign that which he sent to the buyer. 
 He. however, entered in his broker's l)ook 
 both the bought and the sold-nole, and 
 signed them both. The butter was ten- 
 dered to the defendant sometime after the 
 note was sent to him, he having kept the 
 L.\W SALIJS — 52 
 
 latter until then without complaint or re- 
 mon-<trance. The reason he assigned for 
 his refusal was, not that he had n<»t en- 
 tered into the contract, but that the note 
 sent to him was ncjt sigmd. I decline to 
 enter into the terms of the two notes, as 
 to which was the bought and which was 
 the sold-note. The real (luestioii upon 
 the notes on this point always turns on 
 the person to whom the note Is sent. If 
 the broker Is authorized iiy the buyer to 
 make a contract, the note sent by him to 
 the seller is the note which Is intended to 
 be the bargain, and vice versa. The note 
 which was to bind the defendant here, 
 w;is the soldnote. Wo are not driven to 
 rely on the notes In the broker's book, 
 because the note delivered to the plaintiff 
 (if the broker had authority to sign the 
 memoi-;indum) bindshim. TheauthoritieH 
 areconcbMive to show that the broker 
 acting for one of the contracting parties, 
 making a contract for the other, is not 
 authorized by both to l>in>l both. liut 
 the broker who makes a contract for one 
 may be authorized by that person to 
 make and sign a memorandum of the con- 
 tract. That has frecjuently been held. 
 The question here is whether there woe 
 any evidence that the broker was so au- 
 thorizeil. The evirlence was, that a note 
 of the bargain was sent to the buyer; and 
 that his only objection was, not "that the 
 broker who sent it had no authority to 
 send it, or that no such contract was 
 made, but that the memorandum sent to 
 him was not signed. That was ample ev- 
 idence for the jury tli;it the dcfiiiilant rec- 
 ognized the authority of the broker to 
 sign for him. Luckily, however, the 
 l)r(d<er did sign the note which was to 
 bind the defcfidant, that is, the sold-note. 
 Then, this further fact remains, that the 
 l)roker kept a book in which both bought 
 and sold-notes were entered and signed by 
 him. 1 therefore think that, even if the 
 signature to the note sent to the seller 
 was not sullicient to bind the buyer, the 
 signature in the broker's book was enough 
 to satisfy the statute. The broker being 
 a broker authorized to make a memoran- 
 dum of the contract on the defendant'a 
 behalf, the entry in his book was sutHcient 
 eviilence of a memornmlum of the bar- 
 gain signed by a duly authorize<l agent 
 within the meaning of the statute of 
 frau<ls to bind the defendant. 
 
 .My Ill-other (irovo has doubts, and 
 wishes me to say that, in his judgment, 
 the fact of the defend;int keeping the note 
 sent to him without objection was not 
 sullicient to show an authority in the 
 broker to bind him. Hut lit- thinks that, 
 inasmuch as when the defendant made 
 the ol)jectio!i heconlined it to saying" You 
 did not sign it, " he therehy admitted the 
 agency of tlie broker to make the contract 
 on his behalf. He therefore airrees with 
 me that judgment was rightly entered for 
 the plaintiff. 
 
 My Brother Archibald authorizes me to 
 say that he concurs In the above judg- 
 ment, and in the reasons 1 hare given. 
 
 .ludgment for the plaintiff.

 
 THOMPSON V. WEDGE. 
 
 819 
 
 THOMPSON V. WEDGE. 
 
 (7 N. W. Rep. 560, 50 Wis. 643.) 
 
 Supreme Court of Wisconsin. Dec. 17, 1880. 
 
 Ai)peal from Dodee county court. 
 
 Replevin for a cow and calf. Tlie plain- 
 tiff Hold a (juantity of property at pul)lic 
 auction. The defendant hid off the cow 
 and calf at Kuch sale for $:j7. The terms 
 of sale W(Te cash for all jjurchases not e.\- 
 ceedinfj five dollars, and approved [>aper 
 for those exceeding; that sum. After the 
 sale the defendant informed the plaintiff 
 that he nad not sufficient money with 
 him to|)ayforthe property, and retjuested 
 permission to take it away. The [ilaintiff 
 Kavesuch permission on defendant's prom- 
 ise to pay a few days later, when the 
 [ilaintiff should ro to Waupun, a few 
 miles distant, whore the defendant re- 
 sided. Nothing was said l)y the parties 
 concerning security, but the plaintiff de- 
 livereil the i)roperty to defendant without 
 further stiiiulation or condition. The de- 
 fendant failed to pay for the proi)erty 
 when the [)laintiff called on him at his 
 residence, tliree days after the sale, and 
 afterwards refused to deliver it to tlie 
 plaintiff when the latter made demand 
 therefor. The cause was tried by the 
 court. The county judge held, oh the 
 above facts, that the title to the proiierty 
 passed to the defenilant by such delivery, 
 and gave judgment for a return of the 
 property to him, or for its value in case 
 a return cannot be had. The plaintiff 
 appealed from the judgment. 
 
 Eli Hooker, (C. E. Hooker, of counsel.) 
 (or appellant. H. W. Frost, for respond- 
 ent. 
 
 LYON, J. The plaintiff delivered the 
 property in controversy to the defendant 
 unconditionally, and gave him credit for 
 the price. He waived the security re- 
 quired by the terms of the auction sale by 
 making the delivery without requiring it. 
 He did not expressly reserve to liimseK 
 the title to the property until the pur- 
 chase money should be paid, and there is 
 nothing in the evidence tending to raise a 
 presumption that he intended to do so. 
 Neither is there any ground for claiming 
 that the defendant obtained delivery of 
 the property by fraud. Thus we have 
 here the simple case of a sale of property 
 on credit, and an absolute delivery there- 
 of to the purchaser. Sudi sale and deliv- 
 ery passes the title, and it is not divested 
 merely because tile purchaser fails to pay 
 for the property at the stipulated time. 
 If authoiities are required to propositions 
 so plain and well established, the cases 
 cited in the brief of counsel for defendant, 
 and many of those cited by counsel for 
 plaintiff, abundantly sustain the doctrine. 
 To these Uiay lie addeil the late case lu 
 this court of The Singer Manufg Co. v. 
 Snmmons, 4!> Wis. .•'.H;. ."> N. \V. Kep. 78s. 
 TliJit was a stronger case for the plaintiff 
 than fhis.yet we held that tlie title passed. 
 .None of the cases in this court, cited to 
 show that the title to the property here in 
 controversy remained in the plaintiff, 
 meet the conditions of this case, for in 
 none of them was credit eiven for the 
 price, and an un<|ualllie(l delivery of the 
 property made to the purchaser. 
 
 We think the ruling v.f the learned coun- 
 ty judge, that the title to the cow and calf 
 pa.ssed to the defendant by the delivery, 
 was correct. We must, therefore, afUrm 
 the judgment.
 
 TOWNE 0. COLLINS. 
 
 821 
 
 TOWNE V. COLLINS. 
 
 (14 Mass. 500.) 
 
 Superior Court of Massachusett3. Essex. Nov. 
 Term, 1785. 
 
 Tills was an action of trover for oxen. 
 One Hutchins stole the cattle from the 
 plaintiff and sold them to Collins, who 
 was not privy to the theft, nor had any 
 knowledge of their t)cinf; the property of 
 the plaintiff. Hutchins was afterwards 
 convicted of the theft, and sentenced, at 
 theinstanceof the attorney general, to pay 
 threefold damages to the plaintiff, accord- 
 ing to the statute. Towne had no other 
 
 agency in the prosecatlon, than procuring 
 the arrest of the thief upon a warrant, 
 and attending at the trial as a witness, 
 upon being summoned. 
 
 The question referred to the court was, 
 whether the conviction and Bentence were 
 a har to the plaintlfl's recovering in this 
 action. 
 
 PER CURIAM, viz. CDSHIXG 0. J. SAR- 
 GEANT , DANA and SUM.NER. justices. 
 There being no market iiEfjt here, and 
 actual satisfaction of tlie threefold dam- 
 ages not having been made to the plain- 
 tiff; the conviction and sentence can be 
 no bar to this action of trover.
 
 TUFTS V. GUIFFIN. 
 
 82-T 
 
 TUFTS V. GRIFFIN. 
 
 (12 S. E. Rep. 68, 107 N. C. 47.) 
 
 Supreme Court of North Carolina. Oct. 27, 1890. 
 
 Appeal from superior court, Bertie coun- 
 ty : Wo.MACK. Judj^e. 
 
 Action by Janics W. Tufts again.st J. S. 
 Griffin on a note given by (iefendant for 
 part of a purcliaise price of aKoda fountain 
 purclia.seil by him of plaintiff. Uy tlie con- 
 tract of Kale the title to the property solil 
 was not to pasn until the entire price was 
 paid. The property was destroyed before 
 the note matured. Judjinient for plain- 
 tiff, and defendant ai)i)eals. 
 
 I). C. Winston, for plaintiff. W. L. Will- 
 iams, for defendant. 
 
 SiiKPHKRD, J. This is a case of the first 
 impression in this state. We have here an 
 absolute promise of the defendant to pay 
 the plaintiff a certain sum, it beiiiKtlie bal- 
 ance of the purchase money due the plaintiff 
 upon the sale of a soda apparatus to tlie 
 defendant. The sale was a conditional one, 
 (see Clayton v. Hester, SO N. C. 27.".: Frick 
 V. Hllliard,!l.")N.C. 117", and thecasoscited.) 
 and, uiKler the contract, the defendant 
 took the apparatus into his possession, 
 and used it in all respects as his own. 
 Without any negligence on the part of the 
 defendant and before any default in the 
 payment of the purchase money, the prop- 
 erty was destroyed by tire. The question 
 is, who shall bear the loss? The defend- 
 ant insists that it should fall upon the 
 plaintiff t)eca use the transact i<m amounted 
 to nothing more than an executory agree- 
 ment to sell, and that, inasmuch as the 
 plaintiff cannot now perform the con- 
 tract, the defendant should not be com- 
 pelled to pay. It is very true that such 
 contracts are sometimes called "execu- 
 tory," (as in the case of Ellison v. Jones, 
 4 Ired. 4S,J and the vendee is also termed a 
 "bailee," (Ferry v. Young, 10.5 N. ('. 4(jG, IJ' 
 S. K. Hep. 511,) but it must be observed 
 that these ex|)ressions are used in reference 
 to the strict, legal title to the i)roperty, 
 and they can therefore have no influence 
 in the determination of the present (jues- 
 tion, which is purely one of considerations 
 for an absolute promise to pay. There- 
 cent decision in Burnley v. Tufts, 66 Miss. 
 49, 5 South. Re[). 627, is directly in point. 
 There, it seems that this same plaintiff 
 sold a soda apparatus under a contract 
 precisely similar to this, and the property 
 was destroyed, as in this case, after some 
 of the notes had been paid, and before the 
 maturity of the others. The court decided 
 tliat the plaintiff was entitled to recover 
 the amount due upon the reuiaining notes. 
 As we entirely concur in the reasoning up- 
 on which the decision is based, we will re- 
 produce a part of the language of the 
 opinion. The court says: "Burnley un- . 
 
 conditionally and absolntely promised to 
 pay a certain sum for tlie property, the 
 p<»ssession (jf which he receive<l fr<jm Tufts. 
 The fact that the proiierty has been de- 
 stroyed while in bis custody, and before 
 the time for the |)ayment of the note last 
 due, on payment of which only his right 
 to the legal title of tlie property would 
 have accrued, does not relieve him of pay- 
 ment of the price agreed on. He got ex- 
 actly what he contracted for, — viz., the 
 possession of the property, and the right 
 to acijuire an absolute title by payment of 
 the agreed price. The transaction was 
 something more than an executory condi- 
 tional sale. The seller had done all he 
 was to do except to receive the purchase 
 price. The purchaser had received all that 
 he was to receive as the consideration of 
 his promises to pay. The incpiiry is not 
 whether, if hchad foreseen the contingency 
 which has occurred, he would have pro- 
 vided against it, nor whether lie might 
 have made a more prudent contract; but 
 it is whether by the contract he has made 
 his promise absolute or conditional. The 
 contract was a lawful one, and, as we 
 have said, imposed ujion the buyer an ab- 
 solute obligation to pay. To relieve him 
 from this ottligation, the court must make 
 a new agreement for the parties, instead 
 of enforcing the one made, which it cannot 
 do." As is said in the foregoing extract, 
 the vendor has done all tliat he was re- 
 quired to do. and the transaction 
 amounted to "a conditional sale to be de- 
 feate<i upon the non-performance of the 
 conditions. • • • The vendee hail an 
 interest in the property which he could 
 convey, and which was attachable by his 
 creditors, and which could be ripened into 
 an absolute title bv thejierformance of the 
 conditions." 1 Whart. Cont. § 617. The 
 vendee had the actual, legal, and rightful 
 possession with a right of proiierty upon 
 the jiayment of the money. Vincent v. 
 Cornell, 13 Pick. 2'.)6. The vendor could 
 not have interfered with this possession 
 "until a failure to perform the conditions. " 
 Newhall v. Kingsbury, i:!l Mass. 44.5. 
 Having acquired these rights, under the 
 contracts, and the property having been 
 subji-cted to the risks incident to the exer- 
 cise of the exclusive right of possession, it 
 would seem against natural justice to say 
 that there was no consideration for the 
 promise, and that the loss should fall up- 
 on the plaintiff. The case of Swallow v. 
 Kniery, 111 Mass. 3.56. cited by the defend- 
 ant, may, perhaps, be distinguished from 
 ours, because it was agreed that, upon the 
 payment of the jirice, the vendor was to 
 execute a bill of sale to the vendee. How- 
 ever this may be. we think that the prin- 
 ciples enunciated in Burnley v. Tufts, su- 
 pra, are better sustained, both by reason 
 and authority, and we therefore atltrm 
 the judgment of the court below. No ei- 
 ror.
 
 I
 
 TUFTS c. SVL\'ESTEU. 
 
 825 
 
 TUFTS V. SYLVESTER. 
 
 (9 At). Rep. 3.57, 79 Me. 213.) 
 
 Supreme Judicial Court of Maine. March 1, 1887. 
 
 On report from Biipreme judicial court. 
 Friiiililiii county. 
 
 Trover by tlie vendor of nicrcluindise 
 aKuiiiHt the messenger of llif iiiHolvont 
 veiidee. The opinion states tlie facts. 
 
 S. Clifford rSe'eher, for plaintiff. H. L. 
 Whitcoinb, for defendant. 
 
 PETERS, C. J. The plaintiff sold a bill 
 of goods to beshippe(lat 15<iKtou to the 
 buyer at Farminjiton, in this stale. The 
 buyer, becoming insolvent after the pur- 
 chase, conntennandeil the order, but not 
 in Hcasi>n to stop the goods. Before the 
 goods came, he had gone into insolvency, 
 and a messenger had taken possession of 
 his property. An exiii-esa company bring- 
 ing the goods tendered them to the buyer, 
 who refused to receive them, but the mes- 
 senger accepted the goods from the car- 
 rier, paying his charges tliereon. Alter 
 this, but before an assignee was appoint- 
 ed, the seller made a demand upon both 
 the carrier and the messenger, attempting 
 til reclaim his goods. The (luestion, upon 
 these facts, is whether tliegoods were sea- 
 sonably stopped in transitu to preserve 
 the plaintifl's Uen thereon. We think 
 they were. The right of stoppage in 
 transitu is favored by the law. It is 
 clear that the goods did not go into the 
 buyer's possession. He refused to receive 
 them. lie had a moral and legal right to 
 do so. Such an act is commended by ju- 
 rists and judges. He in this way makes 
 re|)aration to a confiding vendor. " He 
 may refuse to take possession," says Mr. 
 Renjamin, "and thus leave unimpairetl the 
 right of stopi)age in transitu, unless the 
 vendor be anticipated in getting posses- 
 sion by the assignees of the buyer." Benj. 
 Sales. § S5S. In (irout v. Hill, 4 Gray. JtOl, 
 Slia w, C. J., says: " Where a purchaser of 
 goods on credit tinds that he shall not be 
 
 able to i)a.v for them, and gives notice 
 thereof to the venilor, and leaves the 
 goods in [nisseKhion of any person, when 
 they arrive, for the use of the vendor, and 
 the vendor on such noticeexpre.<sly or tac- 
 itly assents to it, it is a good stoppage in 
 transitu, although the bankruptcy of tho 
 vendee ijitervene. " See same case at page 
 .'!()!(; 1 Pars. Coat. •.V.ll!, and eases. 
 
 The decision of the case, then, turns up- 
 on the questioii whether the messenger 
 could accept the goods, and terminate the 
 lien of the vendor. Wo do not find any 
 authority for It. A bankruptcy messen- 
 ger iicts in a passive capacity ; Is Intrust- 
 ed with no discretionary powers; acts 
 under mandate of court, or does certain 
 things particularly pres<-ribed by the law 
 which creates the office; is mostly a keep- 
 er or defender of property, — a custodian 
 until an assignee comes; and hecnn nei- 
 ther add to nor take from the bankrupt's 
 estate. He is to take possession of the 
 "estate" of the insolvent. These goods 
 had not become a part of the estate. He 
 was not at liberty to atlirm or disalflrm 
 any act of the insolvent. The law im- 
 poses on him no such responsibility. 
 Chanceller Kent says that the transit la 
 not ended while the goods are in the hands 
 of a carrier or middle-man. A messenger 
 has no greater authority, ex officio, than 
 a middle-man, excepting as the insolvent 
 law expressly piescribes. In Hilliard's 
 Bankruptc3' (pajte 101 1 the otlice of a mes- 
 senger is likeniMl to that of a sheriff under 
 a writ. He becomes merely the recipient 
 of propert.v. The title of tin- assignee, 
 when appointed, dates ()ack of the ap- 
 pointment of a messenger. ITntil ap- 
 pointment of assignee, the liankrupt him- 
 self is a proi)er person to tender money for 
 the redemi)tion of lands sold for taxes. 
 Hampton v. liouse, "J^ Wall. "Jli^. See .Ste- 
 vens V. Palmer, ]•_• Mete. 4(54. The case 
 cited by the plaintiff. Sutro v. Holle, 2 
 Neb. 1H(1. supports his contention. 
 
 Defendant defaulted. 
 
 WALTON, VIi{GIN, LIBHEY. EMERY, 
 and HASKELL, J J., concurred.
 
 TUTIIILL V. SKIDMORE. 
 
 827 
 
 TUTHILL et al. v. SKIDMORE et aL 
 
 (2r. N. E. Rep. 348, 124 N. Y. US.) 
 
 Court of Appeals of New York, Second Division. 
 Jan. 14, 1S91. 
 
 ApiX'al from a jiidprnient of the Reneral 
 term of tlie kccdiiiI jiKlicitil (iei>artriient 
 aftiriiiing a juilK'neiit fur the plaiiitiffH en- 
 tered on a verdict directed at circuit. Sep- 
 tember 11, ISSG, llie (jlaintiffs. under tlirir 
 tirm name of Ellswortli Tuthill & Co.. and 
 Walter E. Lawton, doing buisinesH under 
 Ilie name of Eawton I5ros., entered into 
 the f()ll(j\vinf5 written contract: "Septem- 
 ber 11, INSC. Sold for account of Messrs. 
 Kllswoilli Tiitiiill & Co. to Messrs. Lawton 
 r.rotliers. New Yoriv, five hundred tons 
 Hellers' usual good malie platform-dried 
 lisli scrap, not treated with acids, of this 
 season's make, to be ready for delivery be- 
 fore dose of sellers' works, at ?lN per ton, 
 of L',(l(IO lbs., actual weight in bulk, F. O. 
 1?. sellers' factory, Promised Land, Long 
 Island. Terms: Payment by liuyers' 
 notes at four months, with interest added 
 at a rate of si.\ per cent, per annum from 
 date of delivery on i)resentatinn bills of 
 lading, invoice, weigher's return, and 
 StilUvell & (iladding's certificate of moist- 
 ure. If scrap removed before closing sell- 
 ers' factory this fall, or if scrap is not re- 
 moved before such time, buyers are to give 
 their notes, bearing same interest, for an 
 approximate amount, bearing date of 
 Buch closing. Buyers to have privilege of 
 leaving scrap at their own risk, free of 
 charge for storage, till opening of fishing 
 tieason of spring, ISST, provided, if they re- 
 quire any scrap between such closing and 
 opening, buyers are to pay thirty-five 
 cents per ton for loading. Scrap guaran- 
 tied not to e.xceed twelve per cent, moist- 
 ure. Stillwell & Gladding's analysis from 
 samples drawn in the usual way. Scraps 
 to be in good order andcon<lition. " From 
 the <late of this contract to the date of the 
 trial of this action, (October 2.5, IssT.) the 
 plaintiffs, at all times, had on hand at 
 their factory at I'romised Land. L. L, 
 more than "HlOtons of fish scrap of the kind 
 and quality mentioned in the contract, 
 but neither the (|uantity sold nor any part 
 of it was ever set apart for the vendee. 
 November V2, ISMi, the vendee gave the 
 vendors, towards the purchase price, three 
 promissory notes, signed by the purchaser. 
 and |>ayable to the order of the sellers, of 
 the dates, for the amounts, and due, as fol- 
 low s: 
 
 Novenib T 12. ls86.. $.5,000 Foor i 
 19. •• S.M 00 
 
 26. " I $;i 000 
 
 nths Mnrch in. 18S7 
 
 The purchase price was $14,000, and, 
 after deducting these notes, $1,000 re- 
 mained, which was never paid, nor was a 
 note given for it. These notes were all 
 dishonored, and have never been paid, nor 
 has any part of the purchase price of the 
 property. About the 1st of December, 
 1S8(>, the plaintiffs sent the purchaser the 
 following receipt: "Ellsworth Tuthill & 
 
 Co., Manufacturers of Menhaden Oil and 
 Ouano. Factory at Promised Land, L. I. 
 Promised Land, \. Y., Nov. l'.', 1KS6. 
 We hereby certify that we hold five hun- 
 dred (oilO( tons o( platform-dried lish 
 scrap, of good quality, and in good condi- 
 tion, in bulk, subject to the order of 
 .Messrs. Lawton Bros., in our factory ut 
 Promised Land, Long Island, Suffolk 
 county, N. Y., as per terms of contract. 
 Dated Sei)tcnilier Ulh. Ei,i-swonin Tit- 
 nil.l. & Co. " March 24, ls^7, .Joseph L. 
 Morton began an action in the supreme 
 court against Waller E. Lawt<jn for the 
 recovery of money, in which an attach- 
 ment was issued, by virtue whereof, March 
 2S, issT, the defendant Skidmore, as sher- 
 iff, and the defendant Hand, as his deputy, 
 levierl upon and seized five hundred tons 
 (jf fish scrap then stored at the ])laintifrs' 
 factory. The (juantity attached was not 
 separated from a larger (luantity of which 
 it was a part, and was never renioveil 
 from the plaintiffs' premises. June 15, 
 1S.S7, Morton recovered a judgment against 
 Lawton in that action for $22.020. Ofi, which 
 was entered in the office of the clerk 
 of the city and county of New York, a 
 transcript of which was duly filed, and the 
 judgment duly docketed June 27, ls.s7, in 
 the ollice of the clerk of the county of Suf- 
 folk. May l:!, 1SS7, the plaintiffs demand- 
 ed of the defendants that they release the 
 attachment, and surrender the property 
 to them, wiiicli was refu.sed. and on the 
 ne.Nt day this action in replevin for the re- 
 covery of the property was begun. Upon 
 the trial, each party asked that a verdict 
 be directed in his favor, neither claiming 
 that there was any question of fact for the 
 jury. A verdict was directed for the i)lain- 
 tiffs, upon which a juilgnient was entered, 
 which was alHrmeil at general term. 
 
 Ahram Kilns', for n[)pellant8. Thomas 
 Yuung, for respondents. 
 
 FoLLKTT, C. J., [after stntinf^ the fiirts 
 as above.) It will be assumed that the 
 title to the propert.v passed to the vendee, 
 which is the most favorable view which 
 can be taken of thecase forthe defendants. 
 Permitting commercial jjaper to be dis- 
 honored liy one engaged in commerce, and 
 his property tobeattached in an action In 
 which judgment is subsequently recovered 
 by default, is evidence, and. if unexplained, 
 is i>roof, of insolvenc.v. Brown v. .\Iont- 
 gomerv, 20 N. Y. 2^7: Booth v. I'owers, .'>♦! 
 N. Y. 22, .'52: Abb. Tr. Ev. OKI. Neither 
 party asserting at the trial that I..awtou's 
 solvency was a question of fact for the 
 jury, the court was justitied in holding, as 
 a question of law. that he was insolvent. 
 When the price of goods sold on credit is 
 due anil unpaid, anil the vende«> becomes 
 insolvent liefore obtaining possession of 
 them, the vendor's right to the property 
 is often cilled a "lien." but it is grc'ater 
 than a lien. In the absence of an express 
 power, the lienor usually cannot transfer 
 the title to the property on which the lien 
 exists by a sale of it to oneha ving not ice of 
 theexttiitof his right, but he must proceed 
 by fori'clo^ure. When a vendor rightfully 
 stops goods /// tr:itisltii or retains them be- 
 fore tninsitiis has liegun. he can, by a sale 
 made, on notice to the vendee, vest a pur-
 
 828 
 
 TUTHILL V. SKIDMORE. 
 
 chaser with a good title. Diistan v. McAn- 
 drew, 44 N. Y. 72. His riRlit is very nearly 
 that of a pledgee, with power to sell at pri- 
 vate sale in case ot default. Bloxani v. 
 Sanders, 4 Barn. & C. 941; Bloxani v.Mor- 
 ley. Id. !).")!; Milgate v. Kebble, 3 Man. 
 & G. 100; Andenreid v. IJandall, 3 Cliff, '.m, 
 106; Blaekb. Sales. (2d Ed.)44r>,454.459; Benj. 
 Sales, (Corl)in's Ed.) § 12S0; Jones. Liens, 
 § ,S02. The vendee having beeonie in.s(jlv- 
 ent, and refused payment of the notes 
 given for the purchase price of the prop- 
 erty which reniaine<l in the vendor's pos- 
 session, his right to retain it as security 
 for the price was revived as against the 
 vendee and his attaching creditor. Ar- 
 nold V. Delano, 4 Cusli. 33; Hasl^ell v. Bice, 
 11 Gray, 240; Milliken v. Warren, 57 Me. 46; 
 Clark V. Draper, 19 N. H. 419; Bloxam v. 
 Sanders, 4 Barn. & C.941; Bloxani v. Mor- 
 ley. Id. 9.")1; Hamburger v. Rodman, 9 
 Daly, 93; Beni. Sales, (Bennett's Ed.) § 
 S25; 2 Benj. Sales, (Corbin's Ed.) § 1227; 
 Story, Sales, § '285; Blaekb. Sales, 454. 
 
 The plaintiffs allege in their complaint 
 tliat tlieyown the pi'operty,and also that 
 they "had a special property therein, — to- 
 wit, a lien for unpaid purchase money," — 
 both of which allegations the defendants 
 specifically denied. It is now insisted, as 
 it was at the trial, by the defendants that 
 theallegation in respect to the special prop- 
 erty is not a compliance with section 1720 
 of the Code of Civil Procedure, which pro- 
 vides that when "the right of action or 
 defense restsupoiia right of possession, by 
 virtue of a special property, in which case 
 tlie pleading must set forth the facts up- 
 on which the special property depends, so 
 as to show that at tlie time when the ac- 
 tion was commenced, or tha chattel re- 
 plevied, as the case may be, the partj' 
 pleading, or the third person, was entitled 
 to the possession of the chattel. " The de- 
 fendants not having moved to make the 
 complaint more definite and certain, and 
 it attirniatively appearing that they 
 were neitlier harmed nor misled hy the 
 omission to set forth all of the facts out 
 of which the special prt)perty arose, the 
 judgment will not he reversed for this de- 
 fect in the complaint. 
 
 When the trial began, it was moved In 
 behalf of the defendants that the plain- 
 tiffs be compelled to elect whether they 
 would seek to recover on the ground that 
 they owned the property, or on the 
 
 ground that they had a lien thereon for 
 unpaid purchase money. To this request 
 the court replied : "I will hear the eviden<-e 
 first before 1 compel him to do that. " To 
 this remark the defendants excepted. At 
 the close of the plaintiffs' case, the defend- 
 ants offering no evidence, both parties 
 asked the court to direct a verdict. The 
 object of requiring plaintiffs to elect be- 
 tween inconsistent causes of action is to 
 simplify the issues of fact, so that they 
 may be intelligibly and fairly tried, but it 
 is plain in this case that the defendants 
 were not misled nor harmed by the refusal 
 of the court to compel an election. The 
 plaintiffs' allegation that they owned the 
 property, and their allegation that they 
 had a lien thereon for unpaid purchase 
 money, areiuconsistent. Hudson v. Swan, 
 83 N. Y. 552. But when, as in the case at 
 bar, the inconsistency plainly appears on 
 the face of the complaint, tlie defendants 
 should, before answering, move that the 
 plaintiffs beeompelled to elect. Cassidy v. 
 Daly, 11 Wkly. Dig. '222. If in such a case the 
 defendant lies by until the trial, and then 
 moves, the court may, in its discretion, 
 wait nntil jiart or all of the evidence is 
 taken before deciding the motion, (South- 
 worth V. Bennett, 58 N. Y. (159,) and its de- 
 nial is so far diseretionarv (Kerr v. Havs, 
 35 N. Y. 331, 336; People' v. Tweed, 63 N. 
 Y. 194) that it will not be reviewed when 
 it appears that the defendant was not 
 harmed. 
 
 It is also urged, on the authority ot 
 Hudson v. Swan, supra, and the cases 
 therein cited, that the plaintiffs, by alleg- 
 ing in their complaint and asserting at 
 the trial absolute ownership of the prop- 
 erty, anil also a special interest in or lien 
 upon it, waived theirspecialinterestorlien, 
 if any they had, and cati no trecover without 
 establishing ownership. In the case cited 
 the facts alleged by the plaintiff to estab- 
 lish ownership were inconsistent with 
 those upon which he relied to establish 
 a lien, which is not the fact in the case at 
 bar. As has been shown, the plaintiffs' 
 interest was more than that of mere lien- 
 ors, and, there being no dispute about the 
 facts, the inconsistency relating wholly to 
 the legal conclusions to bedrawn from the 
 agreed facts, the case cited is not control- 
 ling. The judgment should be affirmed 
 with costs. All concur, except Brown, J., 
 not sitting.
 
 TWYXE'S CASE. 
 
 831 
 
 TWYNE'S CASE. I 
 
 (3 Coke, 80.) 
 Mich. 44 Eliz. In the Star Chamber. , 
 
 In aninfurinntion by Coke, theeiueen'Hat- 
 tornoy-jieneral, UKi>iiiNt Twyne, of llainp-j 
 Hliire, in the Htar-cliunii)er,i for making 
 anil publiHiiing of a fraudulent wift of 
 CooflM. Tlie (rase on the ntat. of V.i liliz. 
 c. .">, was Hucli : fierce was imlctitcil to 
 Twyne in ,£-tO(), and wan imiehted alno to 
 C. in tiillO. ('. l)rouKlit an action of del)t 
 aeainst Fierce, and pending tlie writ, 
 fierce, helnu; posHeHsed of goodH and cliat- 
 tel.s of the value of H'MH). \n Hecret made a 
 Heneral deed of sift of all his noods andj 
 chattels, real and [lersonnl wliatsoever, 
 to Twyne, in satisfaction of his debt; not- 
 withstanding that fierce continued in 
 possession of the said ;;oods, and some of 
 them he sold ; and he sliore the sheeii, and 
 marked them with his own mark; anil 
 after wnrds(;. had judir men t against fierce, 
 and had a fieri facias directed to the sher- 
 iff of Sonthanipton, who hy force of the 
 said writ came to make execution of the 
 said goods; hut divers persons, by the 
 command of the said Twyne, did with 
 force resist the said slieriff, claiming them 
 to be the goods of the said Twyne by 
 force of the said gift; and openly declared 
 by the commandment of Twyne, that it 
 was a good gift, and niade on a good and 
 lawful consideration. And whether this 
 gift, on the whole matter was frauducnt 
 and of no effect by the said act of^ 13 Eliz. 
 or not, was the question. And it was re- 
 solved by Sir Thomas Edgerton, lord 
 kee[)er of the great seal, and by the (.'hief 
 Justice fophatn and .\nilerson, and the 
 whole court of star-chamber, that this 
 gift was fraudulent, within the stat. of l;{ 
 Eliz. And in this case divers points were 
 resolved: 
 
 1. That this gift had the signs and 
 marks of fraud, because the gift is general, 
 without exception of his-' apparel, or of 
 anything of necessity ; for it is commonly 
 said, "quod* dolus versatur in generali- 
 bU8. " 
 
 •Chamberlain v. Twyne, Moore, 638; Rex v. 
 Earl of Nottingham, Lane, 44, 45, 47: Co. Litt. 3b, 
 76a, 290a; Edf<bury v. Rosindal, 3 Keb. 259; See 
 the Stat. 27 Eliz. c. 4. [ 
 
 'Oooch's Ca'<e,5 Coke, 60a, b; Packman's Case, [ 
 6 Coke, IHb; Case of Chancellor, etc., uf University 
 of Oxford, 10 Coke, .50b; 3 Inst. 1.52; Co. Litt. 3b, 
 70a, 2y0a, b; 13 Eliz. c. 5; Crcswell i'. Cokes, 2 
 Leon, 8, 9; Pendleton v. Ounston, 1 Leon. 47; 
 Stamford's Case, 3 Leon. 223; Carter v. Clavcole, 
 1 Leon. 308, ;i09; Case No. Si, 3 Leon. ,57; Turvil v. 1 
 Tipper, Latch, 222; Turbervill v. Tipper, 2 Rolle, | 
 493; Paston v. Lea, Palmer, 415; Brunkhorne's i 
 Case, Cro. Eliz. 2:i3, 2:H; Darrel v. Wilson, Id. (H5; ' 
 Bethel v. Stanhope, Id. 810; Hawes v. Loader, 
 Cro. Jac. 270, 371; 3 Dver, 295, pi. 17; Creswell v. ' 
 Cokes, Id. 351, pi. 23; Stone v. Grubham, 3 Bulst. I 
 220; Rast. Ent. 207b; Rex v. Earl of Nottingham, 
 Lane, 47; Kitchin v. Calvert, Id. 103; Humbcrton 
 v. Howgil, Hob. 72b; Id. KVl; Chamberlain v. 
 Twvne, Mooro. 038; Doct. Plao. 200; Haws v. 
 Loader, Yelv. 196, 197, 1 Brownl. & U. HI ; Co. Ent. 
 IU2a. 
 
 'Whittle V. Weston, Godb. 398; Englefleld's 
 Case, Moore, 321. 
 
 'Stone V. Grubham, 2 Bulst. 236; Doddington's 
 Case, 3 Coke, 34a ; Warren v. Smith, 1 Rolle, 157. 
 
 2. The donor continued in posResBlon, 
 and used them as his own; and by reason 
 thereof he traded and traflicked with 
 others, and defrauded and deceived them. 
 
 3. Jt was made in secret, "et dona clan- 
 destinn sunt semper suspiciosa." 
 
 4. It was niadn pending the writ. 
 
 5. Here was a trust between the parties, 
 for the donor possessed all, and used them 
 as his proper goods, and fraud is always 
 apparelled and clad with a crust, and a 
 trust is the cover of fraud. 
 
 <i. The deed contains, that the gift wa8 
 made honestly, truly and bona fide; "et 
 cIhusuIu! inconsuet' semper inducunt ruh- 
 picionem. " 
 
 .Secondly, it was resolved, that notwith- 
 standing Iiero wiis a true debt due to 
 Twyne, anil a good consideration of the 
 gift, yet it was not within the proviso of 
 the said act of 13 Eliz., by which it is pro- 
 vided, that the said act shall not extend 
 to any estate or interest in lands, &c., 
 goods or chattels, made on a good con- 
 sideration, and bona fide; for although it 
 is on a true and good eousideration, yet 
 it is not bona tide, lor no gift shall be 
 deemed to be bona fide within the said 
 proviso which is accompanied with any 
 trust. As if a man be indebted to five sev- 
 eral persons in the several sums of .£20, 
 and hath goods of the value of £'J0, 
 and makes a gift of all his goods to one 
 of them in satisfaction of his debt, but 
 there is a trust between them, 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 
 his benefit, to use or have possession of 
 them, and is c(»ntented that he shall pay 
 him his debt when he is able, this shall not 
 be called bona fide within the said proviso; 
 for the proviso saith on a good consider- 
 ation, and bona fide; so a good consider- 
 ation does not suHice. if it be not also 
 bona fide. And therefore, render, when 
 any gift sliall be to you in satisfaction of 
 a debt, by one who is indebted to others 
 also; 1st, Let it l)e made in a public man- 
 ner, and before the neighbors, and not in 
 private, for secrecy Is a mark of fraud. 
 '2nd, Let tlie goods and chattels be ap- 
 praised l)y good people to the very value, 
 and take a gift in particular in satisfac- 
 tion of your debt. 3rd, Immediately after 
 the gilt, take the possession of them: for 
 continuaiieeof the possession in the donor 
 is the sign of trust, .\iiil know, reader, 
 that the said words of the proviso, on u 
 good consideration, and bona tide, do not 
 extend to every gift made bona fide; and, 
 therefore, there are two manners of gifts 
 on a good ci>nsiiler>!tion, scil., considera- 
 tion of nature, of blood, and a valuable 
 consideration. .\s to the lirst in the case 
 before put:" If he who is indebted to five 
 several persons, to each party in t"2u In 
 consideration of natural affection gives all 
 his goods to his sou. or roiisin. in that 
 case, for as much as others siiould lose 
 their debts, Jic, which are tilings of value, 
 the intent of the act was, that the eou- 
 sideration in such rase should be valu- 
 
 •Grcsham v. Man, Gouldsb. 161. 
 •Osborn v. Churchman, Cro. Jac. 1'27; Llioostoa 
 V. Lloyd, Palmer, 214.
 
 83-2 
 
 TWYNE'S CASE. 
 
 ulile; for equity requires that such gift, 
 which defeats others, should be made 
 on as high and good consideration as 
 tlie things wliich arc thereby defented 
 are; and it is to be presumed that tlie 
 fatlier, if he had not l)een indebted to 
 otliers, would not liave dispossessed him- 
 self of all his goods, and subjected himself 
 to liis cradle; and tlierefore it shall he in- 
 tended, that it was made to defeat his 
 creditors; anil if consideration of nature 
 of blood shouhl be a good consideration 
 within tliis proviso, the statute would 
 serve for little or nothing, and no creditor 
 would be sure of his debt. And as to gifts 
 made bona fide, it is to be linown, that 
 every gift made bona tide, eitlier is on a 
 trust between the parties, or without any 
 trust; every gift made on a trust is out 
 of this proviso; for that which is betwixt 
 the donor and donee, called" a trust per 
 nomen speciosum, is in truth, as lo all the 
 creditors, a fraud, for they are thereby de- 
 feated and defrauded of their true and due 
 debts. .\nd every trust is either expressed 
 or implied; an express trust is, when in 
 the gift, or upon the gift, the trust by 
 word or writing is expressed : a trust im- 
 plied is, when a man makes a gift without 
 any consideration, or on a consideration 
 of nature, or blood only; and. therefore, 
 if a man before the statute of "27 H. S, had 
 bargained his land for a valuable consid- 
 eration to one and his heirs, by which he 
 was seised to the use of the bargainee; 
 and afterwards the bargainor, without a 
 consideration, enfeoffed others, wlio had 
 no notice of tlie said liargain; in this case 
 the lawimpliesa trust and confidence, and 
 they shall be seised to theS use of tlie bar- 
 gainee; so in tlie same case, if the feoffees, 
 in consideration of nature or blood, had 
 without a valuable consideration, en- 
 feoffed tlieir sons, or any of their blood, 
 who had no notice of the first bargain, 
 yet tluit shall not toll the use raised oh a 
 valuable consideration; for a feoffment 
 made only on consideration of nature or 
 blood, shall not toll an use raised" on a 
 valuable consideration, but shall toll an 
 use raised on consideration of nature for 
 botli considerations are in iEquali jure, 
 and of one and the saiue nature. 
 
 And when a man, being greatlyindebted 
 to sundry persons, makes a gift to his 
 son, or any of his blood, without consid- 
 eration, but only of nature, the law in- 
 tends a trust betwixt them, scil., tliat the 
 donee would, in consideration of such gift 
 being voluntarily and freely made to him, 
 and also in consideration of nature, relieve 
 his father, or cousin, and not see him 
 want wlio had made such gift to him, vide 
 33H.(i, 33.10 by Prisot, if the father en- 
 feoffs his son and heir apparent within 
 age, bona fide, yet the lord shall have the 
 wardship of him ; so note, valuable con- 
 sideration is a good consideration within 
 this proviso; and a gift made bona fide is 
 a gift made without any trust either ex- 
 pressed or implied; by which it appears, 
 that as a gift made on a good considera- 
 
 ' Burrel's Case, 6 Coke, lib. 
 
 •2 Rolle, Abr. 799. 
 
 •2 Rolle, Abr. 779. 
 
 "33 H. 6, 16; LilUngstou's Case, 7 Coke, 39b. 
 
 tion, if it be not also bona fide, is not 
 within the proviso; so a gift made bona 
 fide, if it be not on a good consideration, 
 is not within the proviso; but it ought to 
 he on a good consideration, and also bona 
 fide. 
 
 To one wlio marvelled what should be 
 the reason that acts and statutes are 
 continually made at every parliament 
 without intermission, and without end; 
 a wise man made a good and short an- 
 swer, both which are well composed in 
 verse. 
 
 Quasritur, ut crescunt tot magna volumlna leglsl 
 In promptu causa est, crescit in orbe, dolus. 
 
 And because fraud and deceit abound in 
 these days more than in former times, it 
 was resolved in this case by the whole 
 court, that all statutes made against fraud 
 should be liberally and beneficially ex- 
 pounded to suppress the fraud. Note, 
 reader, according to their opinions, divers 
 resolutions have been made. 
 
 Between Pauncefoot and Blunt, in the 
 exchequer chamber, Mich. 3.5 & 3(i Eliz., the 
 case was: Pauncefoot being indicted for 
 recusancy, for not coming to divine serv- 
 ice, and liaving an intent to flee beyond 
 sea, and to defeat the queen of all that 
 might accrue to her for his recusancy or 
 flight, made a gift of all his leases and 
 goods of great value, colored with feigned 
 consideration, and afterwards he fled be- 
 yond sea, and afterwards was outlawed 
 on the same indictment ; and whether this 
 gift should be void to defeat the queen of 
 her forfpiture, either by the common law, 
 or by any statute, was the question. And 
 some conceived that tiie common law, 
 wliichU abhors all fraud, would make 
 void this gift as to tlie (jueen, vide Mich. 
 12 & 13 Eliz. ; 3 Dyer.T-i 295; 4 & 5 P. & M. 
 IGO. 
 
 And the statute ofJS 50 E. 3, c. 6, was 
 considered; but that extends only in re- 
 lief of creditors, and extends only to such 
 debtors as flee to sanctuaries, and other 
 privileged places; but someconceived that 
 the Stat. ofi*3 H. 7, c. 4, extends to this 
 case. For although the preamble speaks 
 only of creditors, yet it is provided by the 
 body of the act generally, that all gifts cf 
 gfjods and chattels made or to be made 
 on trust to the use of the donor, shall be 
 void and of no effect, but that is to be in- 
 tended as to all strangers who are to have 
 prejudice by such gift, but between the 
 parties themselves it stands good. But 
 it was resolved by all the barons, that the 
 Stat. 13 Eliz. c. 5'5, extends to it: for there- 
 
 " Fermor's Case, 3 Coke, 7Sa. 
 
 "Fermoi-'s Case, 3 Co. 78a, 78b, 3 Dyer, 295, pis. 
 8, 9, 10, &o. ; Rex v. Earl of Nottingham, Lane, 44. 
 
 " Co. Litt. 76a. 
 
 "Ridler v. Punter, Cro. Eliz. 291, 292; Rex v. 
 Earl of Nottingham, Lane, 45. 
 
 '5 Co. Litt. 3b, T6a, 290a, 290b ; 3 Inst. 152 ; Goooh's 
 Case, 5 Coke, 60a, 60b; Packman's Case, 6 Coke, 
 ISb; Case of Cbancellor, etc., of University of Ox- 
 ford, 10 Coke, 56b; Co, Ent. 162a; Pendleton v. 
 Gunston, I Leon. 47; Carter v. Clay cole. Id. 308, 
 309; Creswell v. Cokes, 2 Leon. 8, 9; Stamford's 
 Case, Id. 223; Case No. 83, 3 Leon. 57; Turvil v. 
 Tipper, Latch, 222; Turberville v. Tipper, 2 Rolle, 
 493; Paston v. Lea, Palmer, 415; Brunkhorne's 
 Case, Cro. Eliz. 233, 234; Barrel v. Wilson, Id. 645;
 
 TWVNE'S CASE. 
 
 833 
 
 by it is enacte I and declared, that all 
 feoffinentH. RiftH. grantH, &c., "to delay, 
 hinder or drfrmid creditors and (jtlierH o[ 
 their jiiKt iuid lawful actions. suitH, dehtH, 
 nrcr)untH, dmnaKCH, penalties, forfeitureH, 
 heriotH, mortuaries and reliefs," shall bo 
 void, &c. So lliat this act iloth not ex- 
 tend only to cre<litors, but to ail others 
 who had cause of action, or suit, or any 
 penalty, or forfeiture, &c. 
 
 And it was resolved, that this word 
 "forfeiture" should not be intended only 
 of a forfeiture of iin ohliyation, recogni- 
 sance, or such liUe (as it was objected by 
 some, that it should, in respect that it 
 comes after ilartiano and penalty), but 
 also to everything winch shall by law be 
 forfeited to the kinj^ or subject. And 
 therefore, if a miin, to prevent a forfeiture 
 for fi'lony, or by outlawry, makes a gift 
 of all his Roods, and afterwards is at- 
 tainted orou tla wed, these Roods are'" for- 
 feited, notvvithstanding this Rift; tlie 
 >ame law of recusants, and so the statute 
 is e.\pounde4l beneficially to suppress 
 fraud. Note well this word''^ "declare" 
 in the act ot l.'i liliz., by which the parlia- 
 ment expounded that this was the's com- 
 mon law before. .\nd according to tliis 
 resolution it was decreeil, Hil. 30 Eliz., iu 
 the exchci|ui'r chamber. Mich. 42 & J."! 
 Eliz. in the common pleas, on evidence 
 to a jury, between .Standeu'" and Bul- 
 lock, these points were lesolved by the 
 whole court on the stat. of L'7 Eliz. e. 
 4. Walmsley, J., said that Sir Christo- 
 pher Wray, late C. J., of England, rejiort- 
 ed to him, that he and all his coii:|)anions 
 of the kluR's bench were resolved, and so 
 directed a jury on evidence before them ; 
 that where a man had conveyed his land 
 to the use ot himself for life, and after- 
 wards to the use of divers other of liis 
 blood, with a future power of revocation, 
 as after such feast, or after the death of 
 such one; and afterwards, and before the 
 power of revocalicjn bep;an, he, for valua- 
 l)le consideration, bargained and sold the 
 land to atiother and his heirs; this bar- 
 Rain and sale is within the-'^ remedy of the 
 said Stat. For nItliouRh the stat. saitli, 
 "the said first conveyance not by him re- 
 vokeil, accordiuR to the [)ower by him re- 
 served,'" which seems by the literal sense 
 to be intended (4 a present po«cr of revo- 
 cation, for no revocation can be made by 
 force of a future power until it comes in 
 
 esse; yet it was held that tlie intent of the 
 net was, tlint such voluntary conveyance 
 which was oriRinally suliject t<j a power 
 of revocation, be it in prjesenti or in (u- 
 tnro, should not stanil aRalnst a pur- 
 chaser bona tide for a valuable consider- 
 ation : and if otherconstruction sliould be 
 made, the said act would serve for little 
 or no purpose, anil it would be no dilli- 
 cult mutter to evade it: so if A. liad re- 
 served to himself a pctwcr of revocation 
 with the assent of li. and afterwards A. 
 bnrRained and sold the land to another, 
 this barRain and sale is Rood, and within 
 the remedy of the said act; for otherwise 
 the Rood |>rovision of the act, by a small 
 adtlition, and evil invention, would be de- 
 feated. 
 
 And on the sainereason it wasadjudged, 
 :iS Eliz., in the common pleas, between 
 Lee and his wife, e.v<'cuti-ix of one Smyth. 
 plaintiff, and .\Iary-' Colshill, executrix of 
 Thomas Colshlll, defendant in del)t on hd 
 obliRation of lOOO marks. Hot. 17117. The 
 case was, Colshill, the testator, had the 
 ollice of the queen's customer, l>y letters 
 patent, to him.an<l his deputies; and by 
 indenture between him and Smyth, the 
 testator of the plaintiff, and for £i;()0 paid, 
 and £100 per ami. to bo paid duriuR the 
 life of ('(dshill, made a deputatioti of the 
 said ollice to Smyth; and Colshill cove- 
 nanted with .Sruyth,that if Colshill should 
 die before him. that tlien his executors 
 should repay him £:!(!(). And divers ci>ve- 
 nants were in thesaiil indenture cimcern- 
 iiiR the said ofhce, and the enjoy iiiR of it; 
 and Colshill was bound to tlie said .Smyth 
 in the said obliRation to perform the cov- 
 enants; and tlie breach was aileRcil in the 
 non-jpnyment of the snid £:!(I0, forasuuch 
 as Smyth survived Ccdshill; and althouRh 
 the said covenant to repay the iliOO, was 
 lawful, yet, forasmuch as the rest of the 
 covenants were aRainst the statute of^z 
 .'i E. 0, cap. 10, and if the addition of a law- 
 ful covenant shouhl make the obliRation 
 of force as to that,-'' the statute would 
 serve for little or no purpose; for this 
 cause it was adjudRcd that the obliRa- 
 tion was utterly void. 
 
 M. It was resolved that if a man hath 
 power of revocation, and afterwards to 
 the intent to defraud a purchaser, he lev- 
 
 Bethel V. Stanhope, Id. 810; Hawes v. Leader. 
 Cro. Jac. 270: Stone v. Grubham, 2 Bulst. 2JG; 
 Humborton v. Howgil, Ilob. "i; Id. 106; Uawes v. 
 Loader, Yclv. 190, ]!)7, 1 Hrownl. & G. Ill : 8 Dvcr, 
 2!!.-). pi. 17; Creswell v. Cokos. Id. ."!.il, pi. 23; Rastal, 
 Fraudulent Deeds. 1 Rast. Knt. 20rb; Rex v. Earl 
 of Nottingham, Lane, 47; Kitchin v. Calvert, Id. 
 10.3: C'hauiboi-lain v. Twyne, Moore, 63S; Doct. 
 Plac. 2(HI. 
 
 '•Co. Litt. 2fl0b. 
 
 "Co. Litt. 70a, 290b. 
 
 '•Jenkins v. Kemishe, Hardr. 397; Standen v. 
 Bullock, Toth. 71. 
 
 '"Digges' Case, Moore, 00.5; Bullock v. Thorns, 
 Id.015; fiarthv. Ersfeild, Bridg. 23: Gooch'sCase, 
 .5 CoUe, Odb; Llinaston v. Lloyd, Palmer, 217; St. 
 Saviours in Southwark, Lane, 22; Builerv. Water- 
 house, T. Jones, 95. 
 
 Trodgers v. Langham, 1 Sid, 133. 
 LAW SALES — 53 
 
 "2 And. 5.5, Id. 107; Norton v. Symm, Godb. 21.3; 
 Leo V. Coleshill, Cro. Eliz. .Vi;!; Norl.ia v. Syms, 
 Moore, b57; Bishop of Chester v. Frceland, Ley, 
 75, 79. 
 
 "Hill V. Farmer. Style, 29; Leo v. Coleshill, Cro. 
 Eliz-.Vi9: Trevor's Case, Cro. Jac. 269; Humberton 
 V. Howgil, Hob. 72; Co. Litt. 2,348; Trevor's Case, 
 12 Cok<>. 7-<; 8 Inst- 14.S, 1.54: Daws v. Pavnter, 3 
 Keb. 20; Ellis v. Nelson. Id. CwU. 000; W'elch v. 
 Baden, Id. 717, 71s ; Williamson v. Barnslov. I 
 Brownl. & G. 70, 71 ; Smyth v. Colshill, 2 And". .55. 
 Id. 107; Rex v. Zakar, 3 Bulst. 91; :! Leon. 33; 
 Warren V. Smith, 1 RoUe, 157; Southcottv. Adams, 
 Id. 250; Gouldsb. ISO. 
 
 M Smyth v. Colshill, 2 And. 50, 57. Id. lOS; Male- 
 veror v. Redshaw, 1 Mod. 3.5, liO; Norlcm v. Simmos, 
 Hob. 14; Pigofs Case, 11 Coke, 271); 2 Rollo, Abr. 
 28; Co. Litt. 221a; Bisliop of Carlisle v. WoUs, T. 
 Jones, 9(1, 91 : Leo v. Coleshill, Cro. Elir. .529, ri30; 
 Eliot V. Skvi>p. Cro. Car. '.Via; Norton v. Svmm, 
 (Jodb. 212, 2i;!. 1 Brownl. & G. 04; Dive v. MiininR- 
 haui, Plowd. BSb; Norton v, Syms, Moore. &50, 857; 
 Bishop of Chester v. Freelaud, Loy, 75, 79.
 
 834 
 
 TWYNE'S CASE. 
 
 lea n^* fine, or makes a feoffment, or other 
 conveyance to a stranijer, by which he ex- 
 tinKuishes his power, and afterwards bar- 
 gains and sells the land to another for a 
 valuableconsideration, the barsaineesliall 
 enjoy the land, for as to him the fine, 
 fecffinent, or other conveyances l)y which 
 the condition was extinct, was void by the 
 said act; and so tin- tirwt clause, by which 
 all fraudulent and covinous conveyances 
 are inaile void as to purchasers, extend to 
 the last clause of the act; soil., when he 
 whoniakesthebar^ainnnd salehad power 
 (jf revocation. And it was said that the 
 Stat, of 27 Eliz. hath made voluntary es- 
 tates made with power of revocation, as 
 to purchasers, in equal degree with con- 
 veyances made by fraud and covin to de- 
 fraud pui'cliascrs. 
 
 Between-" Upton and Basset in tre.s- 
 pass, Trin. :17 Eliz. in the common pleas, 
 it was adjudsed that if a man malies a 
 lease for years by fraud and covin, and 
 afterwards makes anotlier lease bona fide, 
 but without fine or rent, reserved, that 
 the second lessee should not avoid the 
 first lease. 
 
 For first it was agreed, that by the com- 
 mon law an estate made by fraud should 
 he avoided only by him who had a former 
 right, title, interest, debt or demand, as 
 3:5 H. 6, a sale in open-s market by covin 
 shall not bararight wliich ismr)reancient: 
 nor a covinous gift shall not defeat execu- 
 tion in respect of a former debt, as it is 
 agreed in l'2 Ass. 72; bnt he who hath 
 right, title, interest, debt, or demand more 
 puisne shall not avoid a gift or estate 
 precedent by fraud by the common law. 
 
 2d. It was resolved that no purchaser 
 should avoid a precedent conveyance 
 made by fraud and covin, !)ut he who is 
 a-" purchaser for money or other valua- 
 ble consideration; for altlu)ugh in the 
 preamble it is said "for money or other 
 good consideration," and likewise in the 
 body of the act "for money, or other good 
 consiileration," yet these words "good 
 consideration" are to l)e intended only of 
 valuable consideration, and that appears 
 l)y the clause which concei-ns those who 
 had power of revocation, for there it is 
 said, for money or other good consider- 
 ation paid or given, and this word 
 " paid" is to lie referred to "money," and 
 "given" is to be referred to "good consid- 
 eration," so the sense is f<jr money paid, 
 or other good consiileration given, which 
 woi-ds exclude all considerations of nature 
 or blood, or the like, and are to be Intend- 
 ed only of valuable considerations which 
 may be given; and therefore he who 
 
 *< Albany's Case, 1 Coke, 113b; Digues' Case, Id 
 174a; Co. Litt.23ra; Sheffield v. Ratcliffe, Hob. 337, 
 33S; Diprges' Case, Moore. 605; In re Le Rov 3 
 Rolle, 3:jr; Sir Sheffeild's Case, td. 496; Oxford v. 
 Goldington, Winch, 6.5. 
 
 "Co. Ent. 6-6b. note 19; Rex v. Earl of Notting- 
 ham, Lane, 4.5; Upton v. Basset, Cro. Eliz. 44.5. 
 
 "Fermor's Case, 3 Coke, 7S; Wimbish v. Tail- 
 bois. Plow. 46b, .55a; Fitz, Replic. 15; Br. Trespass 
 26; Br. Collusion 4; Br. Property 6; 2 Inst. 713- 
 14 H. 8, Sb; :« H. fi, .5a, b. 
 
 *' Upton V. Basset, Cro. Eliz. 445. 
 
 makes a purchase of land for a valuable 
 consideration is only a purchaser within 
 the statute, aud this latter clause doth 
 well expounil these words "other good 
 consideration," mentioned before in the 
 preamble anil body of the act. 
 
 And so it was resolved, Pasch. 32 Eliz., 
 in a case referred out of the chancery to 
 the consideration of Windham and Peri- 
 am, Justices :28 between .John Needham, 
 plaintiff, and Beaumont, serjeant-atla w, 
 defendant, where the case was, Henry 
 Babington seised in fee of the manor of 
 Lit-Chnrch, in the county of Derl)y, by 
 indenture, 10 Feb. S Eliz., covenanted with 
 the Lord Darcy, for the advancement of 
 such heirs male, as well those he had be- 
 got, as those he should afterwards beget 
 on the boily of Mary then his wife (sister 
 to the said Eord Da re .v ), before the feast 
 of St. Jolin Baptist then next following, 
 to levy a fine of the said manor to the use 
 of the said Henry for his life, and after- 
 wards to the use of the eldest issue male 
 of the bodies of the said Henry and Mary, 
 begotten in tail, &c., and so to three is- 
 sues of their bodies, &c., with the remain- 
 der to his right heirs. And afterwards, 
 8 Mali, Ann, 8 Eliz , Henry Babington, by 
 fraud and covin, to defeat the said cove- 
 nant, made a leaseof the said manor tor a 
 great number of years to Robert Heys; 
 and afterwards levied the fine accordingly: 
 and ()n conference had with the other jus- 
 tices, it was resolved, that although tlie 
 issue was a purchaser, yet be was not a 
 purchaser in vulgar and coniniou intend- 
 ment: also consideration of blood, nat- 
 ural affection, is a good consideration, but 
 not such a good consideration which is 
 intended by the stat. of 27 Eliz.. for-9 a 
 valuableconsideration is onl.v a good con- 
 sideration within that act. In this case, 
 Anderson, C. .I.,of the common pleas, said, 
 that a man who was of small understand- 
 ing, and not able to^o govern the lands 
 which descended to him, and lieing given 
 to riot and disorder, by mediation of his 
 friends, openly convejed his lands to 
 them, on trust ami eonfideuce that he 
 should take the profits for his mainte- 
 nance, and that he should not have 
 power to waste and consume the same; 
 and afterwards he being seduced l)y de- 
 ceitful aud covinous persons, for a small 
 sum of money bargained and sold his land, 
 beins of a great value: this bargain, al- 
 though it was for money, was holden to 
 be^i out of this statute, for this act is 
 made against all fraud and deceit, and 
 doth not help any purchaser, who dotli 
 not come to the land for a good consid- 
 eration lawfully and without fraud or 
 deceit; and such conveyance made on 
 trust is void as to him who purchases the 
 land for a valuable consideration bona 
 fide, without deceit or cunning. 
 
 And by the judgment of the whole court 
 Twyne was convicted of fraud, and he 
 and all the others of a riot. 
 
 2' Needham and Beaumont's Case, 1 And. 233. 
 2'Beverlv v. Gatacre, 2 Rolle. 3U5, 306. 
 ™ Upton V. Basset, Cro. EI. 44.5. 
 *• Upton v. Basset, Cro. El. 44.5.
 
 UNEXCELLED FIRE WORKS CO. v. POLITES. 
 
 837 
 
 UNEXCELLED FIRE-WORKS CO. v. POLITES. 
 
 (18 Atl. Rep. 1058, ISO Pa. St. 536.) 
 
 Supreme Court of PcoDsylvania. Jan. 6, 1S90. 
 
 Error to court of common pleas, Lawrence 
 county. 
 
 Before Paxson, C. J., Steruett, Gukes, 
 Clauk, Williams, McColluji, and Mitch- 
 ell, JJ. 
 
 \V. H. Falls, for plaintiff in error. D. 
 Jameson, (with liim G. E. Treadwell,) for 
 defendant in error. 
 
 Clauk, -T. This is an action oi assumpsit, 
 brouglit July 20, 1868, to recover the price of 
 a certain lot of lire-works and celeljration 
 (,'ooils, ordered by the defendant, George Po- 
 ntes, from the Unexcelled Fire- Works Coin- 
 I)any, of New York, in February, 1888. The 
 first order, which was for liis store in Xew 
 Castle, was given through tlie plaintiff's 
 a^'ent, Alexander Morrison, and amounted to 
 .S208.53; the second, sent directly to the plain- 
 tiff, was for the defendant's store in Wash- 
 ington, Pa., and amounted to S123.83. These 
 orders were in writing, and were signe<l by 
 the <lefendant. They specified, not only the 
 j)articular kind and quality of the articles or- 
 dered, but contained also a schedule of the 
 prices to bo paid therefor. The goods were to 
 he shipped in May, and were to be paid for on 
 the lUth day of July thereafter. Upon re- 
 ceipt of these orders the plaintiff transmitted 
 by letter a formal acceptance of them. A 
 contract was thus created, the obligation of 
 which altai lied to both parties, and which 
 neither of them, without the agreement or 
 assent of the other, could rescind. On the 
 5th day of April, 1888, the defendant, by let- 
 i ter, informed the plaintiff that he did not 
 
 want the goods, and notified the plaintiff not 
 to ship them, as he could do better with an- 
 other company. The plaintilTs replied that 
 they had accepted the orders, and had placed 
 theui in good faith, and that tlie goods would 
 be shipped in due time, according to the 
 agreement. The goods were shipped within 
 tlie time agreed upon, — the lirst lot to New 
 Castle, and the second lot to Washington, 
 according to contract; but on the arrival the 
 defendant declined to receive them. The 
 carrier notified the shipper that, owing to the 
 dangerous and explosive ijuality of the goods, 
 they would not retain them in their posses- 
 sion. The ))laintiff thereupon received them 
 back from the carriers, and placed them on 
 storage, subject to the defendant's order. 
 
 The plaintiff alleges that it is a manufact- 
 urer and importer of such fire-works as are 
 used in the 4th of July celebrations through- 
 out the country; that it is not profitable to 
 
 ' carry these goods over from one season to an- 
 other, and that therefore the quantity manu- 
 factured and imported depends upon the ex- 
 tent of the orders received; that the defend- 
 ant's orders entered into its estimates of 
 goods to be made up and imported for tlie 
 season of 1888, and that the goods ordered by 
 the defendant were actually made up before 
 the order was countermanded. The defend- 
 ant testifies, however, that Mr. Morrison, the 
 plaintiff's agent, informed him, at the time 
 he gave the lirst order, that the plaintiff had 
 some, at least, of the articles in stock, and 
 that he did not order any, either to be manu- 
 factured or imported on his account; that the 
 transaction was sim|dy a bargain and sale of 
 goods, and not an order for goods to be manu- 
 factured or imported; and the evidence does 
 not seem to conflict with this view of the 
 case. It is plain that the notice given to the 
 plaintiff by the defendant not to ship the 
 goods was a repudiation of the contract. It 
 was not a rescission, for it w.is not in the 
 power of any one of the parties to rescind; 
 but it was a refusal to receive the goods, not 
 only in advance of the delivery, but before 
 they were separated from the bulk, and set 
 apart to the defendant. The direction not to 
 ship was a revocation of the carrier's agency 
 
 ' to receive, and the |)!aintilT thereby had no- 
 tice of the revocation. The delivery of the 
 
 ! goods to the carrier, therefore, w;is unau- 
 thorized, and the carrier's receipt would not 
 charge the defendant. The plaintiff itself 
 made the carrier its agent for delivery, but 
 the gools were in fact not delivered. A de- 
 livery was tendered by the carrier, when the 
 goods arrived at their destination, but they 
 wore not received. The action, therefore, 
 could not lie for the price, but for special 
 damages for a refusaf to receive the goods 
 when the delivery wa.s tendered. We think 
 the statement was suilicient to justify a re- 
 covery of such damages, as the words of 
 the statement were clearly to this effect; but 
 there was no evidence given of the market 
 value of the goods as compared with the price. 
 It does not appear that the plaintiff had suf- 
 fered any damage. For anything that was 
 shown, the goods were worth the price agreed 
 upon ill the open market. While the manifest 
 
 I tendency of the cases in the .Vmericau courts 
 
 I now is to the doctrine that when the vendor 
 stands in the position of a complete perform- 
 ance on his part ho is entitled to recover the 
 contract price as his measure of damages, in 
 the case of an executory contract for the sale 
 of goods not specific the rule undoulitedly is 
 that the measure of damages for a refusal to 
 receive the goods is the difference between 
 
 ' the price agreed upon and the market value 
 
 [ on the day appointed for delivery. Judg- 
 
 I ment alllrmed.
 
 WALKEU V. DAVIS. 
 
 8:39 
 
 WALKER V. DAVIS. ; 
 
 (18 Atl. Rep. I'JO, 0.5 N. H. 170 ) 
 
 Supreme Court of New Hampshire. Merrimack. 
 July 3t}, issa. 
 
 On report of referee. j 
 
 AsstcmpHt for not acceptintj and paying 
 
 for a quantity of wood according to a con- ; 
 
 trait. Facts found by a referee. j 
 
 Daniel liarri'ird and Frank JV. Parsons, ' 
 
 for plaintiff. Sanborn cfc Hardy, for defend- j 
 
 ant. 
 
 Clark, J. The contract for the sale of I 
 the wood was an entire contract. Gault v. j 
 Brown, 48 X. II. 18:3. Tlie first wood deliv- j 
 ered was not pro[ierly sorted tlirough tlie 1 
 fault of tlie plaintiff's servants, and between ' 
 20 and 30 cords of a dilTerent quality from 
 that contracted for were loaded on tlie cars 
 at Grafton, and forwarded to the defendant 
 at Franklin. The phiintilT, learning that 
 the wood forwarded was not according to the 
 contract, wrote to the defendant, stating how 
 it happened to be sent, inclosing a bill for it 
 in which a discount was made because it was 
 not according to contract, and stating that 
 the defendant could pay this bill, or sort the 
 wood to conform to the contract, and charge 
 the expense to him, and jiromislng to con- 
 form to the contract in the future. The de- 
 fendant, upon ascertaining that the wood 
 was not according to the contract, notified 
 the plaintiff that he did not consider himself 
 
 nnder any obligation to take any more of tlie 
 Wood, and that he sho'.iM not do so for the 
 rea.soii th.it tlie plaintiff had broken the con- 
 tract. The case finds that the defenrlant did 
 not waive his right to rescind if upon the 
 facts he could rescind. A jiarty to a con- 
 tract is not bound to accept anything less' 
 than a full performance according to it3 
 terms and conditions. The wood forwarded 
 uj) to the time of the attempted rescission 
 was not in compliance with the contract, and 
 the defendant refuse I to accept it as such, 
 and notified the plaintiff that he rescinded 
 the contract. This he had a right to do. 
 The wood delivered not being such as the 
 contract called for, the defend mt was not 
 bound to receive it. The plaintiff's letter, 
 insisting upon an acceptance of the wood and 
 a variation from the original contract, pre- 
 sented the alternative to the defendant, either 
 to accept the wood at a reduced jirice, or sort 
 it to conform to the contract, charging the 
 expense to the plaintiff. The defeiid:int was 
 under no oblig.ilion to do either. If all the 
 wood contracted for had been delivered at 
 once containing the wood delivered up to tlie 
 time the notice of the rescission w;is given, 
 the defendant would not have been compelled 
 to accept it. because it was not of the quality 
 stipulated for. Judgment for the defend- 
 ant. 
 
 Allen, J., did not sit. The others con- 
 curred.
 
 WALTER A. WOOD MOWING & REAPING MACH. CO. v. GAERTXER. 841 
 
 WALTER A. WOOD MOAVLNG & REAPING 
 iL^CHTXE CO. T. GAERTXER. 
 
 (SO N. W. Rep. 106, G3 Mich. 520.) 
 
 Supreme Court of SIichi«an. Nov. 4, 188C. 
 
 Error to Monroe; JuHlin, Judce. 
 
 AHHiiinpsit. Defendant briii;^H error. 
 Reversed. 
 
 This action was brouRht to recover the 
 contract price of a twine Helf-biiitlinK hnr- 
 vewter, under an order of wliicli the follow- 
 Ins is a copy : " Waller A. Woori Mowinjj; 
 & ReapinK .Machine Co., SO Taylor Street, 
 Cliicago, 111.: I lierel)y order one Walter 
 A. Wood twine eclf-ldndinR liarvester, T< 
 feet (i inches cut, to be delivered at Puters- 
 burgh, Mich., care of O. M. Kiissfll, on or 
 liefuro July 15, 1SS3, for which I u^ree to 
 pay you the sum of $78 in .Junior reaper, 
 and in manner as follows: The balance, 
 5147, caKh, with freight from Peter.sbnrKh, 
 on or before September 2."}, 's;j, with inler- 
 CHt at 7 per cent, per annum from the date 
 of delivery of machine or commencement 
 of harvest. If paid on or before maturity, 
 no interest to be paid. Warranty: This 
 machine is warranted to be well made, of 
 good materials, and with proper raanage- 
 raeiit, capable of cutting and binding in a 
 workmaidike manner, doing the binding 
 at least as well as is usually doneby hand. 
 The purchaser shall lie allowed one day's 
 use to give the machine a fair trial, and if 
 it should not work well immediate written 
 notice ronst be given to the agent from 
 whom it was purchased, and reasonable 
 time allowed to get to it and remedy the 
 defects, if any, (the purcliaser rendering 
 necessary and friendly assistance;) when, 
 if it cannot be made to do good work, it 
 shall be returned to the place where received 
 free of charge, and the payments of money 
 or notes will be refunded. Failure to give 
 notice as above shall bedeemed conclusive 
 evidence that the machine fills the warran- 
 ty, whether It is kept in use or not. 
 [Signed] Fred. r,acrtner. Purchaser." 
 
 I. R. (irosvenor and A. B. Bragden, for 
 appellant. O. A. Critchett, for appellee. 
 
 MORSE, .T. This case lias been once 
 heretofore in this court. The contract 
 sued upon is set forth in the opinion of 
 .Mr. Justice SHERWOOD in .-).-> Mich. 4r)4, 
 21 N. W. Rep. SN.j. We then held that it 
 was competent for the defendant to show 
 that it was a part of the consideration 
 for wliich the order was given that the 
 plaintiff should, at the time of the deliv- 
 ery of the property ordered, furnish a man 
 to set up the macliine, and make it work 
 In the manner prescribed in the order. 
 The defendant, upon the last trial in the 
 circuit, introduced testimony fairly tend- 
 ing to show that the consideration, in 
 part, consisted of the agreement upon the 
 part of plaintiff's agent thai the machine 
 should be delivered ready for use on or be- 
 fore the tifleenth day of July The con- 
 tract for the purchase of the machine was 
 on the tenth of that month, and made 
 with the evident object and purposp for 
 use in the harvest of that year, which 
 was e.xpected to come closely upon the 
 heels of the purchase. The evidence was 
 undisputed that on tliefourteeuth of July, 
 
 on Saturday, the machine, or boxes and 
 packages supposed to contain the differ- 
 ent parts of the machine, arrived at Pe- 
 tersburgh. Mr. Russell, the local agent of 
 the plaintiff conipaoy, helped defendant 
 to load the boxes and packages, and de- 
 fendant drew them to his home, a few 
 miles from the station. In the forenoon of 
 that day. At this time Russell told de- 
 fendant that he expected an expert there 
 to set it up. Russell swears he said the 
 expert would be there Monday or Tues- 
 day, while defendant tostilies that Itussell 
 said the expert would arrive on the nft- 
 ernoon train that day,— Saturday. De- 
 fendant went to town in the afternoon 
 of Saturday, for the exi)ert, who hail not 
 arrived. The expert came to Petersburgb, 
 Monday afternoon, and on Tuesday set 
 up a niachine for another man, who had 
 ordered a machine lijter than defendant. 
 He went to defendant's on Wednesday 
 morning, Jidy 18th. to set up the ma- 
 chine. Defemlant, ha ving cut most of his 
 wheat before this, commencing on .Mon- 
 day, — as he claimed, because it was so 
 ripe he could wait no longer, — refused to 
 I take the machine. 
 
 I It is admitted that Russell could not set 
 I up the machine, and so informed defcnd- 
 |ant. Defendant swears that he told Rns- 
 i sell, Saturday morning: "I want that 
 I niachine set up; that is, if there is any- 
 thing like it in the boxes. I want that put 
 ;.up, so I can run it. un<i cut my wheat, be- 
 cause it is ripe now." Russell said he 
 I "iliiln't know how to set it up. He ex- 
 pecteil an ex|)ert for that work, and he 
 thought the expert would be in that 
 afternoon, on the .') o'clock train. " De- 
 fendant went to town after the P. M. 
 train, and was then told by Russell that 
 the expert would be there Monday. Mon- 
 day morning defendant went to Peters- 
 burgh again. The expert not having ar- 
 rived, he told Russell he did not want the 
 machine, because his wheat was dead 
 rii)e, and he must hire men, and cut It 
 right away. This he proceeded to do. 
 
 The court, after ciiarging the jury at 
 considiTal)le length, finally said: "I may, 
 in short, say to you : Fiml a verdict for 
 the plaintiff, with the amount of this or- 
 der, with interest to the present time, 
 $"J(!.5. I receive the verdict." Instantly 
 thereupon the court continued: "No; I 
 will not. 1 say to the jury, if you find 
 the niachine was delivered there on or be- 
 fore the ].')th, then the company were to 
 have a reasonable length of time after Mr. 
 I (iuertner had drawn the machine home 
 in which to set it ui), and give him an 
 opportunity to test it. aii<l that by Wed- 
 nesday was a reasonable lime, within the 
 law; an<l that if you Und from the evi- 
 dence that Mr. Uaertner said, ' I will not 
 take it,' as early as Monilay, which was 
 the next day after the time tlxed for Its 
 delivery, and repeated it on Tuesday, and 
 then on Wednesdjiy, '1 will not hlichonto 
 it. and I ain not going to take it,' then 
 the com|)ony need not set it up, nor test 
 it, nor give him any op|)ortunity to ex- 
 amine it at all, and he became liable for 
 the machine at the contract price. Swear 
 an olficer. " 
 This was practically directing a verdict
 
 S42 WALTER A. WOOD MOWING & REAPING MACH. CO. o. GAERTNER. 
 
 for plaintiff, and was errtir. Tlie machine 
 could nut l)e considered as delivered until 
 it was set up as a machine. The different 
 parts, which none but an expert could put 
 toReTlier and form into a machine, could 
 not l)e callei] a macliine. as required liy 
 the contract, until attached together, and 
 forndnj;' a comi)lete harvester. Under all 
 the circumstances, it would seem that 
 both parties ccmteinplatpd that the ma- 
 chine should be delivered in ;i condition 
 fit for use on or Ijefore .July l.'itli. Certain 
 it is that tlie whole tenor of defendant's 
 testinxmy was to that effect, and he had 
 a riiclit io go to the jury upon that the- 
 ory. If the jury so found, tlie nuestion of 
 
 reasonable time would be out of the case 
 
 entirely. 
 
 We are referred by plaintiff's counsel to 
 portions of defendant'sevidence which are 
 claimed to establish the plaintiff's theory 
 that there was no arrangement that the 
 machine should be set up on or before 
 July loth. Be this as it may, the testi- 
 mony of the defendant, as a whole, tended 
 to support his theory of the contract, and 
 the jury should have determined its weight 
 and bearing. This they were not per- 
 mitted to do. 
 
 The judgment is reversed, with costs, 
 and a new trial granted. 
 
 The other justices concurred.
 
 WAHDc. SHAW. 
 
 845 
 
 "WARD T. SHAW. fldence in reposed, credit is given, and the 
 
 ^7 •Wond d(u.\ property piisHeH. ThiH wfiH ho decided In 
 
 U vvena. lift.) Cliapniun v. Lalhrop, B Cowen. 110, nnd 1b 
 
 Siiprome Court of New Yorli. July Term, 1831. i supported by the caseH there cited, HuB- 
 
 ,, , ^, ^ . ., Key V. 'rhoriitiiii, 4 Musb. 40.'i, Tooke v. 
 
 l^rror from the Huperior court of the H„|iin,; worth, ,-, T. K. 232, and uIho by 
 
 city and county of New Yorli. ^\ ard sued jj^rriB v. Smith, 3 Serg. & Ha wle, 20, 24, 
 
 Shaw in an action of trover or two oxen and by Chancellor Kent, 2 Kenfs Com. 
 
 lieuiK fat cattle, taken by hiin as sheriff g,,]^ But where part only of the property 
 
 oiitof the possession of one (raw buck, by U,„a ,,ppQ delivert-d, without deinandins 
 
 ?,','''.".*' °^,"" ''^^^■"""n in favor of one po„ .li^,,,.^ ^y^,, ^,,g condition, the ven- 
 
 Platt. The o.xen came into the posses- ,jor may refuse to deliver the residue until 
 
 sii.n of Crawbuck uiiiler these circum 
 stances: he was a butcher and agreed to 
 purchase tlieiu of Ward at §7.50 for each 
 cwt., which the quarters should weijili 
 wlien slautchtered, he to take the cuttle 
 iiuo his possession, prepare them for 
 slaugliterinfj, Blaushter them in the week 
 in which the contract was made, and 
 
 performance of the condition. Payne v. 
 Shnilbolt, 1 Camp. 427. 2. If the vendor 
 deliver the KOods, accom|>anieil with a 
 ileclaration that hedoesnot considerthein 
 sold until payment is made, nccordinK to 
 a previous contract, the sale is condition- 
 al, nnd the property does not pass by the 
 delivery as between the parties to the 
 
 when slaughtered take the quarters to , j,„,^. jiussev v. Thornton, 4 .Mass. 405; 
 market, nei«li them, and pay for the cat- \,.,,.„j„„ v ' Baldwin, 17 Id. (iO(!. Two 
 tfe the amount the weight of the quarters t|,j„^,„ „re essential to the transfer of the 
 would come toat$7..')(lforeachcwt.. which ^jji^, t„,,ersimal property upon a cash sale: 
 sum was to be received by Ward m full, ,,y„„.nt ,^^l„. ^.gtjjpy,,„,l actual or con- 
 as well of another parts of the cattle ns^^^-y^.jj^.g jjeii^erv bv the ven.ior. The 
 
 the quarters. Crawbuck took the cattle 
 into his posses.sion, and on the same day 
 they were levied upon under Piatt's execu- 
 tion, which was issued on a judgment ob- 
 tained previous to the contract between 
 Ward and Crawbuck, and taken away 
 
 first may lie waived by the vendor, and 
 tlie cases above cited show that an abso- 
 lute delivery is such waiver, but that a de- 
 livery subject to the condition of payment 
 is not. 'i. It is also a settled principle, 
 that where any. thing remains to be done 
 
 On the trial of the cause, the presiding ; ,,^, t,,e ^.gn,,,,^ ijefore the article is to be 
 
 judge charged the jury, that the contract ^ ^ 
 
 between Ward and Crawbuck, and the 1 '.",agyg^'""y,")'"in "tiie i 
 delivery of the cattle to Crawbuck vested Meyer, 6 East, ()15, w 
 the title and ownership in Crawbuck, and 
 that they were subject to the execution. 
 The plaintiff exce|)ted to the decision. 
 The jury found for the defendant, and the 
 superior court refused on motion to set 
 aside the verdict ( Mr. Justice Oakley dis- 
 senting. The plaintiff sued out a writ uf 
 error. 
 
 S. P. Staples, for plaintiff in error. J. 
 (J. Grim and J. R. Whiting, for defendant 
 in error. 
 
 delivered, the right of property has not 
 case of Hanson v. 
 here a quantity of 
 starch was contracted to be sold at a cer- 
 tain price per hundred, the vendor gave 
 the venilee an order, addressed to the 
 keeper of the warehouse where the starch 
 lay, directing him to weigh and deliver 
 all his starch, it was held that the prop- 
 erty did not pass before the weighing, 
 whicli was to precede the delivery and to 
 ascertain the price. The language of Lord 
 F^llenborougli in that case is applicalde 
 here: "By the terms of the bargain, two 
 tilings, in" tlie nature of conditions or pre- 
 By the court, SAVAGE, C. J. The ques- , liminary acts, necessarily preceded the ab- 
 tion is whether Crawbuck liad an interest ! solute vesting in them (the purchasers) 
 in the cattle which could be sold on exe- ! the property contracted for. The first of 
 cntioii. The sheriff and the plaintiff in the i them is one which does so according to 
 execution are possessed of the rights of 1 the generally receive<l rule of la w in con- 
 Crawbuck and no more. Had Crawbuck ; tracts of sale: to wit, the payment of the 
 sold the cattle to a purchaser for valuable price or consideration for the sale. The 
 consideration, without notice of tlie terms I second, which is the act of weighing, 
 on which he iiossessed them, other consid-i does so inconsequence of the particular 
 erations might prevail; but in this case j terms ot this contract, by which the price 
 no newcre<lit has been given to Crawbuck is made to depend upon the weight. The 
 in consequence of his having the cattle In weight therefore must be ascertained. In 
 his possession. Platfs debt ac-.-rui'd an- i order that the price may be known and 
 tecedent to the transactions in (inestion, paid." Vide Cutwater v. Dodge, 7 
 nnd of course was not contracted upon Cowen. S6. 
 
 the credit of this proiierty. If he fails, he i The sale being for cash, nnd by weight, 
 is in no worse situation "than he was be- the vendor is not bound to deliver until 
 fore the sale of the oxen. ; payment is made. Payment cannot he 
 
 The question, then, is one between ven- nia<le until the price is ascertained liy the 
 dor and vendee, and as between them cer- act of weighing. Should, therefore, the 
 tain principleshnvebeen.-ettled. 1. Where vendee refuse to slaughter the oxen ac- 
 no credit is agreed to be given for the cording to contract, and put them to 
 price of an article sold, the payment and work on a farm, the vendor may retake 
 delivery are concurrent acts. The v?ndor them. Should he refuse to pay, after 
 ma V refuse to deliver without pavment; weighing the quarters, the owner may 
 but" if hedoes ileliver freelvand absolutely, taki- possession <if his sljiughtered cattle, 
 and without any fraud on the part of the for the property has not pa.ssed under 
 vendee the condition of pavment simulta- such a contract, until payment is made or 
 neously with the delivery is waived: ccui- waived. The terms of thi- contract in this
 
 846 
 
 WARD c. SHAW. 
 
 case forhid the ideu of a waiver of poy- 
 meiit when the cattle were delivered to be 
 prepared for slaughter. The rule laid 
 down in llauson v. Meyer is, that the 
 property does not pass when any thins 
 remains to be done by the vendor; when 
 the thinir to be done is necessary to ascer- 
 tain the price, and tlie sale is for cash, it 
 can make no difference whether that thing 
 is to bi! done by the vendor or vendee. 
 The property is not to pass till payment; 
 the price must i)recede tlie payment, and 
 until the price is ascertained, payment can- 
 not be made or waived, unless by express 
 terms; the acts of the vendor cannot be- 
 fore that time be construed into a waiver. 
 This case is unlike most of the English 
 cases, where the pro|»erty was in n ware- 
 house of a third person. I put the case 
 upon its own circumstances; the delivery 
 wan for a special purpose, not an abso- 
 
 lute delivery to the vendee as such, but 
 rather as bailee. There was an act to be 
 done to ascertain the price. In general, 
 the act of weigliing or measuring is to be 
 done by tlie seller, but parties have a right 
 to stipulate that the purchaser shall do 
 such act. It is sufficient that the vendor 
 has an interest in the act to he done, and 
 has a right to l)e present; when the 
 weight is ascertained, tlien, and not be- 
 fore, can the vendor demand payment. 
 If payment is then made or waived, the 
 I)roperty passes absolutely, otherwise 
 not. If I am correct in this view of the 
 case, Crawbuck had no interest in the cat- 
 tle which could be sold on Piatt's execu- 
 tion. I am of opinion, therefore, that the 
 court below erred,'and that the judgment 
 must be reversed ; a venire de novo to is- 
 sue by that court, and the costs to abide 
 the event.
 
 WATSON V. UOODE. 
 
 849 
 
 WATSON V. ROODE. 
 
 (46 N. W. Rep. 491, SO Neb. 204.) 
 
 Supreme Court of Nebraska. St'pt. 17, 1890. 
 
 Error to dislriut court, (iajre county; 
 Mouiii.s, Ju(l;if. 
 
 II. S. bibi) Hnd ./. E. Hush, for pluinliff 
 in error. (Jiifms <t Itinnker nnd Uiizlvtt 
 <f- lliites, for dtfi'iKlant in error. 
 
 NonvAi., J. This action wns coni- 
 mcncpil by OrnnsH A. Hoode to recover 
 jlaiuaereK for an allcircl lireacli of warran- 
 ty Riven hy .Tosepli Watson on the Hale l)y 
 him to Roode of a Htallion. Tlie amend- 
 ed petition alleges " tliat on tlie IStli day 
 of Xovenilier, lss4, tlie defemlant, as an 
 inducement to plaintiff to purcliase fi-oni 
 him a certain ini]iorted black stallion, 
 called 'Knialit of t'>e Sliiies.' for the sum 
 of $2,000, -vvarrantecl the said horse to be 
 a foal setter, and sound in every respect, 
 except an enlargement of said horse's baj;, 
 ■which was caused by a kick, and repre- 
 isented the said horse as b(-ing then and 
 there sound; that the title to the same 
 was clear, and that the said horse was 
 re^i.stered in theStud Book of England, as 
 well as his sire and dam and would furnish 
 the secretary's receipt for such pedigree; 
 and plaintiff, relying upon said warranty 
 and statements, purchased said horse from 
 the (Kfrndant for the sum of .?!.'. IMMI. then 
 duly paid. Plaintiff avers that said horse 
 at the time of said sale was unsound in 
 this: that the enlargement of said horse's 
 bag was hernia at the time of said sale, 
 and in no way was he free from diflieulty 
 or trouble, and was of no value whatevei-: 
 that one testicle of said horse was mashed 
 and completely ruined, and was of no ben- 
 efit to the said horse; and on account of 
 said hernia, mashed testicle, and urethral 
 gleet, all of which the said horse had at the 
 time of the purchase, combined to cause 
 the death of said horse, to-wit, on the 
 ](;th day of .lune, issfi. Plaintiff avers 
 that the pedigree of said horse was not as 
 warranted by the defendant, and that the 
 said defendant neverhas furnished the sec- 
 retary's receipt for such pedigree, as agreed 
 to have been done on the part of the de- 
 fendant. Plaintiff avers that said horse 
 was not a good foal getter. And by rea- 
 son of above premises plaintiff has sus- 
 tained dj'.mages in the sum of ?.').000. " 
 The answer of the defend.mt ailmils the 
 sale of the horse to the plain tiff, and denies 
 all the other allegations of the amended 
 petition. On the trial of the case to a 
 jur.v, a verdict was returned for the 
 plaintiff, assessing his damages at ?!.- 
 47(1. TiO. The defendant filed ;i motion for a 
 new trial, containing :{2 assiginuenls of 
 error, which motion being-overruled, judg- 
 ment was rendered upon the verdict. 
 Eight of the assignments arc based upon 
 the rulings of the trial court, uiion the 
 admission and exclusion of testimony 
 The plaintiff upon the trial offeird in evi- 
 dence the following instrument : " DilliT. 
 Neb.,.\ov.,ls.s4. In consideration of $-.'.0iMi. 
 receipt whereof is hereby acknowledged. 
 I have this day sold my imporled black 
 English draft-horse. -Knight of the 
 Shires.' to O. A. R.iode, and hereby agree 
 LAW SALKS— 54 
 
 to warrant and defend the title to said 
 horse from all claims whatsoever, and I 
 also guaranty s.-iid hor.-^e to be a foal get- 
 ter, and I fnrt her state that Iheenlarge- 
 nient of said horse's bag was caused liy a 
 kick, . '11111 in no way troidiles him.aiid I fur- 
 ther guaranty the said horse to be regis- 
 tereil in the .Stud JSook of England; also 
 his dam, as well as his sire; and will fur- 
 nish the secretary's receipt for such pedi- 
 gree. It is furtheragreed lhat,if said ()..\. 
 Itoode is un.'ibic to pay a note liiarin^ 
 even date w-ith this agreement from the 
 proceeds of the first ye;ir'H services of said 
 horse, he shall have the privilege of an- 
 other year's time on ifL'iHI. .losKfil Wa'!- 
 sr).\." 'I'he defemlant objected to the re- 
 ceiving in evi( enee of this paper, as incom- 
 petent, irrelevant, immaterial, and inad- 
 missible under the pliMdings, which objec- 
 tions wcie overruled, and the d"fendant 
 took an exeejition. it will be oliserved 
 that it is nowliere alleged in the amended 
 Iietition that the warranty upon wliicli 
 the action is founded was in writing, nor 
 is a copy of the instrument attached to 
 the i)|pading. 
 
 It is cl.-iimed by the plaintiff in error 
 that, as the [ileading does not aver that 
 the warranty was in writing, thepresump- 
 tion is that it existed in parol, and that it 
 was incompetent to prove a written war- 
 ranty. Theludiana cases cited bycounsel 
 sustain that view, but they are believed 
 to be contrary to the weight of authority. 
 The rule as laid down in thedccislons, and 
 in the works on pleadings, is that in an 
 action upon a written contract it is not 
 absolutely necessary that the plaintiff 
 should allege in liis pleading that the con- 
 tract was in writing; and tluit on the 
 trial inder such a pleading the writing is 
 adminsible in evidence. Maxw. PI. & Pr. 
 '.»!); Steph. PI. 331: Abb. Tr. Ev. .".22; Tut- 
 tle V. Hannegan. TA N. Y. listi; .Marston v. 
 .Swett. li(i N. Y. L'Ot;. Where the contract is 
 one that the law re(|uires to be in writing, 
 and the ph'ading based tliereou is silent aa 
 to whether it is in writing or not. the law 
 presumes that a written contract w-as in- 
 tended; but where the contract is valid, 
 wluther it be in writing or in parol, there 
 is no such presumi)tion. Under the alle- 
 gations of the petition in this case, the 
 written warranty wascompetent evidence. 
 The defendant had an undoubted right, 
 had he moved at the proper time, to have 
 reipiired the plaintiff to make his petiti(<n 
 more certain and siiccilic, by stating that 
 the warranty wjis a w-ritten one, and by 
 attaching a copy ther<'of to the petition. 
 
 The i)laintiff. on rebuttal, introiluced in 
 evidence tliefollowing paper, siirned liy the 
 defendant, and marked" Exhibit 15:" -fSea- 
 trice. .Veil. ..April •J4.1^^.■>. To whom it may 
 concern: I. .loseidi Watson, upon honor, 
 state that I have known the imported 
 horse. 'Knight of the Shins." since he wa« 
 imported in l"^'^•.'. by .Mr. 15. Holmes, of 
 .Midine. III., and know him to be a good 
 and sure foal getti-r. as compared with the 
 best of horses, nnd any n-ports ti> the con- 
 trary are without foumlation and mnli- 
 lious. 111-! colt, owned by .Mr. Thomas Mc- 
 Ennghlin. .Moliae. III., took first premium 
 at the Kairiiury. III., fair, Mud I will deposit 
 ten dollars with any man that he can
 
 8-.0 
 
 WATSON V. ROODE. 
 
 hIiow, lit tliP Gncoconnty fnir. five i)f lieKt 
 colts Himl by any horse in tlie ruuiity. 
 Josisi'ii Watson. " TlKMlefeiidaiit ohjeeted 
 to tlie reeeivinff of tliis paper in evidence 
 as liein;;- immaterial, irrelevant, and not 
 proper rebutting- testimony. Tliis oljjec- 
 tion was ovennled. No testimony had 
 l)een introduced by tlie defendant that 
 made this pajier competent rebuttins tes- 
 liniony. It is urged by the defendant 
 that, as. the writing was ni.-ide l)y the de- 
 fend.-int an<l delivered to the plaintiff sev- 
 eral months after the purchase of the 
 liorse. it thereforecould not be relied upon 
 by the plaintiff as a warranty of the hor.se, 
 for the obviou.s reason that no new con- 
 sideration ijassed for the giving of this 
 writing. Had this paper been made the 
 l)asis or foundation of tlie suit, the posi- 
 tion of the defendant would be well taken, 
 for the rule undoulitedly is that where the 
 warranty of an article is given after the 
 sale has been fully made, and the property 
 deliv<'red to the purchaser, it must be 
 based upon a new consideration. iJ Bcnj. 
 Sales, § 'J:JU; Moreliouse v. Comstock, 42 
 Wis. (!2t;. But this jiaper was not claimed 
 by tlie plaintiff to betlie warranty declared 
 upon, nor was it received in e\ idence for 
 that purpose. It was contended by the 
 defendant on the trial in the lower court 
 that tliemeauingof the term "foal getter," 
 as used by the defendant in the written 
 warranty given at the time of the sale, 
 wasthat the horse was capable of produc- 
 ing a foal, and did not mean, and was not 
 so understood by the jiarties at the time, 
 that tlie liorse was asure foal getter. 'I'he 
 solo iiurpose and object in introducing 
 this paper in evidence was to show what 
 the defendant meant by the term "foal 
 getter, "and to show what construction 
 tlie defendant had given the terni used in 
 the warranty. It should have been given 
 in evideni'e in chief, and not on rebuttal. 
 The horse was purchased for the stud, as 
 the defendant at that time fully under- 
 stood, and it is not reasonable to suppose 
 that either pai'ty to the agreement at the 
 time expected that the purchaser was pay- 
 ing $J, 00 for a horse that was totally un- 
 lit for the purpose for which he 'was 
 bought. The horse, prior to the sale, had 
 received a kick, whicli caused an enlarge- 
 ment of the bag. The defendant, by his 
 warranty, guarantied that this injury in 
 no way troubled him ; in other words, 
 that it did not injure him as a "foal get- 
 ter. " The warranty, when read in tlie 
 light of the construction subsequently 
 placed thereon, by the defendant, and in 
 view of the jmrpose for which the horse 
 was purchased, and the price paid, is in 
 effect a guaranty that the injury caused 
 by the kick did not unfit the horse for the 
 stud, and that he was capable of produc- 
 ing the usual percentage of foals. The 
 testimony fully establishes that the injury 
 unfitted the horse for breeding purposes, 
 and that he subserjueutly died on the 16th 
 day of .June, 1MS(|. from the effects of the 
 injury he bad n'ceived prior to the sale to 
 the plaintiff. During the season of ISs.j, 
 the horse was bred to some 80 mares, and 
 out of the number only 1.5 mares were with 
 foal, anil ))ut of these had living colts. 
 The testimony likewise shows that the 
 
 usual percentage of foals is two-thirds of 
 the number of mares covered. The defend- 
 ant insists that the defect in thehorse was 
 plain and noticeable at the time of the 
 sale; that it was of such a character as to 
 require the plaintiff to take notice of its 
 extent and effect; and, tliat the injury be- 
 ing plain and visible to the buyer, the 
 warranty did not cover such defect. It is 
 true that the evidence discloses that the 
 blemish on the horse was apparent, and 
 was observed by the plaintifl' prior to tin' 
 sale, yet it was impossible for him to tell 
 whether the defect was of such a character 
 as to injure the horse as a foal getter. 
 The defendant, by his contract, warranted 
 against this hidden imperfection, arjil he 
 cannot e.scape lialiilit.v because the injury 
 was one that left an external blemish 
 plainly visible. While a general warranty 
 does not usually extend to impeifectious 
 known to both parties, yet it is eipially 
 w-ell settled that the seller may bind him- 
 self, as against patent defects, U the war- 
 ranty is MO worded. Pinney v. AndruK, 
 41 Vt. (".1 ; Bank v. Grindstatf, 45 Ind. ISs. 
 The contract of warranty in the case at 
 bar expressly stipulates that " the enlarge- 
 ment of the horse's bag in no way troubled 
 him," and is a guaranty against the ex- 
 tent of the injury. The defendant having, 
 by his contract, expressly warranted 
 against the defects of the horse, he cannot 
 relieve himself from liability by showing 
 that the plaintiff was aware at the time 
 of the sale that the horse was injured. 
 
 It was admitted by the defendant on the 
 trial that the horse was not registered 
 in the Stud Book of England. That the 
 horse was warranted to be so registered 
 is not denied. The defendant on the trial 
 sought to escape the force and effect of 
 this clause of his written warranty by at- 
 tempting to show that, at the time of the 
 sale, he informed the plaintiff that the 
 horse was not registered. Upon the cross- 
 examination of the plaintiff, Koode, he 
 was asked b.y the defendant's counsel this 
 question: "At the time the writing was 
 made, [lieing the warranty in (juestion,] 
 I will ask you to state to tliejury whether 
 or not Watson didn't tell you that the 
 liorse was not registered in the Stud Book 
 of England." The iilaintiff's objection to 
 the witness answering the question was 
 sustained, and the answer was not taken. 
 This ruling of the court is now assigi.ed 
 as error. The testimon.y sou.glit to be 
 elicited, had it been received, would have 
 contradicted and varied the written 
 agreement of the parties. It is too well 
 established to recpiire the citation of au- 
 thorities that i)arol testimony cannot be 
 received to contradict or var.v a written 
 contract. It is claimed by the defendant 
 that the jmrpose of this testimony was to 
 show that the defendant had knowledge 
 that the horse was not registered, and 
 that the defendant could not have relied 
 upon the statement in the warranty that 
 the horse was registered, and therefore 
 no claim for damages can be based upon 
 the fact that the horse was unregistered. 
 
 While it is true that in a suit on a 
 breach of warranty against defects In the 
 article sold the seller may prove that the 
 defects were of such a character that the
 
 WATSOX V. ROODE. 
 
 851 
 
 purdinser must ha vo known of their exist- 
 ence, or tluit tlie l)iiyt'r Uiicw of tlii'ni prior 
 to tlic Kiilc, for tlic i)uri)()se f)f wliowing 
 tliat the plaintiff <li<l not rely upon the 
 \vi\rriinty, vet it does not follow that it 
 is Cijiiipctent to prove that tlie seller, 
 during tin; iiegolialiotis Icadint; ui) to the 
 sale, made representations to tlie pur- 
 chaser directly contradictory of his writ- 
 ten warranty snhseiiuently made. No case 
 has l)een cited Ijy counsel for plaiitiff in er- 
 ror lioldinK the doctrine contended for by 
 him in tlii.s case, nor have we been able to 
 find such a case reported in the bool<s. 
 To permit such testimony to be received 
 woidd violate the familiar rule of evidence 
 above referred to. There was therefore 
 no error in siistniniiiR the plainliffs ol)jcc- 
 tion to the question propounded. 
 
 After the defendant had closed his case, 
 the plaintiff i)ut in evidence, over the ob- 
 jection of the defendant, what purported 
 to be a copy of a letter written li.v the 
 plaintiff to the defendant, on the iMth day 
 of Feluuar.y, ISSii. Among the olijectiona 
 made by the defendant at the time was 
 that no foundation had been laid for its 
 introduction, and that no notice was 
 served upon the defemlant or his attor- 
 neys to pro<luce the original. Xo founda- 
 tion was laid for the introduction of the 
 copy. It does not ai)pear that the orig- 
 inal could not have heeu produced at the 
 trial, nor was it sliown that the paper 
 offered was a correct copy of the original. 
 Numerous other errors are assigned in tlie 
 brief of counsel tortile plaintiff in error, 
 based ujion the rulings of the trial court 
 iifion the admission of testinion.v. which 
 we will not take the time to notice, as 
 many of them are disposed of by what we 
 have said in tliis opinion, an<l the other 
 errors are not likely to occur upon a re- 
 trial of the case. 
 
 Nine assignments in the petition in error 
 are predicated upon the giving of certain 
 instructions to the jur.v, but. as they are 
 not referred to in the brief t)f plaintiff in 
 error, these assignments are abandoned. 
 The record, howeviT, discloses that no ex- 
 ception was taken to any iiaragrapli of tlie 
 charge of the court until after the verdict 
 was returned into court. .\ party cannot 
 wait until after he learns that an unfavor- 
 able verdict has been received and then 
 except to the charge of the court, and as- 
 sign for error the giving of such instruc- 
 tions. An exception must be taken when 
 th(> instructions are given, in order to 
 have the same considered by the review- 
 ing court. 
 
 The defendant requested 12 instructions 
 to be given to the jui-.v, all of which were 
 refused. These reciuests are (luitelengthy, 
 and it is not deemed imiiortant that they 
 should all be copiiMl into the opinion. 
 The first and twelfth reciuests correctly 
 stated the rule that the burdi'ii of proof 
 was ujion the plaintiff. The substance of 
 these requests is contained in the third 
 paragrajdi of tlie charge given by the 
 court on its own motion, and no error 
 was committed in refusing them. 
 
 The second re(iuest is as follows: "The 
 court instructs the jury that if they believe 
 from the evidence that the plaintiff. Or- 
 ange A. Itooile, is a person of bad reputa- 
 
 tion for truth and veracity In the neigh- 
 borhood where he resiiles, then, as a mat- 
 ter of law, tnis fact tenils to disereilit his 
 testimony, and the jury may entirely dis- 
 regard it, except in so far as he is corrob- 
 orated by other credible testimony, or by 
 facts and circumstances proved on the 
 trial." The defendant introduced several 
 witnesses, who testified that the plain- 
 tiff's reputation for truth and veracity in 
 the neigliborhood where he lived was bad. 
 In view of this testinion.v, the jur.v should 
 have been told what weight should be 
 given to tli? plaintiff's testimony. The re- 
 quest contained a correct statenient of the 
 law, and, as it was not covered by the in- 
 structions given, it was err(jr to refuse it. 
 
 Tlie substance of the third request is 
 that the warrant.v nuide by the delendant 
 on the 27th day of .\pril."lss.^, after the 
 contract of sale was concluded, being 
 without consideration, is not binding on 
 the defend.int. There is in the record no 
 testinion.v tending to show that a war- 
 ranty was made on that date. Doubtless 
 the defendant meant Kxhibit B. that was 
 made on .\i)ril 2-4th. As heretofore stated, 
 this exhibit was in no way relied upon as 
 a warrant.v, or made the foundation of the 
 action, and the recjuest was not a|iplica- 
 ble to tlie testimony. 
 
 Request No. 4 was rightl.v refused. It, 
 in effect, stated that, if the horse was ca- 
 tiablc of producing a single foal, then there 
 was no lireach of the warrant.v upon that 
 point. The defendant was not entitled to 
 St) favorable an instruction. 
 
 The defendant's fifth prayer reads "that 
 although the ilefendant warranted in 
 writing the stallion 'Knight of the 
 Shires.' to be registered in the Stud Hook 
 of Kngland, also his ilani, as well as sire, 
 jind that the defendant would liirnisli the 
 sccretar.v's receipt for such pedigree, still, 
 if the jury further believe from the evidence 
 tliat at said time tlie defendant informed 
 [ilaintiff that said horse was not regis- 
 tered but simpl.v eligible to registry, and 
 that said pl;iiiitiff knew that said horse 
 was not registered, and did not rely on 
 said warrant.v in making his purcluise of 
 the s;iid hor.se, the plaintiff could not re 
 cover for a breach of said warrant.v. as in 
 law it wouhl be no warrant.v unless the 
 plaintiff relied upon it in making the pur- 
 cliase. " No testinion.v was given that 
 the defendant informed the plaintiff that 
 the horse was not registered. Such testi- 
 mony was excluded, and we think rightly 
 so. 
 
 The sixth and ninth instructions re- 
 fused, stated in substance that defects or 
 blemishes which are known to the pur- 
 chaser must lie expressly warranted 
 against to make the seller liable for such 
 defects. We find no fault with the state- 
 ment of the law in these instructiima. 
 The plaintiff did not seek to rixover for 
 defects that were visible at the time of the 
 purcliase. and that were not expn'ssly cov- 
 ered by the terms of the warranty. The 
 plaintiff claimed damages becau.se the 
 horse was unregistered, and on account 
 of the injur.v which the horse had nn-eived 
 lirior to the sale. Roth of these matters 
 weri>. expressly covered by the warrant.v. 
 
 The eleventh request covers thequestion
 
 852 
 
 WATSON V. EOODE. 
 
 of roliance by the purchaser upon the war 
 raiity. It is as follows: " (11) The court 
 lartllor instructs the jury to entitle the 
 plaintiff to recover in the suit it is not 
 onlv necessary for the jury to find from 
 the'evidence that the plaintiff warrant- 
 ed the animal in question as alleged in the 
 petition, but it must further appear from 
 the evidence that tlie plaintiff relied upon 
 said warranty in maliins the purchase of 
 tlie horse, and was induced to make said 
 purchase by said warranty, and it must 
 also appear from the evidence that the 
 horse was not as warranted at the time 
 of tlie sale; and, unless all of these facts 
 appear from the evidence, the jury should 
 
 find for the defendant." The law un- 
 doubtedly is, and has been so declared by 
 this court, that the purchaser of personal 
 property must have relied upon the statt?- 
 ments of the seller as to the quality of the 
 article sold, in order to make the repre- 
 sentations a warranty. Little v. Wood- 
 worth, 8 Neb. 2S1; Hallidav V. BrigRs, 15 
 Neb. 219, 18 N. E. Rep. 5.5. This instruc- 
 tion stated the law correctly, and, not be- 
 ing covered by any of the instructions 
 given, should not have been refused. For 
 the errors pointed out, the judgment of 
 the district court is reversed, aud the 
 cause remanded for further proceedings. 
 The other judges concur.
 
 WELLS V. TUCKER. 
 
 «5r. 
 
 WELLS V. TUCKER et ux. 
 
 (3 Bin. 300.1 
 
 Supreme Court of Pennsylvania. March 30, ISII. 
 
 Tliis WHS iin antion of trover for two 
 Ijondx, tried under the Keneriil iKHiie iit 
 the nisi priiis in Fpltrunry last before .Mr. 
 Justice' Yeates. 
 
 Kroiii I lie report of liis honour, tlie evi- 
 denee was in Kutjstnnue tliis: 
 
 Andrew <'r,iiK, the intestate, had adopt- 
 ed the will' of Tucker at a very early aire, 
 and maintained her in liis liouse until lier 
 lliarria^e. .\ftcr tliat event, he fre(]uently 
 nuuiife.sted Inn kinilne.sH lo tier f.-iniily. and 
 in one or two untinished wills which he 
 left at his death, appeared to have de- 
 fiij-ned a legacy of about tlillll) for her luis- 
 lianil and children, lie died onihe:.'(lth 
 August l.Sd.'i, intestate and without issue, 
 leaving a widow, a lirother and sister, 
 and some nephews anil nieces the cliildrtti 
 of deceased Itrothers and sisters. His 
 wid »vv, who by the law of Ni-vv .lersey 
 where ho had livtd, was enlitled to half 
 his personal estate, pi'ovcd upon the trial, 
 that aixiut the irth of Ausrust Iso.^., her 
 husband, having then a sUetch of a will in 
 his hand, which he was too ill to linisli, 
 said to In-r, " 1 have bonds against lii-n- 
 janiin TucUei' (the defendant) to the 
 amount of about flOdO, whi'li I nive to 
 his children to be divided between them." 
 He tiild her where they were, wrapped 
 up in the pigeon-hole of a desk, oi which 
 lu' delivered her the key, and recpiested her 
 to tio and K'et them. She aceordlunly <iot 
 them and locked tlieui up until after liis 
 ileatli, when she delivered them to the 
 defendants. .Vfter the delivery. Tucker, 
 imprudently, but not with any dislmncst 
 view, canceled them, and imluced the orijr- 
 inal obligee, who had assij;ned them and 
 a inortjrafie for securiiiK them, to the in- 
 testate, to cuter satisfaction of reconl. 
 
 .Indue Yeates charged tlie jur.v, that if 
 Ihey believed the evidence of .Mrs. Craiii:. 
 they ou;iht to find for the defendants, as 
 lie was of opinion that the delivery of the 
 bonrls to the wife for the children, made 
 them a j;ood ilonatio causa mortis. 
 
 The j\iry found for the Uefendaiits ; mo- 
 tion for a new trial. 
 
 lny:crsi)ll, for plaintiff. Hallowell and 
 Ka wle, contra. 
 
 TILtill.MAN, C. J. This is an action of 
 trover for two bonds, which were the 
 property of A. Crai;;, the plaintiff's inlcM 
 tate. The defendants claim them as a 
 donatio causa mortis inaile by .\ndrew 
 CraiK in lbs last illness to tin- children of 
 the defendants. Andrew ("raisr died intes- 
 tate, and without issue, ami the jiitt was 
 proved by Theodosia ("raiuc. his widow, 
 who is entitled by law to one half of her 
 liusband's |)ersonal estate. She swore, 
 that the jiift was made by her husband 
 about three days before his deatii, and 
 the bonds delivered to her, to be liy her 
 delivered over, and that she kept them 
 locked up in her trunk till after the death 
 of her husband, when she (rave ihiMii to 
 thedefendants for the UHcof their children. 
 
 The lirst le.ison offered for a new trial, 
 is that the verdict was against evidence. 
 
 But this docH not appear to liave lieen 
 by any means the caKe; for the witness 
 who proved the tri't was of irrepro;ichable 
 character, anil sweariiiii ntraiiist her own 
 interest. Her credibility was submitted 
 to the jui-y, and I eunnot say that tliey 
 were wron^ in believlntr her. 
 
 Tlie secjud reason for a new trial is, 
 tliat there was no deliver.v of the lionilH, 
 wliieli is essi'iilial to a tiift of tins kind ; 
 that a delivery to the wife, was. ia point 
 ofluw.no delivery at all, and that the 
 ju(l>;e who tried the cause erred in not 
 chartrinir tlie jury aecordiu«ly. This i- the 
 only point for consideration. 
 
 .\ doniiiio causa mortis is a -rift of n 
 personal ch;ittel. made by a person in liis 
 last illness, subject to an implied condi- 
 tion, that if the donor recovers, the Kift 
 shall be \oid. So also it shall be void, if 
 the donee dies b.-fore the i.'onnr. In this 
 and some other circun.stanceh (bi'inir suii- 
 ject to the debts of tlie donor, etc.. ) it is 
 in nature of a legacy. It was introdiieeil 
 into the common law from the Koinaii 
 civil law, but not in the full extent in 
 which it is rcciimiizcd in the latter. 'I'lie 
 civil law t;ikes notice of tliree different 
 kinds of donationes mortis cuiisr, to sou.e 
 of which deliver.v is essential, hut not to 
 all. It is unnecessary to ini|uire minutely 
 into tlie civil law, because I consider it 
 as settled, that to ^ifts of this kind, uh 
 incorporated into the eomnion law. deliv- 
 ery is necessar.v. The whole la w on this 
 subject is fully laid down by Lord llard- 
 wicke in Ward v. 'I'nrncr. 2 Ves. Sr. 4:il. It 
 was formerl.v doubted, but is now estab- 
 lished, (as conceded by the plaintiffs conn- 
 sel) that a bond is a proper siilject of this 
 kind of jrift. It is a wise principle of our 
 law, that delivery is essential, hecausv 
 delivery streiifrthenH the evidence of Ihe 
 (lift. Too much care cannot be taken, in 
 insistinj.; on the most convin'dnH: evidence 
 in cases of this kind; for these donations 
 do in effect amount to a revocation pro 
 tanto, of written wills: and not beiiiu 
 subject to the forms prescribed for nun- 
 cupative wills, they are certainly of a 
 dangerous nature. Now, let us consider 
 the delivery which was made in tliis ease. 
 In the lirst place, it was not to the donee, 
 but to the donor's wife to be by her de- 
 livered over. There is no objection to this 
 mode of delivery. Whether made to the 
 donee immediately, or to another for liis 
 use. is immateria!. It was so decided in 
 Drury v. Sniitli, 1 P. Wnis. J(i4. The cir- 
 cumstance relied on b.v the plaintiffs coun- 
 sel, is. that the delivery to tlie wile was in 
 fact no chaiiiie of possession, because Ihe 
 possession of Ihe wile Is the possession of 
 the husband, and the wife beinir in the 
 husband's power, he may at any time 
 take back the possession, and thus a voiil 
 the cift. To tfive this obserx ation its full 
 force, it is conteinlfd on the part of the 
 plaintiff, that a tclfi of this kind passes the 
 property immediately, and is not subject 
 to revocation li.v the donor. Without ab- 
 solutely comniittinsr myself. I incline to 
 theopbiion. that in this as in several otiier 
 particulars, it partakes of the nature of 
 a leiracy. and is revocable. .No rase lias 
 been tiled e.\;ictly in ii> iiit : but it is laid 
 down in .\yl. I'anil. :>.'!1, Ih.at It n.ay hi-
 
 656 
 
 WELLS V. TUCKER. 
 
 revoked by the donor's repentiiis; tiiereot; 
 and in Jones v. Selby, Prec. Vb. 30(1. the 
 Lord Chanc'-llDr, in delivering his o'linion, 
 sni<l to tlie counsel, "voii a>;ree that a 
 donatio causa mortis Ih revocable by the 
 tPMtator. " It is true that in the argu- 
 nn'nts of the counsel, as reported, no such 
 concession ai)|)ears. One wouhl liardly 
 Rupriose however, that the chancellor 
 would have used those expressions unle.ss 
 the fact had been so. But the case of Mil- 
 ler v. .Miller, 3 I'. Urns. a.'iG. is strong to 
 the point of delivery. Indeed, the argu- 
 ment from that case is a fortiori; for there 
 the donation was to the wife, and the 
 delivery to the wife, and held good. 
 There Is no weijjht in the remark, that in 
 thatcase the testator delivered thechattel 
 In the first instance to a servant, to be by 
 hinidelivered tothewife; for she was pres- 
 ent, and the delivery over to her was 
 made in a short time and in the testa- 
 tor's presence. There can be no reason 
 why a delivery to the wife for her own 
 use should be good, and yet not good if 
 for the u.-e of another. Cpon the whole 
 then this donation was i)erfect ; it was 
 made in the testator's last illness, and 
 accompanied witli the delivery of the 
 bonils, which is all that the nature of the 
 case admits of. lam therefore of opinion 
 that the plaintiff's rule should be dis- 
 charged. 
 
 YEATES, J. There seems to me no 
 ground whatever for asserting that the 
 present verdict was contrar.v to evidence. 
 It rested solely on the credibilit.v of Theo- 
 dosia Craig, the widow of the intestate, of 
 which the jurors were the sole judges. 
 They were instructed to deliberate calmly 
 upon her testimony, and on the one hand 
 to consider the danger of such evideme. 
 the necessary consequences of parol evi- 
 dence in such cases in general, and the par- 
 ticular i)repossesKions of the witness in 
 this case towards her niece; on the other 
 hand, the.v were told to recollect, that 
 she testified against lier own interest as 
 to one half of the demand, that the im- 
 pulse of her husband's niin<l was favour- 
 ably directed towards Mrs. Tucker his 
 adopted child from early infanc.v, which 
 was confirmed by the unfinished wills 
 wherein he marks her husband and chil- 
 dren as objects of his bounty, that the 
 probability of her story, her character 
 and manner of giving testimony, should 
 also he taken into view, and a temperate 
 decision formed on the whole. The jurv 
 have atlirnicd the credibility of the wit- 
 ness by their verdict, with wliich I am per- 
 fectly satisfied. As to the conduct of 
 Tucker in cancelling the bonds, and pre- 
 vailing on Steidien Sicard to ai knowledge 
 satisfaction on the record of the mort- 
 gage, after he had assigned it over to the 
 inttstiite, the jury were told that it was 
 highly improper and reprehensible; but if 
 the children independently of these acts 
 were entitled to the benefit of these bonds, 
 such acts would not defeat their interest 
 therein. 
 
 I think the evidence would have war- 
 ranteil the jury to pronounce the gift to 
 the defendant's children to be absolute in 
 the first instance, and to take effect im- 
 
 mediately, and- therefore irrevocable ir» 
 its nature. Nothing was said or hinted 
 at, of its being a conditional gift in case 
 of his death; but he gave the bonds to 
 Tucker's children equally to be divided be- 
 tween them; and such might be a good 
 present donatio inter vivos. 
 
 Supposing however that the act was 
 doueiu contemplation of death, and that 
 it could only take effect as a donatio 
 causa mortis, I think it ma.v heestahlislied 
 as such. It is agreed on all hands, that in 
 such cases the gift must he made in the 
 party's last sickness, and lie accompa- 
 nied by a deliver.v of the article to the 
 donee, or some one in his behalf. The ob- 
 jection made in this instance is, that the 
 delivery to the intestate's wife was in- 
 sufficient, because it still remained while 
 in her possession suliject to bis control, 
 and therefore revocable. The answer is. 
 that a small matter will operate as a 
 good delivery; such as a mixed pos- 
 session, the delivery of the ke.v of the 
 room in which the furniture given is, to 
 the donee. Smith v. Smith. - Stra, U.j.'>. 
 Besiiles, it is fully established, that a wife 
 is capable of taking a donatio causa mor- 
 tis from her husband, being in nature of a 
 leiiacv, though it need not be proved as a 
 will. Miller v. Miller, 8 P. Wms. :3r)6, 2 E(|. 
 Ab. 356, pi. 24; Lawsou v. Lawson, 1 P. 
 Wms. 441,2 Eq. Ab. 575; 3 Wotid. sect. 
 514. Now. what good reason can be as- 
 signed, that the p<issession of the article 
 by the wife is sutfitient to validate a gift 
 made tiy her husband in his last illness for 
 her exclusive benefit, and yet that a like 
 possession as a.gent for another shall not 
 be good? It is eqnall.v subject to coun- 
 termand and revocation in both instances. 
 She ma.y be attorney to deliver seisin to 
 her husband. Co. Litt. 52a. Mortover 
 we have the authority of the lord chan- 
 cellor for asserting that a donatio causa 
 mortis taking place in futuro, is revoca 
 ble as a will duiing the life of the party. 
 Jones V. Selby, Prec. Ch. 303. And the 
 reason why it should not prevail against 
 creditors, is that it is considered as a 
 legacy. Drur.v v. Smith. 1 P. Wms. 40(i;. 
 2 P.la. Com. 514. .According to the lan- 
 guage of the chancellor in tlie last case, a 
 man certainli', notwithstanding his will, 
 has a power to give away any part of his 
 estate in his lifetime. He might in his 
 lifetime, after the making of his will, givn 
 away any part of his estate absolutely ; 
 and by the same reason he might do it 
 conditionally. The comlitional gift pre- 
 supposes the power of revocation; were 
 it not so, a gift bona tide in the lifetime 
 of the party, wonld prevail against cred- 
 itors after his death. 
 
 Many of the observations of the jilain- 
 tiff'.s counsel seem to nie I'ather re'erable- 
 to the general state of the law. as now- 
 settled, than as ohjections to what was 
 done either b.y the court or jury in the 
 cause before them. 1 feel the force of the 
 remarks made, that a written will is at- 
 tended with more security and certain- 
 t.v, than a verbal gift of goods and prop- 
 erty in the nature of a donatio causa mor- 
 tis; and that fiauds and perjurie.'i may 
 arise from parol testimony in the latter 
 case, no reasonable mind can doubt. To-
 
 WELLS V. TUCKER. 857 
 
 thp court belongs the duty of deciJinB [ will fairly warrant the conclnslnn, that a 
 upon the coinpetcncy of evidence; but tlie 1 ncfariouH Hchenie hnH been nieilitated to 
 jury ultimately must decide upon the plunder the next of kin. I truHt it would 
 credilvility of the witnesses. As to a Hoon lie reiidired iiborl ivi'. 
 widow's oath iu cases of this nature, her On the whole, I aui of opinion, that judjr- 
 interestfl will in senerul prevent her from ment on the verdict Mliould be rendered for 
 acting' colliisively to the prejudice of chil- the defendants, 
 dren, or collateral kin.smen. Should it un- 
 happily prove otherwise. I know of no 1 r5BA("Kl!:XI{II)GI.;, .T., was of the same 
 other safeguard than the intelligence of ijpinion. 
 lnde|)endent jurors. If the circumstances' Judf^raent for detpodantB.
 
 WIIEELHOUSE v. PARU. 
 
 859 
 
 WHEELHOUSE v. PARR. 
 
 (G N. E. Rei). 787. 141 Mass. 593.) 
 
 Supreme .ludii'iiil Court of Mnssachusetts. 
 .Middlesex. May 8, ISSG. 
 
 Tlii.s wiiH an jiction of c<ir»tract to rf- 
 cover .1t;4IO.i;i; for a lot of Iciitlici- K.ild todc- 
 fciidunt. lleiiriiift- in the superior court, 
 ■.vliieli loiind for tin" |)liiintiff, and tlie de- 
 fendant (ipiii'Jiled. 'I'lie facts up[)ear in the 
 opinion. 
 
 F. \V. Qua and F. P Marble, for ])lain- 
 tlff. Win. II. Anderson, for defcmlant. 
 
 DEVENS, .1. When kooOh ordered an<l 
 contracted for are not directly delivered 
 to the purchaHer, but are to bi- sent to 
 him by the vendor, and the vendor ileliv- 
 crH them to the carrier, to be traMK|oite(l 
 in the mode agreed on by the partien, or 
 directed by the purcha.ser; or when no 
 unieenient in made, or direction ;;iven, to 
 be tiansijorted in the usual mode; or 
 when the purchaser, lieiuf; informed of the 
 mode <.-f trausportation, assents to it; <!r 
 when there have been previous Bales of 
 other y;oo(ls to the transportation of 
 which, in a similjir manner, tlie purchaser 
 has not objected, — the n(>oils. when ile- 
 livered to tlie carrier, are at the risk of 
 the |)urchaser, and the property is deemed 
 to be vested iu him, subject to the ven- 
 dor's risht of stoppaK*^ in transitu. This 
 proposition assumes that propei- direc- 
 tions and information are siven to the 
 carrier .-is to forwarding the yoods. Whit- 
 iiiR V. Farrand, 1 Cot'n. (IK; (iuiniby v. 
 Carr, 7 Allen, 417; Finn v. Clai-U, 10 Allen, 
 ■1!S4; Finn v. ClarU, I'J .\llen, .jJL'; Downer 
 V. Tiiompson, '2 Hill, 1;J7; Foster v. Itock- 
 well, 104 Mass. 170; Odell v. lioston & .\1. 
 11. K., 1(1!) Mass. itO; Wijrton v. Uowlev. 130 
 Mass. L'5-J. 
 
 The defendant bad made a purchase cf 
 leather in Novemljcr previously to the pur- 
 chase of that the price of which is in con- 
 troversy, under a direction to the plaintiff 
 to "ship to care of D. and ('. Mclver, ship- 
 piuK mercliants, Liverpool, as soon as 
 l)ossible, for their next steamer to Hoston, 
 direct." This shipment was ma<le .-is or- 
 <lered, and on December l(>, isst, the de- 
 fendant sent a fui'ther order sayiuK: "As 
 regards the sliippinK of tho leather just 
 received, you have done everytliin;; satis- 
 factory. iSlup this order in lil<e m;inner." 
 
 The directions liy which the plaintiff 
 was to l)e controlled must be interiireted 
 jit! re()uirin}j: him to forwar<l tlie floods 
 to D. iV: ('. .\lclver, to lie transported by 
 them by the Cuiinrd line, of which tliey 
 were maniijiers an<I agents. The words 
 "their ne.\t steamer" couhl not have 
 meant any steamer which would accept 
 freifi'ht from D.&C Mclver. Cases may 
 be readily imaKbied where these words 
 wouhl be of tlic liighest importonce; as if 
 
 the defendant had nn open policy of In- 
 Rurance [irotectlnt; his Koods wliicli" mii;ht 
 be sent by the Canard line. It ii.itihf also 
 be true that the defendant wi;iild not 
 deem a policy of insurance neceHMar.v 
 when Kooils were sent by n well-eslab- 
 lished passcniier line, where greater pre- 
 I'lintions miuht [irobably be taken for 
 safety, whicii he would deem necessary 
 when they were sent by a purely fieinht- 
 injr steamer. The K'Jods were " actually 
 forwarded to I). & C. Mel ver, x% itii instruc- 
 tions in conformity with the diiecliims of 
 the defendant, and, had the matter ended 
 there, HO far as any dii citidiis to D. & C. 
 Mel ver is coiicei lied, the plaint ift would he 
 entitled to treat them as delivcied tti tli« 
 defendant, and to reiiuire him to |ifiy the 
 purchase money. If. on the other hand, 
 while the KDoils were yet in the lianils of 
 the carrier, and before transportation of 
 them hadcomnieiiced, the plaintiff chaimed 
 the directions niven to hini tiy the defend- 
 ant, or autliorized the carrier to tranH- 
 tiort them in a different mode from that 
 directed by the defendant, and loss Iiiih 
 thereby occurred, he cannot contend that 
 ttiey were d.'livered to the defendant by 
 him. liy contiiiuiii;^ to exercise dominion 
 over them, and by tiiviaii a new direction, 
 impliedly wilhdrawinn- t he directions pre- 
 viously };iven, he cannot be allowed to 
 assert tlint he had made a complete deliv- 
 ery by his orifiinal act, if a loss has oc- 
 curred by reason of that which he lina 
 HUbseiiuently done or directed. The 
 clianj.-e in the directionH >riven rela'eH 
 back to and qualities the oriuinal deliv- 
 ery 
 
 The iilaintiff, in answer to a h'lter from 
 D. & 0. Mclver, after the ^oods had 
 reached them, imiuirint; wheli.er ihs-y 
 were to keep the (joods "for our Hteanier, 
 14tli inst., or ship by the (iliiinom;aii, " or- 
 dered them to be shippeil by the steamer 
 airivinu out first, presuniablv the steamer 
 which I). & C. .Mclver believed would be 
 the first to arrive. The (>laiiiort;au was 
 not a steamer of any line of \\ hicli D. & C. 
 Mclver were owners or a«enls, and in no 
 way answfis >he description of "their 
 steamer" as applied to I). iV: C. Mclver. 
 By neulectinjr to limit the authority of 
 I). iV C. Mclver to send by a stejimer which 
 could be thus described, and by directing 
 them to send by the steair.er which «oulil 
 first aiiive, the plaintiff had failed to 
 comply with the orders of the defendant 
 as to the shipment of iroods; and if cor- 
 rect directions had oricinally been ;;iven, 
 had withdrawn them, and substiluti'd 
 others. When, therefore, exercisinir the 
 authority thus «ivcn by the plainliff. D. 
 iV C. .Mi'l ver send by the (ilamorKiin, aa 
 beinfl. ill their jinl^rnent, the steamer 
 likely to arrive lirst. and n loss occurs, it 
 should not be boine liy the defendant, 
 whose directions have not been followeil. 
 Judgment for the defendant.
 
 WnEELWRIGHT v. DEPEYSTER. 
 
 861 
 
 WHEELWRIGHT v. DEPEYSTER. 
 
 (1 Johns. 471.) 
 
 Supreme Court of New York. Aug. Term, 1806. 
 
 This was an action of trover, for a 
 quantity of coffee. Tlie caune was tried 
 at tlie New-Yorlv Sittings, tlie l.Stli day of 
 April, ISOIj, liefore Mr. .Iiistice Spencer. 
 
 At tlie ttiiil, the follovvinn facts ap- 
 peared in evidence. Tlic plaintiffs were 
 ownei-H of the schooner Pejijiy, of New- 
 liuryport, aiicl of a greater part of the car- 
 go, consisting of coffee in liogKlieadK, liar- 
 rels and hagu, marked S. P., and tliey and 
 the master were joint owiK-rs of another 
 part of tlie rargo, lieing (ivehags of coffee, 
 without iiiarkH. The scliooiier had sold 
 her outward cargo at St. Marks, in the 
 island of St. Doniingo, in Junnary, IMH. 
 and took in lier homeward cargo, consist- 
 ing cliietly of coffee, hclonging to the 
 plaintiffs and otiiers. On her voyage 
 llo::".eward to tlie United States, she was 
 captured, the l.'ith of February, ls(M, by 
 a French privateer, and carried into St. 
 Jago de Cuba, where she arrived the 1st 
 of March. The coffee in question was pur- 
 chased, on acciinni of the defendants, of 
 a Spaiiisli merchant, at St. .fago de Culia. 
 atid tlie tliip I'wo Urothers, in which it 
 was brouiiht to New-York, went along 
 siile of the I'eggy, and took it out of her. 
 The coffee came into posse.'^sion of the de- 
 fendants, with the rest of tlie cargo of the 
 Two r.rothers, in May, isiM, and a de- 
 mand thereof was u'.iide by the plaintiffs 
 on the L".)tli 'of May, which was reiused by 
 the defendants. It further appeared, that 
 the coffee in question had been iiurchased 
 by the |ilaintiffs at St. Marks, which all 
 the time was in [lossession of negroes, un- 
 der the g(jvernment of Dessalines. and in 
 « state of revolt from the French govern- 
 ment. Great quantities of coffer are sold 
 at St. Jago de Cnlia. but cliielly [iri/.e 
 coffee. The master anil crew of the Tw o 
 Brothers, when they took the coffee on 
 lioard, had ikj knowledge of the plalnlilfs' 
 claim, but believed it to have been the 
 prcqierty of the vendor there. 
 
 The defendants then offered in evidence 
 certain proceedings of the agency of the 
 French goveriinunt at St. .lago de Cuba, 
 and the sentence of condemnation of the 
 I'eggy anil her cargo by a French ndmi- 
 rnltv court at St. Doniingo. 'I'liese docii- 
 ineiits were admitted to be duly authen- 
 ticated, and contained the wliole of the 
 proci'edings. The facts which they dis- 
 closed Wfre, that after a proces verbal 
 and examination of the master and male, 
 a survey of the I'egLry was ordered by the 
 French agency of .-it. .lago de Cidia, and 
 it being reportcci that she was leaky, and 
 her cargo in danger of being spoiled, it 
 was ordereil to be sold provisioiiall.v. and 
 the proceeds to be dejiosited. to abide the 
 liiidl decision; and the whide cargo was 
 sold, under such order, to a Spanish mer- 
 chant there; that, afterwards, on the Idlli 
 of April, subsequent to the sale of the 
 coffee to the defendants, a seiiteiue of con- 
 demnation was pronounced oil the coffee 
 at .St. Doniingo, grounded on a pnies 
 verbal drawn up nt sen, and one at St. 
 Jago deCubu, by the French agent there, 
 
 I at the time the Peggy arrived aa a prize, 
 and on the examination of the masternnd 
 I mate. The cause of condeiiination os- 
 i signed, was a contravention of the ar- 
 I rest of the Frencli goveriiinent. as to the 
 trade and interi-ourse with those parts 
 of the island of .St. Domingo that were in 
 posses>ioii of the negrocH. This evidence 
 > was objecteil to by the plaintiffs, ami was 
 overruled by the juilge. The defendants 
 then offered to prove, that an agency of 
 the French government for such purposes 
 was estublisheil at St. .Jago de Ciiba, by 
 permission of .Spain, with power to pro- 
 ceed in the manner stated : liut the judge 
 overruled the testimony. It appeared in 
 evidence, that, at that time, Spain was 
 not at war with any power. 
 j The judge charged the jury, that the 
 liroperty of the coffee remained in the 
 plaintiffs, and had not been clianged, ei- 
 ther by the purchase made l>y the defend- 
 ants, nor by any of the acts and prm-eed- 
 iugs of the captors, or the French triliu- 
 nals; that in ascertaining the damages, 
 they ought to take into calculation, not 
 only the coffee, exclusively owned by the 
 plaint iffs, but a moiety of that part also 
 owned b.\ them jointly witli the master. 
 The jury found a verdict for the plaintiffH 
 accordingly. 
 
 The defendants moved for a new trial, 
 on the following ground.s. 1. That the 
 piiqierly in tlie coffee liecnine vested <n 
 tlie defendantH by the purchase; L'. That 
 prize goods may 1ft wfully be solil liy the 
 c.'iptors in a neutr.'il country, with the 
 con-ent of the neutral power; .'!. That a 
 neutral power may lawfully iicrmit a bel- 
 ligerent to bring jirizes into its jiorts. and 
 to proc?ed against llieni there for (.ffi-ntes 
 against the laws of neutralit.v; 4. Tliut a 
 prize carried into a neutral port, may be 
 condemned while lying there, by the tribn- 
 nals in the country of tlie captor ; .">. That 
 prizes may be sold iirevious to a condem- 
 nation, and a coiiileninaticm after such 
 sale, by a court of competent jurisdiction, 
 will devest the original owner of his prop- 
 erty; G. That the proceedings and con- 
 demnation in the present case ought to 
 have been received in evidence, as they 
 were conclusive, and formed a complete 
 defenc(> in the cause; 7. That the present 
 suit is a question of prize or no prize, anil 
 belongs, therefore, exclusively to the jirize 
 courts; S. That the judge misdirecteil the 
 jury, as to the assessment of damages for 
 the moiety of tlie coffee, which the plain- 
 tiffs owned jointly with the master. 
 
 llniison and I). A. Ogtien. for |>Iain- 
 tiffs. S. Jones and Hoffman, for defend- 
 ants. 
 
 KKNT, Ch. J. delivered the opinion of 
 the court. This cause was very alily ar- 
 gued by the counsel, and the severnl 
 points sutimil ted. have received, as they 
 merited, the attentive consideration of the 
 court. 
 
 It was conteniled that a lionn fide p\ir- 
 chase li.v the defendants nt St. .lago, for 
 a valuable consideration, and without 
 notice, was eiiuivalent to a purchase In 
 market overt under the Fnglish law, and 
 bound the property against th- party 
 who had right. As no local law i> al-
 
 862 
 
 WHEELWRIGHT v. DEPETSTER. 
 
 IcReil, or proved, this (luostioii must be' 
 Knveriied li.v tbf Kfiicral piiiicii.les of the 
 law of sales, wliicli we areto presume, un- 
 til the contrary lie shown, are received and 
 adopted in all commercial countries, at j 
 St. .laao as well as at New-York. It was | 
 the maxim of the civil law that nemo plus 
 juris in alium transferre potest quam ipse 
 habet; and this plain dictate of common 
 sense is considered by Pothiei'i and Er- 
 8kine2 as a fundamental doctrine of the con- 
 tract of .sale in Fi-ance and Scotland ; and I 
 there is good reason to conclude, that it | 
 prevails in most of the countrie.sin Europe \ 
 which linve felt the inHueoce. or obeyed 
 the precepts, of the civil law. Loid 
 Kaimes. in his Historical Law Tracts, tit. j 
 "History of Properly," vindicates this 
 principle in the transfer of chattels, anC 
 observes, that when notions of property 
 wereslijrht, a bona tide pnrchaseof stolen 
 goods, gave a good title agiiinst the orig- 1 
 inal owner; but tliat in the progress of 
 society, property ac(iuired such stability 
 and energy, as to affect the subject wher- 
 ever founci, and to exclude even an honest I 
 purchaser, when the title of his vendor 
 was discovered to be defective. It was! 
 also a principle in the English common 
 law, that a sale nut of market-overt did 
 not change the property against the 
 rightful owner, and the custom of the city 
 of l<oiidon, which forms an e.xception to 
 the general rule, has always been regard- 
 ed and restricted by the courts, with un- 
 usual jealousy and vigilance. (Comvns' 
 Dig. tit. "Market,"' E.) The effect of 
 such a i)uriha.se made here is not stiictly 
 before us, but I have no difficulty in say- 
 ing that I know of no usage or regula- 
 tiim within this state, no Saxon institu 
 tiou of markets-overt, which c<jutrol» or 
 inteiferes with the application of the com- 
 mon law. 2 The ))urchuse by the defend-, 
 ants dill not. therefore, of itself, and with- 
 out reference to the title of the vendor, 
 give tliem an indefeasible right to the 
 goods in (juestion. ^ 
 
 The original title of the plaintiffs to the 
 coffee being made out upon the trial, and 
 not contested here, we are next to inquire, 
 whether the power and proceedinns of the 
 agent of the French government, estab- 
 lished at St. Jago, were competent to 
 authorize a sale of the coffee. This agen- 
 cy would appear to have been a prize tri- 
 bunal with limited and provisional pow- 
 ers. There was a jiroces verbal received, 
 and examinations taken by its authority,' 
 and a survey, sale and deposit of the pro- 
 ceeds ordered, and the agency is stated to 
 have been established for such purpo.ses. 
 It also appears, that nt the time of the 
 bringing of the vessel into St. Jago as a 
 prize, and at the time of the sale, Spain 
 was a neutral power, and that there had 
 not been any judicial condemnation of the 
 cargo; but only an order of tliis agency 
 for a provisional sale. I need not ques- 
 tion a provisional sale in cases of necessi- 
 ty.* under the orders of a competent 
 
 'Traite du contrat de vente, part 1. n. 7. 
 'Institute of the law of Scotland, vol. 2. 4S1. 
 'See Hiern v. Mill, 13 Vesey, jun. 121. 
 < See Jennings v. Carson, i Cranch's Rep. 3. 16. 
 
 court; but I deny the legality of the power 
 exercised at St. .lago. The object of such 
 tribunals in neutral ports, is probably to 
 facilitate the sale, and increase the profits 
 of prizes; but the object is not to l)e at- 
 tained by such means. Ausis talibus istis 
 non jura suljserviunt. Neutral ports are 
 not intended to be auxiliary to the opera- 
 tions of the parties at war, and the law 
 of nations has very wisel.v ordained that 
 a prize court of a belligerent captor can- 
 not exercise jurisdiction in a neutral coun- 
 try. All such assumed authorities are 
 unlawful, and their acts void. This was 
 so considered by the English court of ad- 
 ruiralt.v in the case of Flad Oyen, (1 C. 
 Rob. Adui. 135.) and by the court of K. B. 
 in the rase of Havelock v. Rockwood. (S 
 'I'erm Rep. 26S.) Lan.predi^laysdown the 
 same rule by saying that the judgment if 
 condemnation ought to be rendered nut 
 of the territory of the neutral power. 
 The proper and regular court tocundemn, 
 says the highly respected and authorita- 
 tive Answer to the Prussian Memorial, is 
 the court of that state to which the cap- 
 tor belongs; and that questions of prize 
 are, and can be, cognisable only in such 
 courts, and, consequently, that the erect- 
 ing ff)reigri courts, or jurisdictions el.se- 
 where, to take cognisance thereof, is con- 
 trary to the known [iracticeof all nations. o 
 The Austrian ordinance of neutrality of 
 the 7th of August, IMj:^, art. 17. refers to 
 and admits as valid, condeiuna tions only 
 by the judicial authorities of the countries 
 of the captors; and the supreme court of 
 the United States, in the case of (ilass v. 
 The Sloop Betsey, (:J Dallas, 6.) declared^ 
 that no foreign power could of right in- 
 stitute any prize court, or judicature of 
 any kind, within the United .'States, unless 
 warranted by treat.v. Fruiu these cases, 
 from the reason and fitness of the thing, 
 and from the manifest inconvenience and 
 abuse which would result to neutral 
 rights, as well as to those of the powers 
 at war, from the toleration of a contrary 
 practice, 1 am satisfied, that the rule- 
 which I have stated is correct and just, 
 and supported by the soundest authority. 
 The proceedings of the French agency at 
 St. Jago are. then, to be put out of view, 
 as being coram non judice. and we are to- 
 consider the sale as made without any 
 judicial sanction. 
 
 Such a naked sale by a captor even of 
 property professedly belonging to an en- 
 emy, is void in law. and incapable of de- 
 vesting the title of the original proprietor- 
 It is requisite that a sentence of condem- 
 nation be given by a court of the sover- 
 eign of the captor, before a title to the 
 prize can lie transferred. '^ This excellent 
 rule has been long known and established 
 in the English admiralt.v, as appears by 
 
 'De Commer-cio Neutrali, &c. sec. H. See also 
 Azum's Maritime Law of Europe, vol. 2. p. 2.54. 
 
 'Findlay v. The U'illiam, 1 Peters's Adm. Decis. 
 27. Jolly V. The Neptune, 2 Peters's Adm. Decis. 
 345, 346. The Kierliehett, 3 C. Rob. Adm. Rep. %. 
 See also, Donaldson v. Thompson, 1 Campbell's N. 
 P. Cases, 429. 
 
 ' See The Nostra de Conceiscas, 5 C. Rob. Adm. 
 Rep. 294. The Falcon, 6 C. Rob. Adm. Rep. 194-19S. 
 Case of The Falcon, 1 Bee's Adm. Rep. 93. Sas- 
 portas v. Jennings, 1 Bay's S. C. Rep. 478.
 
 WHEELWRIGHT t. DEPETSTER. 
 
 863 
 
 the case of Therniolin v. SjukIr; (Corth. | 
 423, 12 Moil. 14:i.) anil it ni'enis now to lie 
 equally ret'oKnifed on tlierontincnt hh part 
 of the law and practice of nations. Cl'lie 
 case of the Fhul Oyen. I ('. Koli. liiri.and of 
 the Henrick & .Maria, 4 C. Holt. 4:!. Heinec. 
 (le nav. oh. vet. nier. veh. coinn). hcc. 10. 
 Azuni'H Maritinie Law, vol.2, p. L'42. ) Our 
 own Kovernment, alsn, adopted llie rule 
 during the revolutionary war, and liounil 
 itself to observe it. With respect to the 
 capture of neutral vessels under the |)re- 
 teiice of a violation of neutral duty, or 
 of contra venin)4 the decrees of n foreifjn 
 government, as was the instance in the 
 case before us, the necessity of a pi'evious ' 
 trial and judKtnent is still more urjicnt 
 and palpable, and that tiecessit.v is univer- 
 sally admitted. 
 
 We are next led to examine the effect of 
 the sentence of condemnation at St. Do- 
 mingo, subHe(iuent to the sale at St. .Iniro. 
 This sentence was intended to act retro 
 spectively, and to cure all defects in the I 
 proceedinjis before the French agency, but 
 it doe.s not appear, and from the case we 
 cannot inteml, that the proceeds of the 
 sale under the onler at St. .Jago were de- ■ 
 posited in any other place than St. .lajto, 
 and the admiralty at St. Dcmiinso pro- 
 ceeded to e.xercise jurindirtion over tliecar- 
 Ko, and to adjudue it In wfnl jiii/.c, when 
 the subject matter of their sentence was 
 within the territory of a neutral power. 
 An important and delicate question then 
 arises, whether we arc bound, in such 
 cases, by the decision of a iirize court.** 
 Such a court acts in rem only, and it can- 
 not exercise a competent or efticient au- 
 thority unless it have possession of the 
 snl)jtCt. I'ossessiou must be essential to 
 its jurisdiction. It is the duty of a pi-ize 
 court to K'ive a prompt and fair hearing to 
 all parties, and to restore instantly, if u()- 
 on a summar.v examination tlieri'iloes not 
 appear sulticient K''ounil to proceed. l!ut 
 how can this hearing be liacl, and this 
 restoration made and enf )rrcd, when the 
 suliject matter ill controversy, and perhaps 
 the captors and captureil, are in a foreisn 
 country? The admission of a piactii'c so 
 incompatible with the very constitution 
 of a prize court would lead to the great- 
 e^t confusion. Snpi)ose a foreijrn prize 
 court should sustain a libel against a ves- 
 sel lyinff within one of our own harbours, 
 and shoulil iiroceed to try, condemn and 
 scllthesame; would any person hesitate 
 to say that such a jurisdiction was inad- 
 missible? that such a proceedinii was 
 coram iion judice? To sustain jurisdic- 
 tion in such a case woulil be the liei;;lit of 
 iniusticeand absurdity. Theold rule, nu'ii- 
 tioned by Hynkershock. of allovviuir bel- 
 ligerents to carry their iITizes into neutral 
 ports, and to sell them there, was f,,unded 
 on the doctrine that briuMiny: the pi-ize in- 
 fra jiraesidia ilid of itself work a transfer 
 of title. liut the alteration in the sense 
 and practiceof nations, by re<inirinna judi- 
 cial condemnation before a clunme of ti'le 
 can take [dace, has done away the former 
 Indnliience, as incompatible with tlie new 
 Improvement; an improvement which 
 
 "See Rose v. Himelv. 4 Cranch's Rep. 241-293. 
 The Soptiio, C. Rob. Adm. Rep. 13*. 
 
 has become on essential and most salutary 
 control over the exercise of the rigilt of 
 maritime capture. V'alin, who published 
 his Commentaries in ITtiO. considered It 
 then as havitiu become thelaw of natiuns, 
 that prizes could not becarried intoa neu- 
 tral port, unless in cases of necessity, with- 
 out a violation of neutrality, and this 
 prohibition was in one of the established 
 ordinances of the marine. (f)rd. de la 
 .Marine des Prises, art. 14. and Valln, 
 ibid.) .VmouK the reRUlations of conjjfPSB 
 upon this subject, in the year ]7>*1, they 
 uckuowledjrecl their obedience to the law 
 of nations accordinir to the (general usaues 
 of Knrope; uad the.v undoubtedly de- 
 clured their understandiu); <if tliuse 
 usuKes, when, in the same year, they or- 
 dered all prizes to be kept safe without 
 sale, until they had been passed upon by a 
 competent court, and that all prizes were 
 to lie brou;:ht for a judicial deterniination 
 before a prize court within the fniteil 
 States, or within the dominion <.( an all.v 
 of America. (.Jourrals of ('ont:ress. vol. 
 7. (iS. ISl). I The case cited from March, is 
 interesting, inasmuch as it contains so 
 early a recognition in ICngland. of the 
 modern rule, that a jirize must bebroURht 
 infra praesidin of the power by whosesub- 
 ject it was taken, or the property would 
 not be altered, and the sale would be 
 void. 
 
 Sir William Scott, in the case of the 
 Henrick & .Maria, (4 V. I{oli.4.S.) ailmitted, 
 that upon principle, and accordiuLr to the 
 better opinion and practice, the prize ounht 
 to be brought within tlie ports of the sov- 
 ereign of the captor, or within those of an 
 ally of such sovereign, and that [lossession 
 founded the jurisdiction ; but he observed, 
 that the Lnglish admiralty bad goiic too 
 far in sanctioning condeiMiutions in ICug- 
 land, of prizes abroad in a neutral port, 
 to permit him to recall the vitious prac- 
 tice of the court to the acknowledged 
 principle. We are. fortunately, under no 
 such embarrassntent in the present case; 
 and though precedentshave controlled .Sir 
 William Scott. ego tamen Scevolaeassenti- 
 or:")!!!!! we are at litierty toconsider the 
 condemnation at St. Domingo us void. for 
 want of jurisdiction in tlie court over the 
 subject.'" 
 
 It has been strongly urged, that this 
 court is concliideil by the sentence, and 
 has no authority to iniiuire intt) its extent 
 and force, because the question of prize, 
 and all (luestions incident thereto, belong 
 to the exclusive cognisance of the ailini- 
 ralty courts. It Is a sullicient answer to 
 all this, to observe, that we MFC not in(|ulr- 
 ing in'o the (luestlon of prize. The plain- 
 tiffs prove a property in the coffee, and the 
 (lefendnnts justify under a capture, con- 
 demnation and sale abroad; but before 
 the defence can be received. It must .ip- 
 pear that the condemnation was by a 
 court having competent jurisdiction in 
 the ease, and so far we have, ol necessity, 
 
 •Cicero, Epist. ad fam. 7. 23. 
 
 ">Soe The Sophie, (! C. Rob. .-Viim. Rep. MK>. note. 
 
 i The liccision in the ca»i> of the Hciirick & .Maria 
 
 ] was aflirnicd in the hiith court of appeals. The 
 
 foinot, .T f. Rob. Aiim. Rep. 2V>. The Purissima 
 
 I Conception, ti C. Kob. Adiu. Rop. 47. S. P.
 
 864 
 
 ■WHEELWBIGHT v. DEPEYSTEU. 
 
 an inciilcntal jurisdiction. It wriul'3 be a 
 motiHtridis doctrine, to hold tliat we were 
 I'OfK'liiilfil l)y every nssumed niitliority. 
 \Vc are not to examine into tlie validity of 
 tlie capture, l)iil we must look no far as 
 to see^vliether the condemnation wasl)y a 
 tribunal competent to pronounce it in tlie 
 Riven case, and if that is once ascertained, 
 a^ree that we must admit the <lel'eiice to 
 be concliJsive.il In the case of Oildy v. 
 Bovill, (2 East, -178.) a sii-nilar (juestiou 
 arose, as to the lef;ality of a French prize 
 court Hitting in Spain, and no objection 
 was rai.sed as to the conijietency of the 
 court of K. li. to sustain tlie inquir.v: 
 an<l in the case of Havelocli v. Kocliwood, 
 S Term H. i'«8, the .same court did not hesi- 
 tate to declare, that the Krench court of 
 admiralty at nnrKen was illegal. It is 
 the practice of the courts of law in cases 
 of insurance, to reject the decisions of for- 
 eign prize court.-i, if it apjiear, that they 
 proceeded ui)on local ordinances, or on 
 trroutids contrary to the law of nations. 
 ( Mayne v. Walter,:! Doug. 71), and Salucci v 
 .lolinson, 4 Doug. UlM, cited in P.'irk, and 
 admitted as valid in (ieyer v. Anuilar, 7 
 Term Hep. (i'.Xi. I I cunnotcn tertain a doubt 
 but that we h.nve authority to in()uirp, 
 and are bonni' to say, whether theforeign 
 court was, by the la w of nations, com|)e- 
 tent to pass the sentence in question, and 
 having determined that it was not, that 
 such sentence cannot avail lu the present 
 case. 
 
 Tlie only reniaiuiug i)oint in the case Is, 
 whether damages ought to have been as- 
 sessed for the moiety of the coffee which 
 
 "See Rose v. Himely, 4 Cranch, 241. S. P. 
 
 belonged to the plaintiffs conjointly with 
 the master. This question admits of no 
 difficulty. It appears to be settled In the 
 booiis, that in actions of trover and tres- 
 pass, the plaintiff may sue separately for 
 his aliquot share or proportion of interest 
 in a chattel, and that the defendant may 
 give the joint interest of others in evi- 
 dence, in mitigation of damages, but that 
 he cannot avail himself of the omission 
 of the plaintiff, t<5 unite the other tenanta 
 in common with him in the suit, other- 
 wise than by pleading it in abateme:;t. 
 He cannot take advantage of it at the 
 trial. (Dockwray v. Dickenson, Skinner, 
 (i40. Addison v. Overend, G Term Hep.7(>(i. 
 Sedgworth v. Overend, 7 Term Uep. 2ji0. 
 Blo.xani V. Hubbard, .5 East, 420. Scott 
 V. Godwin, 1 Bos. & Pull. 70-7.5.) 
 
 The hardship of this case upon a bona 
 fide purchaser is calculated, upon thetiist 
 impression, to strike the imagination. It 
 v,as contended by the counsel, that such 
 inirchasers ought to have been favoured; 
 I but, as an Englisl) judge has somewiiHre 
 j oliserved, arguments upon the liardsliip 
 1 of a case are only quicksand.s in the law, 
 I which, if admitted, would soon choak and 
 destroy all estaSlished principles. A 
 ! steady adherence to rule in these cases, by 
 ' reijniring the purchaser of captured profi- 
 ! erty to look at his peril to the title, and 
 j to derive it iinder a con)i)etent sentence, 
 will tend to check the intemperate avidity 
 I and irregular proceedings of belligerent 
 I captors. 
 
 The oijinion of the court, therefore, is, 
 that the defendants take nothing by tlieir 
 motion. 
 Judgment for the plaintiffs.
 
 WlirrcOMB V. WHITNEY. 
 
 867 
 
 WHITCOMB V. WHITNEV. 
 (24 Mich. 4S0.) 
 Supreme Court of Michigan. April 16, 1873. 
 Error to Wayne circuit. 
 D. B. & H. M. Diiffielfi. for plaintiff In er- 
 ror. D. (J. Holbrook, for (lefeiidant in er- 
 ror. 
 
 COOLEY, J. The main facts inthiscase 
 are undisputed. On tiie Bixteentli day of 
 March, 1871, the jiarties made a contract 
 evidenced by the folio wing writinj;: 
 
 " Detroit, March IG, 1871. Received of D. 
 Whitney Jr. five hundred dollarH on ac- 
 count for all the upper ()ualiti(>s and select 
 common and cutting up or line coiiiiiion 
 lumber that I make at I{ock Falls in town 
 of Sand Beach, Michiftan, this Keasoii, at 
 fair price, what said Whitney can afford 
 to pay; the lumber is to be delivered on 
 rail of vessel when lumlier is ready toship, 
 or when ve.ssel is ready to send for it. 
 (Sinned) "Hiram Whitconib." 
 
 The defendant from time to time ad- 
 vanced moneys upon this agreement, and 
 received one cnrno of lumber, in respect to 
 whicli no question arises. (Jn September 
 22, 1S71, i)laiutiff wrote defendant as fol- 
 lows: "I have all my lotrs now sawed: 
 luml)er ready to ship. The sooner you 
 send a vessel the better J would like it". 1 
 think there will be seventy M. or more. " 
 On the receipt of this letter defendant sent 
 an ins|)eetur to Rock Falls, who arrive<l 
 thei'e about the fourth of October, and in- 
 spected and approved of about si.\ly- 
 four M. ftet of the lumber, actin;; for liuth 
 parties in so doing. The lumber when 
 inspected was at plaintiff's mill, but as 
 fast as the inspection proceeded, it was 
 haultd on the dock, some fort.v rods, to 
 be ready for delivery on the vessel wlien 
 one should be sent for it. The ins[)ertion 
 was completed on the sixth of October, and 
 defendant was notified thereof on the 
 eleventh of the same month. Two days 
 before the time last mentioned, however, 
 the lumber was destroyed by fire, with- 
 out any fault, neglect or carelessness on 
 the part of the plaintiff, and when this 
 fact came to the knowledge of defendant, 
 lie refused to pay for the lumber, and this 
 suit is brought for the value. The decla- 
 ratkm contains a count for goods sold 
 and ilelivered, and alsoa speci.il count set- 
 ting out the facts; averring plaintiff's 
 readiness and willingness to ileliver the 
 lumber on the rail of the vessel when one 
 should be sent for it, but that before de- 
 fendant sent any vessel to take it, though 
 he had aiuple time to do so, and to load 
 and take away the same, the lumber was 
 destroyeil by fire without the fault, neg- 
 lect or carelessness of plaintiff, by means 
 whereof the defendant became liable to 
 pay a fair price tlierefor, etc. 
 
 It does not seem to be necessary to set 
 forth the various retjuests tochnrge which 
 were made in the court below, nor the 
 charges given ; the ijuestion in this court 
 is simply this whether, under the tacts 
 stated, the lumber at the time it was ac- 
 cidentally destroyed had or had not be- 
 come the property of the defendant so as 
 
 to be at his risk. The circuit judue In 
 effect held that it had not. 
 
 In support of the ruling of the circuit 
 judge we are referred to several decisions, 
 some of which present <|uestions arising 
 under the statute of frauds, and obvi- 
 ously have no aiiplication here. Others 
 were decisions upon contracts for the 
 manufacture and delivery of s[>ecilic ar- 
 ticles, under whicli no title could pass un- 
 til the specific thing was completed and 
 delivered, or in some manner identified 
 and set apart by the act of the parties. 
 Johnson v. Hunt, 11 Wend., l:i7, [iresented 
 the (juestion whether lumber which was 
 l)eing got ready by a Iniilder to |)ut into 
 n house which he had contracted to put 
 up for another, became the firoperty of 
 his employer before it was actually built 
 into the hciuse; and the court held that 
 it did not. This was clearly correct, as 
 up to that time the contract<ir had an un- 
 doulited right to use it for any other imr- 
 rxjse if he iileased. ('(iiiifort v. Kiersted, 
 26 Barb., 471', was th(! case of a contract 
 for shingles to be manufactured, and 
 which by the terms of the contract were 
 to he the property of the vendees, at eight- 
 een shillings a thousand, on the vendor'r. 
 premises as fast as inanufnrtiircd : he, 
 however, agreeing to deliver them at the 
 store oi the vendees, and to be paid tliree 
 ilollars a thousand at that [dace. The 
 contiact fixed the amount to be delivered 
 at 10(1 .M.. but with the privilege, on the 
 part of the vendees, to increase It to l.")0 
 .M. The court held that the shiiigles did 
 not become the property of the vendees 
 until in some way designated and set 
 apart so as to be capable of being identi- 
 fied as their property. The sale was not 
 of all the party might make, l)ut only of 
 a specified quantity; an<l the court illus- 
 trate their view of thecontra'-t b.v say- 
 ing, the vendor might have made precisely 
 such a contract with anotlier person. In 
 which case the shingles " would have be- 
 come the property of the one or the other 
 of the parties to whom he had agreed to 
 sell them, according to theirdesignation." 
 This case differs from Comfort v. Kiersted 
 in two important particulars: First, the 
 purchaser here was to have all the lumber 
 of certain kinds widch should be cut; and. 
 second, the lumber coming within the 
 terms of the contract was particuhtrly 
 identifieil and designatcl by the act of in- 
 spection. .Andrews v. Duiant. 11 N. Y., 
 :jr), presented the(iuestion whether, under 
 a contract for the building of a vessel of 
 certain specitied dimensions, to be deliv- 
 ^ ercd complete bv a <Iay named, for a cer- 
 tain price, to be paid as tlie work i)ro- 
 gressed. an.v property in the vessel passed 
 liefore the vessel was completed; anti it 
 was held it did not. That case also has 
 very little liearing upon the one now un- 
 I der consideration. 
 
 I What is the case l-ere'.' Tlie contract Is 
 [for the purchase of all the lumber of ccr- 
 i tain grades that plaintiff shal' mnnufac- 
 I fare at Rock Fallsduring theseason. The 
 plaintiff could not have s(dd n foot of it 
 to any other person without a distinct 
 viol.ition of his contract obligations. 
 From the time of its manufacture nothing
 
 868 
 
 WHITCOMB c. WHITNEY. 
 
 would neerl to be done to determine the 
 riRtit to the defendant in any particular 
 parcel, but to have it properly Hettled 
 that it fell within one of the grades con- 
 tracted for. An agent duly authorized 
 bad determined that as to all the lumber 
 in question, and had done what amount- 
 ed to an acceptance of it on the part of 
 the defendant. It had then been set ai)art 
 and stored in a proper place for the de- 
 fendant, and was subject to his order. 
 Nothing remained to be done by the plain- 
 tiff except to deliver it on the rail of the 
 vessel; and that he could not do until the 
 vessel was sent. Everything now de- 
 pended on the action of the defendant, 
 which might be expedited or delayed as 
 should suit his own convenience. Had 
 this been a contract for the completion of 
 a carriage from specified materials, to be 
 delivered when sent for, and had it been 
 fully completed and accepteil, so that 
 nothing remained to be done except to 
 make the manual delivery when it should 
 be called for, the setting apart of the 
 projierty under the contract could not 
 have been more complete and unquestion- 
 able than it was here. 
 
 Where the case is not within the stat- 
 ute of frauds, manual delivery of the ar- 
 ticle sold is not essential to the passing of 
 the title unless made so by the under- 
 standing of the parties. They may agree 
 when and on what conditions the prop- 
 erty in the subject of such a contract shall 
 pass to the prospective owner. — Denio, ,1., 
 in Andrews v. Durant, 11 N. Y., 42. Theii' 
 intention must be the governing consid- 
 •ration in every case. — Channell, B., in Tur- 
 ley V. Bates, 2 H. & C, 211. The title may 
 pass notwithstanding the price is yet to 
 be determined.— Turley v. iSates, supra; 
 Valpy V. Gibson. 4 M. G. & S., 837. In 
 Olyphant v. Baker, 5 Denio, .382, it is said 
 to be "a general rule of the common law, 
 that a mere contract for the sale of goo.ls, 
 where nothing remains to be done by the 
 seller before making delivery, transfers 
 the right of property, although the price 
 has not been paid, nor the thing sold de- 
 livered to the purchaser." And of the 
 numerous cases in which the expression is 
 used, tliHt if anything remains to be done 
 by the seller the title does not pass, Sel- 
 den, .1., in Terry v. Wheeler, 25 N. Y., ,')25, 
 says they only goto thelength of showing, 
 that where something is to be done by the 
 
 seller to ascertain the identity, quantity 
 or quality of the thing sold, or to put it 
 in the condition which the terms of the 
 contract require, the title does not pass. 
 And he, therefore, holds with the ap- 
 proval of the whole court, that an agree- 
 ment by the vendor of lumber to trans- 
 port it to tlie cars and deliver it free of 
 charge, did not prevent the title passing 
 immediately where what was sold was 
 selected and designated. 
 
 Suppose thia lumber had not been de- 
 stroyed and the defendant's vessel had 
 called at the dock for it ; could the plain- 
 tiff have refused to allow him to take the 
 lumber away, and maintained replevin 
 for it it he had done so? If the title had 
 not passed, he could; if it bad, he could 
 not. If it was still his property and at 
 his risk, he might have sold and conveye<l 
 a good title to a third person in the very 
 presence of the defendant after his vessel 
 had arrived to take it away; subjecting 
 himself only to a liability to damages on 
 his contract for a failure to perform it. 
 But we think if he had attempted this, the 
 defendant would not have hesitated to 
 say: "This property is mine; it has been 
 set apart specifically for me, by contract, 
 by inspection, and by designation; by 
 every act, in short, which the circum- 
 stances admitted of being done; the ven- 
 dor owes a service to me in putting it on 
 the rail of the vessel, which he can either 
 perform (ir be liable for the value of ; but 
 if he performs it, it will be in respect to 
 property previously identified as mine, 
 and not at all by way of designation or 
 measurement. Wlioever buys this lumber 
 of him, Ijuys what has not only been pre- 
 viously bought by me, but what has been 
 set apart for me and placed at my dis- 
 posal by the most unequivocal acts ; and 
 I have therefore become vested with a 
 title which 1 shall maintain and enforce." 
 This is vvliat he would have been likely to 
 say had the unfortunate fire not occurred ; 
 and this the law would have justified him 
 in saying. It follows that the plaintiff is 
 justified in demanding payment from him 
 on the purchase. 
 
 The judgment of the circuit court must 
 be revers>"d, and a new trial ordered. 
 
 CHRISTIANUY, C. J., and CAMPBELL, 
 J., concurred. GRAVES, J., did not sit in 
 this case.
 
 WHITE 0. SPETTIGUE. 
 
 871 
 
 WHITE V. SPETTIGUE. 
 
 (13 Mees. & W. 603.; 
 
 Courts of Exchequer. Jan. 18, 1845. 
 
 Trover for bookH; to which the defend- 
 ant pleaded not guilty, and that tlie 
 plaintiff wiiH not poHseHsed. 
 
 At the trial before Holfe, B., at the Mid- 
 dlesex Hittitigs In thin tonii, it appeared 
 that the plaintiff, who was a Boheitor, 
 had iniHsed from da.v to day several vol- 
 unieH of the Statutes at Larpe, which he 
 Buspected to have t)een stolen by a young 
 man who was at that time a clerk in his 
 office. The defendant, who was a book- 
 seller carrying on business in London, 
 heeanie pocsessed of the books by a i)ona 
 fide purchase of them on different days, 
 from a young man who brought them to 
 his shop and offered them for sale. The 
 defendant having sold the books, this ac- 
 tion was brought to recover the value of 
 them. On the above facts ap[iearing in 
 evidence, it was objected for the defend- 
 ant, that, as the plaintiff had done noth- 
 ing to prosecutethe person who had stolen 
 the books, he could not maintain the ac- 
 tion: Gimson v. W oodtull. 2 Car. & P. 41; 
 Peer v. Humphrey, 2 Ad. & Ell. 495; 4 Nev. 
 & M. 430. The learned judge, however, 
 told the jury that there was evidence to 
 sliow who stole the books, and that the 
 property in the goods, being originally in 
 the plaintiff, could not lie taken out of him 
 by any act oi a third party ; and he direct- 
 ed them to tind for the plaintiff, unless 
 they believed the defendant received the 
 goods km)wing them to have been stolen, 
 in which case the right would then merge 
 in the felony, and the plaintiff would not 
 be entitled to recover. The jury having 
 found for the plaintiff, 
 
 Merewether now moved for a new trial, 
 on the ground of misdirection. The case 
 of Gimson v. Woodlull is an authority 
 against the correctness of the ruling of the 
 learned judge. That was a case exactly 
 similar to the i)reseiit. It was an action 
 of trover for a mare, whiih was jiroved 
 to be the projierty of the plaintiff, and to 
 have been stolen from him, and itajipeared 
 that the plaintiff had good reason to be- 
 lieve that she was stolen from him by the 
 person from whom the defendant bought 
 her. Tlie [ilaintiff Iiad taken steps, both 
 befoi'e a magistrate and otherwise with a 
 view to get back the mare, but had done 
 nothing towards bringing the thief to jus- 
 tice. Best, t\ J., there says, "I am of 
 opinion that the plaintiff has done noth- 
 ing that he ought to have done, and 
 I doubt if a stalenient of facts before a 
 magistrate would be enough. But hegoes 
 to get l)ack the property and not to |)ros- 
 ecute the felon. If I were to hold that 
 this action could be maintaine<l, under 
 sucli circumstances, we should have no 
 morecriminal prosecutions. I take it the 
 law is this — .von must do your dut.vto the 
 public before you seek a benefit to your- 
 self, and then there is no necessity for a 
 civil action. The decisions go not only to 
 the case of an action against the felon, 
 but as to actions against persons wlio de- 
 rive their title under him. There is a case 
 
 in the Term Reports which says that the 
 property is in d<jubt till after pr<j8ecution. 
 I cannot send this case to a jury, there be- 
 ing no evidence of felony; I think the case 
 should have gone to the grand jury." In 
 Peer v. Humphrey, 2 Ad. & Ell. 4'J.'j; 4 Nev. 
 & .\f. 4.30, the plaintiff was held entitled to 
 recover stolen profierty, but there he had 
 prosecuted the thief to conviction. And 
 Littledale, .1.. says, "Tlie law is. that no 
 action shall be brought, under particular 
 circumstances, until the owner has done 
 his duty by prosecuting. Even that has 
 been done here. l!i Gimson v. Woodfull 
 the pr<jpei-ty must have been changed by 
 a sale in market overt; liesldes, in that 
 case the party had done nothing towards 
 bringing the thief to justice; here he has 
 actually prosecuted him to conviction." 
 [POLLOCK, C. B.— The case of Stone v. 
 Marsh, 6 B. & Cr. ri'A, is a direct authority 
 against the doctrine you are contending 
 for. In that case Lord Tenterden says, 
 "There is, indeed, anotlier rule of the law 
 of England, viz., that a man shall not be 
 allowed to make a felony the foundation 
 of a civil action; not that he shall not 
 maintain a civil action to recover from a 
 third and innocent person that which has 
 been feloniou.-ily taken fi'om him, for this 
 he may do if there has not been a sale in 
 niarket^overt, but that heshall not sue the 
 TeTtTn ; anTT 1 1 may be admit ted, that he 
 shall not sue others together with the 
 felon, in a proceeding to whidi the felon 
 is a necessary party, and wherein his 
 claim appears, by his own showing, to be 
 founded on tlie felonv of the defendant: 
 Gibson V. Minet, 1 H. "Black. 012. This is 
 the « hole extent of the rule. The rule Is 
 founded on a principle of public policy, 
 and where the puldic policy ceases to o|>er- 
 ate, Ihe rule shall cease also. This point 
 was very ably shown in the argument on 
 the behalf of the plaintiffs. The authori- 
 ties were quoted, and need not be repeat- 
 ed ; audit was shown that the familiar 
 phrase' the action is merged in thefehiny,' 
 is not at all times, and literall.v, true. 
 Now, public polic.v requires that offeniler« 
 against the law shall be brought to jus- 
 tice, and for that reason a man is not per- 
 mitted to a))siain from prosecuting an 
 offender, by receiving back stolen prop- 
 ert.v, or an equivalent or composition for 
 a felony, without suit, and, of course, can- 
 not be allowed tomaintain a suit for such 
 purpose. But it is not contended, that 
 any such policyor rule is applicable to the 
 present case; the offender has 8uffere<l the 
 extreme sentence of the la w for another 
 offence of the same kind. " That is a case 
 precisely in point, and It is confirmed by 
 the decision of the house of lonls in the 
 case of Marsh v. Keating. 1 Bing. N. C. 
 1!)S; 1 Scott..'..] Those cases are distin- 
 guishable from the present, for there the 
 felon had been convicted and executed. 
 Thejudgmeiit of Lord Tenterden caunot be 
 intcndeil to be taken to the full extent o' 
 the language used, for the jdaintiff Is. at all 
 events, bounti to do his best to bring the 
 guilty party to justice. 
 
 POLLOCK. C. B — I am of opinion that 
 no rule ought to be granted in this case. 
 The court of king's bench correctly ex-
 
 873 
 
 "WHITE 0. SPETTIGUE. 
 
 plnineil the law in the case ol Stone v. 
 Marsh, and the rule of public policy which 
 prevents the Jissertion of a civil right in 
 rcHpect of which a felony has been comrait- 
 tnd, applies onlv to proceedinRS between 
 the plaintiff and the felon himself, or, at 
 the most, the felun and those with whom 
 he must be sued, and does not apply to a 
 case like the present, where the action is 
 brought against a third party, who is in- 
 nocent of the fclonioustransaction. More- 
 over, the defence sought to be raised is not 
 admissible under these pleas. 
 
 PARKE, B.— I think there is not the 
 least foundation for a rule in this case. In 
 the first |)lace, independently of the point 
 of law, there are neither pleadings to war- 
 rant the defence, nor facts to support it. 
 The only pleas on thfi record are not guil- 
 ty which puts in issue the conversion, 
 and not possessed, which puts in issue tbe 
 plaintiff's title at the time of conversion. 
 Secondly, the books in question in the ac- 
 tion were not proved to have been the 
 subject of a felony, nor, assuming a felony 
 to have been committed, did it at all ap- 
 pear that the thief was amenable to jus- 
 tice. Thirdly, tlie cases which have been 
 referred to, of Stone v. Marsh and Marsh 
 V. Keating, are authorities, that the obli- 
 gation which the law imposes on a plain- 
 tiff to prosecute the party who has stolen 
 his goods, does not apply where tbe ac- 
 tion is against a third party innocent of a 
 felony. Those cases are subsequent to 
 that of Gimson v. Woodfull. 
 
 ALDERSON. B.— I also think that these 
 pleas do not warrant the proposed de- 
 fence, and even if they did, I tliinli it would 
 be no defence to this action. Assuniing 
 that, under the plea of not possessed, a 
 lien maybe given in evidence (with re- 
 spect to which some difficulty might be 
 raised,) still if you admit evidence of a 
 lien, you cannot exclude evidence to show 
 that it had ceased to exist at the time of 
 the conversion. .So that, supposing the 
 defendant had a lien on these books, and 
 he should prove it under the plea of not 
 possessed, the plaintiff would be entitled 
 
 to show that the Hen had ceased at the 
 time he converted them. The utmost e.^- 
 tent of the defence set up In this case is, 
 that the defendant was entitled to the 
 possession of the books until the plaintiff 
 had |)rosecuted the felon. He clearly had 
 no right to sell the goods, as he had no 
 property in them; he does sell the goods, 
 and thereby puts an end to the lien, if any 
 existed. I also think that this defence 
 ought to be specially pleaded. 
 
 ROLFE, B. — I am of the same opinion. 
 I cannot agree to the law as, laid down 
 by Best, V. .1., in Gimson v. Woodfull, 
 that a plaintiff is bound, in the first in- 
 stance, to do his duty to the public by 
 prosecuting; and that if actions like tlie 
 one he was then trying could be main- 
 tained, there would be no more criminal 
 prosecutions. I think that Is too general, 
 and 1 cannot accede to the doctrine. I 
 think the true principle is. that where a 
 criminal, anil consequently an injurious 
 act towards the public, has beeti commit- 
 ted, which is also a civil injury to a party, 
 that party shall not be permitted to seek 
 redress for the civil injury to the prejudice 
 of public justice, and to waive the felony, 
 and go for the conversion. I think the 
 law, as laid down in that case, instead of 
 advancing public justice, would be pro- 
 ductive of very great injustice. It 
 funounts to this, that another person, 
 who has got possession of my goods, uf 
 whicli I have been robbed, may keep them 
 until I prosecute some innocent person 
 whom I may suspect or find out for that 
 I)urpose. In this case there was no evi- 
 dence that the plaintiff's clerk took the 
 goods, and probably he did not, though 
 he may have been cognisant of the rob- 
 bery. I also agree, that the defendant 
 has not pleaded so as to admit this de- 
 fence. With respect to what I said at the 
 trial, that if the defendant had been the 
 guilty receiver of the books, he would be 
 entitled to the verdict, I must retract 
 that, and suspend my judgment on that 
 point, as I entertain some doubt whether 
 I was correct. 
 
 Rule refused.
 
 WIIITKIIOUSIC V. FKOST. 
 
 K75 
 
 WHITEIIOUSE ct al. v. FROST et aL 
 
 (13 East, 614.) 
 
 King's Bench, Trinity Term. July 6, ISIO. 
 
 In trover to recover tlie vahie of Boine 
 oil, the property of tlie Imnkriipt, which 
 was tried at IjancuHter, in Miircli last, a 
 verdict was found for tlic plaiiitiffH for 
 £390, Huliject to the opiiiiun of the court 
 on tlie following caHo: — 
 
 'I'he plaintiffs are nssianeoH of John 
 Townseiid, late a merchant at Liverpool; 
 the two Frosts are inerchants and part- 
 ners in Liverpool ; and the other defend- 
 ants, Dutton & Bancroft, are also mer- 
 chants and partners in th(! same town. 
 On the 7th of February, 1H09, Townsend 
 purchased from the defendants, .J. & L. 
 Frost, ten tons of oil, at £:!!) ijer ton. 
 amounting to £.'!'.l(), for which Townsend 
 was to Kive his accei)tance payable four 
 months after date; and a bill of parcels 
 was rendered to Townsenc; by the Frosts, 
 a copy of wliich is as follows . — 
 
 "Liverpool, 7th February, 1809. Mr. 
 John Townsend, I'.onsht of J. & L. Frost, 
 
 Ten tons Greenland whale oil in Mr. Stani- 
 
 forth's cisteriis„at your risk, at £30 £390 
 
 Cr 
 
 1809. February 14. By acceptance £390 
 
 "For J. & L. F., Wm. Pemberton." 
 
 The said ten tons of oil at the time of 
 his purchase vvere part of fort.y tons of 
 oil lying in one of the cisterns in the oil- 
 house at Liverpool, the key of which cis- 
 tern was in the custody of the other de- 
 fendants, Dutton &, Bancroft, who had be- 
 ft)re that time purchased from J. I{. & J 
 Freme, of Liverpool, merchants, the said 
 forty tons of oil in the .^ame cistern ; and 
 upon such purchase received from the 
 Fremes the key of the cistern. Afterwards 
 Dutton & Bancroft sold ten of the forty 
 tons they had so bought (being the ten 
 tons in ()uestion) to the defendants, the 
 Frosts, who sold the same in the manner 
 before stated to Townsend. On the 7th 
 of February, the day on which Townsend 
 bought the ten tons of oil, he received 
 from the defendants, l'"iosts. an order on 
 Dutton it Bancroft, who held the key of 
 such cistern, they having other inter- 
 ests therein asaforesaid, to deliver to liini. 
 Townsend, the said ten tons of oil; a 
 copy of whi'-li is as follows: — 
 
 " Messrs. Dutton & Bancroft, Please to 
 deliver the bearer, Mr. John Townseinl, 
 ten tons (Jreenland whale oil. we pur- 
 chased from you Sth November last." 
 (Signed) "J. & L. Frost." 
 
 The order was taken to Dutton & Ban- 
 croft by Townsend, and accepted by them 
 upon the face of the order as follows: 
 "1,S1)9. Accepted, Mth February. Dutton 
 & Bancroft," Townsend according to the 
 terms of the l)ill of parcels, namely, on 
 the 14th of February, ls(l9, gave to the de- 
 fendants, I'^iosts, his acce|)tanco for the 
 amount of the oil, payable four months 
 after date; but which acce|itiince has not 
 been paid. Townsend never demandeil 
 the oil from Dutton & Bancroft, who had 
 the custody of it. The oil was not subject 
 
 to any rent; the original im|)orter having 
 paid the rent for twelve? months, and sold 
 it rent free for that time, which was not 
 e.\((ired at Townsend's liatikruptcy. On 
 the '.'lid of May, 1S09, about three months 
 after the |)urcliaHe of the ten tons of oil, 
 a coBimission of bankrupt issued against 
 Townsend. under which he was duly de- 
 clared a liankrupt, anri the jilaintiffs up- 
 pointed Ills as.sigiiees. .\t the time of the 
 purchase, and also at tlie time of Town- 
 send's being declared a bHid<rupt, the oil 
 was lying in the cistern mixed with other 
 oil in the same; and some timeafterwards 
 the flefendants refused to deliver the same 
 to the plaintiffs, notwithstanditig a de- 
 mand was made for the same by the as- 
 signees, and a tender of any chargr's due 
 in respect thereof. When the whole of 
 the oil lying In any o( the cisterns in the 
 oil-house is sold to one person, the pur- 
 chaser receives the key of the cistern , but 
 when a small i)arcel is sold, the key re- 
 mains with the original owner; and the 
 purchaser is charged in proportion to the 
 quantity of oil sold, with rent for the 
 same, until delivered out of the oil-house, 
 unless such rent be i)aid by the original 
 importer, as was the fact in the i)resent 
 case. If the plaintiffs were entitled to re- 
 cover, the verdict was to stand; if not, a 
 nonsuit was to be entered. 
 
 'i'here was a similar action by the same 
 plaintiffs against J. H. Freme and J. 
 Freme, Dutton, and Bancroft, the circum- 
 stances of which were in substance the 
 same. 
 
 Jas. Clarke, for plaintiffs. Scarlett, 
 coutra. 
 
 Lord ELLENBORODGH, C. J. This 
 case presents a difference from the ordi- 
 nary cases which have occurred where the 
 sale has been of chattels in their nature 
 several, and where the transfer of the 
 property from the vendor by means of 
 an oriler for delivery aeidressed to the 
 wharfinger or other person in whose 
 keeping they were, and accepted by him, 
 has been held to be eciuivalent to an actu- 
 al delivery; the goods l)eing ot the time 
 capable of being delivered. Here, how- 
 ever, there is this distinguishing circum- 
 stance, that the ten tons of oil till meas- 
 ured off from the rest was not capable of 
 a separate delivery; and the question is, 
 whether that be a distinction in substance 
 or in semblanc(> only. The whole forty 
 tons were at one time the proi)erty of Dut- 
 ton & Bancroft, who hail the key of the 
 cistern which coutaiiie I them; and they 
 sold ten tons to the Frosts, who sold the 
 same to Townsend. the bankrupt, and 
 gave him at the same time an order on 
 Dutton A: Bancroft for the delivery to him 
 of the ten tons. To that order Dutton & 
 Bancroft attorn, as I may say ; for they 
 accept the order, by wri'ing upon it "Ac- 
 cepted, 14th of February, Iso'.i." and sign- 
 ing their namesto it. From that nion-.ent 
 they became the bailees of Townsend. the 
 vendee; the goods had arrived at their 
 journey's end. anil were not in transitu; 
 all the right then of the sellers was gone 
 bv the transfer, and they could no longer 
 control that delivery to which tliev had
 
 876 
 
 WHITEHOUSE v. FKOST. 
 
 virtiinllv acceflerl by means of their order 
 on Dutton & liancroft accepted by the lat- 
 ter. The guostion of utoppins in transitu 
 doea not arise, taking- the Frosts to be 
 tlie original Hollers, as between tliem and 
 the bankrupt; the oil had never been in 
 the hands of the Frosts; they only as- 
 sifined aright to it in the hands of the 
 common bailees, which before had been 
 assigned to them. 
 
 GROSE, J. There can be no doubt that 
 at the time of Townsend's bankruptcy the 
 ten cons of oil in the cistern were at the 
 risk of the bankrupt. All the delivery 
 which could take place between these par- 
 ties had taken place. Dutton & Bancroft, 
 who had the custody of the whole in their 
 cistern, had accepted the order of the sell- 
 ers for the delivery to the bankrupt, and 
 it only remained for Towusen<i, together 
 with Dutton & Bancroft, to draw off the 
 ten tons from the rest. 
 
 LK BL.4NC, J. Dutton & Bancroft had 
 sold the ten tons of oil in question (which 
 was part of a larger quantity, the whole 
 of which was under their lock and key) to 
 the I'^rosts, who sold the same to Town- 
 send; and there is no claim oo tlie'part of 
 the defendants. Dutton & Bancroft, to 
 detain the oil for warehouse rent. The 
 Frosts never had any other possession of 
 the oil tlian through Dutton & Bancroft; 
 but tlieygave to Townsend an order on 
 these latter to deliver it to him ; and after 
 the acceptance of that order Dutton & 
 Bancroft held it for his use. But some- 
 thing, it is said, still remained to be done, 
 namely, the measuring off of the ten tons 
 from the rest of the oil. Nothing, howev- 
 er, remained to be done in order to com- 
 
 plete the sale. The objection only applies 
 where something remains to be done as 
 between the buyer and seller, or for the 
 purpose of ascertaining eitlier the quan- 
 tity or the price, neither of which re- 
 mained to be done in this case; for it was 
 admitted by the persons who were to 
 make the delivery to Townsend, that the 
 quantity mentioned in the order was in 
 the cistern in their custody, for they had 
 before sold that quantity to the Frosts, 
 of whom Townsend purchased it, and had 
 received the price. Therefore, though 
 something remained to be done as be- 
 tween the vendee and the persons who re- 
 tained the custody of the oil, before the 
 vendee could be put Into separate posses- 
 sion of the part sold, yet as between him 
 and his vendors nothing remained to per- 
 fect the sale. 
 
 BAYLEY, J. There is no question of 
 transitus here; the goods were at their 
 journey's end. When, therefore, Dutton 
 & Bancroft, who were then the owners 
 of the whole, sold ten tons of the oil to 
 the Frosts, those ten tons became the prop- 
 ery of the Frosts; and when they sold 
 the same to Townsend, and gave him an 
 order upon Dutton & Bancroft for the 
 delivery of the ten tons purchased of 
 them, the effect of that order was to di- 
 rect Dutton & Bancroft to consider as the 
 properly of Townsend the ten tons in 
 their possession, which before was C3nsid- 
 ered as the property of the Frosts; and 
 by the acceptance of that order Dutton & 
 Bancroft admitted that they held the ten 
 tons for Townsend, as his property; and 
 he had a right to go and take it, without 
 the interference of the Frosts. Postea to 
 the plaintiffs.
 
 i
 
 WHITMARSH o. WALKEK. 
 
 879 
 
 WHITMARSH v. WALKER. 
 (1 Melc-. [Mass.J 313.) 
 
 Supreme Judicial Court of Massachusetts. 
 Sept. Term, 1840. 
 
 AssiinipHit for money had and received, 
 and on an aKrecment set forth with sli^lit 
 variations in different counts, but in all 
 of them in suDstance as follows, viz., 
 that in September, I>iy8. the plaintiff at 
 the defendant's request bouKliC of bini a 
 great number of inulticaulis raulberry- 
 trees at the rate of twenty-tive cents jter 
 hill, to be delivered on the gronnd where 
 they then were on <leniaii<l by tlie plain- 
 tiff; that the plaintiff then paid 5510 in 
 part of the |)rice, and promised to pay the 
 residue of the price on the delivery of the 
 trees; and that in consideration thereof 
 the defendant then promised to deliver 
 the trees to the plaintiff on demand. A 
 demand by tlie plaintiff was alle;red, and 
 also an offer of payment by him, and a 
 refusal by tlie defendant to deliver. 
 
 It appeared at the trial before Wilde, J., 
 that the agreement declared on was 
 made, but not reduced towritinn; that 
 the price of the trees was more than f'tO, 
 but that the plaintiff paid $10 as alleged 
 in the declaration; and that the trees, 
 at the time of the agreement, were grow- 
 ing in the defendant's close, and were 
 nursery tree.s raised to be sold and trans- 
 planted. 
 
 The defendant objected that the agree- 
 ment was void by the statute of frauds. 
 The judge <jverruled the objection, and 
 a verdict was found for the plaintiff. New 
 trial to be had if the judge erred. 
 
 Huntington, for plaintiff. Wells, for de- 
 fendant. 
 
 WILDK, J. This action is founded on a 
 parol agreement, whereby the defendant 
 agreed tosell to the plaintiff twothousand 
 mulberry trees at a stipulated ])rice; the 
 trees at the time of the agreement being 
 growing in the close of the defendant. It 
 was proved at the trial that the plaintiff 
 paid the defendant in hand the sum oi ten 
 dollars in part payment of the price tliere- 
 of, and promised to pay the residue of the 
 price on the delivery of the trees, which 
 the defendant promised to ddiver on de- 
 mand, l)ut which promise on his part he 
 afterwards refused to perforin. And the 
 defence is that the contract was for the 
 sale of an interest in land, and therefore 
 void by the He v. Sts. c. 74, § 1. 
 
 In support of the defence it has been ar- 
 gued that trees growing and rooted in the 
 soil appertain to the realty, and that the 
 contract in (juestion was for the sale of 
 trees rooted and growing in tlie soil of 
 the defendant at the time of the sale. On 
 the part of the plaintiff it was contended 
 that the trees contracted for were raised 
 for sale and transplantation; and like 
 fruit-trees, shrubs and plants, rooted in 
 tlie soil of a nursery garden, are not with- 
 in the general rule, but are to be consid- 
 ered as personal chattels. This question 
 was discussed and considered in Miller v. 
 Baker (1 Met. 27,) and we do not deem it 
 
 necessary to reconsider It In reference to 
 the present case. We do not consider the 
 agreement set forth in the declaration and 
 proved at the trial as a contract of sale 
 consummated at the time of the agree- 
 ment; for the delivery was postponed to 
 a future time, and the defendant was not 
 bound to complete the contract «)n his 
 part, unless the plaintiff should be ready 
 and willing to complete the payment of 
 the stipulated price. Sainsbury v. 
 Matthews, 4 Mees. & Welsh. :j47. Inde- 
 pendently of the statute of frauds, and 
 considering the agreement as valid an^ 
 binding, no property in the trees vested 
 tliereby in the plaintiff. The delivery of 
 them and the payment of the price were to 
 be simultaneous acts. The plaintiff can- 
 not maintain an action for the non-deliv- 
 ery without proving that he offered and 
 was ready to complete the |)ayuient of the 
 price; nor could the defendant maintain 
 an action for the price without proving 
 that he was ready nnd offered to deliver 
 the trees. According to the true construc- 
 tion of the contract, as we understand it. 
 tlie defendant undertook to sell the trees 
 at a stipulated price, to sever them fr<ini 
 the soil, or to permit the plaintiff to sever 
 them, and to deliver them to him on de. 
 mand ; he at the same time piiying the *le- 
 fendaiit the residue of the price. Am] it is 
 immaterial whether the severance was to 
 be made by the plaintiff or the <lefendant. 
 For a license for the plaintiff to enter and 
 remove the trees would jinss no interest 
 in tlie land, and would, without writing, 
 be valid, notwithstanding the statute of 
 frauds. 
 
 This subject was fully considered in the 
 case of Tayler v. Waters. 7 Taunt. .■!74; 
 and it was held thiit a benelicini license, 
 to l)e exerci.sed upon land, may be grant- 
 ed without deeil and without writing; and 
 that such a license, granted for a valuable 
 consideration and acted upon, cannot be 
 countermanded. The sul)ject has also 
 been ably und elaDor.'itely discussed by 
 Chief . I usUee Savage in the case of .Mum- 
 ford V. Whitney, 15 Wend. ;1M), in which all 
 the authorities are reviewed ; and we con- 
 cur in the doctrine as therein laid down, 
 namely, that a permanent interest in land 
 can be transferred onl.v by writing, but 
 that a license to enter upon the land of 
 another and do a particularaet or a series 
 of acts, without transferring any inter- 
 est in the land, is valid, though not in 
 writing. .Vnd such is the license on which 
 the plaintiff relies in the (iresent case. 
 
 Chancellor Kent in his Commentaries, 
 vol. ill. p. 4.'>2, .'Sd Kd., veri' justly remarks 
 that "the distinction between a privilege 
 or easement carrying an interest In the 
 land, and recguiring a writing within the 
 statute of frauds to support it. and n 
 license which nia.v be by parol, in quite 
 subtile, and it becomes ditlinilt in some of 
 the cases to discern a substantial differ- 
 ence between them." lUit no such dilli- 
 culty occurs in the present case. The 
 plaintiff claims no right to enter on the 
 defendant's land by virtue of the license. 
 It is admitted that he had u legal right 
 to revoke his license. But if he exercised 
 hi8 legal right in violation of his agree-, 
 nient, to the plaintiff's prejudice, he Is re-
 
 880 
 
 WHITMARSH v. WALKER. 
 
 sponsible In damages. Wetliinkit tliere i future time, he was hound to sever them 
 fore clear that, RiviiiK to the contract the from the soil himself, or to permit the 
 construction already stated, the plaintiff plaintiff to do it; and if he refused to corn- 
 is entitled to recover. If for a -valual)le ply with his agreement, he is responsible in 
 oonsideration the defendant contracted to damages, 
 sell the trees and to deliver them at a' Judgment on the verdict.
 
 WIELEU V. SCiriLIZZI. 
 
 883 
 
 WIELER V. 8CHILIZZI. 
 
 (17 C. B. 619.) 
 
 Court of Common Pleas. Jan. 15, 1856. 
 
 This was nn action for an ollPtted 
 breach of a contract for the sale of certain 
 parcelH of linHced dcHcribed as Calcutta 
 linHced. 
 
 The first count of thedeclnration wtated, 
 that, by aKrei'iueiit between the plaintiff: 
 and tlie defendant, the defendant a^rreed 
 to Hell to the plaintiff, and the idaintiff 
 agreed to buy of the defendant, certain 
 parcels of jjotxis by certain shipR, that is 
 to say, aniotiKHt other Hhips, by the ships 
 Gloriosa, Albatross, and Highlander, at 
 certain prices, and l)y the said aKreement 
 the defendant warranted the said Roods 
 respectively to be Calcutta linseed; and 
 that, althouRh before the suit the idaintiff 
 did and performed all matters and condi- 
 tions, and all matters and conditions 
 happened and were performed, and all 
 time elapsed, whieli resjiectively were nec- 
 essary to be done or performed or to 
 elapse in order to entitle the plaintiff to 
 have the said nKreenient and warranty 
 performed by the defendant before this 
 suit; and altliou^h the defendant causetl 
 to be delivered to the plaintiff the hai<l 
 parcels of goods by the said three ships 
 above speclHed: .vet the defendant, bnfore 
 this suit, disregarded his prnmise, and 
 broke his said warranty, in this, that the 
 said parcels so delivered, to wit, parcels 
 by the said ships Gloriosa, Albatross, 
 and Highlander, respectively, were not 
 Calcutta linseed, and were respectively in 
 great part composed of substances other 
 than and inferior in value to (Calcutta lin- 
 seed, and the defendant never (lelivere<l 
 to the plaintiff parcels of Calcutta linseed 
 by or out of the said three ships nljove 
 specified, or any of them, in pursuance of 
 his said contract and warranty; and b.v 
 reason of the premises part of theBaid 
 grxxls so delivered were wholly valueless 
 to and unsaleable by the plaintiff, and, as 
 to and in respect of the residue thereof, 
 the plaintiff was unable to (d)tain the 
 same prices that otherwise he would have 
 done, and was obliged to and did before 
 suit sell the same at greatly reduced 
 prices. 
 
 There was also a count for money i)aid, 
 money received, interest, and money due 
 on accounts stated. 
 
 The defendant pleaded, to the first 
 count, that he did not promise or war- 
 rant as alleged, and a denial of the breaches 
 as alleged; and. to the second count, 
 never indebted, payment, aii'l set-off. 
 
 Tlie cause was tried liefore .lervis, C. .7., 
 at the sittings in London after last term. 
 The facts were as follows:— The defend- 
 ants, who were merchants carrying on 
 business at Calcutta and in Ijondon. on 
 the ISth of Novomlier, IS.54. through their 
 broUers entered into the following con- 
 tract with the plaintiff: — 
 
 "London, ISth November, 1S54. Sold 
 for account of Messrs. Schilizei & Co., to 
 Mr. W. Wieler, the following parcels of 
 Calcutta linseed, viz.. 
 
 Per Thalcstris, about 210 tons, bill of lading 
 dated July last. 
 
 Per Mersapore, about 100 tons, bill of lading 
 dated July last. 
 
 Per St. Abbs, about 18 tons, bill of lading dated 
 July last. 
 
 all at 65s. 6d. per quarter, and 
 
 Per Gloriosa, about 100 tons, bill of lading dated 
 Sept. last. 
 
 Per Albatross, about 100 tons, bill of ladingdated 
 Sept. last. 
 
 Per Highlander, about 10 tons, bill of lading dated 
 Sept. last. 
 
 all at tjfis. per quarter, the cost, free on 
 board, and tlie freight, insurance, and 
 packnges to London included,— tale quale. 
 The amount of each invoice to be paid in 
 fourteen flays from each ship's reporting, 
 by cash, less '2]i per cent, discount, in ex- 
 change forsliipping docuraentsand freight 
 release. Huyer is to have craft alongside 
 each ship as soiin as each parcel of seed is 
 really to discharge, or it is to remain at 
 his risk and c.Npense. FJuyer is to pa.v to 
 sellers on the L'lilh instant, in part pay- 
 ment of tlie ;ibove-nained seed, a deposit 
 of tUHio, which is to be a|iportioned and 
 deducted from each invoice as follows, 
 viz., us. per quarter on the July shipments, 
 and the reniaimler in eciual pro|)ortions 
 on the September shipments. .Should 
 buyer fail to pay for the whole or aiii' 
 part of the above-named seed on arrival, 
 as stated, sellers are to beat liberty to 
 sell such i)art, without further notice, at 
 buyer's risk ; who is to make good any 
 loHs that iiia.v accrue in conseijuence of 
 such sale. Interest at the rate of 5 per 
 cent, per annum to be allowed on the 
 ileiiosit. Should any of the above-named 
 ships be lost, the de|)osit on such parcels 
 to be immediately returned, with inter- 
 est, as stated. 
 "Laing vV Campbell, BroKers. XIOOO paid 
 20 th Nov., ls.-,4." 
 
 On the arrival of the seed, the buyer ob- 
 jectecl to the (luality, complaining that 
 it contained a large admixture of ra|)e 
 and mustard seed, and therefore was not, 
 in accordance with the terms of the con- 
 tract, "Calcutta linseed." 
 
 It apiieared from the evidence that no 
 seed comes to market without some mix- 
 ture, the average being generally about 
 two or three jiercent.; but, according to 
 the evidence of the idaintiff's witnesses, 
 the linseed in question contained about 
 fifteeii per cent, of tares, rape, and mus- 
 tard. The defendants' witnesses, on the 
 other hand, stated, that, though of some- 
 what inferior (juality, the seed did answer 
 the description in the contract. 
 
 It further appeared, however, that the 
 idaintiff bad sold it as and for "linseed :" 
 and the crushers to whom it was sold 
 proved that it had been used by them as 
 such, and that the cake was sold as lin- 
 seed-cake. 
 
 On the part of the defendant, it was sub- 
 mitted, that the contract, — which con- 
 laine<I no warranty, but which distinctly 
 intimated to the purchaser that he was to 
 take the seed as It was, — was satisfied by 
 the delivery of that which was known in 
 the market as. and which in point of fact 
 was, "Calcutta linseed." however interior 
 in ((uality. and however adulterated. 
 
 For tlie jilaintiff, it was Insisted, that, 
 tu the estent of the mixture of foreign
 
 884 
 
 WIELER 0. SCIIILIZZI. 
 
 seeJs, tho nrticle delivered was not lin-| 
 aeed at all within the meaning of the con- 
 tract. ^, . ., 
 
 In HubmittlMg the case to the jury, the 
 lord chief justice told them, that the ques- 
 tion for them to consider, was, whether 
 the plaintiff got what he bargained for,— 
 whether there was such an admixture of 
 foreign substances in it as to alter the 
 distinctis-e character of the article, and 
 prevent it from answering the description 
 of it in the contract,— more, in truth, than 
 might reasonably he expected. 
 
 The jury returned a verilict for the plain- 
 tiff,— the 'amount of damages being by 
 agreement referred. 
 
 Montague Smith now moved for a nevv 
 trial, on the ground of misdirection, and 
 that the vertlict was against evidence.— 
 The defendant was guilty of no breach of 
 his contract, if he su])plied that which was 
 known and usually sold in tlie market as 
 Calcutta linseed. There was no warranty, 
 and no fraud. No doubt it was of inferior 
 (luality. [CRESSWELL, .1.— What was 
 inferior,— the linseed, properly so called? 
 orthecargo?] The cargo. [.JERVIS, C. 
 J.— I left it to the jury, in substance, to 
 say whether the article was so mixed as 
 toloseits distinctive character, or whether 
 it was such as to answer the description 
 in the market, of Calcutta linseed. J His 
 lordship went on to say, — and that is the 
 direction complained of,— "was it (that is, 
 the mixtureor adulteration) more iu truth 
 than might reasonably be expected?" 
 Now, there being no warranty, if this was 
 Calcutta linseed of any quality, however 
 inferior, the plaintiff got what he bar- 
 gained for. The rule is well expressed by 
 Lord Ellenborough in Gardiner v. Gray, 4 
 Camp. 144. That was the case of a con- 
 tract for the sale of twelve iiags of waste- 
 silk, witliout any warranty that it sliouM 
 correspond with the sample. And his 
 lordshi|), in leaving the case to the jury, 
 said, — "I think the plaintiff cannot re- 
 cover on the count alleaing that the silk 
 should correspond with the sample. The 
 written contract containing no such stip- 
 ulation, I cannot allow it to be superadd- 
 ed by i)arol testimony. This was not a 
 sale by sample. The sample was not pro- 
 duced as a warranty that the bulk should 
 correspond with it, but to enable the pur- 
 chaser to form a reasonable judgment of 
 the comnfljdity. I am of opinion, how- 
 ever, that, under such circumstances, the 
 purchaser has a right to expect a saleable 
 article answeiing the description in the 
 contract. Without any particular war- 
 ranty, this is an implied term in every such 
 contract. Where there is no opportunity 
 to inspect the commodity, the maxim of 
 caveatomptor doesnot apply. Hecannot 
 without a warranty iu.sist that it shall be 
 of any particular quality or fineness, hut 
 the intention of both parties must be 
 taken to be, that it shall be saleable in the 
 market under the denomination men- 
 
 tioned in the contract between them. The 
 purchaser cannot be supposed to buy 
 goods to lay them on a dunghill. The 
 question then is, whether the commodity 
 purchased by the plaintiff be of such a 
 quality as can be reasonably brought into 
 the market to be sold as waste-silk. The 
 witnesses describe it as unfit for the pur- 
 poses of waste-silk, and of such a quality 
 that it cannot be sold under that denomi- 
 nation." 
 
 CRESS WELL, J.— I am utterly unable 
 to discover any misdirection in this case. 
 It is suggested that my lord was wrong 
 in telling the jury that the question for 
 them to consider was, whether the linseed 
 delivered contained a greater admixture 
 of foreign substances than might reason- 
 ably be expected; and that he should 
 have left it to them simply to say whether 
 or not it answered the description of Cal- 
 cutta linseed. But I tliink that what my 
 lord meant, and what the jury must have 
 understood, was, that they were to say 
 whether tho article delivered reasonably 
 answered the description of Calcutta lin- 
 seed, that is linseed with a reasonable 
 amountof adulteration only. My lord does 
 not express himself dissatisfied with the 
 verdict: and I see no reason wh.y we 
 should be eo. I think there sliould be uo 
 rule. 
 
 CROWDER, J.— I also think there was 
 no misdirection. Looking at the whole 
 course of the evidence, it appears to mo 
 that the jury were rightly told to consider 
 whether the amount of adulteration was 
 greater than the plaintiff might reasonably 
 expect. That expressi(jn was not used, 
 as Mr. Smith suggests, as a qualification 
 of the rule of law. The jury in effect found 
 that the article delivered did not reasona- 
 bly answer the description in the eon- 
 tract: and, as my lord chief justice is not 
 dissatisfied with the verdict, I see uo 
 ground for quarreling with it. 
 
 WILLES. .J.— Thejury have in substance 
 found that the linseed in question was so 
 mixed with seeds of a different and inferior 
 description as to have lost its distinctive 
 character and prevent its passing in the 
 market by the commercial name of Cal- 
 cutta linseed. The purchaser had a right 
 to expect, not a perfect article, but an ar- 
 ticle which would be saleable in the market 
 as Calcutta linseed. If he got an article 
 so adulterated as not reasonably to an- 
 swer that ('escription, he did not get 
 what he bargained for. As, if a man buys 
 an article as gold, which every one knows 
 requires a certain amount of alloy, he can- 
 not be said to get gold, if he gets an arti- 
 cle so depreciated in quality as to consist 
 ol gidd only to tl;e extent of one carat. 
 
 JERVl.S, C. .1., concurred. 
 
 Rule refused.
 
 WILCOX V. MATTESON. 
 
 887 
 
 WILCOX V. MATTESON. 
 
 (9 N. W. Rep. 814, 53 Wis. 23.) 
 
 Supreme Court of Wisconsin. Sept. 27, 1881. 
 
 Appeal from circuit court, J?fferBon 
 county. 
 
 Statement by TAYLOR. .!.: 
 
 TliiB actii)n was brou^l't to recover the 
 amount of u promlHHory note Kiven liy 
 the defendant to the deceaKed Iiu.sl)aud of 
 the plaintiff, payal)le to his order, and in- 
 dorsed by him in blanli. The answer de- 
 nies the ownersliii) of tlie note by the 
 plaintiff. The question of ownership was 
 the only question litigated on the trial. 
 The plaintiff claimed upon the trial that 
 the note in question ha<l been Riven to her 
 by her husband in his life-time. The only 
 evidence tendinp; to prove such ownership 
 was the followinR: 
 
 Harriet Kdj;ar, a witness for th(' plain- 
 tiff, testified that sheatteuded thedeceased 
 liUHhand in liis last sickness, and that on 
 the nisht of his death, and about three 
 hours before liis decease, the deceased 
 "told me that his pocket-book was under 
 the feather lied, just under his shoulders, 
 and for me to take it, and xive it to his 
 wife when sliecame; that there was some 
 money and papers in it that would lie of 
 value to her, as she would need them. 
 He afterwards died at 1 o'clock in the 
 morninK- I continued there, remainint; 
 with his corpse until about it o'clock in 
 the morning, eifrht liours after he died, 
 when Mr. Dyer Williams came into the 
 room, and Mr. Williams turned the corpse 
 over, and 1 took the pocket-book referred 
 to out from under liis shoulder and niivc 
 it to Mr. Williams, telling him that Mr. 
 Wilcox requested me to give the pocket- 
 book to his wife; and Mr. Williams took 
 the pocket-book, saying he would give 
 the same to Mrs. Wilcox if she came, and 
 if she did not come he would sen<l it to 
 her. From the time of his death until Mr. 
 Williams came 1 had exclusive charge of 
 the room in which the deceased lay, and 
 was not out of the room five minutes dur- 
 ing all that time. " 
 
 Dyer Williams, a witness for the plain- 
 tiff, testified that he saw Wilcox about six 
 hours after he died. "When 1 arrived in 
 the room where the corpse was. .Mrs. Har- 
 riet Edgar, his nurse, told me that Mr. 
 Wilcox the niglit before had reijuested her 
 to give a certain iiocket-book under his 
 shoulder to his wife, as he wanted his wife 
 to have it, and that he wanted the nurse 
 to see that his wife got it herself. I then 
 moved the corpse so that the nurse could 
 get the i)orket-book, and then she gave it 
 to uie an<l requested me to give it to Mrs. 
 Wilcox. I took the pocket-book and kept 
 it in my possession until Mrs. Wilcox ar- 
 rived, and then gave it to .Mrs. Wilcox be- 
 tween S and 9 o'clock in the evening after 
 her husband died, delivering the message 
 the nurse had communicated to me con- 
 cerning Its disposition— that it was a gilt 
 from her husband." 
 
 The plaintiff herself testified that tlie 
 note in suit was in the pocket-book when 
 it was delivered to her. and that it was 
 indorsed by the deceased in his own hand- 
 
 writing. She also testified that she had 
 been duly marrie(i to the deceased, and 
 that the deceased died without leaving 
 any children or other lineal descendants. 
 U(ion this evi(h'nce the learned circuit 
 judge directed a verdict for the plaintiff. 
 To this ruling the defendant duly except- 
 ed, and he appeals to this court from the 
 judgment rendered upon such verdict. 
 
 Harlow Pease, (or apiiellant. R. B. 
 Kirkland, L W. ^ (i. W. Hird, and Wm. 
 H. Rogers, for resiiondent. 
 
 TAYLOR, J., (after stating the facts as 
 above.) 
 
 Upon this apiical the defendant al- 
 leges as error that the evidence produced 
 on the trial shows allirmatlvely that the 
 note upon v.-hich the action was brought 
 was not owned l)y the [ilaintiff, but be- 
 longed to the estate of her deceased hus- 
 band, and that the evidence offered for the 
 purpose of showing a gift of the same by 
 the deceased to the plaintiff dui'ing his life- 
 time failed to show such gift. We are con- 
 strained to agree with the learned counsel 
 for the appellant that there is no evidence 
 in the case which shows any delivery of 
 the p(jssession of the pocket-book anil its 
 contents during the life of the husbarit) to 
 the plaintiff, or to any other person, for 
 lieruse. If weconstrue the language of the 
 deceased most favorably for the plaititiff, 
 and that his recjucst to the nurse Ldgar 
 was that she should inimedjately, and 
 before his death, take the pocket-book into 
 her possession and keep it for and deliver 
 it to his wife when she came as her prop- 
 erty, still the evidence fails to show that 
 the possession iiassed from the d'-ceasid 
 to the nurse for the use of the plain tiff until 
 after his death. The nursestales that she 
 ilid nothing, after the deceased instructed 
 her what do with the pocket-book, until 
 several hours after his death. Admitting 
 that the nurse might have received the 
 possession of the property for the plaintiff 
 in her absence, and that the actual receipt 
 of it by her, in the life time of thedeceased, 
 would have l)een effectual to pass the title 
 to the plaintiff, the fact remains that she 
 did not take possession during his life. If 
 this can be upheld as a gift, then it must 
 be upheld on the ground that the jiosses- 
 sion of the property passed by force of the 
 wt)rds of the deceased, expressing a desire 
 that it should pass. 
 
 We know of no case where a gift has 
 l)een upheld when no act has been done 
 tending to change the possession of the 
 property which Is the subject of the gift 
 from the donor to the donee. The pocket- 
 book was in the actual jxissession of the 
 donor at the time when the conversation 
 l)etween him and the nurse took place, 
 and it so remained until his death, with- 
 out any change in its location, or any at- 
 tempt to change the same. There is no 
 doubt of the intent of the deceased to give 
 the property to his wife. I)ut there Is an 
 entire absence of proof of any act done 
 either by him or l>y the nurse, standing 
 in the place of ttie wife, which tends to 
 show any surrender of the possession l)y 
 the husband, or any taking possession 
 thereof by the nurse, during the life of the
 
 888 
 
 "WILCOX V. MATTESON. 
 
 liusbancl. To make a gift perfect, all the 
 CMScs holil that the possession of tlie sub- 
 ject of the Kift must paw from the donor 
 to the donee. ThiH lias been so decided 
 by this court, and it is therefore unneces- 
 sary to reaort to the decisiouB of other 
 courts to sustain our rulinR in tliis case. 
 See Wilson v. Carpenter, 17 Wis. .512; Resch 
 V. Senn, 28 Wis. 2ts(!. In the first casecited, 
 this court adopted the rule laid down by 
 Chancellor Kent in his Commentaries, as 
 follows: "Delivery in this, as in every 
 other Ciise, must be according to the 
 nature of the thins- It must be an actual 
 delivery, so far as the subject is capable 
 of delivery. It must be secundum sub- 
 jectum materiam, and be the true and 
 effectual way of obtaining the command 
 and dominion of the subject. If the thing 
 be not capable of actual delivery, there 
 must be some act equivalent to it. The 
 donor must part not only with the pos- 
 session, but with the dominion of the 
 property. If the thing given be a chose in 
 action, the law requires an assignment or 
 someequivalent instrument, and the trans- 
 fer must be actually executed." 
 
 In the case at bar the subject of the pro- 
 posed gift was of such a character that an 
 actual delivery could have been made, but 
 none was made. The possession remained 
 in fact exactly the same after the direction 
 given to the nurse as it was before, and so 
 continued until the death of the donor. 
 
 We think the evidence clearly shows 
 that the title to the note remained in the 
 deceased husband at the time of his death, 
 and that the learned judge erred in airect- 
 ing a verdict for the plaintiff. 
 
 Upon the argument in this court the 
 learned counsel for the respondent claimed 
 that the judgment might be upheld upon 
 the ground that the widow was entitled 
 to the note under the provisions of subdi- 
 vision 1, § 3935, Rev. St. 1.S78, which pro- 
 vides that, upon thedeath of her husband, 
 the widow shall be allowed certain speci- 
 fied property, and, in addition thereto, 
 household furniture not exceeding in value 
 $2.50, and other personal property not ex- 
 ceeding in value $200, to be selected by her. 
 
 The difficulty with this claim is that the 
 note in question is not one of the specific 
 articles of property which the statute al- 
 lows to her, and there is no evidence that 
 she had selected the note as a part of the 
 other property, not exceeding $200, to 
 which she is entitled. In order to entitle 
 the plaintiff to hold this note as a part of 
 the property of her husband, which is given 
 to lier by the section of the statute above 
 quoted, she must show that it has been 
 selected by her. In the absence of any 
 proof on that subject, we cannot say that 
 the plaintiff acquired any title to it under 
 said section. See Resch v. Senn, supra. 
 
 The judgment of the circuit court is re- 
 versed, and a new trial ordered. 
 
 I
 
 WILLIAMS V. ALLEN. 
 
 891 
 
 WILLIAMS V. ALLEN et al. 
 
 (10 Humph. aiO.) 
 
 Supreme Court of Tennessee. Dec., 1849. 
 
 ARSumpsit in tbecircuitcourt of Sumner. 
 Plea nDn-aHHumpsit. There was a ver- 
 dict oiul jii(l«ini'iit for tbe defendant. The 
 plaintiff appealed. 
 
 J. C. Guild, for plaintiff. Baldridce and 
 Head, for defendants. 
 
 McKINNEY, .1. It appears from the bill 
 of exceptions in this cbhc, that in the lat- 
 ter part of the year 1S47, th(! plaintiff 
 burKained witli the defendantH for thepur- 
 chase of a (luantlty of corn. I'revious to 
 tlie purchaHc, the corn had l)een i)ut in 
 liens, on the hank of I'.ledsoe's treek near 
 ils junotion with Ciimherland river. The 
 barjjjain was for all the eorn in the pens 
 at the price of $1 perbarrel ; and theijuan- 
 tity, not beinfi then known, wa.s to be as- 
 certained afterwards Ijy actual measure- 
 ment. It does not appear that any time 
 was fixed either foi- the measurement of 
 the corn, or payment of the price. In the 
 month of December, 1n47, before the corn 
 was measui'ed, it was swept off by a 
 flood, and wholly lost. It appears from 
 the proof that, after the purchase, the 
 plaintiff assumed to be the owner of suld 
 corn, and torliade nn ollicer to levy upon 
 It as defendants' proiierty, statin}; that It 
 beliinsed to him, that he hail bought It 
 and paid part of tlie price, and was to pay 
 the i)alance on his return from market. 
 On the other hand, there is proof that 
 when the flood liesan to threaten the loss 
 of the corn, the defendant, Robert .Allen, 
 applied to some of the witnesses to aid 
 him in savins it, "and called it his corn at 
 the time." The witness, Mathews, heard 
 a conversation between plaintiff and de- 
 fendant, Robert Allen, some time after the 
 contract for the pui'chaso of the corn. De- 
 fendant " wished plaintiff to let him have 
 a horse in part pay for the corn ; plaintiff 
 told him that the corn was not measured 
 and tlelivered to him, and he was not 
 bound to pay until this was done, yet, to 
 accommodate him, he would let him have 
 the horse." 
 
 It further appears from the proof, that 
 between the time of the ontract ami the 
 loss of the corn, plaintiff let the defend- 
 ants have a horse, some pork, and a small 
 amount of money, towards the payment 
 of the price of stild corn, to recover back 
 the value of which, the present suit was 
 brouKht. 
 
 On the trial in tlieclrcuit court, the jud-ie 
 instructed the jury. " that if the pbiinliff 
 boti'-rht .I parcel of corn from detendants, 
 vvlilchwas in pens, separate and distin- 
 
 guishable from all other corn, at the price 
 of one dollar per barrel, and there was 
 nothing to be done by defendants l)Ut to 
 measure It with plaintiff, and deliver it, 
 the property in the corn vested Miicondi- 
 tionully in the plaintiff, and the risk was 
 of course his." 
 
 This instruction, we think, was Incor- 
 rect. The general principle is well estab- 
 lished, that no sale is complete, ^.o as to 
 vest an immediate right of prorierty in the 
 buyer, so long as anything remains to be 
 done, as between the buyer and scILt. 
 
 Whereeoods are sold by number, wwight, 
 or measure, so Idiik as the specific i|uaD- 
 tity or measure is not separated and iden- 
 tilled, the sale Is not completed, and the 
 Koods are at the risk of the seller. .Story 
 on ("on. § son. The contract may be com- 
 plete and bindlntr in other respects, but 
 the property In the goods remains in the 
 vend(*r, ami they are at his risk, if any act 
 Is to be done by him before delivery, either 
 to distinguish the goods, or ascertain the 
 price thereof, t'hitt.v on ("on. '.il'i, notel. 
 
 Though the subject-matter of the con- 
 tract be clearly ascertained, yet if the price 
 cannot be calculated until the parties 
 have weighed thegoods. no property there- 
 in passes to tlie buyer till such act bedone. 
 }Simnions v. Swift,:") 15arn.<Sc ('. N")7; Cliitty 
 on Con. :!77. 
 
 Where several bales of skins (stated in 
 the ronti-nct to contain five dozen in each 
 balel were sold at a eertalsi sum per 
 dozen; hut It was tin- duty of the seller 
 to count over the skins, to see how many 
 each bale actually contained, and hefore 
 doing so, they were consumed by lire, 
 Lorcl Ellenborough and Sir .lames .Mans- 
 field held, that no action couhl be main- 
 tained against the purchaser for the value 
 of the skills, and that the loss fell entirely 
 upon the seller. Zagury v. Kurnell, 2 
 Camp. L'4-'. See, also, Hanson v. .Meyer, 
 fi Hast, CU: Ku„'g V. MInett. II East, 210; 
 Simmons v. .Swift, ,"> Barn. & C. S.")7. 
 
 .\nd a mere assumption of ownership, 
 or control by the purchaser, will not be 
 sutliclent evidence of a delivery. At most. 
 It affords merely a presumption of ileliv- 
 ery. which ina.v be repelled by evidence 
 showing that the title remained in the 
 vendor. 
 
 The foregoing authorities which, we 
 think, lay down the law correctly, dearly 
 show, that the circuit judge erreil in di- 
 recting the jury, that the property in the 
 corn in nuestion was vested In the (ilnin- 
 tiff, notwithstanding the (allure of the ile- 
 fendants to measure ami deliver It. On 
 the contrary, by p-ason of their failure to 
 do so. th" right of property reninineil un- 
 altered, and conseciueiitly the rl-k and 
 loss were exclusively theirs. 
 
 The judgment will be reverseil.
 
 WILLIAMS V. BACOX. 
 
 893 
 
 WILLIAMS V. BACOX et al. 
 
 (2 Gray, 3.S7.) 
 
 Siiprpme Judicial Court of Massacbuuctts. 
 Oct. Term, 1854. 
 
 Action of contract. The declnrulion iil- 
 leiit-'d thut tlie ilcfoiHlaatK on or iilioiit the 
 iKtof June, IS.j;!, contracted to sell anil ile- 
 liver to the phiintiff, on board vcHnel at 
 Philadelpliia. on (h'niand, 5(MI toMH reil i\n\\ 
 egK and stove coal at the price of .f;!. 70 per 
 ton; and .j(l() tons wliite ash coal at tlie 
 following prices, namely, lOO tons ivliite 
 ash esK coal at $:\.i:> per ton, 100 tons 
 white ash stove coal at $:iA'i per ton, and 
 100 tons white ash lump coal at ^',',A>*) per 
 ton: and that the plaintiff on the KUh of 
 August, ls.'?:5, demanded said coal of the 
 defendants at Philadelphia, hut they then 
 and ever since neglected and refused to de- 
 liver the same or any part thereof. The 
 <lefenilants in their answer ilenied any 
 purchase of coal by the plaintiff of the 
 defendants, or any aRroement i>f the de- 
 fendants to deliver coal; and also relied 
 on the statute of frauds. 
 
 At the trial in the court of common 
 pleas, Male Keniinfrton, an a{;ent residing; 
 at Fall Itiver, of the defendaists, who lived 
 in Philadelphia. beinK calleil as a witness 
 for the plaintiff, testified as follows: On 
 the 3J of June, ]S.^:^, he made a verbal con- 
 tract with the plaintiff at Taunton ; and 
 on the same day, at Fall Hiver, his clerk 
 by hi.s order entered in his book of sales, 
 on a i)af;e headed "Sales on account of F. 
 Bacon i& Company," the following niem- 
 ornndum ( which was not sijrned) : "Sold 
 to B. F. Williams of Taunton JlOO tons vkk 
 and stove red ash; -JOO tons ejiK ?;i.70; :J00 
 tons stove f;j.70. Sold :;00 tons eprg and 
 stove wliite ash; 100 lump $;!.(;0; 100 ejrjj; 
 *a.45; 100 stove $:^.4.">." On the same day 
 he wrote a letter to the defendants ( which 
 was producetl upon the call of the i)lain- 
 tiff), in which he said: "1 sold this niorn- 
 infr to 15. F. Williams of Taunton, to lie 
 shijiped to Dii;lituii, Mass., as follows: 
 «:!.70 for H. A., and $:iA:> for W. A.; :i00 
 tons H. A. slove; ^00 tons IL A. e^K: 100 
 tons W. A. ejis: 10 tons W. A. slove; 700 
 tons, all to be delivered before .\u;;-iist 1st. 
 You may ship it early in July, or before, if 
 it suits" better to do so." On the II tli of 
 July he received a letter from the plaintiff, 
 askin«:for"a statement of our coal en- 
 Katieineiit ;" to which he replied by the 
 followiuir letter: — 
 
 "Fall liiver, 11 July, 18.".3. Benjamin F. 
 Williams, Ksi)., Tanntoii. DearSir,— Your 
 favor of this date is before us. In reply 
 woulil say that I have agreed to sell you 
 200 tons red ash stovecoal at f :i.70 ; :I00 tons 
 reil ash eji^ at .If:!. TO; 100 tons white ash 
 eijtr at !if;!.4.'); 100 tons white ash stove 
 .f:!.J.".; 100 tons white ash lump :#:!.(iO. The 
 above prices to be charjied deliverable on 
 board vessel at Philadelphia. The coal 
 is now ready for delivery, and you will 
 please forward vessels as soon as you 
 please, and we will put the coal on boa'd. 
 Our people will use all exertion to pincure 
 vessels at K<iins rates of freight, and i [ire- 
 sume they will succeed. If not, you must 
 send vessels for it. Freights are now 
 $1.50 and $1.45 to Fall River. Coal is now 
 
 [worth at Philndeliihia I.3.S.-), and I think 
 the sooner y<iu Ket your coal the safer for 
 you. Yours truly. Hale BeminKton." 
 I On ilie Nth of .VMnnst he sinned and gave 
 J the pliiintiff an order addressed to the de- 
 fendants, and thus expressed : " Please de- 
 liver the hearer, for B F\ Williams of 
 Taunton. Mass., coal as he may order it 
 from time to time,— red ash, egg or stove, 
 as he may choose, .')00 tons; white ash, 200 
 tons, one-half lump, balance egg orstovp." 
 And there was evidence that the plaintiff 
 on the loth of August presented this order 
 to the defendants, who refused to accept it. 
 I'pon this evidence, lioar. J., ruled that 
 the action couhl not be maintained, and 
 directed a verdict for the defendants; and 
 the plaintiff illeged e.Nceptions. 
 
 E. H. Bennett, for plaintiff. T. D. Eliot, 
 for defendants. 
 
 MLIUJICK, J. The presiding judge 
 ruled at the trial that the evidence ad- 
 duce<l by the plaintiff was insutlicient to 
 enable him to maintain this action, an<l 
 <Iirected a verdict, which was thereupon 
 returned, for the defendants. To deter- 
 mine whether that ruling was correct, it 
 is necessary to keep in view the distinc- 
 tion between evidence of a contract and 
 ev iilence of a compliance with the provi- 
 sions of the statute o' frauds in relation to 
 it; for the defendants in attempting to 
 sustain the iiiling do net now deny 
 that the testimony of Hale Beniinnton 
 afforded adei|uatc proof of a verbal con- 
 tract between tin; parties, whereby the 
 plaintiff agreeil to purchase and the de- 
 fendants to sell the <)Uiintity and various 
 kinds of coal mentioned 'n the declara- 
 tion ; but they insist that no note or 
 niemoranduin in writing was ever made 
 (if it and signed by themselves or by any 
 aulhorizeil person in their liehalf. .And 
 they contend that the let ter of Iteming- 
 ton of the lltli of .Inly, IN.V!, which is re- 
 lied on by the plaintiff as a suflicient cuiu- 
 pliance witii the pr<ivisions of the statute 
 to give validity t<i the contract and make 
 it obligatory upon them, cannot proper- 
 ly be alloweil to have that effect; first, 
 because it was no part of the res gestre, 
 and constituted no part of the negotia- 
 tion between the parties, and is only a 
 narrative of a past transaction ; a ncL sec- 
 ondly, because it does not purport on its 
 face to be, and is tmt in fact, signed by 
 . them or liy any duly authorized person Id 
 their behalf. 
 
 A note or tnemoraiiduin in writing of 
 an oral cintract is essentially different 
 from a written contract. The latter su- 
 persedes and takes the place of all preced- 
 ing negotiati<ins, and is conclusive evi- 
 dence of the stipulations and bargain be- 
 tween the parties. But the former may 
 be made at any time after the parties 
 hnveentereil into engiigenients with each 
 other bv a verbal agreement. Sieve- 
 wright v. Archibald, 17 Ad. & Fl. .N. S. 
 107. 114. In the very nature of sucli trans- 
 actions, the mcmorairdum must be jioste- 
 ''. rior in point of time to the contract of 
 [ which it is the reconl. .\tid It has accord- 
 ingly often been determined that docu- 
 ments and letters, though they were all
 
 894 
 
 WILLIAiMS V. BACON. 
 
 written subsequent to the concluHion of 
 the haraain, iniiy be coupled tosether, if 
 it apiieur that they nil bad relation to it, 
 for the purpose of shewing that a written 
 niernorand.nn of it was duly made and 
 siKned liy tlie party to be charged. Allen 
 V. IJennet, y Taunt. l(i!). 
 
 The evidence produced upon the trial in 
 the present case had a direct tendency to 
 prov.' that a verbal contract for the sale 
 of coal, as is alleged in the declaration, 
 was made by and between the parties at 
 Taunton, on the .-id of June, ISf).-!. In that 
 negotiation rieniinKton acted for the de- 
 fendants. Me was their duly constituted 
 afieiit, and was authorized in that ca- 
 pacity to sell or to contract for the sale 
 of coal on their account. Such an agency 
 im|)lled the riglit to do whatever act was 
 necessary to make the engagements he 
 entered inti), in the exercise of the power 
 it conferred upon him, binding and obli- 
 gatory upon his principals. He was there- 
 fore legall.v competent; and it was lawful 
 for him, after having verbally agreed with 
 the plaintiff for the defendants to sell him j 
 certain ()uantities of coal at stipulated 
 prices, to make a written note or ineni- 
 orandum of the bargain, and sign it For 
 them and in their behalf. And this he 
 might lawfully do at any time before his 
 authority to sell, or to complete a con- 
 Irnctof sale, was revoked or annulled. On 
 the nth of July he was asked by the 
 plaintiff for "a statement of ourcoal en- 
 gagement;" to which re'iuest he replied 
 in his letter of that date. A jury vvoulil 
 l)e well warrnntel in inferring from the 
 evidence in the case — and indeed we think 
 they could justly arrive at no other con- 
 clusion— that the request and auswerboth 
 referred to the bargain which had been 
 previously made by them on the .3d of 
 June at Taunton. If so, the letter was 
 a full and complete memorandum of the 
 bargain. It states explicitly the agree- 
 ment to sell, the price, (juantities, and de- 
 scription of the different kinds of coal 
 sold, the place where it was to be deliv- 
 ered, and tha time when the payment for 
 it was to t)e made. 
 
 This memorandum therefore, contain- 
 ing all the elements of a complete bargain, 
 was HUfficient to meet the requirements of 
 the statute, if it was signed in behalf of 
 the defendants by a jjcrson thereunto duly 
 authorized. The letter was signed by 
 Remington; and he does not name his 
 principals, or express in terms that in do- 
 ing it he acts as their agent. But inter- 
 preting certain expressions contained in 
 it in the light afforded by a knowledge 
 of the situation of the parties, there can 
 be no doubt that he wrote it, not for him- 
 self, but for them. There is nothing in the 
 case having f.ny tendency to shew that he 
 ever made any such bargain on his own 
 account, or that he ever had any such 
 coal of his own to sell; but it is certain 
 that he did make such a bargain with the 
 plaintiff on behalf of the defendants, and 
 on the same day communicated to the de- 
 fendants the fact that he had made it 
 They resided at Philadelphia, and the let- 
 ter obviously refers to them when the 
 plaintiff is told in it that the coal is readv 
 
 for delivery at that place; that "you will 
 forward vessels as soon as you please, 
 and we will put the coal on board. Our 
 l)eople will use all exertions to procure ves- 
 sels at going rates of freight, and 1 pre- 
 sume they will succeed. If not, you must 
 send vessels for it." These allusions could 
 be to no persons but the defeiidant.s, who 
 were thus distinctly pointed out as the 
 party to be charged with the obligation 
 of performing the contract referred to. 
 
 The signature of a memoranduiu which 
 is a sufficient conipliance with the jirovi- 
 sions of the statute may be made by an 
 agent, though he write his own name in- 
 stead of that of his principal, if it was his 
 intention that the latter should be bound 
 bv it. 2 Parsons on Con. "iiM ; Trueman 
 V. Loder, U Ad. & El. .W), and 3 P. & Da v. 
 L'()7; White v. Proctor, 4 Taunt. L'09. 
 
 There is a very slight variance in the 
 statement of the terms of the contract be- 
 tween the letter of the 11th of July and 
 themenioranduni which Remington caused 
 to be made of it on his book at Fall Riv- 
 er. And in his letter of the 3d of June to 
 the defendants, he omits to mention the 
 100 tons of lump coal which was embraced 
 in it. But in reference to the question 
 arising upon the bill of exceptions, these 
 variances are unimportant. The plain- 
 tiff made a verbal agreement witli the de- 
 fendants for the purchase of a quantity 
 of coal. He subsequently called upon 
 their agent for "a statement of our coal 
 engagement;" and the letter of the 11th 
 of July was written in answer to this ap- 
 plication. It was sent and was received 
 as an authentic statement of the tsrms 
 and provisions of the previous bargain. 
 It is immaterial that itdoes not in all par- 
 ticulars correspond with the items con- 
 tained in the communication of Reming- 
 ton to his principals under date of the 3d 
 of June, or in the memorandum which he 
 caused to be placed on his own book at 
 Fall River. These latter are of impor- 
 tance only as they serve to corroliorato 
 the other evidence in the case adduced to 
 prove that a verbal contract had in fact 
 been previously made by the parties. But 
 having been written without the knowl- 
 edge of the plaintiff, he could not have rec- 
 ognized whnt was thus stated to be true, 
 or assented to it as correct, and of course 
 is not to be bound by it. On the other 
 hand, it cannot he doubted that in |)re- 
 paring and furnishing to the purchaser, 
 at his request, a written note of the verbal 
 contract, the agent who made it would, 
 with a vigilant and proper regard for the 
 rights of his principals, be careful to fall 
 into no error in bis representations. The 
 letter which he wrote to the plaintiff pro- 
 fes.sed, and purported upon its face, to re- 
 cite with precision and accuracy the terms 
 of the contract, and was received and ac- 
 cepted, and has ever since been relied up- 
 on, by him as a true and correct state- 
 ment of it. Both iiarties having thus 
 afiirmed it and assented to its correctness, 
 the memorandum contained in the letter 
 of the 11th of .July must be considered as 
 conclusive evidence of the previous verbal 
 bargain. 
 
 Exceptions sustained.
 
 I
 
 WILLIAMS V. JACKMAN. 
 
 897 
 
 WIIJJAMS et al. v. JACKMAN ot al. 
 
 (16 Gray, 514.) 
 
 Supreme Judicial C!ourt of Massachusetts. 
 Nov., 1860. 
 
 Action of tort for tlie conversion of an 
 unfini.shefl Kliip. .\iiH\v('r, proijerty in (lie 
 defendtints as aBsi;;iiceH of CiirriiT & 
 TownK(!i;(l, insolvuut ilcbtorH. The cast- 
 waH Hubinitted to the jiidunient of the 
 court, with power to draw such infer- 
 ences aK a jury nil;;ht, upon an ayreed 
 statement of facts, in Hul)stanco aa fol- 
 lows: — 
 
 On the 14th of March, 185G, an agree- 
 ment in writing was made between the 
 plaintiffs and Cnrrier & Townsend, by 
 which the lattei- ufidertook to build, firi- 
 isl), and complete, read.v for sea, for the 
 plaintiffs, a first-idass copper-fastened 
 slii|), to 1)6 ready for sea, at a wharf in 
 Newlmryport, by the 1st of July, IS'iU; the 
 plaintiffsagreed to i)ay to (furrier & Town- 
 send, "from time to time, while said ship 
 is building;. Hie sum of twenty to twenty- 
 tive tliousand dollars, and when the ship 
 m ready for sea, sut'li amount as shall 
 make ultoKether the sum of fifty-ciHlit 
 thousand dollars;" and it was ajirei'd 
 that "no interest is to be charged on the 
 amounts ad vanced " to Currier & Town- 
 send by the plaintiffs. 
 
 On the :22d of March, the plaintiffs fur- 
 ther agreed in writing to pay Currier & 
 Townsend, "till the amount of twenty to 
 twenty-five thousand dollars is paid as 
 per contract, one tliousand dollars every 
 ■week, Saturday."' 
 
 The making of the first aitreement was 
 preceded by verbal negotiations, in the 
 course of wliicli the plaintiffs iiiforineil 
 ("urricr & Townsend that Captain Israel 
 P. Williams would su|)erintend in their be- 
 half the building of the ship, and Currier 
 & Townsend gave their assent to this 
 arrangement. Captain Williams had pre- 
 viously superintended the bnilding of an- 
 other ship by Currier & Townsend for the 
 plaintiffs. On the l.-)th of .March, the 
 plaintiffs addressed a note to Cunier & 
 Townsend, stating tluit they had ea)- 
 ploj-ed Captain Williams to superintend 
 tlie building of the ship, and requesting 
 that he might be considered tiieir agent in 
 all things i)ertaiinng to such superintend- 
 ence. This note was delivered on the 
 same day by Captain Williams to Currier 
 & Townsend at their place of business. 
 .■\bout the same time, Currier & 'I'own- 
 send began to build the ship, and carried 
 on the work till the !)th of the following 
 .Ma.v. Every day during this time. Cap- 
 tain Williams was at tin? sliip-ynril where 
 the ship was huildinir, giving directions, 
 - making suggestions, talking with Currier 
 & Townsend about the work, and devot- 
 ing Ills whole time to superintending it; 
 and the jilaintiffs paid him his expenses, 
 and three dollars a day for his services. 
 
 The jilaintiffs paid tliree thousand ilol- 
 lars to (furrier & Townsend on the JJd of 
 March, and one thousand dollars tin Sat- 
 urday of every week thereafter, until the 
 work was stofiped. This money wua 
 LAW SALES — 57 
 
 paid on one occasion by one of the plain- 
 tiffs, an'' on every otl)er occasion by 
 Chi)tain Williams, who called ar the plnin- 
 tiffd' iilace of business on Saturday of ev- 
 ery Week to receive it, and at the same 
 time reported to them the progress made in 
 the work. Currier & Townsend signed re- 
 ceipts for the money as paid on account 
 of a ship building by them tor the plain 
 tiffs. 
 
 On the L'lst of .May, Currier & TowDsend 
 petitioned for the benefit of tlie insolvent 
 laws, and, ui)on due proceedings had, the 
 defendants were chosen their assigneeH, 
 and the shiii cuuie into tlu-ir possession 
 as such. The difendants, upon notice of 
 the pluintiffs' claim, refused to deliver the 
 ship to them, and finished and sold her for 
 the benefit ot all the creilitors. 
 
 S. E. Sewall and S. H. Phillips, for plain- 
 tiffs, n. K. Curtis and C. T. Kussell, for 
 defendants. 
 
 BIGELOW, C. J. Un.ler a contract for 
 supplying labor and materials and mak- 
 ing a chattel.no property passes to the 
 vendee till the chattel is completed and 
 delivered, or ready to be delivered. This 
 is the general rule of law. It must pre- 
 vail in all cases, unless n contrary intent 
 is expressed or clearly implied from the 
 terms of the contract. 
 
 In the case at bar, no such intent ap- 
 pears. The contract of the l)uilders was 
 to finish the vessel, and have her ready 
 for sea at a specified place on or liefore a 
 day certain. The vendees were to pay a 
 H.xed sum when the vessel was completed 
 and ready for delivery. They were also 
 to advance certain sums, from time to 
 time, amounliiig to less than half the stip- 
 ulated price, in anticipation of theconiple- 
 tion of the work, but tlie sums so to be 
 advanced were not graduated or meas- 
 ured l)y the amount of work done or o( 
 ma terials furnislu'd or the jirogress made 
 towards the fiiud fuUilment of the con- 
 tiaet. There was no stipulation to pay 
 instalments at certain specilied successive 
 stages of the work ; it was a mere agree- 
 ment to make certain layments, by way of 
 advance, which were lixed upon arbitrarily 
 without reference to the extent of the la- 
 bor and materials actually ex|)ended and 
 used for the construction of the vessel at 
 the time they were to lie made. Nor was 
 there any right reserved to the vendees to 
 control or direct the work, or to exercise 
 any superintendence or control over it, 
 during its progress. It is true that the 
 agent of the vendees was allowed to be 
 present in the ship-yard where the vessel 
 was liuilding, tint this was by permission 
 only granted by the builders. It was no 
 part of the original contract, and the 
 builders might, at any time, have revoked 
 this i)erinission without violating any 
 part of their agreement. 
 
 The case at bar is clenrly distinguishable 
 from the cases determined by the English 
 courts, which have been cited in the argu- 
 meut. To say the least, some of those 
 decisions rest upon very c|uestlonnble 
 grounds. They have been carefully re- 
 viewed, and the validity of the reasons by
 
 WILLIAMS V. JACKMAN. 
 
 which it is attempted to vindicate them 
 has been impugned by approved text- 
 vrriters, and ii: judicial decisions by courts 
 In this country. The case of Andrews v. 
 Durant, 1 Kernan, 85, contains an elabo- 
 rate discussion of all the decided cases, 
 
 and an exposition of the application of 
 the rule of law to contracts for the build- 
 ing of ships, adopted in the state of New 
 York, and confirmed by subsequent de- 
 cisions. 
 Judgment for the defendants. 
 
 \
 
 WILLI AM^ 0. MEULE. 
 
 901 
 
 WILLIAMS et al. v. MERLE. 
 
 (11 Wend. 80.) 
 
 Supreme Court of New York. Oct. 1833. 
 
 This was an action of trover, tried at 
 the New-York circuit in Octoiier, \Ki\, lie- 
 fore the lion. Ogdeu Edwards, one of the 
 circuit judRes. 
 
 About tlie first of November, ].s29, the 
 master of a tow-boat took byiniHiuke4 
 barreis of pot-ashes from the warelioiise 
 of tile plaintiffs, wlio, and t lie owners of 
 tlie tow-boa ts.occupiL'd the same building 
 in Albany. The master, on his arrival in 
 New-York, having discovered the mistake, 
 delivered the articles to a clerk of the 
 agents of his principals, who said he 
 would take the ashes to an inspector's 
 office and advertise them. The clerk ac- 
 coro'ingly took them to an inspector's 
 office on the third of November, obtained 
 a certificate of inspection, and on the 
 sixth of November sold the ashes to the 
 defendant, a produce broker, who pur- 
 chased them for a Mr. Patterson, for a fair 
 price, and received the inspector's certifi- 
 cate. On the tenth of November, the de- 
 fendant took theashes from the inspector's 
 office, and shipped them to the order of 
 his principal. About tlie first of Septem- 
 ber, ]N:i(l, the plaintiffs demanded the ash- 
 es of the defendant, who refused to ac- 
 count for tlieni, saying he had purchased 
 and paid for them a. year preceding the 
 demand. The judge intimated his opin- 
 ion that if the defendant had acquired the 
 ashes bona fide by purchase, in the regular 
 course of his business as a broker, and 
 had disposed of them bona tide, pursuant 
 to the instructions of his principal before 
 suit brought, that the action would not 
 lie; he, however, refused to nonsuit the 
 plaintiffs, and the jur.v, under his direc- 
 tion, found a verdict for the plaintiffs for 
 the value of the ashes and the interest 
 thereof, reserving tlie question as to the 
 plaintiffs' right to recover, for the opinion 
 of this court. 
 
 S. Stevens, for plaintiffs. C. Graham, 
 for defendant. 
 
 SAVAGE, C. J. Thequestion is whether 
 the plaintiffs are entitled to recover upon 
 the facts of this case. Tliat they had title 
 to the property does not admit of disiiute. 
 Has that title been transferred to the de- 
 fendant, and in what manner".' The own- 
 er of property cannot be divested of it but 
 by his own consent, or by operation of 
 law. Morgan, who took the property by 
 mistake, certainly ac(iulred no title. 
 Shankland (thecleVk) surely had.no title. 
 If the defendant has title, it cuhm^s to him 
 from a person who had none. In the lan- 
 
 guage of Mr. Justice Sutherland, in Ever- 
 ett v. Coffin, G Wendell, 609, "The dispos- 
 ing or assuming to dispose of another 
 man's goods without his authority, is 
 the gist of this action; and it is no an- 
 swer for the defendants that they acted 
 under instructions from another, who had 
 himself no authority." This same I'rinci- 
 ple was asserted by this court in Presrott 
 V. De Forest, 1() .lohns. K. l.lst, where it was 
 held that a landlord who distrained and 
 sold the goods of his tenaut, conveyed no 
 title to the purchaser, the distress being 
 unauthorized. The court said, that if 
 Satterlee (the landlord) had no riglit to 
 distrain and sell tlie goods, it necessarily 
 follows that the defendant, though a bona 
 fide purchaser for valuable consideration, 
 acquired no title. So far, then, as the de- 
 fendant's title depends upon the purchase 
 by him in good faith, and tor valuable 
 consideration, it is still without founda- 
 tion, so long as the seller had neither title 
 nor authority to sell. The owners were 
 not in fault; the property was taken 
 without their consent or knowleilge. The 
 maxim caveat emptor applies; the pur- 
 chaser must look to the et-ller for indem- 
 nity. 
 
 The defendant's counsel contends, that 
 the act of the legislature in relation 
 to the inspection of pot and pearl ashes 
 has placc<l that article upon a different 
 footing from other merchandize. The 
 act declares that the certificate of the in- 
 spector shall be received as presumptive 
 evidence of the fads contained therein; 
 and that such ashes shall be sold in the 
 city of New York by the weigh note of tlie 
 inspector, except when sold iiy retail. 1 
 H. S. 54S. §§ tii;. 77. See, also, -J K. L. :M, § 3. 
 This act (iocs not authorize the inspector 
 to declare who is the owner; be gives the 
 certilicate to tlie person in possession of 
 the ashes, but nns no power to determine 
 the questi<m of title. The certilicate is 
 evidence of the facts of inspection and such 
 other facts as he is re<|uired to state. He 
 is to determine the quality ; to mark the 
 weight and the fare, and some otherfncts, 
 such as cruntings and scrapings; the 
 damage appearing upon insjiectlon and 
 the cause tiiercof; and as to these facts 
 the certilicate is to be presnuiptlve evi- 
 dence, but purely of uothiug more. 
 
 The defendant stands in no better situ- 
 ation than any other who purchases an 
 article from u party without title or au- 
 thority to dispose of such article; In such 
 case, the purclinscr acquires no title. The 
 true owner has a right to reclaim his 
 property and to hold any one responsible 
 who has assumed the right to dispose 
 ofit. 
 
 The plaintiffs are therefore entitled to 
 juilgnieiit uiion the verdict.
 
 WINDMULI.ER c. POPE. 
 
 903 
 
 WINDMULLER et al. v. POPE et al.> 
 
 (14 N. E. Rep. 430, 107 N. Y. C74.) 
 
 Court of Appeals of New York. Dec. G, 18S7. 
 
 Appenl fro in general term, Bupremc court, 
 first (Irpartrneiit. 
 
 Action brought by Louis Windinuller 
 and Aifred Koell<er agninBt TliornuH J. 
 Pope anfl Jnmps E. P<)()o to recover <lam- 
 agcH from defeiulanta for tlie breacli of 
 a written contract for tlie Hule anil de- 
 livery on the piirt of plaintiim of about 
 1,1'Oiltona of old iron Vignol rails, to be 
 shipped from Europe. Tlie cause wa.s 
 . tried before Larroinore, J., and a jury, and 
 upon verdict f"r plaintiffs judgment ren- 
 dered for .'Slll.-lii'J, the amount of principal 
 and costs. t)n !ipi)eul. the general term 
 atlirmed the judgment against dcfend- 
 aiits, and tliey bring the case to the court 
 of appeals. 
 
 Carlisle Norwnoil, Jr., and W. W. Niles, 
 for appellants. Bernanl Roelker and 
 Cephas lirainerd, for respondents. 
 
 PER CDItlAM. We think no error is 
 presented II [ion the record which requires 
 a reversal of tlie judgment. The defend- 
 ants having on the twelfth of .June, I.SSO, 
 notified the plaintiffs that tliey would not 
 receive the iron rails, or pay fur tlieui.and 
 having informed tliem on the next tiny 
 tlint if they brought the iron to New Yoili 
 they would do so at their own peril, and 
 advised them that they liiid better stop 
 at once attempting to carry out tlie con- 
 tract, so as to make the loss as small as 
 possible, the |)laiii tiffs were justilied in 
 treating the contract as broken by the de- 
 fendantsat that time, and were entitled to 
 bring the action immediately for the 
 breach, without tendering the delivery 
 of the iron, or awaiting the e.xpirntiou of 
 the period of performance HximI by the 
 contract; nor could the deftndaiiis re- 
 tract their renunciation of the contract 
 after the plaintiffs had acted upon it, and 
 by a sale of the iron to other parties 
 change their iiosition. Dillon v. Ander- 
 son, 43 N. \. 231 ; Howard v. Daly, Gl N. 
 Y. 302; Ferris v. .Spoouer.lOL' N. Y 12, ."> N. 
 E. Rep. 773; Hochster v. De La Tour, 2 Kl. 
 &l!I. G7S; Cort v. Railway Co., 17 .\dol. 
 & E. (N. .S.) 127; Crabtree v. Messersniith, 
 1!) Iowa. 17'.); Benj. Sales, §§ 507, 508. 
 
 The ordinary rule of damages in an ac- 
 
 'An extract from this opinion is reported in 
 107 N. Y. <>74: but the opiuion is here siTCn 
 in lull, as iv|)orted in 14 X. E. Rep. 430. 
 
 tion by a vendor of goods and chattels, 
 for a refusal by the vendee to accept and 
 pay for them, is the difference between 
 the contract price and the market value 
 of the property at the time and place of 
 delivery. D.-ina v. Piedler. 12 N. Y. 40; 
 Dustan v. McAndrew, 44 N. Y. 72; Cahen 
 V. Piatt, Ol) .N. Y. :UH. The just applica- 
 tion of this rule to the ci^cunl^tance8 Id 
 this case requires that, in computing the 
 damages, the defendants should be cred- 
 iteil with the difference between the Ireight 
 from Cronstudt to New York li,\ed liy the 
 cliarter-party, less the sum which it cost 
 the plaintiffs to be released from the char- 
 ter, and also with any other expenses 
 which tlie pliiintiffs would naturally liave 
 incurred in perfurming tli'ir contract to 
 <leliver the iron in New York. The con- 
 tract price being known, and tlie market 
 price of tlie iron in New York iit the time 
 of the breach and sub.sequently having 
 been proved, as also the sum which the 
 plaintiffs paid for damages and expenses 
 on account of the charter and the cus- 
 tomary rjite of insurance, tlie computa- 
 tion of the damages was a simple arith- 
 metical problem. All these elements were 
 before the jury, and the verdict doi-s not 
 exceed, indeed it is less, than the sum 
 wliich, on the view of the evidence most 
 favorable to the defemlants, the pliiintiffs 
 were entitled to recover. The plaintiffs* 
 on the trial proved tlie market value of 
 the iron at .St. Petersburg, where it was 
 at the time of the brt-ach, and also that 
 tliey sold it on the twelfth of .Tuly at a 
 certain price. The plaintiffs also gave 
 evidence of various exiienditures made by 
 them, which it is unnecessary to recapitu- 
 late. It is claimed tliat some of these 
 items could not properly be considered In 
 estimating the damages. Assuming that 
 this may tie true, the fact remains never- 
 theless that the verdict is fully warranted 
 by the competent and uncontradicted evi- 
 dence. Tlie amount of the verdict is justi- 
 i lied, whether the market value of the iron 
 in St. I'elersburg or New York is taken as 
 a basis. The evidence also shows with- 
 out contradiction that, on the resale, the 
 iron brouglit its full market value. Irre- 
 spective of storage, and it is not impor- 
 tant to determiue whether the plaintiffs 
 could llx the market price by a sale with- 
 out notice to the defendants. 
 
 There is no merit in the defense, and the 
 exceptions are in the main tci-hiiicnl and 
 frivolous, and none of ilieni, we think, re- 
 quire a reversal of the judgment. The 
 judgment is therefore atlirmed. All con- 
 cur^ except R.\P.\LLO, J., absent.
 
 WINFIELD 0. DODGE. 
 
 905 
 
 WINFIELD 7. DODGE. 
 (7 N. \V. Rep. UOO, 4j Mich. 3r..-..) 
 Supreme Court of Michigan. Jan. I'J, l^Sl. 
 Error to .Jackson. 
 
 Hewlett Bros, and Austin Blair, for 
 plaintiff in error. Tliouias A. WllHon, for 
 defendant iu error. 
 
 GRAVES, J. Tlio parties traded horses 
 on .Sunday. Tlie cxclianKe was even and 
 there was immediate delivery. The plain- 
 tiff lipcanio (iissatished and wi^liin;^ to 
 trade hack went the ne.xt niominu; to the 
 defendant's place and made several offers 
 of nioney to induce him to do so, hut he 
 refused. After some bantering however 
 thedefendant Ravothe plaintiff livedollara 
 and a tobacco pipe, for the purpose, as 
 explained at the time, of averting; ill foel- 
 iriK. The plaintiff then returned home, but 
 wishins on further consideration to unilo 
 what had been done ho asain ealleil on 
 the defen<lant and peremptorily insisted 
 on trailin;j; t)ack and he offered to restore 
 the money he had received and somotliiii};; 
 more than the value of the pipe. The de- 
 fendant refused to listen to any overture. 
 
 The plaintiff then brought replevin be- 
 fore a justice and obtained judumont and 
 
 the defendant appealed. Thocircult judge, 
 on the close of the evidence, took the case 
 from the jury and ordered a verdict for the 
 defendant. 'I'his rulinii went on the 
 theory that the transaction on Monday 
 ainounte<l to a new contract by which 
 tlie title became established in defendant 
 and that no room for any other view ex- 
 isted. We think this was error. The case 
 maile l)y the evidence was not necessarily 
 of the character assumed. The transac- 
 tion on Sunday passed no title. As a 
 trade it was vdid, and the evidence of 
 what took place on Monday was not con- 
 clusive that there was anytliinc more than 
 an attem|>t to ratify and validate tin' .Sun- 
 day negotiation; and of course a ratifica- 
 tion of that trade was impossiDlc; unless 
 there was a new contract tlie plaintiff 
 was entitled to reclaim his horse against 
 the void neg(itiatiou. No new contract 
 could Ik- made without a mutual assent of 
 the parties, nn<l unless the plaintiff intend- 
 ed to make une the title was not affected 
 by the occurrences subsequent to the 
 transaction on Sunday, ami whether there 
 was such new contract was a question for 
 the jury on the whole evidence under 
 proper instructions. 
 
 The judgment must he reversed with 
 costs and a new trial granted. 
 
 (The (jther justices concurred.)
 
 WING V. MEIifllAXT. 
 
 907 
 
 ■WT^G T. MERCHANT. 
 
 (57 Me. 383.) 
 
 Supreme Judicial Court of Maine. Middle Dis- 
 trict, istra. 
 
 On report. AnsiimpHit by the executoror 
 Timothy Woodward, deceased, to recover 
 Ifl'iKI left with defendant, for inveHtment,by 
 deceased. Defendant claimed tliat the 
 money was the pi-u|)erty of his wife, the 
 daiishterof the<leceaKed. under a sift to lier 
 by lier father about three years lielore Ids 
 decease. There was evidence the. t in ls»;2 
 Timothy Woc)dward left with his daughter 
 Mrs. Merchant some notes payable to him- 
 self, a mount inc to a bout §200, for safe-keep- 
 ing. She collected interest, and let her 
 father have money, as he called for it, until 
 about three years before he died, when, as 
 Bhe testified, "my father Kavo tlie money 
 to me. He said he did not think this 
 would be any help to my insane sister. 
 Mary, if he should save it for her snpjiort, 
 and I h;id done more for him than all the 
 rest of his children, and staid with him 
 lontcer, and he jjave it tome. There was 
 no one present when the notes were Riven 
 to me. He was at my house at the time, 
 in the siftinft-room. 'J'he notes were at 
 the time in a box in a chest, and the chest 
 in my sleepiiifrrooin. Do not know as 
 father diil any thiiiK at the time any more 
 than to tell me that he i;nve them to me 
 for my labour, and what I had done for 
 him." After the notes were uiven to Mrs. 
 Merchant, her sister, becoming iuKane, 
 was supported at the insanehos[)ital,and 
 the money from th(! notes was paid by 
 Mrs. Merchant for her support. 
 
 A. Liliby, for plaintiff. S. Lancaster, 
 lor defendant. 
 
 BARROWS, J. Thecircumstances which 
 oblige us in some cases to look with sus- 
 picion upon a defense which asserts that 
 propert.v claimcil by an executor or ad- 
 ministrator in his representativecapacity, 
 ha.-i passed by a Rift from the deceased to 
 one of his heirs, are not found in the case 
 at bar. Tlie defendant, with the consent 
 of his wife to whom it is claimed the prop- 
 erty wnsgiven, has appropriatcil it already 
 for the benefit and support of on insane 
 sister of the wife, a d«ut;hter of the de- 
 ceased, and he is indemiiitied aj^ainst ulti- 
 mate liahilit.v in thio suit. The testimony 
 ';oraes free from selfish bias; and the 
 naked <|uestion is, whether enough was 
 said and done by Timothy Woodward, 
 theplaintiff'stestator, toc(mstitutea valid 
 gift. The money and notes, amounting 
 to about $200, had l)een placed by the tes- 
 tator, several years before hisdeath.in the 
 liands of the defendant for safe-keepinu;; 
 and for some time subsequently he was 
 accustomed to call on the defendant and 
 his wife for such little sums as he wanted 
 on account of them, and the dpfendant 
 kept an account of what was thus repaid. 
 The wife personally had the char>;e of the 
 notes and kept them in a box, winch was 
 placed in a client in her sleeninjj-room.and 
 she seems to have made most ot the small 
 paym''nts to her father which he called 
 for. While the matter stood thus, three 
 
 or four years before the testator's death, 
 as Mrs. Merchant, the defendant's wife 
 testifies, he said, in conversation with 
 her about the money represented hy these 
 notes, that she h:id done more fur him 
 than all the rest of his children; had staid 
 with him longer; and that he nave it to 
 her. The notes were then in tlie box in 
 her sleepini^-room ; they were nut in- 
 dorsed; they were payableto her lather. 
 She says, '• i do not know as father did 
 anything at the time anv more than to 
 tell me that he Kiive them to me for my 
 labor and what I had done for him. . . . 
 After he y;ave me the notes he never called 
 on me for any money." 
 
 It would seem that tliere was no seltish 
 solicitation for the jjift. but. on the con- 
 tr;iry, that Mrs. Merchant, in this conver- 
 sation, and the defendant in another talk 
 with tlie testator about the same time, 
 suffuestcd to him that it ou^ht to be ap- 
 pr(»priated for the support of the insane 
 sister, ami that when he Rave the notes to 
 Mrs. .Slerchant, he saitl, njiparently in re- 
 pl.v to these suKttestions. that he "did not 
 think this would be any help to her if he 
 should save it for her support. " 
 
 Now it is insisted, on the part of the 
 plaintiff, that hero was no indorseraeut 
 of the notes, and no delivery ot them to 
 .Mrs. Merchant at the tinieof ihe cinversa- 
 tion, and coiiseciiiently no valid sift. 
 
 lUit it has iieen settled, that a valid gift 
 
 of a nei;otial)le promissory note may be 
 
 I made, either inter vivos or causa mortis. 
 
 j without indorsement or other wrilinc. 
 
 (Jrover v. (Jrovei-. 21 Pick. 2til ; Borneman 
 
 V. .Sideliimer, 15 .Me. -129. 
 
 To perfect the sift in either case, deliv- 
 ery to the donee or to some person for him 
 is necessary , such delivery as tlie subject 
 ofthejriftis capable of. But, in case of 
 a sift, inter vivos, wliere the proiierty has 
 passed into the possessiim of the donee, 
 and has been held hy him in a manner in- 
 dicating a change of the title to the prop- 
 erty, and a recognition of the donee's title 
 by tlie donor, proof of actual manual tra- 
 dition at the time of makiii;j; the ^itt may 
 well be dispensed with. 
 
 No particular ceremony is necessary to 
 constitute a delivery wlien there is actual 
 possessijin by the donee, accompanied by 
 satisfactory eviilence that the donor has 
 relinquished all control uf, and claim to 
 the subject of thej;ift,ir. her favor. I bor- 
 row a book of my friend, anil, while it \a 
 in my possession, he says. "I make you a 
 present of it," and I hold it thereafter- 
 wanls as mine; it cannot he essential to 
 the validity of the fjift that I should lirst 
 put it into his hands in order that it may 
 be returned to mine. Lex non cogit ad 
 vana sen inutilia. 
 
 The actual transfer of possession to the 
 donee whenever and however accom- 
 plished, if supplemented liy plenary evi- 
 dence of nn intentional release to the 
 donee, on the (lart of the donor, per verba 
 de pnesenti of any and all rij-ht or claim 
 ever to resume the iiossessiun. or to de- 
 prive the donee of it, will make a complete 
 Kift inter vivos. It matters not whether 
 the change of possession takes place be- 
 fore or after, or at the time of the utter- 
 ance of the words importing a gift, if there
 
 908 
 
 WING V. MERCHANT. 
 
 is a manifest design on tlie part of the 
 donor that the flonee shoiihl theroafter- 
 wards bold such possession ab.solulely as 
 of his own property. Theuceforvvard, the 
 possession and the ri^lit are concurrent in 
 the same person, and tliegift is perfect and 
 Irrevoeahie. 
 
 These elements we find in tlie case at 
 bar. The notes were already in the pos- 
 spssifin of Mrs. Merchant, when the tes- 
 tator, in conversation witli her respecting 
 tlieui. used lanttna'-Te importing a pre-sent, 
 absolute, unconditional gift, and a mak- 
 ins over of all his interest in thcni toiler. 
 From that lime during the remaining 
 three or four years of his lil'e, he never 
 called upon her or her husband for small 
 sums on account of them, us he had before 
 been accustomed to do. Th.e defendant 
 exchanged the notes for others, and paid, 
 not to the testator, but to Mrs. Merchant, 
 such sums on account uf them as she 
 called for. 
 
 There is au essential difference between 
 this case and that of Shower v. Pilck, 4 
 E.\ch. 47S, relied on for the plaintiff. 
 
 There, though the silver plate was in 
 the possession of the alleged donee, the 
 language of the testator implied nothing 
 beyond a promise to give in the future. 
 
 Judgment for the defendant. 
 
 KENT, WALTON, DANFORTH, and 
 TAPLEY, JJ., concurred. 
 
 APPEETON, C. J. I concur in the opin- 
 ion. Delivery is essential to pass the title 
 to a chattel by gift; but if, at the time, 
 the don2e is in possession, as the donor's 
 agent, he need not surrender it for a rede- 
 livery; if the donor relinquislies all domin- 
 ion and control, aud reci)gnizcs thedonee's 
 possession as being in his own right, and 
 the donee so accepts and releases posses- 
 sion wih the donor's consent, it is suffi- 
 cient. Tenbrook v. Brown, 17 Ind. 410.
 
 WINSOR V. LOMBARD. 
 
 911 
 
 WINSOR et al. v. LOMBARD et aU 
 
 (18 Pick. 57.) 
 
 Supreme Judicial Court of Massachusetts. Suf- 
 folk and Nantucket. April 5, 1S36. 
 
 Assumpsit on a warranty alleged to 
 have been Riven, upon the sale of a quan- 
 tity of mackerel by tlie defendants to the 
 plaintiffs. Trial before .Shaw, C. J. 
 
 The bill of parcels, which was receipted 
 and wa.s dated Mu.v ~M, 1S34, net forth, 
 that the plaintiff Winsor bmijiht of tlio 
 defendants rj'J barrels and C'J liulf barrels 
 No. 1 mackerel, and :!7l) barrels and 19G 
 half barrels No. 2 mackerel. 
 
 The plaintiffs introrluced evidence for 
 the purpose of showing, that they were 
 joint purclinsors; but havin;:; failed to 
 prove that they were jointly interested in 
 the purchase, their counsel moved for 
 leave tlio strike out the name of I'ele<; 
 Churchill, one of tiie plaintiffs. This was 
 allowed, although objecteil to by the de- 
 fendants; and the trial procet-ded as if the 
 action had been originally commenced in 
 the name of Winsor alone. The defend- 
 ants excepted to this ruling. 
 
 There was evidence tending to show, 
 that the lish were damaged, but thut the 
 dnniage proceeded principally from rust; 
 that this is caused by the leaking out of 
 the pickle, after the fish have been i)ackcd, 
 inspected and branded ; and that although 
 fish affected by rust are greatly deteri- 
 orated, anil are never marked by the in- 
 spector as No. 1 or No. 2, yet that they are 
 not wholly unmerchantable, but are al- 
 lowed to pass inspection as No. 3. All 
 claim for damage arising from any other 
 cause than rust, was expressly waived by 
 the plaintiff. 
 
 The jury were instructed, that, upon a 
 sale by a bill of i)arcels, like that in this 
 case, although the article sold was one re- 
 quired, by the statutes of the common- 
 wealth, to be Inspected by a public in- 
 spector, and although the mackerel were 
 inspected and branded No. 1 and No. 2, in 
 pui'snance of the statutes, yet as to dam- 
 age arising from causes originating after 
 they were so inspected and liranded, there 
 was an implied warranty, that the tish 
 were in a good condition, and of a mer- 
 chantable quality of mackerei of those 
 brands respectively, at the time of the 
 sale; and t!i;it, therefore, if the jury were 
 of opinion, that the fish were damaged by 
 rust, and that this was occasioned by 
 causes originating after the mackerel had 
 been inspecteil and branded, and further, 
 if according to the kno>vn usage of the 
 trade, uinckerel affected by rust are ni>t 
 considered as No. 1 or .N'o. 2, though tliey 
 may pass as No. 3, there was a l)reach of 
 the implied warranty, for which the plain- 
 tiff was entitled to recover damages. 
 
 To this instruction the defendants ex- 
 cepted. 
 
 There was also evidence tenrling to 
 show, that the lish in qiiesiion were 
 packed, inspecteil and l)randtMl in the au- 
 tumn of is:!:!; that the casks were then 
 well filled with pickle; and that the sale 
 tocjk place iu the following .May. 
 
 In reference to this evidence, the j\iry 
 were instructed, that if the damage arose 
 from rust, and the cause of the rust was 
 the want c)f pickle, commencing after the 
 inspection and l)efore the time of the sale, 
 it was one of those things against which 
 the defendants warranted, even although 
 thej- believed that the mackerel were, at 
 the time of the inspection, what the 
 brands on the casks Indicated, and that 
 for aught they had known to the con- 
 tr;iry, these br.'inils had been truly and 
 faithfully applied, and that no alteration 
 or change had happened witinn their 
 knowledge. 
 
 To this Instruction the defendants ex- 
 cepted. 
 
 If either of thise instructions was incor- 
 rect, the verdict, which was for the plain- 
 tiff, was to be set aside, and a new trial 
 granted. 
 
 Uexter and English, for plaintiffs. 
 Washburn, for defendants. 
 
 .SlIAW, C. J. The court are of opinion, 
 thai the amendment iu striking out the 
 name of one of the plaintiffs, was admissi- 
 ble. 
 
 lUit tlie main question arises upon the 
 Buppoi-cd implied warranty, that the fish, 
 at the timecjf Hie sale, were merchantable. 
 This was a sale of inspected lish, and 
 there is nothing in the bill of parcels im- 
 porting an express warranty. Then the 
 question is. whether there was an implied 
 warranty triat the lish were merchantable 
 or tree from ilamiige at the time of the 
 sale? It was ruled at the trial, that there 
 was, for the i)urpose of receiving the evi- 
 dence, so that all the ()uestioiis might be 
 brcjuglit before the court at once; lint up- 
 on a revision of the case, the court are all 
 of opinion, that the action cannot be 
 uiaiiiliiined. 
 
 The (dd rule upon this subject was well 
 settled, that upon a sale of goods. If there 
 be no express warranty of the quality of 
 the goods sold, and no actual frauti, l)y a 
 willful misivpi-esentation. the maxim, 
 ■caveat emptor, applies. Without going 
 1 at large into the <loctriiie upon this sub- 
 ject, or attempting to reconcile all the 
 cases, which would certainly be very dilR- 
 cult, it maybe sullicieiit to say thut, in 
 this commonwealth, the law has under- 
 gone some modilication, and it is now 
 held, that without express warranty or 
 actual fraud, every person who sells goods 
 of a certain denomination or description, 
 undertakes as part of Ids contract, that 
 I the thing delivered corresponds tti the de- 
 I scriptioii, and is in fact an article of the 
 species, kind and quality thus expressed 
 ! in the contract of sale. Hastings v. Lov- 
 ering, 2 Pick. 214; llogins v. I'lympton. 
 11 Pick. !>7. 
 
 Indeed this rule seems to be now well 
 settled in lOngland. In an action for a 
 breach nf warranty, a vessel was adver- 
 tised and sold as a copper-fastened vessel, 
 but sold as slic lay with :ill faults. It u|>- 
 peared that she was only iiartially copper- 
 fastened, and not wliat is known to the 
 traile as a copper-fasteneil vessel. It was 
 held that, " with all faults," must be uu-
 
 912 
 
 WINSOR 0. LOMBARD. 
 
 derstood, all faults which a copper- 
 fasteneil vessel may have. Shepherd v. 
 Kaiii.u I!arii.& Aid. LMO. 
 
 The rule heius, that upon a sale nl 
 goods I) v a written memorandum or 1)111 
 of parcels, the vendor undertakes, in the 
 nature of warrantiUK, that the thiuK sold 
 and delivered is that which is described, 
 this rule applies whether the description 
 be more or less particular and exact in 
 enumerating the qualities of the goods 
 sold. 
 
 In applving this rule to the present case, 
 the question is, what did the parties 
 mutually unilerstand by their contract, 
 as it was reduceil to writins. It purport- 
 ed to be a sale of certain barrels and half 
 barrels of No. 1, and others of No. 2 mack- 
 erel. It is a familiar rule, that every con- 
 tract is to be construed accordiu;; to the 
 subject, and with reference to those cir- 
 cumstances which are so notorious, that 
 all persons conversant with the branch of 
 trade, to whicli t!ie sale relates, must be 
 presumed to be acquainted with thera. In 
 the sale of mackerel, both parties must be 
 presumed to be acquainted with the in- 
 spection laws, both must be understood 
 to know the season of the year when this 
 species of fish are causlit, packed, and 
 branded, and the species of damage and 
 deterioration, to svhich tliey are liable, 
 and that if mackerel aresold in the spring, 
 they cannot be of an inspection more re- 
 cent, than that of the preceding autumn. 
 Willi these circumstances mutually under- 
 stood, we have no doubt, that when thtsij 
 fish were sold as No. 1 and 2, the under- 
 standing of tlie parties was, that they 
 were fisli, packed, inspected and branded 
 as of those numbers respectively. 
 
 It was in evidence, that fish infected 
 with that species of damage called rust, 
 a damage contracted by the leaking out 
 of the pickle, after the fish have passed un- 
 der the brand of the inspector, maj* be 
 packed and Inspected as No. 3, but that 
 iiowevergood in other respects, they can- 
 not be considered or marked as No. 1 or '2. 
 Upon this ground it was contended by the 
 plaintiffs, that the effect of tl!e contract 
 of the defendants was. that the mackerel 
 were, at the time of the sale, fisli of the 
 quality known as No. 1 and 2; that a.s 
 they could not be of those qualities, if 
 they were rusty, It was describing them 
 by a quality which they did not then pos 
 sess; and that this was a breach of war- 
 ranty. But we are all of opinion, that this 
 would be a forced and erroneous construc- 
 
 tion of the instrument. Construed witfi 
 reference to the subject matter, we think 
 they must have understood, that the fish 
 were inspected and branded as No. 1 and 
 No. 2. In this respect the parties referred 
 to the brand.'aad to this extent they acted 
 upon the faith of it. Then, as there was 
 no express warranty oftheir actual condi- 
 tion, or of the manner in which they were 
 kept and taken care of. after the inspec- 
 tion, and from that time to the sale, and 
 as there was no description embracing 
 these particulars, it must be presumed, 
 that both parties relied upon the faith of 
 the inspection and brand. But if the 
 plaintiff would hold the defendants re- 
 sponsible, as upon a fraud, he must show 
 that they knew that the brand was false- 
 ly applied, or that after the ins[)ection and 
 before the sale, they had become damaged 
 by rust; but no such evidence being given, 
 and no such case suggested, the action 
 cannot be supported. 
 
 It is supposed tliat a different rule ap- 
 plies to the case of all provisions from that 
 applicable to other merchandise. This 
 matter is well exjilained by Air. .Justice 
 Sewall, In Emerson v. Brighsm. 10 Mass. 
 H. 1!)7. In a case of provisions, it. will 
 readily be presumed that the vendor in- 
 tended to reiiresent thera as sound and 
 wholesome, because the very offer of ar- 
 ticles of food for sale imi)lies this, and it 
 may readily be presumed that a common 
 vendor of articles of food, from the nature 
 of his calling, knows whether they are 
 unwhtdesome and unsound or not. From 
 the fact of their being bad, therefore, a 
 false and fraudulent representation may 
 readily be presumed. But these reasons 
 do not apply to the case of provisions, 
 packed, insjiected, and prepared for ex- 
 portation in large quantities as merchan- 
 d'se. The vendee does not rely upon the 
 supposed skill or actual knowledge of the 
 vendor, but both rely upon the skill and 
 responsibility of the inspector, as verified 
 by the brand, for all <)ualities which the 
 brand indicates; and for damage which 
 may happen afterwai'ds, and against 
 which, therefore, the brand offers no se- 
 curity, the vendee must secure himself by 
 the terms of the contract; and unless lie 
 dt)es so, or unless he is deceived by a false 
 representation of the present and actual 
 condition of the commodity, on which he 
 would liave, a remedy of a different char- 
 acter, lie must be supposed to have been 
 content to take the risk on himself. 
 
 New trial granted.
 
 WOOD V. nOVNTON'. 
 
 915 
 
 WOOD V. BOTNTON et al. 
 
 (25 N. W. Rep. 42, 64 Wis. 2C5.) 
 
 Supreme Court of Wisconsin. Oct. 13, 1885. 
 
 Appeal frura circuit court, Milwaukee 
 county. 
 
 Johnson, Rietbrock & HalHcy, for appel- 
 lant. N. S. Murphpy, for respondentH. 
 
 TAYLOR, J. This action was brouRht 
 in the circuit court for Milwaukee comity 
 to recover the posse.s.sion of an uncut 
 diamond of the alloKed value of $1,()0(). 
 The case was tried in the circuit court, 
 and after heurlii;; all the evidence in the 
 case, the learned circuit judne directed the 
 jury to find a verdict for the defendants. 
 The plaintiff excepted to such instruction, 
 and, after a verdict was rendered for the 
 defendants, moved for a ne%v trial upon 
 the minutes of the judfre. The motion 
 was denied, and the i)laintiff duly e.M'cpt- 
 ed, an<l after judKmeni was entered In fa- 
 vor of the (lefendnntH, appealed to this 
 court. The defendants are partners in 
 the jewelry business. On the trial it ap- 
 peared that on and before the twonty- 
 eiKhth of December, Ins:}, the plaintiff 
 was the owner of and in the posses- 
 sion of a small stone of the nature and 
 value of which she was ignorant; that 
 on that day she sold It to one of the 
 defendants for the sum of one dollar. Aft- 
 erwards it was ascertained that the stone 
 was a roujrh diamond, and of the value 
 of about ifTOO. After learninp: this fact the 
 plaintiff tendered the defend-ints thci one 
 dollar, and ten cents as interest, and de- 
 manded a return of the stone to her. The 
 defendants refused to deliver it, and there- 
 fore she commenced this action. 
 
 The plaintiff testified to the circuin- 
 Btances attending the sale of the stone to 
 Mr. Samuel B. B(»ynton,as follows: "The 
 first time Boynton saw that stone ho was 
 talking about buying the topaz, or what- 
 ever it is, in September or October. I 
 went into his store to get a little pin 
 mended, and I had it in a small lio.'c, — the 
 pin,— a small ear-ring; • • • this 
 stone, and a broken sleeve-button wen; 
 in the box. Mr. Boynton turned to give 
 me a check tor mj'pin. I thought I woulil 
 ask him what the stone was, and I to<di 
 it out of the box and asked him to please 
 tell me what that was. He took it in his 
 hand and seemed some time lo(d<ing at it. 
 1 told him I had been told it was a topaz, 
 and he said it might be. He says, 'I 
 would buy this; wouhl you sell it?' I 
 told liim I did not know hut what I would. 
 What would it be worth? And he said he 
 did not know ; he would give mo a dollar 
 and keep it as a specimen, and I told hiiu 
 1 would not sell it; and it was certainly 
 pretty to look at. He asked me where I 
 found it, and I told him in ICagle. lie 
 asked about how far out, and I said right 
 in the village, and I went out. .\ftor- 
 wards, and about the twenty-eighth of 
 December, I needed money pretty badly, 
 and thought every dollar would help, and 
 I took it back to Mr. Boynton and t<dd 
 him I had brought back the topaz, and he 
 nays, ' Well, yes; what did I offer you for 
 
 it?' and I eays, 'One dollar;' and he 
 stepped to the change drawer and gave 
 me the dollar, and I went out." in an- 
 other part of her testimony she says: "Be- 
 fore I sold the stone I had no knowledge 
 whatever that it was a diamond. I told 
 him that I liad been advised that it was 
 prcdiably a topaz, and he said proltably 
 it was. The stone was about the size of 
 a canary bird's egg, nearly the shaiie of 
 an egg.— worn pointed at one end; it was 
 nearlystraw color,— a little darker. " She 
 also testiHed that bef(jre this action was 
 commenced she tendered the defendants 
 $1.1 1), and demanded the re turn of the stone, 
 wliiidi they refuseil. 'I'his is substantially 
 all the evidence of what took jdace at anil 
 before the sale to the defendants, as tes- 
 tllied to by the plaintiff herself. She pro- 
 duced no other witness on that point. 
 
 The evidence on the part of the defend- 
 ant is not very different from the version 
 given by the pbiintiff, and certainly Is not 
 more favorable to the plaintiff. Mr. Sam- 
 uel B. Boynton, the defendant to whom 
 the stone was sold, testified that at the 
 time he bought this stone, he had never 
 seen an uncut diamond; had seen cut dia- 
 monds, but they are (juite different ironi 
 the uncut ones; "he had no idea this was 
 a diamond, and it never entered his brain 
 at the time." t'onsiderable evidence was 
 given as to what took place after the sale 
 and purchase, but that evideiiL'e has very 
 little if any bearing, upon the main point 
 in the case. 
 
 This evidence clearly sliows tliat the 
 plaintiff sold the stone in (luestion to the 
 defendants, and delivered it to tliem in De- 
 cember, 1nn:j, lor a consideration of one 
 dollar. The title to the stone passed by 
 the sale and delivery to the d.-fendants. 
 How has that title been divestnl and 
 ag:iin vested in the plaintiff? The con- 
 tention of the learned counsel for the ap- 
 jiellant is that the title became vested in 
 the [ilaintiff liy the tender to the Boyn- 
 tons of the purchase money with interest, 
 and a demand of a return of the stone to 
 lier. TJnless such tender and demand re- 
 vested the title in the appellant, she can- 
 not maintain her action. The only ques- 
 tion in the case is whether there was any- 
 thing in the sale which entitled the vendor 
 (the appellant) to resi'ind fhes;ile and so 
 revest the title in her. The only reasons 
 we know of for rescinding a sale and re- 
 vesting the title in the vendor so that ho 
 may maintain an action at law for the re- 
 covery of the possession against his vendee 
 are (1) that the vendee was guilty of some 
 fraud ill procuring a sale to be made to 
 him; (2>tliat there was a mistake madeby 
 the vendor in delivering an article which 
 was not the article sold, — a mistakein fact 
 as to the identity of the thing sold with 
 the thing delivered upon the sale. This 
 last is not In reality a rescission of the 
 sale made, as the thing delivered was not 
 the thing sold, and no title ever passed 
 to the vendee by such delivery. 
 
 In this case, upon the plaintiff's own ev- 
 idence, there can be no just ground for al- 
 leging that she was Induced to make the 
 sale siie did l)y any fraud or unfair deal- 
 ings on tlie part of Mr. Boynton. Both 
 were entirely ignorant at the time of the
 
 916 
 
 WOOD V. BOYNTON. 
 
 character of the stone and of its intrinsic 
 value. Mr. Boynton was not au expert 
 in unout dianionils, and hail made no ex- 
 amination of the stone, except to ta lie it 
 In hie hand and look at it before he made 
 the offer of one dollar, which was refused 
 at the time, and afterwards accepted 
 without any comment or furtherexamina- 
 tion made by Mr. Boynton. The appel- 
 lant had the stone in her possession for a 
 long time, and it appears from her own 
 Btatenient that she had made some in- 
 quiry as to its natiireand qualities. If she 
 chope to sell it without further investiga- 
 tion as to its intrinsic value to a person 
 who was guilty of no fraud or unfairness 
 which induced her to sell it for a small 
 sum, she cannot repudiate the sale be- 
 cause it is afterwards ascertained that she 
 made a bad bargain. Kennedy v. Pan- 
 ama, etc.. Mail Co., L. K. 2 Q. B. 580. 
 There is no pretense of any mistake as to 
 the identity of the thing sold. It was 
 produced by the plaintiff and exhibited 
 to the vendee before the male was made, 
 and the thing sold was delivered to the 
 vendee when the purchase price was paid. 
 Kennedy v. Panama, etc.. Mail Co., supra, 
 587; Street v. Blav, 2 Barn. & Adol. 456; 
 Gompertz v. Bart'lett, 2 El. & B1..S4'J; Gur- 
 ney v. Womersley, 4 El. & Bl. 133, Ship's 
 Case, 2 De G. J. & S. 544. Suppose the ap- 
 pellant had proiluced the stone, and said 
 slie had been told that it was a diamond, 
 and she believed it was, but had no 
 knowledge herself as to its character or 
 value, and Mr. Boynton had given her 
 ^500 for it, could he have rescinded tlie 
 sale if it had turned out to be a topaz or 
 liny other stone of very small value? 
 Could Mr. Boynton have rescinded the 
 sale on the ground of mistake? Clearly 
 not, nor could he rescind it on the ground 
 that there had been a breach of warranty, 
 because there was no warranty, nor could 
 lie rescind it on the ground of fraud, unless 
 lie could show that she falsely declared 
 that she had been told it was a "diamond, 
 or, if she had lieen so told, still she knew it 
 was not a diamond. See Street v. Blay, 
 supra. 
 
 It is urged, witli a good deal of earnest- 
 ness, on the part of the counsel for the ap- 
 pellant that, because it has turned out 
 that the stone was immensely more valua- 
 ble than the parties at the time of the sale 
 
 supposed it was, such fact alone is a 
 ground fur the rescission of the sale, and 
 that fact was evidence of fraud on the 
 part of the vendee. Whether inadequacy 
 of price is to be received as evidence of 
 fraud, even in a suit in equity to avoid a 
 sale, depends upon the facts known to 
 the parties at the time the sale is made. 
 When this sale was made the value of the 
 thing sold was open to the investigation 
 of both parties, neither knew its intrinsic 
 value, and, so far as the evidence in this 
 case shows, both supposed that the price 
 paid was adequate. How can fraud be 
 predicated upon such a sale, even though 
 after-investigation showed that the in- 
 trinsic value of the thing sold was hun- 
 dreds of times greater than the price paid? 
 It certainly shows no such fraud as would 
 authorize the vendor to rescind the con- 
 tract and bring an action at law to re- 
 cover the possession of the thing sold. 
 Whether that fact would have any in- 
 fluence in an action in eijuity to avoid the 
 sale we need not consider. See Stett- 
 heimer v. Killip, 75 N. Y. 287; Etting v. 
 Bank of U. S., II Wlieat. 59. 
 
 We can find nothing in theevidence from 
 which it could be justly inferred that Mr. 
 Boynton, at the time he offered the plain- 
 tiff one dollar lor the stone, had any 
 knowledge of the real value of the stone, 
 or that he entertained even a belief that 
 the stone was a diamond. It cannot, 
 therefore, be said that there was a sup- 
 pression of knowledge on the part of the 
 defendant as to the value of the stone 
 which a court of equity might seize upon 
 to avoid the sale. The following cases 
 show that, in the absence of fraud or war- 
 ranty, tite value of the property sold, as 
 compared with the price paid, is no ground 
 for a rescission of a sale. Wheat v. Cross, 
 31 Md. 99; Lambert v. Heath, 15 Mees. & 
 W. 487; Brvant v. Pember, 45 Vt. 487: 
 Kuelkamp v. Hidding, 31 Wis. .503-511. 
 However unfortunate the plaintiff may 
 have been in selling this valuable stone 
 for a mere nominal sum, she has failed 
 entirely to make out a case either of 
 fraud or mistake in the sale such as will 
 entitle her to a rescission of such sale so 
 as to recover the property sold in an ac- 
 tion at law. 
 
 The judgment of the circuit court is af- 
 firmed.
 
 WOOD V. MANLET. 
 
 919 
 
 WOOD V. MANLEY. 
 
 (U Adol. & E. 34.) 
 
 Court of Queen's Bench. Michaelmas Term, 1839. 
 
 TrespasHforljreakinK andenterine; plaiii- 
 tiff'H clone. Pleo, (besideH otherH not mii- 
 teriiil liere,) an to entei'injj the cloHe, that 
 (Jerendunt, before the time when, &e., was 
 lawfully poHHUHsed of a hiryre (luantity of 
 hay, which was upon plaintiff'.s close, in 
 which, &c., and that defendant, at the 
 times when, &c., by lenve and license of 
 tlie plaintiff to liim for that purpose lirst 
 given and K'"antcd, peaceably entered the 
 close, to carry off the said hay and did 
 then and there peaceably take his said hay 
 from and out of the said clcjse, as he law- 
 fully, &c., which are the said alleged trcs- 
 pasKcs, &c. Keplication, de injuria. 
 
 On the trial, before Erskine, .J., at the 
 last Somersetshire assizes, it appeared 
 that the plaintiff was tenant of a farm, in- 
 cluding the locus in quo; and that, his 
 landlord havinj; distrainerl on him for 
 rent, the goods seized, comprehencliiiK the 
 hay mentioned in the plea, were sold on 
 the premises; the conditions of the sale 
 beinK, that the purchasers mitcht let the 
 hay remain on the premises till the I^ady- 
 day following, (ls;i8.) and enter on the 
 premises in tlie meanwhile, as often as 
 they pleased, to remove it. Thedefendnnt 
 puichased the hay at the sale: and evi- 
 dence was given to show that the plaintiff 
 was a party to these conditions. After 
 the sale, on LHUh .January, 1>^3S, plaintiff 
 served upon defendant a written notice 
 not to enter or commit any trespass on 
 his, the plaintiff's, premises. In Febrnnry 
 following. <lefendant served plaintiff with 
 a written demand to deliver up the hay, 
 or to suffer him, defendant, to luive access 
 thereto and carry it away; threatening 
 an action in default thereof. The plain- 
 tiff, however, locked up the gate leading 
 to the locus in quo, where the hai' was; 
 and the defendant, on Ist Marcli, ISJS, 
 broke the gate open, entered the close, 
 and carried away the hay. The learned 
 judge told the jury that, if the jdaintiff 
 a.ssented to the conditions of sale at the 
 time of the sale, this amounted to a license 
 to enter and take the goods, which license 
 was not revocable; and he therefore: di- 
 rected them to find on this issue for the 
 defendant, if they thought the plaintiff 
 had BO assented. Venlict for the defend- 
 ant. 
 
 C'rowder now mov3d for a new trial, on 
 the ground of misdirection. The learned 
 jnilge appears to haveconsldered that this 
 case fell within the principle laid down in 
 Winter v. Brock well, S East, :!l)S, that a 
 licenseexei-uted cannot be revoked. There 
 the execntion of the license took place by 
 the defendant building in pursuance of the 
 jilalntiff's permission ; so that thedefend- 
 nnt had incurred nn expense, upon the 
 faith of the license, in doing the verj' thing 
 which was licensed: ami the action was 
 for the thing so done. But tills is not the 
 case of a license e.xecuted before revocn- 
 tion: the plaintiff rev(jked the permission 
 before the defenilant acte<I upon it at all. 
 On these pleadings, the only question is, 
 whether tlie act done liy the plaintiff was 
 licensed by the defendant. It may be that 
 
 the defendant wasentitled to bring trover, 
 or perhaps to sue for breach of the condi- 
 tions: but the license was revoked before 
 it was executed. [Lord DE.NM A.N, C.J. 
 If a man buys a louf, and part of the bar- 
 gain is, that he shall leave it at the 
 liaker's Rhoi>, and cull for it, can the baker 
 prevent liis entering the shop to take the 
 loaf?] .Suppose a party agrees to sell nier- 
 cliandiNe; if he afterwarrls refuse to sell, 
 the buyer cannot take it. [Lord DEN- 
 .MAN,C.J. But here the sale wa.s com- 
 pleted.] The ruling of the learned judge, 
 if correct, would show that every case of 
 contract created an irrevocable license. 
 [Lord OEN.MAN, t;. J. Here the question 
 is o:: the fact of the license.] The revoca- 
 tion of a license need not be specially re- 
 plied : it may be shown under a traverse 
 of the license. Besides, the replication 
 here puts the whole plea in issue; and the 
 plea alleges a quiet entri', which is nega- 
 tived by the gate being broken. A right 
 of way may, perhaps, in some cases be 
 enforced by violence, but not a license. 
 [PATTESO.V, J., referred to Tayler v. 
 Waters. 7 Taunt. 3S4, [2 E. (". L. It. 40.i.)] 
 The (piestion there wus, whether a license 
 to use real [iroperty could be given with- 
 out writing; and it was decided that it 
 could. Liggins v. Inge. 7 Bing. (;S2, (20 E. 
 C. L. R. 304, )i is to the same effect. 
 
 Lord DE.NM \N, CI. Mr. t'rowder's ar- 
 gument goes this length; — that, it 1 sell 
 goods to a party who is, by the terms of 
 the sale, to be permitted to comeand take 
 them, and he pays me, I may afterwards 
 refuse to let him take them. i'he law 
 C4»untenance8 nothing so absurd as this: 
 alicensethus given and acted upon isirrev- 
 ocable. 
 
 PATTESON, J. Tavler v. Waters, 7 
 Taunt. :^74, (2 E. C. L. K. 405,) shows that 
 a license to use a seat at the opera-house, 
 paid for and acted upon by sitting there, 
 cannot be eounlermau'lcd. Here the con- 
 ditions of sale, to which the plaintiff is a 
 party, are, that any one who buys shall 
 be at liberty to enter and take. .\ person 
 does buy; part of his understanding Is 
 that he is to beallowed to enter and take. 
 The license is therefore so far executed as 
 to be irrevocable etiually with tliat In 
 Tayler v. Waters. The case (lut by Mr. 
 C'rowder is different. I do not say that u 
 mere purchase will give a license: but 
 here the license is part of the very contract. 
 
 WILLIAMS, J. The plaintiff, having 
 assented to the terms of thecontract, puts 
 himself into a situation from which he 
 eonid not withilraw. 
 
 COLERIDOE, J. The pleadings raise 
 the issue whether, when the act com- 
 plained of was done, the leave and license 
 existed' it did exist if It was irrevocable; 
 and I tliink it was irrevocable. Althout;li 
 no one of the cases referred to is exactly 
 the same as this, yet all procecfl on the 
 principle that a man, who, by consenting 
 to certain terms, induces another to do 
 nn act, shall nut afterwards withdraw 
 from those terms. 
 
 Rule refused. 
 
 ' See Bridues v. Blanchard, 1 A. & E. 53«, ('JS E. 
 C. L. R 43.)
 
 INDEX. 
 
 [the numbers rekkk to pages.] 
 
 ACCEPTANCE. 
 
 I. Within Statute of Frauds. 
 what constitutes— sufficiency, 19, 63, 600. 
 
 destruction of tbinj; sold, 349. 
 
 II. Under the Conteact. 
 what constitutes, 19, 61, 135, 221, 233. 
 
 evidence of, 427. 
 
 — - goods in possession of seller, 675. 
 — - question for jury, 567. 
 as shown by lapse of time, 567. 
 sufficiency, necessity of separation, 105. 
 
 of tender of acceptance, 105. 
 
 necessity of, 73, 557. 
 
 by agent of purchaser, 3, 403. 
 
 within reasonable time, forfeiture of 
 
 right, 419. 
 rejection, effect of delay, 245. 
 right to inspect goods, 245. 
 
 selection by seller, 691. 
 
 as affected by retention of vendor's lien, 
 507. 
 
 of portion of goods bought, effect as waiv- 
 er of right to rescind, 595. 
 
 refusal of buyer to accept, 25, 47, 87, ItU. 
 487, 557, 691, 727. 837. 
 
 delivery to carrier, 387. 
 
 ACTIO.X. 
 
 see "Ueplevin;" "Trover and Conversion." 
 action for price, see "Remedies." 
 action for damages, see "Kemedles." 
 
 AGENT, 
 
 see "Principal and .\gent." 
 
 AGKEEMRNT, 
 
 see "Memorandum." 
 
 APPROPUIATION OF GOODS, 
 by vendor, transfer of title, 473. 
 
 delivery to carrier, 635. 
 
 ASSENT, 
 
 of purchaser, mistake as to goods sold, 
 
 731. 
 mistake as to quality of goods sold, 733. 
 
 as to terms, 673. 
 
 nmtual assent, fraud of buyer, 391. 
 
 ASSIGNEE, 
 
 in insolvency, title from fraudulent as- 
 signor, 249. 
 
 AUCTIONEER, 
 
 authority to sign memorandum, 549. 
 
 AVOIDANCE OF CONTRACT, 
 
 see "Fraud;" "Mistake;" "Rescission." 
 
 BAILMENT, 
 
 distinction between bailment and sale, 
 533, 5.35. 
 
 confusion of goods, wheat stored in ware- 
 house, detlciency, proportion of loss, 93. 
 
 BANKRUPTCY, 
 
 trover against assignee of bankrupt, 289. 
 
 BARTER, 
 
 or sale, what constitutes, 553. 
 
 BILL OF LADIN(;, 
 
 as transfer of title, 317. 
 
 assignment after notice of stoppage Ip 
 
 transitu, 577. 
 effect of transfer, 43. 
 liabilities of a.ssignee to carrier, 713. 
 
 BON.\ FIDE PURCHASERS, 
 
 who are. mortgagees in pos-scssicm, 497. 
 
 creditors of fraudulent purchaser, 
 
 743. 
 
 assignee in Insolvency, 299. 
 
 rights of. 27, 29, 33. 43. 
 
 pawnbroker making advances to 
 
 fraudulent pun-haser, 617. 
 
 purchase from fraudulent buyer, 237 
 
 275, 065. 
 
 vendee of one purchasing on Sunday 
 
 435. 
 
 from buyer of goods sold conditiomilly 
 541. 
 
 having conditional posses.sion, 751 
 
 757. 
 
 from one olitaining posses.sion by fraudu 
 
 lent rcpre.seiilationi* as to identity. 657, 
 purclia.se from trespa.sser. liability to true 
 
 owner. ".Mil. 
 of stiiU'U goods, liability to true owner, 
 
 7.">'.». 821. 871. 
 rights as affectiHl by vendor's lien, 613. 
 sale by carriers, title acquired. 677. 
 title ac<iuired by void sale by prize court, 
 
 861. 
 
 BREACH OF CONTRACT, 
 see "Remedies." 
 
 LAW SALES. 
 
 (921)
 
 922 
 
 INDEX. 
 [The numbers refer to pages.] 
 
 CARRIERS, 
 
 as agents to receive goods, 1. 
 delivoi-y to, 77, 463. 
 
 transfer of title, 423, GG9, 7G7, 781, 
 
 859. 
 
 liability for conversion, delivery after no- 
 tice of stoppage in transitu, 481. 
 
 remwlies against assignee of bill of lading 
 for freiglit, 713. 
 
 unauthorized sale by caiTier, rights of 
 bona fide purchasere, 677. 
 
 CAVEAT EMPTOR, 
 nile as to, 139. 
 duty of buyer to inspect, 559. 
 implied warranty, reliance on brand, 911. 
 taking rislt as to quality, 605. 
 
 CHATTEL JIORTGAGES, 
 
 sale by mortgagor, rights of mortgagee, 
 763. 
 
 0. O. D., 
 
 delivery completed, 175. 
 
 by carrier without payment, liability, 
 
 771. 
 
 CONDITIONAL SALE, 
 
 effect of performance, 61, 395. 
 
 payment, by installments, transfer of 
 title, 151, 20.3, 541. 
 
 prepayment of price, 37, 71, 169, 293. 
 
 property destroyed in possession of buy- 
 er, liability for price, 823. 
 
 reservation of title, validity as to third 
 pei-sons, 541, 757. 
 
 sale or retm-n, 545. 
 
 sales C. O. D., when dehvery completed, 
 173. 
 
 title in property, 133. 
 
 CONDITIONS, 
 
 see, also, "Conditional Sales." 
 
 duty of buyer to inspect, 271. 
 
 successive payments, transfer of title, 341. 
 
 stipulations as to time, 539. 
 
 time the essence of the contract, failure 
 
 of seller to perform, 487. 
 sale of specific chattels, weighing imd 
 
 measuring, 173, 217. 
 goods "to arrive," transfer of title, 147 
 
 739. 
 
 to be satisfactory, 129. 
 
 impossibility of performance, destruction 
 
 by fire, 241. 
 
 CONFUSION OF GOODS, 
 see "Bailment." 
 
 CONSIDERATION, 
 
 faUure of, remedies of buyer, 353, 359. 
 
 CONTRACTS, 
 
 see, also, "Frauds, Statute of;" "Reme- 
 dies;" "Sunday;" "Warranty." 
 agent's authority to sign, 125, 159. 
 
 CONTRACTS— Continued. 
 
 at price to be afterwards determined, 531. 
 consent of owner necessary, imauthorized 
 
 sale by can-ier, 677. 
 executoi-y contiucts, transfer of title, 845. 
 
 delivery of goods shipped C. O. D. 
 
 to carrier, 771. 
 
 intent of purchaser, mistake as to goods 
 sold, 731. 
 
 mistake, effect of on contract, see "Mis- 
 take." 
 
 mutual assent, fraud of buyer, 391. 
 
 transfer of title, 263. * 
 
 of sale, or work and labor, 187, 509. 
 place of performance, 355. 
 
 to sell in future, 133. 
 
 where time is of the essence, 487. 
 
 CONVERSION, 
 
 see "Trover and Conversion." 
 
 DAMAGES, 
 
 for breach of contract of buyer, 47, 903. 
 
 warranty, 561. 
 
 in action against buyer, refusal to accept 
 before completion, 327, 437. 
 
 refusal of buyer to accept upon com- 
 pletion, 25. 
 
 DECEIT, 
 
 see "Fraud." 
 
 DELIVERY, 
 
 of gifts, see "Gifts." 
 
 actual and constnictive, 47, 59. 
 
 what constitutes, 7, 63, 99, 233, 341, 573. 
 
 appropriation by vendor, 457. 
 
 destruction of thing sold, 349. 
 
 machinei"y in condition unfit for use, 
 
 841. 
 
 weighing and measuring, 303, 799, 
 
 845, 891. 
 
 simultaneous with payment, tight of seller 
 to rescind on failure to pay, 619. 
 
 demand and tender by buyer, 879. 
 
 as afCectiug statute of frauds, 19. 
 
 at specified place, 335. 
 
 of vessel sold, what constitutes, 513. 
 
 suflieiency to pass title, 77, 207, 503. 
 
 as against a-editors of seller, 407, 
 
 453. 
 
 to agent, 3. 
 
 of buyer, weighing and measuring, 
 
 697. 
 
 at intermediate point, right of stop- 
 page in transitu, 43. 
 
 to carrier, 77, 423, 463, 635, 767, 781, 859. 
 
 refusal of buyer to accept, 387. 
 
 of goods shipped C. O. D., 771. 
 
 of order on warehouseman, transfer of 
 
 title, 22.5, 581. 
 of portion of a mass, 419. 
 of part of goods sold, recovery of price^ 
 
 587. 
 
 right of rescission of buyer, 595.
 
 INDEX. 
 
 923 
 
 [The numbers refer to pages.] 
 
 DELIVERY— Continued. 
 
 on sale on credit, transfer of title, efToct 
 of delivoi-y, 819. 
 
 order to buyer to take goods sold, revoca- 
 tion, 919. 
 
 reservation of jus disponendi, 99. 
 
 rights of buyer to enter and take away, 
 337. 
 
 when buyer entitled to, 73. 
 
 when necessary to transfer title, 47. 
 
 when to be made, forfeiture by delay, 197. 
 
 with otlier articles by restaui'ant proprie- 
 tor, 181. 
 
 without transfer of title, 71, 77. 
 
 effect on vendor's lien, 7, 307, 523. 
 
 holding to buyer's order, 790. 
 
 necessity, 91, 3.">0. 
 
 on conditions, rights of bona fide r)i>r 
 chasers, 1G9, 751, 759. 
 
 by agent against instructions of principal, 
 777. 
 
 by carrier through mistake, transfer of 
 title, G09. 
 
 by transfer note, 411. 
 
 DONATIO CAUSA MOUTIS, 
 see "Gifts." 
 
 E. 
 
 EARNEST JIONEY, 
 
 effect of payment. 879. 
 
 time of payment, effect on statute of 
 frauds, 4G7. 
 
 what constitutes, deposit with third per- 
 son, 441. 
 
 EXCEIANGE, 
 
 or sale, remedies (or breach of contract, 
 553. 
 
 EXECUTORY CONTRACTS, 
 
 see "Contracts." 
 
 EXPRESS WARRANTY, 
 see "WaiTauty." 
 
 FACTORS AND BROKKUS. 
 see "Principal and Agent." 
 power of sale, reservation of the jus dis- 
 ponendi, 255. 
 
 FALSE REPRESENTATIONS, 
 see "Fraud;" "Remedies." 
 
 FIRE, 
 
 loss of goods sold by fire— liabilities of 
 parUes, S09, 813. 
 
 FORFEITURE, 
 
 of contract by delay in acceptance. 197. 
 
 FRAUD, 
 
 see "Frauds, Statute of;" "lU'iuedies." 
 
 FRAUD— Continued. 
 
 as to creditors, continued possession by 
 
 seller, 91, 037, 831. 
 Of seller, misrepresentations as to value, 
 
 287. 
 on buyer, ground for rescission, 515. 
 on the seller, 27, 29, 33, 211, 233, 237, 249, 
 
 275, 299. 
 sale by fraudulent purchaser, 27, 29, 33. 
 
 FRAUDS, STATUTE OF, 
 
 acceptance and receipt, 19, 03, 349, C09. 
 delivery of part of the goo<ls, 807. 
 
 to agent. 3. 
 
 earnest money, time of payment, 4C7. 
 memorandum, sufficiency, 207, 509. 
 
 agents authorized to sign, 120, 159, 
 
 817, 893. 
 
 signing by auctioneer, .'>49. 
 
 brokers' bought and sold notes, 125, 
 
 159. 
 
 names of parties, 125, 159, 207, 4C9, 
 
 085. 
 
 neco.ssary contents, 125. 
 
 different papers, 105, 001. 
 
 time of Minking, (m. 
 
 description of contract, 08.5. 
 
 oral contract to rescind, consideration, 
 
 477. 
 of sale exceeiling limit, 3. 
 sale of promissory notes, 23. 
 tender of part payment, effect. 279. 
 what are goods, wares and merchandise, 
 
 23. 
 
 shares in joint stock company, 443. 
 
 what contracts within statute, agreement 
 
 to raise potatoes. G41. 
 
 purchase of growing trees, 879. 
 
 sale or manufacture, 187. 
 
 sale of promissory note, 23. 
 
 GIFTS, 
 
 inter vivos, consideration, 5.". 
 
 delivery, 55, 591, 747, 7.V>. 
 
 and possession, rights of donor's cred- 
 itors, (!01. 
 
 necessity, ret.aining control, 027. 
 
 when doniH? in possession, '.K)7. 
 
 rights of donee after possession ac- 
 
 Q\iired, 370. 
 
 evidi'uce of intent, 79. 
 
 in payment of debt, taking possession, 
 
 s:ii." 
 donatio causa mortis, delivery, 117, 383, 
 
 415. 
 
 change of possession, SS7. 
 
 knowltvlge of donee, 005. 
 
 to third person for donee, 855. 
 
 GOODS, WARES AND MERCHANDISE, 
 what are, 23, 187, (!41. 
 
 growing trvi>s, ;j;{7, 870. 
 
 shares in joint stoi-k company, 443.
 
 924 
 
 INDEX. 
 
 [The numbers refer to pages.] 
 
 I. 
 
 IDENTITY, 
 
 fraudulent representations as to identity, 
 63. 
 
 ILLEGALITY, 
 
 of contract, ratification, 501. 
 sale on Sunday, 43.j, 905. 
 
 IMPLIED WARRANTIES, 
 see "Warranties." 
 
 INSOLVEXOY, 
 
 as groun<l for rescission, see, also, "Reme- 
 dies;" "Rescission;" "Stoppage in Trans- 
 itu." 
 
 of buyer, stoppage in transitu, rights of 
 messenger in insolvency, 825. 
 
 INSPECTION, 
 
 riglit of buyer to inspect before accept- 
 ance, 139, 245, 559, G05, 691, 911. 
 
 INSTALLMENTS, 
 
 payments by, transfer of title, 151, 203, 
 541. 
 
 JUDICIAL SALES, 
 
 riglits of purchaser under void order, 861. 
 
 LADING, 
 
 see "Bill of Lading." 
 
 LICENSE, 
 
 to enter seller's premises and cut trees 
 sold, revocation, 337. 
 
 LIEN, 
 
 see, also, "Vendor's Lien." 
 warehouse receipts, 229. 
 
 M. 
 
 MARKET OVERT, 
 
 not recognized in United States, 821, 861. 
 
 MEMORANDUM, 
 
 under statute of frauds, see "Frauds, 
 Statute of." 
 
 MERCHANTABILITY, 
 
 warranty of. 111, 289, 345, 483, 559, 745 
 911. 
 
 MISREPRESENTATIONS, 
 see "Fraud;" "Remedies." 
 
 MISTAKE, 
 
 as to terms of contract, effect, 673. 
 
 as to goods bought, 731. 
 
 as to quaUty of goods sold, right of seUer 
 
 to rescind, 733. 
 In deliveiy of articles, transfer of titie, 
 
 333. 
 
 MISTAKE— Continued. 
 
 right of buyer to rescind, 185. 
 
 sale of furniture, valuables concealed 
 
 therein, 445. 
 property not existing in seller, 403. 
 
 MORTGAGES, 
 
 rights of mortgagees of buyer in posses- 
 sion, stoppage in transitu, 497. 
 
 MUTUAL ASSENT, 
 see "Assent." 
 
 N. 
 
 NON-ACCEPTANCE, 
 
 see. also, "Remedies." 
 refusal of buyer to accept, 87, 3S7, 727, 
 837. 
 
 P. 
 
 PARTIES, 
 
 see, also, "Bona Fide Purchasers;" "Prin- 
 cipal and Agent." 
 remedies of parties, see "Remedies." 
 
 PAYMENT, 
 
 and simultaneous delivery, demand and 
 tender by buyer, 879. 
 
 right of seller to rescind, 619. 
 
 before delivery, when necessary, 613. 
 by inst;illments, when title passes, 151. 
 
 203. 
 during progress of work, transfer of 
 
 title, 897. 
 In specific goods, readiness to perform, 
 
 425. 
 ol earnest money, 467. 
 
 deposit with third person. 441. 
 
 PERFORMANCE, 
 
 see, also, "Deliveiy." 
 impossil)ilitj- of performance, 241. 
 partial delivery of goods sold, 587. 
 
 PLEDGE, 
 
 rights of pawnbroker making adrauces 
 to fraudulent purchaser, 617. 
 
 liability of agent of frauduleat mort- 
 gagor to pledgee, 763. 
 
 POSSESSION, 
 
 retained by seller, loss by fire, liability 
 of purchaser, 675. 
 
 continued possession, fraud as to cred- 
 itors, ni. 
 
 pr(>sumptions, as to fraud against 
 
 creditors, 637, 831. 
 
 PRICE, 
 
 see, also, "Payment." 
 
 as affecting statute of frauds, 3. 
 
 market value, what is, 503. 
 
 reasonable price, what is, 503. 
 
 to be afterwards determined, 531. 
 
 prepayment on conditional sale, 37. 
 
 when necessary, 71.
 
 IXDEX. 
 
 925 
 
 [The iiiiinlxTs refer to piiiros.] 
 
 PUINCIPAL AND AGENT, 
 
 acci'ptMiicc liy iiKi'iit, 'S. 
 
 uuUiority of iigciit to sign iiioraoraiKluiu, 
 125, ir.O, 817, 893. 
 
 agent of thief, liability to truo owdit, 
 75!>, 799. 
 
 agent of fraudulent mortgagors of chat- 
 tels, lial)ility to pledgee, 703. 
 
 PROMISSORY NOTE, 
 
 when sale of, within statute of frauds, 23. 
 
 PROPERTY IN GOODS. 
 
 see "T'itle to Property;" "Weighing and 
 Measuring." 
 
 PITRCHASER, 
 
 eee "Bona Fide Purchasers." 
 
 R. 
 
 RECEIPT, 
 
 see, also, "Acceptance." 
 
 what is a receipt, 19, 59, 135. 
 
 for portion of designated mass, transfer 
 
 of title, 491. 
 of carrier, transfer of title, 313. 
 
 REMEDIES, 
 
 I. Of Seller. 
 
 a. Afiainut the Buyer. 
 
 b. Againut tlic Goods. 
 
 II. Ov BlIYEIi. 
 
 I. Of Seller. 
 a. Against t?ie Buyer, 
 see, also, "Rescission." 
 action for price, destruction of thing 
 sold, 349. 
 
 goods destroyed after setting apart 
 
 for buyer. SC,7. 
 
 loss of goods by fire, 809, 813. 
 
 J — property destroyed in hands of buy- 
 er, 82.-!. 
 
 impli("d warranty of titncss, 700. 
 
 transfer of title necessary, 327. 
 
 on delivery of pai't of goods sold, 
 
 587. 
 
 on refusiil of buyer to accept, 25, 47, 
 
 4S7, 5."«7, 837. 
 
 on non acceptance before comple- 
 tion, 121, 327, 4:^7. 
 
 on refusal to accept after comple- 
 tion, 25. 4S7, 727. 
 
 refusal of buyer to accept, action for 
 dam.ages, 25, 87. 091, .'-.37. 
 
 insolvency of buyer, <leli%'ery of goods 
 to third party in trust lor sellers, 793 
 
 against pUxlgee of fraudulent pm-chaser, 
 017. 
 
 trover against a.ssigne«» of bankrupt buy- 
 er, 289. 
 
 delivery by agent against instructions, 
 a<'tion for conversion. 777. 
 
 fraud of buyer, action of trover, 391. 
 
 REMEDIES— O.ntinned. 
 
 resei.ssion by buyer, action for damages, 
 
 9(J3. 
 death of buyer, contr.act of sale, or work 
 and labor, 009. 
 
 b. Againut the Ooods. 
 
 see, also, "Stoppage In Transitu." 
 
 lien on goods, see "Vendor's Lien." 
 
 rcs.ile, 27, 73, 271, .539. 
 
 fraudulent repri'sentations of buyer as to 
 identity, recovery of goods, 031. 
 
 sale on credit, delivery to purchaser, re- 
 plevin of goods, 819. 
 
 replevin against creditors of fraudulent 
 buyer, 109. 
 
 II. Ok Buyer. 
 
 see, also, "Iteselssion." 
 on faihire to deliver, 241. 
 on failure to deliver all goods sold, re- 
 scission, 595. 
 
 forfeiture of right by delay, 419. 
 
 on refusal of seller to deliver, 879. 
 on failure to deliver in time, 841. 
 
 damages, rejisonable price, 503. 
 
 on deliciency in quantity, 3-3. 
 
 for books stolen from owner, necessity 
 
 of prosecuting tliief, 871. 
 on failure of consideration, 3.53. 3.59. 
 on false repre.seulatinns of vend( e, action 
 
 for damages, 2S7, 005. 
 on purcliase of property supposed to 
 
 exist, 403. 
 on return of property, defective qu.ality, 
 
 047. 
 on replevin of portion of mass, 70.5. 
 on brejich of warr.inty. 199, 251. 293, 849. 
 as to (luality, 289, 303, 8.S;!. 
 
 of title, 28.3. 
 
 - — return of goods, 307. 
 
 action of as.sumpsit, 785. 
 
 on liri'Mch of ^niplie»l warranty, 37. 
 reasonable lituess, damages caused by 
 defect, 051. 
 
 REPLEVIN, 
 
 see, also, "Remedies." 
 
 on fraudulent representations of bu.ver, 
 
 031. 
 against creclltors of fraudulent buyer. 
 
 031. 
 on failure to pay price, 631. 
 by buyer of portion of mass sold, 705. 
 
 RESALE, 
 
 right of seller to res<'ll, see "Remi^dies." 
 by Insolvent buyer, effect on right of 
 stoppage in transitu, 11, 519, 005. 
 
 RESCISSION, 
 
 I. By Sei.ler- 
 for fraud on seller, 29, 33, 211. 237, 249, 
 275, 2<.»9. 
 
 fraudulent representations of buj-er 
 
 1 as to identity, 3l»l.
 
 926 
 
 INDEX. 
 
 [The numbers refer to pages.] 
 
 RESCISSION— Continued. 
 
 ot Uleg.nl contr.ict, rights of .seller, 905. 
 of contract m.ide on Sunday, 005. 
 on sale to bona fide ptircha.ser, 6(!5, 743. 
 by creditors of seller for fraud, 831. 
 for failure to pay price, 293, 539. 
 
 on delivery, 619. 
 
 for insolvency of buyer, 51, 449, 519, 707, 
 
 789, 793, 803. 
 for inadequacy of price, 915. 
 for mistake as to value, 915. 
 
 as to quality of goods, 733. 
 
 II. By Bdter. 
 for failure to deliver all goods sold, 595. 
 
 to deliver in time, 811. 
 
 for false representations of seller, 5C1. 
 
 for fraud, 515. 
 
 for mistake, 185. 
 
 defective quality, 8.39. 
 
 return of property purchased, 023. 
 
 RETURN, 
 
 of goods sold, see "Rescission." 
 by buyer, defective quality, 647. 
 for breach of warranty, 023. 
 
 REVOCATION, 
 
 see, also, "Rescission;" "Stoppage in 
 
 Transitu." 
 by seller, of order for delivery to buyer 
 
 of goods sold, 919. 
 
 SAMPLE, 
 
 sales by, warranty, 77, 83, 389. 
 
 SELLER. 
 
 remedies of, see "Remedies." 
 
 SHARES, 
 
 of stock of corporation, not goods, wares 
 and merchandise, 443. 
 
 SHEEP, 
 
 right of buyer to wool, 375. 
 
 SIGNATURE, 
 
 of parties to memorandum, 409, 685. 
 of agent to memorandum, 125, 159, 893. 
 
 STATUTE OF FRAUDS, 
 see "Frauds, Statute of." 
 
 STOLEN GOODS, 
 
 liability of purcliaser to true owner, 821. 
 
 of agent to true owner, 7.59, 799. 
 
 title of pm-chaser from thief, 871. 
 
 STOPPAGE IN TRANSITU, 
 nature of right, 519. 
 against whom e.xercised, 51. 
 Insolvency of buyer, 51, 449, 519, 767. 789. 
 
 rights of messenger in insolvency 
 
 825. 
 
 after delivery on buyer's vessel, 789, 793. 
 
 STOPPAGE IN TRANSITU— Continued, 
 after delivery to mortgagees of buyer In 
 
 possession, 497. 
 - — ■ and sale to bona fide purcliaser, 11, 
 
 519, 665. 
 to agent at intermediate points, 43. 
 
 of transfer note, 411. 
 
 notice to carrier, 481. 
 
 exercise of right, assignment of bill of 
 
 lading after notice, 577. 
 effect, restoration of vendor's lien, 665. 
 
 SUNDAY, 
 
 contract made on Simday, inability of 
 seller to rescind, 905. 
 
 Ulegalitj' of contract, ratification, 501. 
 
 sale on Sunday, rights of bona fide pur- 
 chaser, 435. 
 
 T. 
 
 TENDER, 
 
 of goods, see "Acceptance;" "Delivery." 
 by seller, of portion of mass of equal 
 
 quality, 491. 
 sufficiency to compel acceptance, 105. 
 of specific goods, sufficiency, 105, 147. 
 of performance by seller, 355. 
 
 on rescission by buyer unnecessary, 
 
 903. 
 
 of price, efCect on vendor's lien, 539. 
 
 TITLE TO PROPERTY, 
 implied warranty of, 701. 
 what constitutes transfer, 15, 25, 309. 
 
 sale of specific articles, 539. 
 
 . .iroods "to arrive," 739. 
 
 sale 0. O. D., 175. 
 
 goods shipped C. O. D. and delivered 
 
 to carrier, 771. 
 
 intent, 545. 
 
 sale of fm'uiture, valuables con- 
 cealed therein, 445. 
 
 mistake in articles delivered, 333. 
 
 mistake as to goods bought, 731. 
 
 goods set apart and subject to pur- 
 chaser's order, 867. 
 
 appropriation by vendor, 473. 
 
 delivery to insolvent buyer, depo^iit 
 
 with third persons In trust for seller, 
 703. 
 
 before completion of work on prop- 
 erty purchased. 897. 
 
 sale on credit, 819. 
 
 sale on conditions, 395. 
 
 reservation on conditional sale, 133, 
 
 541, 757. 
 
 prepayment of price, 541. 
 
 • payment by installments, 151, 203. 
 
 determination of price, 527, 531. 
 
 fraudulent representations of agent, 
 
 657. 
 
 fraudulent representations as to 
 
 identity. 631. 
 
 when delivery does not transfer, 7L 
 
 necessary to transfer, 47.
 
 INDEX. 
 
 927 
 
 [The niiiubcrs rpfer to pages.] 
 
 TITLE TO PKOPERTY— Continued, 
 when passe.s by delivery, 207. 
 delivery to e;uTier.s, 423, 7(J7, 781, 859. 
 
 by carrier through mistake, GG9. 
 
 assi^^nment of carrier's receipt, 313. 
 shipment on buyer's vessel, 789. 
 delivei'y of order on warehouseman, 581, 
 
 797 
 eflfect of bill of lading, 317. 
 sale of specific chattels, portion of mass, 
 
 323. 
 property part of mass, necessity of sepa- 
 ration, 491, 705, 875. 
 sale of gfX)ds not specific, weighing and 
 
 meiisuring, 173, 303, 491, 527, 587, G89. 
 
 097, S45, 891. 
 
 of goods, destruction by fire, 809, 813. 
 
 ac(iuireU by l)oiia fide purchaser from 
 
 sciler without title, 001. 
 of ius.signee of fraudulent buyer, 249. 
 of purchaser from fraudulent buyer, 27, 
 
 29, 33. 
 of iKina fide purchaser of stolen goods, 
 
 821, 871. 
 effect of judgment in trover, 203. 
 
 TRANSFER OF TITLE, 
 see "Title to Property." 
 
 TROVER AND CONVERSION, 
 see, also, "Remeflies." 
 liability of carrier, delivery after notice 
 
 of stoppage in transitu, 289. 
 against assignee of banlcrupt buyer, 289. 
 delivery by agent against instructions, 
 
 777. 
 on fraud of buyer, 391. 
 against bona fide purchaser of one having 
 
 couditioual possession, 757. 
 
 VENDOR'S LIEN, 
 
 what constitutes, 7. 
 when reco};nized, 143. 
 delivery, effect on lien, 7, 221, 3C7. 
 of part, rights of bona fide purchas- 
 er, 013. 
 how lost, tender of payment, 530. 
 
 VENDOR'S LIE.N-Conlinucd. 
 
 how lost, surrender of possession to 
 
 vendee, 523. 
 Insolvency of buyer, goods In possession 
 
 of seller, 827. 
 waiver, 7, 523. 
 goods held by seller for lien, destruction 
 
 by fire, liability of piu-chaser, 075. 
 
 w. 
 
 WAIVER. 
 
 of breach of warranty. 293. 
 of vendor's lien, delivery, 523. 
 
 sale on credit, 7. 
 
 WARRANTY, 
 
 written and oral warranties, 83. 
 express warranty, wliat constitutes, 141. 
 
 evidence of. 371. 
 
 agiiinst defects, knowledge of buyer, 
 
 849. 
 
 as to condition of goods sold, 371. 
 
 of quality, 251. 333. 
 
 rea.souable adulleralion, 883. 
 
 Implied warranty of title, 283, 3.';9, 605. 
 
 ij2:{. 
 
 after-acquired title, 701. 
 
 knowledge of intended use, implied 
 
 warranty of fitness, 709. 
 
 of soundness, 559. 
 
 of merchantability. 483. 
 
 reliance on inspector's brand, 911. 
 
 sales by sample. 77, 83, 389. 
 
 sale for sound price, caveat emptor, 
 
 111. 
 
 sale of provisions, soundness, 289, 
 
 34.J, 745, 911. 
 
 sales by description, 303, 911. 
 
 by manufacturer of fitness, 199, 051. 
 
 remedies of buyer, assumpsit for breach, 
 
 785. 
 breach as a defense, return of goods, 307. 
 
 WEIGHING AND MEASURINO. 
 
 when ncx-essary to tninsfer of title. 303, 
 
 491, ."127. TiSl. i'kS!!. 797. S4:,. Si)!. 
 delivery to Imyer's agent, effect, 007. 
 sale of chattels not specific, selection by 
 vendor, 1 73. 
 
 WX8T PUBLUBI.HO CO.. PRIXTKU tUB •TEKEOTTPIB", tT. PIDL. UlilX.
 
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