/I .,■ ^ <^^^,^,/^«/3'e^.a larger quantity. Bruce v. Pierson, 3 Johns, 534; Rommell v. Wingate, 103 Mass. 327. But a slight ex- cess of the amount ordered would not excuse one from re- ceiving and paying for the true amount in the absence of any fraud. Jenness v. Iron Co., 53 Me. 20; Seed Co. v. Hall, 14 Kans. 553; Shrimpton v. Warmack, 72 Miss. 208. In Home v. Niver, 168 Mass. 4, it was held, that an offer asking a reply by telegraph, could not be accepted by sending a letter by mail two days later. And an offer to sell 100 kegs of butter at 20 cents is not accepted by reply, "Will take your butter at 20 cents if good." — Mcintosh v. Brill, 20 Up. Can. C. P. 426. Such modified acceptance closes the negotiations, and no subsequent acceptance of the origihal offer is effec- tive. Cartmel v. Newton, 79 Ind. I ; Baker v. Holt, 56 Wis. 100. Otherwise, a mere inquiry in regard to the offer. — Stevenson v. McLean, g Q. B. D. 346. ***The Palo Alto, Davies, 344, 2 Ware, 344; Wheat v. Cross, 31 Md. 99; Byrne v. Van Tienhoven, 5 C. P. D. 344; Cooke v. Oxley, 3 T. R. 653; Taylor v. The Merchants' Fire Ins. Co., 9 How. 390; Brauer v. Shaw, 168 Mass. 198. 22 PERSONAL PROPERTY. Sec. 1060.— SAME SUBJECT.— SALES CON- TRACTED BY MAIL AND BY TELEGRAPH.— The rule with reference to acceptances is that the party making the offer by letter can not reject after a letter of acceptance has been duly mailed by the of- feree. And this is true, some cases hold, even if the letter of acceptance never reaches the other party.* It seems that when an offer is sent by mail, it implies a request or authority to return the acceptance in the same way, thus in a manner making the mail the agent of the party sending the proposal. If the offeree desires, to make his liability depend upon the actual receipt of the acceptance, he may do so by so stipu- lating.** The same courts that hold that a contract by letter is closed by mailing the acceptance, also hold that an acceptance by telegraph is completed when deposited at the office of the Telegraph Company.*** *Mactier v. Frith, 6 Wend. 103 (1830); Vassar v. Camp, II N. Y. 441 (1854); Bryant v. Booze, 55 Ga. 438 (1875); Haas V. Myers, iii 111. 421 (1885) ; Howard v. Daly, 61 N. Y. 362. **Lewis V. Browning, 130 Mass. 173 ; Atlee v. Bartholomew, 69 Wis. 43 ; Bank v. Miller, 106 N. C. 347. ***Trevor v. Wood, 36 N. Y. 307; Utley v. Donaldson, 94 U. S. 29; Perry v. Iron Co., 15 R. I. 380. It has also been held that a party who sends an order by telegraph makes the Company his agent for its transmis- sion and delivery, and that he is bound by the message de- livered, and that the receiver is entitled to put the message in evidence, as the original mesage, Loveland v. Green, 41 Wis. 431. This holding should be taken with some qualifica- tion since, if a mistake is made, probably the sender would have a right of action against the company. PERSONAL PROPERTY. 23 Where the acceptance is made by letter or by tele- graph it is sometimes a question as to where the con- tract is made. The rule is, that it is made in the state where it is assented to. This is the American doc- trine.* If the contract is valid by the laws of the state where assented to, it will be enforced in the state where the letter is sent, although it would be invalid if made in that state.** In case the person who makes the offer dies or be- comes insane before the offer is accepted, the offer is revoked.*** Sec. 1061.— SAME SUBJECT.— IMPLIED CON- TRACT. — A contract of sale will be implied under certain circumstances without any expression of the will or intention of the parties ; an example of this is, where an express contract has been made, and a part of the goods is sent, accepted, and retained after or with knowledge that the whole will not be furnished, here an implied contract arises to pay pro rata, subject in some courts to a counter claim for damages for non-completion.**** Some American cases have ap- *French v. Mansfield, 97 Mass. 89; Garbract v. Common- wealth, 96 Pa. St. 449. **Knight V. Mann, 120 Mass. 219; Rindkoph v. DeRuyter, 39 Mich, i; Grimes v. VanWetchten, 20 Mich. 410; Stone v. Browning, 168 N. Y. 598. This is the Canadian law also but is not followed in England. ***Pratt V. Society of Elgin, 93 111. 475; Brown v. Mc- Donald, 129 Mass. 66; Scruggs v. Alexander, 72 Mo. 134. ****Oxendale v. Wetherell, 9 B. & C. 386 ; Hart v. Miller. 24 PERSONAL PROPERTY. patently declined to apply this rule, although the pe- culiar language of the contracts in some of these de- cisions rnay also have had some effect upon the con- clusions reached.* In New York it is held, by later cases, that if the vendee accepts part, then knowing that the whole will not be delivered, he thereby waives full performance and becomes liable for the part ac- cepted, at the contract price, less damages resulting from failure to deliver the balance.** So where goods are sent to one without having been ordered, and he receives and consumes them knowing that the sender expects him to pay for them, an implied sale arises.*** And where a party induce? a vendor to sell goods to an insolvent person by misrepresentation and then obtains the goods for his own benefit, it is held that the vendor may recover on an implied contract of sale against the person in possession of the goods.**** Another special case in which a sale takes place by 15 M. & W. 8s; Richards v. Shaw, 67 111. 222; Bowker v. Hoyt, 18 Pick. 558; Sauders v. Short, 86 Fed. R. 225. *Witherow v. Witherow, 16 Ohio, 238; Champlin v. Rowley, 13 Wend. 258; Kein v. Tupper, 52 N. Y. 555; Tipton V. Feitner, 20 N. Y. 423. ** Avery v. Willson, 81 N. Y. 341 ; Silberman v. Fretz, 12 App. Div. (N. Y.) 328; Brady v. Cassidy, 145 N. Y. 171; Churchill v. Holton, 38 Minn. 519. ***Wellauer v. Fellows, 14 Wis. 105. ****Hill V. Perrot, 3 Taunt. 274; Corking v. Jarrard, I Camp. 37; Benj. Sales, Sec. 48. In Hill v. Perrot, supra, the court said that the defendant could not set up the sale, be- cause his own fraud had procured it, and the mere posses- sion, unaccounted for, raised an assumpsit to pay. PERSONAL PROiPERTY. 2S the operation of certain principles of law, rather than by the mutual assent of the parties, either expressed or implied is, where a judgment in trover or conver- sion for goods, is followed by payment, then the plain- tiff's title is transferred to the defendant. The accep- tance of the value being an implied assent to a change in the ownership.* The general rule is that an unsat- isfied judgment in trover does not pass title in the property to the defendant.** Some cases hold that the title passes upon the mere recovery of the judg- ment in trover without any satisfaction of such judg- ment.*** Where property is taken wrongfully, by a tort, and converted to the use of the wrongdoer, many courts hold that the owner may waive the tort, and recover its value upon an implied assumpsit.**** Other courts hold that it is necessary that the property wrongfully taken should be converted into money by the wrong- doer, before assumpsit could be maintained. In this case the owner may recover for money had and re- ceived to his use and benefit by the defendant.***** *Chinery v. Viall, 5 H. & N. 288; 29 L. J. Ex. 180; Hep- burn V. Sewell, 5 H. & J. 211; Brady v. Whitney, 24 Mich. 154; Thayer v. Manley, 73 N. J. 309. **Brinsmead v. Harron, L. R. 6 C. P. 584 ; Miller v. Hyde, 161 Mass. 472; Terry v. Munger, 121 N. Y. 165. ***Floyd V. Brown, i Rawie, 121 ; Marsh v. Pier, 4 Rawle, 287. Miller v. Hyde, 161 Mass. 472, gives the decisions hold- ing both ways on this question. ****Xerry v. Munger, 121 N. Y. 165. *****Watson V. Stover, 25 Mich. 386 ; Tolan v. Hodgeboon, 38 Mich. 624; Jones v. Hoar, 5 Pick. 285. 26 PERSONAL PROPERTY. Sec. 1062.— SAME SUBJECT.— MISTAKE AN- NULS ASSENT. — "From the general principle that contracts can only be effected by mutual assent, it fol- lows that where, through some mistake of fact, each was assenting to a different contract, there is no real valid agreement, notwithstanding the apparent mutual assent.* In Wood V. Boynton (64 Wis. 265) it was held, that in the absence of fraud or a mistake as to the identity of a thing sold the vendor can not rescind the sale and maintain an action of replevin. And that where the value of the thing sold was open to the investigation of both parties, and both supposed at the time that the price paid was a fair one, no disparity, however great, between such price, and the real value, is to be re- ceived in an action at law as evidence of fraud.** In Sherwood v. Walker, (66 Mich. 568), the Su- ♦Benj. Sales, Sec. 50. **The case of Wood v. Boynton, supra, is an exceptional one and not now followed in America. The facts in this case were that a poor woman in Milwaukee sold to a jeweler a stone which she was informed and believed to be a topaz. The stone in fact was an uncut diamond and worth from $700 to $1,000. She tendered back the dollar paid her with interest thereon and demanded the return of the stone. In an action brought by her to recover the diamond it was held that there could be no ground for rescision by the vendor unless ; l. the vendee was guilty of some fraud in procuring a sale to be made to him; or 2. that there was a mistake made by the vendor in delivering the article sold. That is, a mistake in fact of the identity of the thing delivered. The court saying that since both parties were ignorant of its true value and supposing the sum offered a fair price, the sale could not be rescinded. PERSONAL PROPERTY. 27 preme court of Michigan added as a third reason for rescinding a sale, the vendor's misapprehension as to the substance of the thing bargained and sold. Say- ing, that if the thing actually delivered is different in substance from the thing bargained for and intended to be sold, then it is no sale.* By the weight of authority the mistake of fact for which a contract may be rescinded, on the ground that the assent of the parties did not really exist as to the same subject-matter of sale, may be either, as to *In this case a cow was contracted to be sold on the belief that she was barren and useless for breeding purposes; later it appeared that such was not the case, this was held to be such a mistake as to the substance of the thing bar- gained for as to allow the sale to be rescinded. The court said that a party who has given an apparent consent to a contract of sale may refuse to execute it, or may avoid it after it has been completed, if the consent was founded, or the contract made upon the mistake of a material fact — such as the subject matter of the sale, the price, or some collateral fact materially inducing the agreement ; and this can be done when the mistake is mutual. Where, in such a case, the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold, there is no contract; but if it be only a difference in some quality, or accident, even though the mistake may have been the actuating motive to the purchaser or seller, or both of them, the contract remains binding. 28 PERSONAL PROPERTY. the thing sold;* as to the quantity;** as to the price.*** But while some mistakes avoid a sale, a mistake as to the quality, quantity, or fitness for some intended but unexpressed purpose will not usually have that effect, thus a mistake as to the solvency of a maker of a note which is being sold in market is a mistake as to the qiMlity and does not avoid the sale.**** It is said that the test in every case is to determine whether the mistake or misapprehension is as to the *Thus where the sale was of ten tons of sound merchant- able hemp, and the vendor intended to sell St. Petersburg hemp, and the buyer to purchase Riga Rhine hemp, a better article, the mistake having been made by the broker in de- scribing the hemp to the buyer, it was held that no contract existed between the parties. — Thornton v. Kempster, s Taunt. 786 ; Sheldon v. Capron, 3 R. I. 171 ; Rupley v. Daggett, 74 111. 3SI. **Roffles V. Wichelhaus, 2 H. & C. 906; Henkel v. Pape, L. R. 6 Ex. 7. ***Where a person not understanding the English lan- guage intended to bid 48 guineas for an article at auction and his bid was taken as one for 88 guineas, it was left to the jury to say whether the mistake had actually been made, as a test of the existence of the contract of sale. — Phillips v. Bis- tolli, 2 B. & C. 511; Chapman v. Cole, 12 Gray, 141. It is also held, on the ground of mistake, that a sale of a piece of furniture with valuables in a concealed drawer does not pass title to such unknown and really unsold articles. Bowen V. Sullivan, 62 Ind. 281 ; Hogtie v. Mackey, 44 Kans. 277 ; Livermore v. White, 74 Me. 452; Huthmacher v. Harris, 38 Pa. St. 491. ****Hecht V. Batcheller, 147 Mass. 355, disapproving Harris v. Bank, 15 Fed. Rep. 785; Sample v. Bridgeforth, 72 Miss. 293 ; Stoddard v. Ham, 129 Mass. 383 ; Smith v. Ware, 13 Johns, 257; Williams v, Hathaway, 19 Pick. 387. PERSONAL PROPERTY. 29 substance of the whole contract, going as it were to the entire matter, or only to some point, although a material point, an error which does not affect the whole consideration. Thus in Kennedy v. Panama Mail Co., (2 Q. B. 579), it was said that in order to entitle a party to rescind a contract, it is sufficient to show that there was a fraudulent misrepresentation as to any part of that which induced him to enter into the contract. But where there has only been an inno- cent misrepresentation, it is no ground for a rescision, unless it was such as that there is a complete differ- ence in the substance between the thing bargained for and obtained, so as to constitute a failure of considera- tion. Wood V. Boynton, (64 Wis. 265), is the only case holding that persons who sell property in mistake of fact may not rescind the contract and recover the property.* Sales, may also be void for uncertainty, or because the parties have expressed themselves in language so vague and unintelligible that the court finds it im- possible to fix a definite meaning to their language. In such cases the contract will be held ineffectual.** *That a sale founded upon a material mistake of fact as to the person dealt with, or as to the existence, identity, species, or kind of subject-matter, or the price, is not binding, see Mudge v. Oliver, i Allen, 74; Harris v. Harris, 112 Mass. 32 ; Gardner v. Lane, 9 Allen, 492 ; Gibson v. Pelkie, 37 Mich. 380; Kyle V. Cavanagh, 103 Mass. 356; Meyer v. Richards, 163 U. S. 38s; McGorren v. Avery, 37 Mich. 120. Also see the subject of Mistake as treated in the subject of contracts, Number 4 of the Home Law School Series. **Thus in Guthing v. Lynn, (2 B. & Ad. 232), where a suit was brought upon alleged warranty on the sale of a 30 PERSONAL PROPERTY. An agreement will not be deeffled unintelligible where there is a mere error, omission or mistake in drawing it up, if the real nature of the mistake can be shown so as to make the bargain intelligible. Thus a court may allow the word "dollar," or "pounds" to be added to a note or bond where such was the plain intention of the parties; and correct an obvious mis- take without hesitancy.* It is held that a mistake as to the person with whom the contract is made may or may not avoid the sale according to the circumstances. The whole question turns upon the want of assent.. It is a general prin- ciple that every man has the right to elect with whom he will deal or contract. Every man has the right to the benefit and contemplation of the character and credit of every person with whom he contracts. In the case of a trader who sells for cash, it can make no horse, and it was alleged that the price of the sale was for 63 pounds, and the proof showed the sale to be given for sixty guineas, and "if the horse was lucky to the plaintiff he was to give five pounds more, or the buying of another horse." This last clause as to the horse being "lucky" was stricken out by the court as unintelligible, and the plaintiff allowed the recovery for the remainder. See also Whelan v. Sullivan, 102 Mass, 204; Cumner v. Butts, 40 Mich. 322, in the last case a contract stipulated that either party might cancel the same on sixty days' notice "for good cause" ; this was held to be so uncertain that any revocation in good faith would be suffi- cient, Marble v. Standard Oil Co., 169 Mass, 553; Buck- master V. Consumers' Ice Co., 5 Daly, 313, *CoIes V. Hulme, 8 B. & C, 568; Willson v, WiUson, S H. L. C. 40; Burchell v, Clark, 2 C. P. D. 88. See also, Lloyd V. Lord Say and Scale, 10 Mod. 46; Landon v. Goole, 3 Lev. 21 PERSONAL PROPERTY. 31 possible difference whether the buyer be Smith or Jones, and a mistake of identity would not effect the contract. But where the sale is on credit, and the solvency of the buyer is one of the important elements of the sale, the identity of the person contracted with is of such importance that a mistake will avoid the contract. So where the purchaser intends to deal with one against whom he would have the right to set off the price, a mistake as to the person dealt with will prevent the contract from coming into existence for want of assent.* Where a person undertakes to manufacture an arti- cle, or deliver goods which he guarantees shall be sat- isfactory to the buyer, he thereby makes the purchaser the sole judge whether the article is satisfactory or not, and there is no remedy left to die seller for a refusal of the buyer to accept such articles.** *Benj. Sales, Sec. 58; Mitchell v. Lepage, Holt N. P. 252; Boulton V. Jones, 2 H. & N. 564; Boston Ice Co. v. Potter, 123 Mass. 28 ; 25 Am. Rep. 9 ; Consumers Ice Company V. Webster, 32 App. Div. (N. Y.) 592. In Boston Ice Co. V. Potter the court treated as immaterial the question whether tl'.e purchaser had or had not a right of set-ofif against the plaintiff, and held that a mere mistake as to the party con- tracted with will be sufficient to defeat an action for the price of goods so purchased and consumed. It appears to us that the American cases have gone too far upon this question of the identity of the person contracted with, and that they have not the force and justice of the English decision of Boulton v. Jones, supra. See Robsen v. Drummond, 2 B. & A. 303. **Silsby Mfg. Co. v. Town of Chico, 24 Fed. Rep. 893 ; Mc- Clure v. Briggs, 58 Vt. 82; Gibson v. Cranage, 39 Mich. 49. In the last case an artist agreed that the portrait would be satisfactory to the purchaser, and it was held that however 32 PERSONAL PROPERTY. It makes a great difference whether the articles fur- nished the purchaser are guaranteed to be satisfactory to him, or whether they are merely to be such as in legal effect ought to be satisfactory. Where they are to be satisfactory to the purchaser at all events, he is not obliged to take them unless they are so, while in the other case if the vendor has complied with the directions the purchaser must accept. In New York it is held that that which the law will say the contract- ing parties ought to be satisfied with, the law will say he is satisfied with.* And the assent to a sale may be conditional, and in such cases the formation of the contract does not take place until the condition is accomplished, thus goods are sold "on trial," "to arrive," and on bargains known as "sale or return," are instances where the assent is conditional, and the contract remains in abeyance until the happening of the specified condition. This class of sales will be considered in a subsequent Chapter.** good the picture, the purchaser was the only judge whether it =uited him or not, and if not he could not be compelled to pay for it. Wood Machine Co. v. Smith, 50 inch. 565. •Duplex Boiler Co. v. Gardner, loi N. Y. 387; Meisell v. Insurai^.cf Co., 76 N. Y. 115. So where the purchaser is in fact satisfied, but fraudulently and in bad faith declares he is not satisfied with the article after the contract has been f.-.lly performed by the vendor he is bound to accept any pay for the article. — Siisby Mfg. Co. v. The Town of Chico, 24 Fed. Rep. 893. •*See Pest Chapter \± PERSONAL PROPERTY. 33 CHAPTER III. CONCERNING THE THING SOLD AND THE PRICE. Sec. 1063. SALE OF A THING WHICH HAS CEASED TO EXIST VOID.— "As there can be no sale without a thing, transferred to the purchaser in consideration of the price received, it follows that if at the time of the contract the thing has ceased to exist, the sale is void."* Thus where an annuity de- pendent upon a life was the subject of sale, and it sub- sequently appeared that the life had terminated prior to the date of the sale, the sale was void, and the price paid was recovered in assumpsit as money had and received.** Cases of this sort are sometimes decided on the ground of an implied warranty on the part of the vendor that the thing sold exists ; sometimes on the ground of failure of consideration, and also on the ground that there has been no contract at all, the assent being founded upon a mutual mistake amount- ing to no assent, there being no subject-matter for a contract, no contract could therefore be completed. Mr. Benjamin gives this latter ground as the true one.*** It being impossible to transfer and deliver an arti- cle which has really ceased to exist, the law imposes *Benj. Sales, 76. **Strickland v. Turner, 7 Ex. 208; Hastie v. Couturier, 9 Ex. 102. ♦**Benj. Sales, 77; Farrar v. Nightingal, 2 Esp. 639. 34 PERSONAL PROPERTY. no liability for a failure to perform such a contract. And this is so whether such impossibility exists at the time of the sale, as in the case mentioned, or arises afterwards but before the contract is to be executed. Thus where a contract is made for the sale or delivery of a specified article of personal property under cir- cumstances such that the title does not vest immediate- ly in the vendee, that is, an executory contract of sale, and the property is destroyed by accident, without the fault of the vendor, the delivery thereby becomes im- possible, the vendor is not liable to the vendee in dam- ages for the non-delivery.* Sec. 1064. SALE OF THINGS NOT YET IN EXISTENCE. — A thing may be the subject of a valid sale though not yet in existence, but it is necessary *Dexter v. Norton, 47 N. Y. 62; Young v. Bruces, S Litt. 324; Carpenter v. Stevens, 12 Wend. 589; Harris v. Nicholas, 5 Munf. 483; Gibson v. Pelkie, 37 Mich. 380; and see Sec. 428 No. 4 Home Law School Series. In a few cases it is held that inevitable accident, or act of God, will excuse the performance of a duty created by law, but not one created by man. So where A had contracted to erect a school-house and to have it completed by the first of May, and on the 27th of April it was struck by lightning and burned down, not- withstanding this accident A was held liable in damages for a failure to finish the building in time. These cases are in accordance with the principle that where a person contracts to do anything absolutely impossible at the time, he is not excused unless ist. The performance is prevented by the other party, or 2nd, the performance is made unlawful by statute. Thus contracts for the sale of liquors where forbid- den by statute are examples where the non-performance will be excused. Carpenter v. Stevens, 12 Wend. 589; Adorns y. Njchols, 36 Mftss. 275. PERSONAL PROPERTY. 35 here to again distinguish between executed contracts of sale and executory contracts of sale. For this pur- pose things not yet in existence may be regarded as of two sorts, one of which may be sold or the subject of an executed contract, the other can only be the sub- ject of an agreement to sell or an executory con- tract.* In order that things not yet in existence should be the subject of an executed sale they must have a potential existence. By potential existence is meant that the things are to come into being as the natural product or expected increase of something already be- longing to the vendor. Thus a valid sale may be made of the wine which the vineyard is expected to produce ; of the grain the field is expected to yield, or the milk a cow will give. One may sell a crop of grain to be delivered in the future although the crop has not yet been planted, provided the vendor owns, or has rented the land wherein it is to be planted.** *Benj. Sales, 78. **Briggs V. United States, 143 U. S. 346, 3S4; Rawlings V. Hunt, 90 N. C. 270; Sanborn v. Benedict, 78 111. 309; Wil- kinson V. Ketler, 69 ; Ala. 435. So the unborn young of anipials may be sold, during gestation, and some cases hold before gestation. Hull v. Hull, 48 Conn. 250; McCarty v. Blevins, 5 Yerg. igs ; Maize v. Bowman, 93 Ky. 205. A mortgage in May of all the butter and cheese to be made this season, by a lessee of the cows, held good, Conderman v. Smith, 41 Barb. 404 ; Headrick v. Brattain, 63 Ind. 438 ; Arques v. Wasson, 51 Cal. 620. But a sale of "all the hay that is to be cut on tlie farm I have bought of — " is not good against a bona-Me purchaser of the fifth year's crop after the same had been harvested.— Shaw v. Giltpore, 81 Me. 396. 36 PERSONAL PROPERTY. Where the things to be acquired have not a poten- tial existence one can only make a valid agreement to sell, not an actual sale. Thus the wool of any sheep, or the milk of any cows that may be bought within the year, or the goods one may buy within the next year, or the fish one may catch in the future, are examples where an actual present sale cannot be made, but only an executory agreement to sell.* So the sale of future wages unconnected with some actual present contract of wages is invalid and passes no title to the vendee for the want of a subject-matter, likewise the transfer of all the fees to be received by a professional man.** There can be no actual sale of a mere expectancy or possibility. Where the subject of sale has a potential existence and the sale is executed, the title to the goods, though not yet in existence passes, and if there is any loss it falls upon the purchaser. While things not yet in ex- istence and not having a potential existence can be the subject of a valid agreement to sell, no title passes and the risk of loss remains in the vendor.*** In this case though the sale is void the contract to sell may be good. Although the actual sale of an expectancy or possi- bility is void, yet the agreement to sell is so far good, *Benj. Sales, 78; Low v. Pew, 108 Mass. 347. **Skipper v. Stokes, 42 Ala., 255 ; Hartley v. Tapley, 2 Gray, 565; Gardner v. Hoeg, 18 Pick. 168; Schouler's Sales, IQ4; Lunn V. Thornton, i C. B. 379; Gale v. Burnell, 7 Q. B. 850; Hope V. Hayley, S E. & B. 830, ***Benj. Sales, 78, PERSONAL PROPERTY. 37 that if the vendor by some act done after the acquisi- tion of the goods, wages, fish, or the Hke, shows his intention to give effect to the original agreement, the sale will then become effective and the vendor can no longer object to its validity.* So it is held that the agreement to sell operates as a license and when pos- session is taken by the vendee subsequently and be- fore the rights of third persons intervene, the title will vest.** In Equity, such agreements are upheld, especially as between the parties, if the property is sufficiently described so as to be identified. And in England the *Dalton V. Laudahn, 27 Mich. 529; Pierce v. Emery, 32 N. H. 484; Pennock v. Coe, 23 How. 117. **Perkins v. Bank, 43 S. C. 39; Chapman v. Weimer, 4 Ohio St. 481 ; Chase v. Demiy, 130 Mass. 566. It is to be remembered that such agreements are frequently valid as between vendor and vendee, and void as to attaching creditors, second purchasers and the like. Thus in Chesley v. Josselyn, 7 Gray 489, where A had purported to mortgage property thereafter to be acquired, and after it was acquired sold it to B with the other mortgaged property, it was held that B could claim such property against the mortgagee, al- though his bill of sale described the property as "subject to a mortgage," since the mortgage could not legally apply to the after-acquired property. So the expressly providing in a bill of sale or mortgage that it shall apply to after-acquired property, is generally held at law to make no difference, it being not a question of intention, but of power. Rochester Distilling Co. v. Rasey, 142 N. Y. 570; Hunter v. Bosworth, 43 Wis. 583; Bank v. Lindenstruth, 79 Md. 136; Wright v. Bircher, 5 Mo. App. 327. Otherwise if the mortgagee or purchaser takes possession of such property before' the rights of other persons intervene he takes a good title. Cook v. Corthell, II R. I. 482; Ro^yap v, Rifle Co. 29 Conn. 283. 38 PERSONAL PROPERTY. equity rule has by statute been adopted in law. But the transfer must be absolute and the property to be acquired sufficiently described.* A sale by a son of his expected interest as heir to his father's estate, made to a stranger without his father's knowledge is not valid at law, although a covenant to convey might be good.** Where a person sells a thing that does not belong to him, or makes a contract of "sale or return," and though not having title at the time subsequently ac- quires title before the purchaser repudiates the con- tract, the property in the thing sold will vest in the purchaser. (Benj. Sales, 83.) It was held in an early English case (Bryan v. Lewis, Ry. & Moo. 386) that where goods sold for future delivery, the seller not having them or any present contract, but intending to go in the market and buy before delivery that the contract was invalid as a mere wager on the price of the articles, but this decision has been overruled, and such contracts to sell and deliver at a future day articles which the party can acquire are now ordinary commercial transac- tions.*** But if the parties do not contract in good ^Mitchell V. Winslow, 2 Story, 630; Holroyd v. Marshall, 10 H. L. Cas. 191; Morrill v. Noyes, 56 Me. 458; Lazarus v. Andrade, 5 C. P. Div. 318. **Needles v. Needles, 7 Ohio st. 433 ; Bownton v. Hubbard, 7 Mass. 112; Fitch v. Fitch, 8 Pick. 480. ***Hibblewhite v. M'Morin, 5 M. & W. 462; Mortimer v. M'Callan, 6 M. & W. 58; Pickering v. Cease, 79 111. 328; Bruas' Appeal, 55 Pa. St. 294; Gregory v. Wendell, 39 Mich. 337; Melchert v. Am. Union Tel, Co., 11 Fed, Rep. 193; Dunn PERSONAL PROPERTY. 39 faith, intending an actual delivery and receipt of the good sold, but on default intend to settle the contract on the basis of the difference in price at the time the contract was efitered into and the date of the per- formance, then it is a gambling contract and illegal. It is of no legal importance that speculation is the ob- ject, but both parties must concur in the illegal intent to make it a gambling contract and void, neither party being allowed to enforce it. A number of States have statutes forbidding gambling in stocks.* II. THE PRICE. Sec. 1065. THE PRICE MAY BE EXPRESS OR IMPLIED. — The price imports the application of a money valuation to the thing sold, and whether paid in money or money's worth does not matter. If the seller agrees to take something else in exchange it is said that the price may be either in money or in prop- erty, but if there was a price put upon the goods it would not be an exchange.** It is a rule that there must be a fixed price, but where the price is ascertainable from the contract, V. Bell 8s Tenn. 581 ; Billingslea v. Smith, ^^ Md. 504. Both parties must concur in the illegal intent. Williams v. Tiede- mann, 6 Mo. App. 269 ; Murry v. Ocheltree, 59 la. 435 ; 97 Ind. 210; And see this subject under the head ''Avoidance of the Contract" in a subsequent chapter. *Clarke v. Foss, 7 Bliss. 541 ; Phillips v. Ocmulgee Mills, 55 Ga. 58, 633. **I9 Mo. App. 183; 90 Mass. 297; In New York the price may mean an equivalent or compensation, whether in money gr other property, 54 N, Y. i73- 40 PERSONAL PROPERTY. that is, where the contract furnishes a true test direct- ly or indirectly by which to determine the price with- out the need of further negotiation between the par- ties, there is a fixed price within the meaning of the law. Thus a price is considered fixed and determinate which is to be fixed by the valuers appointed by the parties, or which is to depend upon the market price of the commodity sold.* If nothing has been said as to the price when an article has been sold, the law implies an understand- ing that the price is what the article is reasonably worth, that is, the price is implied, just as a contract may be implied from the acts of the parties.* By the delivery of an article to a buyer and its acceptance by him it is implied that he will pay what the article is reasonably worth where no price has been agreed upon. A reasonable price may or may not be the same as the current market price. But ordinarily "reason- able price" is governed by the market price at the time and place of delivery, unless the market is shown to be unnaturally inflated.** *In McConnell v. Hughes, 20 Wis. 537, "ten cents a bushel less than the Milwaukee price, on any future day the vendor might name," was held to be a fixed price. Cunningham v. Brown, 44 Wis. 72 ; Ames v. Quimby, 96 U. S. 324 ; so "high- est market price, whenever the vendor may demand payment" was held to be fixed, McBride v. Silverthorn, 11 Up. Can. Q. B. S4S, and a "reasonable price to be afterwards agreed upon," Greene v. Lewis, 85 Ala. 222. **McEwen v. Morey, 60 111. 32; Kountz v. Kirkpatrick, 72 Pa. St. 376. It is now elementary law that if no price is fixed by the parties to a contract of sale the law will imply PERSONAL PROPERTY. 41 Where a sale is made provided that the price is to be afterwards agreed upon by the parties, and this is never done, the sale is not completed so as to pass title.* And v^^here the parties disagree as to what price has been agreed upon, the real value of the article is always admissible in evidence as tending to show which of them is in the right.** Where the parties have agreed that others shall fix the price, the sale is not ordinarily complete so as to pass the title until the price has been so fixed, unless one of the parties prevents it, in which case his act is equivalent to actual performance.*** that the price is what the article is reasonably worth, and this applies to both executed and executory sales, so that the vendor can recover from the buyer for a refusal to accept. Hoadly v. M'Laine, 10 Bing. 482; Taft v. Travis, 136 Mass. 95; McEwen v. Morey, 60 111. 32; Lovejoy v. Michels, 88 Mich. 15. ♦Bigley v. Risher, 63 Pa. St. 152 ; Wittkowsky v. Wasson, 71 N. C. 4SI- **Norris v. Spofford, .127 Mass. 85; Johnson v. Harder, 45 la. 677; Saunders v. Clark, 106 Mass. 331. ***Fuller v. Bean, 34 N. H. 290; Hutton v. Moore, 26 Ark. 382; Smyth v. Craig, 3 W. & S. 14. 42 PERSONAL PROPERTY. CHAPTER IV. EFFECT OF THE STATUTE OF FRAUDS ON SALES. Sec. 1066. THE STATUTE OF FRAUDS.— 17TH SECTION. — The common law recognized the vaHdity of verbal contracts of sale for any amount and however proved. But in 1677 this ancient com- mon law doctrine was greatly modified by the statute of 29 Car. II. c. 3, the fourth and seventeenth sec- tions of which apply to contracts and sales. This stat- ute has already been considered in a previous number of The Home Law School Series.* The 17th section of the English statute is as fol- lows : "And be it enacted, that from and after the said four-and-twentieth day of June (A. D. 1677), no con- tract for the sale of any goods, wares, or merchan- dises, for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorized."** *See Vol. 4, Sees. 464-469. **This section is now replaced in England by the Sale of Goods Act of 1893, as is the Act of g Geo. IV. c. 14, s. 9, known as "Lord Tenterden's Act." PERSONAL PROPERTY. 43 This section of the Statute of Frauds has been adopted in most of the American States in almost the same wording of the original act.* The price of the thing sold which comes within the statute is most- ly fixed at $50 in the various States, but in some it is more, in California the amount is $200 and in Utah $300. In a few States this section is not in force.** The purpose of the statute of frauds is to prevent fraud and falsehood by requiring the party who seeks to enforce an oral contract in court, to either ; first, produce as additional evidence some written memoran- dum signed by the party sought to be charged, or sec- ond, the proof of some act confirmatory of the con- tract relied upon. The English statute provides, "no contract shall be allowed to be good" ; the Michigan statute provides, "no contract shall be valid" ; in Massachusetts the statute reads, "shall be good or valid." But it is now generally held that it is not the intention of the statute to prohibit the making of such contracts or to de- clare them void or illegal when made simply because *Thc statute in Michigan reads : "No form of sale of any goods, wares, or merchandises, for the price of $50 or more, shall be valid unless the purchaser accept part of the goods sold, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged therefore, or some person thereunto by him law- fully authorized." How. Stat. Mich. Sec. 6186. **It is not in force by statute in Delaware, Illinois, Kansas, Miss., North Carolina, Ohio, Pa., Rhode Island, Tenn., Texas and Virginia. 44 PERSONAL PROPERTY. of the absence of the required formalities. The true construction of the statute is not to render the contract within it void, still less illegal, but its purpose is to make the kind of evidence required indispensable when it is sought to enforce the contract. That is, the evi- dence to prove such a contract must be in writing un- less you have confirmatory acts. Hence such contracts are not void, but when they are sought to be enforced in court the party seeking to do so must have confirma- tory acts or the required memoranda signed by the party sought to be charged.* Notwithstanding numerous dicta and authorities holding that unless the provisions of the 17th section are complied with the sale is void, the better opinion seems to be that such contracts are voidable, not void.** But the property and title remain in the seller unless the statute has been complied with, and the buyer acquires no right thereto, is not liable un- ♦118 Mass. 325; Maddison v. Alderson, 8 App. Cas. 488. In Maine it is said that the statute makes certain things in- dispensable to the remedy. The security conferred by the statute makes the remedy depend upon reliable proof to which th parties may resort to settle their disputes. 73 Me. 186. In New York the language of the statute is, "every contract of sale shall be void," yet notwithstanding this language it is held that the statute of frauds does not condemn verbal con- tracts for the sale of goods. 53 N. Y. 114; 56 N. Y. 238. **29 Am. & Eng. Encyc. Law, (2nd ed.), page 814; Leroux V. Brown, 74 E. C. L. 801 ; Patterson v. Ware, 10 Ala. 444 ; Beryhill v. Jones, 35 la. 33S ; Gammon v. Butler, 48 Me. 344 ; Townsend v. Hargraves, 118 Mass. 325. Contra, Howe v. Palmer, 3 B. & Aid. 321 ; Hinchman v. Lincoln, 124 U. S. 38; Hudnut V. Weir, 100 Ind. 501; Mayer v. Child, 47 Cal. 142. PERSONAL PROPERTY. 45 der the contract and has no right to action against the seller.* The efifect of the contract within the statute being voidable allows the parties to carry it out if they see fit, and if performed by them it is of the same force and validity as other contracts. If such a contract be executed the efifect of its performance is such as to warrant the enforcement of rights and obligations arising therefroan.** In those states where the statute is the substance of the 17th section of the English Act, the objection that the contract is not valid for being within the stat- ute is not available to a party not privy to the con- tract. That is, a third person cannot set up the fact that it was not in writing. The defense of the statute of frauds is personal, and can only be relied upon by the parties to the contract or their representatives or privies.*** *29 Am. & Eng. Encyc. Law, 2nd. ed. 998-999; Pitney V. Ins. Co., 65 N. Y. 6; Hicks v. Cleveland, 48 N. Y. 84; Bacon v Eccles, 43 Wis. 227; Alexander v. Comber, i H. Bl. 20; Tempest v. Fitzgerald, 3 B. & Aid. 680. So if the prop- erty is injured or destroyed, where the contract of sale is unenforceable for want of complying with the statute all loss falls upon the seller, before the acceptance of the buyer. Rodgers v. Phillips, 40 N. Y. 519; Daniel v. Frazer, 40 Miss. 507. **52 Mich. 365; Mooney v. Elder, 56 N. Y. 238; Am. & Eng. Encyc. Law, 2nd. ed., page 818. ***Moore v. Crawford, 130 U. S. 122; Mewburn v. Bass, 82 Ala. 622 ; Davenport Church v. Swanson, 100 111. App. 39 ; Jackson v. Stanfield, 137 Ind. S92 ; James v. Hicks, 58 Mo. App. 521; Christy v. Brien 14 Pa. St. 248. 46 PERSONAL PROPERTY. In some states if the contract is partly within the statute of frauds and partly without, and the contract is separable, it may be separated and an action main- tained on so much of it as is not within the statute* A discussion of the Statute of Frauds in its effects upon sales naturally divides itself into the following subjects: i. What contracts are embraced under the 17th section? 2. What classes of personal property are comprehended under "goods, wares and merchan- dises"? 3. What standard of price or value brings the case within the statute? These will now be con- sidered briefly. Sec. 1067. WHAT CONTRACTS ARE EM- BRACED UNDER THE 17TH SECTION?— We have seen that in an executory contract the contract is binding so as to give either of the parties a remedy against the person who is in default, but has no effect to transfer the title or right to the possession of or in the goods themselves. Such a contract gives the proposed purchaser none of the rights, and subjects him to none of the liabilities of the owner of the property. While on the contrary a bargain and sale or executed con- tract, vests the absolute and general property in the thing sold in the purchaser. Now the language of the 17th section is, "no contract for the sale of any goods," ♦Friend v. Pettingill, 116 Mass. 515; Rainbolt v. .East, 56 Ind. 538; Dietrich v. Hefelmeir, 128 Mich. 145. But an alternative contract is not severable, so as to enforce the part not within the statute. Mather v. Scoles, 35 Ind. I ; Howard v. Brower, 27 Ohio St. 402. PERSONAL PROPERTY. 4? and the first question seems to have been, what is ['. meaning of these words? Are they applicable to e:-, • ecutory agreements, or only such as were an equiva- lent at common law to the contract known as bargain and sale?^ In England until 1828, the decisions were in conflict and leaned to the conclusion that executory agreements did not come within the operation of the statute.* Then the legislature intervened, and in 9 Geo. IV. c. 14, s. 7, known, as Lord Tenterden's Act, declared that thereafter the provisions of the 17th section of the Statute of Frauds "shall extend to all contracts for sale of goods of the value of ten pounds sterling, and upwards, notwithstanding the goods may be intended to be delivered at some future time, or not at the time of such contract be actually made, pro- cured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." This enactment is now construed with the statute of frauds and its effect is to substitute the word value for price in the 17th section.** This is the holding in America also. The next question is to ascertain the proper princi- ple by which to test whether certain contracts are con- tracts for the sale of goods, or for work and labor to be performed and materials furnished. There is con- *Towers v. Osborne, i Strange, 506; Groves v. Buck, i M. & S. 178; contra, Rondeau v. Wyatt, 2 H. Bl. 63. **Benj. Sales, Sec. 93; Scott v. Railway, 12 M. & W. 33; Ide V. Stanton, 15 Vt. 685; 29 Conn. 513; 15 N. J. L. 252; 18 Me. 137; 33 Mo. App. 183; 48 Mo. 379. 48 PERSONAL PROPERTY. siderable conflict in the decisions both in England and in the various states as to this question. In 1 86 1, the rule was laid down by Lord Black- burn in England that if the contract be such that when carried out it will result in the sale of a chattel the party cannot sue for work and labor done but must sue for goods sold and delivered; while if the work and labor be bestowed in such a manner as that the result would not he anything which could properly be said to be the subject of sale, then an action for work and labor is the proper remedy* Prior to Lord Blackburn's there were three diiifer- ent rules suggested by the English courts to distin- guish contracts for the sale of goods from those for work and labor and materials. These were: i. That if the subject matter of the contract was not in exist- ence, not in rcrum natiira, as Lord Ellenborough ex- pressed it, the contract was not for the sale of goods.** 2. The second test principle suggested was that if the materials be furnished by the employer, the contract is for work and labor, not for a sale ; but if the materials be furnished by the workman who *Lee V. Griffin, 30 L. J. Q. B. 252; in this case Crompton J., said : "When the contract is such that a chattel is ulti- mately to be delivered by the plaintiff to the defendant, when it has been sent, then the cause of action is goods sold and delivered;" Hill J., said: "When the subject-matter of the contract is a chattel to be afterwards to be delivered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labor." **Groves v. Buck, 3 M. & S. 178 ;' Garbutt v. Watson, 5 B & A. 613. PERSONAL PROPERTY. 49 makes up a chattel he cannot maintain "work and labor," since his labor was bestowed on his own ma- terials and for himself, and not for the person who employed him.* 3. The third test principle prior to the setthng of the matter in Lee v. Griffin, was by Pollock, C. B. in Clay v. Yates,** who held the proper test to be, "Whether the work and labor is of the es- sence of the contract, or whether it is the materials that are found." All of these tests have given place to the one laid down in Lee v. Griffin. A contract for the furnishing of a machine or a movable thing of any kind and fixing it to the freehold, is not a con- tract for the sale of goods within the statute but for work and labor done and materials furnished in add- ing to the land.*** The same diversity of opinion is found in the Amer- ican decisions, and different rules have come to pre- vail in the various states. In Lamb v. Crafts (12 Mete. 356), Chief Justice Shaw said: "the distinction we believe is now well understood. When a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale and not a contract for labor ; otherwise when the arti- cle is made pursuant to the agreement." Thus where the plaintiff a carriage maker had several unfinished ♦Smith V. Surtnan, 9 B. & C. 561-8; Atkinson v. Bell, 8 B. & C. 277. **2S L. J. Ex. 237; I H. & N. 73. ***Tripp V. Armitage, 4 M. & W. 687; Clark v, Bulmer, II M. & W. 243. 50 PERSONAL PROPERTY. buggies on hand, the defendant selected a particular lining of plaintiff, and the latter agreed to finish a buggy in a fortnight for $250. In an action for the price, held, not a sale of the buggy, but an agreement to build one for the defendant, and on his part to ac- cept and pay for it, and therefore not within the stat- ute.* So where the defendant went to a carriage mak- er, and ordered a buggy, giving directions that the lining should be drab, the outside seat of cane, with his initials and monogram, and to be completed in four months, held, not a contract for the sale of the bugg}', but for labor, services and materials, and so not within the statute.** This Massachusetts rule is followed in other states. But under the Massachusetts rule, if the article or- dered by the purchaser is exactly such as the plaintiff makes and keeps on hand fo'r any one, and no change or modification of it is made at the defendant's re- quest, it is a contract of sale, and within the statute, even though made after, and in consequence of the or- der given.*** The New York doctrine is that executory contracts with reference to articles already in existence are *Mixer v. Howarth, 21 Pick. 205 (1838) ; Spencer v. Cone, I Mete. 283. **Goddard v. Binney, 115 Mass. 450 (1874) ; Dowling v. McKenny, 124 Mass. 480 ; Hight v. Ripley, 19 Me. 137 ; Abbott V. Gilchrist, 38 Me. 260 ; Pitkin v. Noyes, 48 N. H. 294 ; Ellison V. Brigham, 38 Vt. 64. ***Gardner v. Joy, 9 Met. 177; May v. Ward, 134 Mass. 127 ; Edwards v. Railway, 48 Me. 379 ; Prescott v. Locke, 51 N. H. 94. PERSONAL PROPERTY. 51 within the statute of frauds, but agreements to sell and deliver, in the future, articles which have no existence at the time and are to be delivered hereafter, are not within the statute of frauds.* In Maine the principles are supposed to be recon- ciled by following the rule, that the fact that the arti- cle contracted for does not exist at the time of the contract, but is to be made or manufactured will not necessarily take the case out of the statute, but it must appear in addition that there is a particular person for whom it is to be manufactured, or a particular mode or manner, or a particular material entering into and making part of the contract.** In Iowa by statute it is provided that the statute shall not apply when the article is not at the time of the contract owned by the vendor and ready for de- livery, but labor, skill, or money are necessary to be expended in producing or procuring it. (Iowa Code Sec. 3664.) These conflicting authorities are reduced to three principles of construction by Schouler in his work, (Per. Prop. Sec. 443.) these are: I. The Narrow Construction. Where the chattel contracted for does not exist in specie but requires to be manufactured and brought into being under the contract, there is no contract of sale within the statute, but it is a contract for work and labor done and ma- *Crookshank v. Burrell, 18 Johns. 58; Mead v. Case, 33 Barb. 202; Parsons v. Loucks, 48 N. Y. 17; Deal v. Max- well, SI N. Y. 652. **Crockett v. Scribner, 64 Me. 447; 54 Me. 105. 52 PERSONAL PROPERTY. terials furnished. This construction is repudiated in England, but is said to have a firm hold in New York. 2. The Broad Construction. Whatever be the con- tract, whether the chattel is existing or non-existing, where it is in substance for goods to be sold and de- livered, and not for work, labor and materials, and which therefore results in the sale of the subject- matter for a price, it comes within the statute as a contract of sale. 3. The Middle Construction. Between these two extremes may be said to stand the Massachusetts rule, which is, that the statute applies not only to contracts for articles existing already, but to such as the seller ordinarily makes or procures for the general market, but not to a contract for an article to be manufactured especially for the purchaser. Sec. 1068. SAME SUBJECT. — AUCTION SALES. — ^It is now well settled that auction sales are included within the statute of frauds.* So also are sales by sheriffs on execution, and public sales gen- erally to the same extent as private sales. In Michi- gan there is a statute which requires that when goods are sold at auction the auctioneer shall at the time of the sale enter in a book a memorandum specifying the particulars and manner of sale, mentioning the pur- chaser's name and the name of the person on whose account the sale was made, and such a memorandum *Davis V. Rockwell, 2 Pick. 64; Pike v. Balch, 38 Me. 302; Johnson v. Buck, 35 N. J. L. 328; Boyd v. Greene, 162 Mass, 567. PERSONAL PROPERTY. S3 is deemed a sufficient memorandum of the contract within the meaning of the statute of frauds. Sec. 1069. SAME SUBJECT.— RESCISSION.— Where one agrees to rescind, as by agreeing orally witli the purchaser to take back the article sold on re- quest, and repay the purchase money, this promise is binding, though oral, since it is a part of the original bargain and made valid by the original delivery and payment therefor. While a subsequent agreement to take back the goods in payment of the bill is within the statute.* Sec. 1070. WHAT ARE GOODS, WARES, AND MERCHANDISES ?— In England it held that the 17th section does not apply to shares, stocks, docu- ments of title, choses in action and other incorporeal rights in property.** Aside from the statutes passed in the respective American states, perhaps the leading case in this country holding the contrary of the English decisions, and adopting a broader construction of the phrase "goods, wares, and merchandises" is the Massachu- setts case of Tisdale v. Harris,*** decided in 1837 by Chief Justice Shaw. In this case it was decided that stocks are fairly within the statute, as well by its terms as by general quality. The, words "goods, wares, and *Fay V. Wheeler, 44 Vt. 202; Johnston v. Trask, 40 Hun, 41s; 116 N. Y. 141; Rankin v. Grupe, 36 Hun. 481. **Humble v. Mitchell, 11 A. & E. 205; Knight v. Barber, 16 M. & W. 66; Benj. Sales, Sec. iii. ***20 Pick. 9; Walker v. Supple, 54 Ga. 178, 54 PERSONAL PROPERTY. merchandises," have, as to the first two a very broad signification. Bona (goods) as used in the Civil law is almost as extensive as personal property, and in many respects has nearly as large a signification in the Common law as the word merchandises has in com- mercial usage. Tliere is nothing in the nature of stocks and shares in incorporated companies which in reason and sound policy should exclude contracts in respect to them from the restrictions designed by the statute to prevent fraud in the sale of commodi- ties. This holding is quite generally fohowed in Amer- ica.* In Indiana later decisions have narrowed the con- struction of the word "goods" to include only cor- poreal property in conformity with the English de- cisions. (40 Ind. 593.) The statute of New York, and some other States, expressly adds the words "things in action" to the phrase "goods, wares and merchandises," and hence requires all contracts for the sale of choses in action and incorporeal property to be in writing.** ♦Boardman v. Cutter, 128 Mass. 388; Banta v. Chicago, 172 111. 204; Pray v. Mitchell, 60 Me. 430; bank bills, Gooch V. Holmes, 41 ^le. 523 ; notes of third persons, Baldwin v. Williams, 3 INIet. 367 ; Greenwood v. Law, SS N. J. L. 168— have been held to be within the statute. **Truax *. Slater, 86 N. Y. 630; Doty v. Smith, 62 Hun, 598. But a contract to sell shares of stock in a company not yet incorporated is not within the statute. Green v. Brookins, 23 Mich. 48 ; nor is a contract to dispose of an invention before letters patent had been obtained, Somerby v. Buntin, 118 Mass. 285 ; Blackeney v. Goode, 30 Ohjp St. 350, PERSONAL PROPERTY. 55 Sec. 1071. SAME SUBJECT.— FIXTURES, GROWING CROPS, ETC.— The next question is whether unsevered crops growing upon the land are within the 17th section when contracts are made for their sale. Here it is necessary to recall the 4th sec- tion of the statute of frauds, which provides that no action shall be brought upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning these things unless the agreement is in writing, h^nce a sale of growing crops, fixtures and the like come within the statute, but under which sec- tion of the statute do they come — an interest in real estate, so that the contract must always be in writing? or are they goods, etc., such that a sale is made valid by part payment, or acceptance and receipt? I. As to fixtures, or things artificially annexed to the freehold, if when these are sold it is contemplated that they are to be severed and carried away, it is a sale of personal property and not of real estate.* The same rule applies to buildings temporarily placed upon the land of another by his previous consent; these corttinue to be, as between the parties, the personal property of the builder, and if sold by him, fall under the 17th section of the statute and not under the 4th.** But if such fixtures are so attached to the land, a deed ♦Strong V. Doyle, no Mass. 92; Scales v. Wiley, 68 Vt. 39; Bostwick v. Leach, 3 Day 476. These cases hold that millstones, running gear, manure, a removable building, are all sales of personal property. **Dame v. Dame, 38 N. H. 429; Rogers v. Cox, 96 Ind. IS7; Long v. White, 42 Ohio St. 59; Morris v. French, 106 Mass. 326. 56 PERSONAL PROPERTY. of the land owner to a hona-Me grantee, ignorant of the separate ownership of the buildings, will convey them, and the builder will have to look to the grantor for redress.* 2. As to natural productions (frucHis naturales), such as grass, fruit, growing trees, and the like, the prevailing rule is, that if at the time of the contract the thing is to be immediately, or within a reasonable time severed from the soil and carried away, and is not to be left to mature, the sale is that of personal prop- erty, and not an interest in land, regardless as to who is to sever it from the soil.** But if the contract clear- ly contemplates that growing trees are to remain in the soil, either a fixed time, or indefinitely at the pleas- ure of the vendee, and derive future benefit therefrom, then the transaction involves an interest in land, and comes within the 4th section, and the sale must be in writing.*** 3. As to artificial or annual crops, (frustus in- dustriales), the law is well settled, that a sale thereof is a sale of personal property, regardless of their pres- ent development or the length of time they are to re- main in the soil to complete their growth. Contracts *Bank v. Machine Works, 127 Mass. 542; Landon v. Piatt, 34 Conn. 517. **Hirth V. Graham, 50 Ohio St. S7; Whitmars v. Walker, I Met. 313; Banton v. Shorey, 77 Me. 48; Piirner v. Piercy, 40 Md. 212, holding the rule to apply to standing trees, grass ready to be cut, fruit, nursery stock, and the like. ***Green v. Armstrong, i Denio, 550; Daniels v. Bailey, 43 Wis. 556; White v. Foster, 102 Mass. 375. PERSONAL PROPERtY. 57 for the sale of such crops fall within the 17th section and not the 4th.* Sec. 1072. CONSTRUCTION OF THE WORDS "PRICE OR VALUE OF TEN POUNDS OR UP- WARDS." — What is the proper construction of the words "of the price or value of ten pounds and up- wards"? In the statutes in the various States some- times the word price is employed and sometimes the word value. The word amount is also used in some statutes. The difficulty arises in determining as to the entirety of the contract. Thus, if a person buys sev- eral articles which in all aggregate more than the amount named in the statute as coming within its terms, but some of the articles not costing separately enough to bring them within the statute, the question arises, is the price to be applied to each thing consid- ered separate, or to the aggregate value? This ques- tion is to be determined by the facts if there is no dis- pute. In a case where the defendant bargained for several articles, and a separate price was agreed to for each lot or parcel, no one of them a^mounting to ten pounds ; some were measured in his presence, some he marked with a pencil, desiring the whole amount sent to his house, and when sent it amounted to 70 pounds, the court held that this was an entire contract and within the 17th section as to price.** *Bricker v. Hughes, 4 Ind. 146; Bull v. Griswold, 19 111. 631 ; Poley v. Johnson, 52 Kans. 478. **Baldey v. Parker, 2 B. & C. 37. In this case Abbott, C. J. said: "Looking at the whole transaction, I am of opinion 58 PERSONAL PROPERTY. Many American authorities hold that if a distinct contract is created as to each lot or parcel, and each is below the statutory price, it is not within the statute.* This would seem to follow from the doctrine that where several articles are sold for a separate price as to each, the fact that the sale of some of the articles is illegal, will not affect the sale of those articles which are legal. In England, and by some authorities in America, in auction sales a separate price and contract is held to arise in the purchase of each lot, and especially is this true if other sales to other parties intervened.** But in Jenness v. Wendell, (51 N. H. 63), it was held that the purchaser of furniture and stable stock at auction and upon the same terms, but in separate lots and separate bids, and at separate prices, had that the parties must be considered to have made one en- tire contract for the whole of the articles." Holroyd J. said : "This was all one transaction though composed of different parts. At first it appears to have been a contract for goods of less value than ten pounds, but in the course of the dealing it grew to a contract for a much larger amount. At last, therefore, it was one entire contract within the meaning and mischief of the Statute of Frauds, it being the intention of that statute that, where the contract, either at the commencement or the conclusion, amounted to or exceeded the value of ten pounds, it should not bind unless the requisites there men- tioned were complied with." ♦Goodwin V. Clark, 65 Me. 280; Walker v. Lovell, 28 N. H. 138; but a mere separate price for each, as 100 bushels of com at $1 a bushel, will not take the sale out of the statute, Gilman v. Hill, 36 N. H. 318; Allard v. Greasert, 61 N. Y. i. **Emmerson v. Heelis, 2 Taunt. 38 ; Wells v. Day, 124 Mass. 38; Stoddart v. Smith, 5 Binn. 355. PERSONAL PROPERTY. 59 made an entire contract at an aggregate price ex- ceeding the limit of the statute, so that a receipt and acceptance of one lot would take the whole out of the operation of the statute. The fact that it is uncertain at the time of the con- tract what the price will amount to, does not matter and if it finally does exceed the amount the statute applies.* So an oral sale of goods above the statute limit, with an agreement to do something else, the whole forming an entire contract, makes the whole invalid, while if the latter stipulation stood alone it might be valid.** The price in the English statute is ten pounds, in the States this amount varies, com- mencing with "any value" in Florida and Iowa, it rises in Arkansas, Maine, Missouri and New Jersey to $30 ; in New Hampshire to $33 ; in Vermont to $40, and in most States to $50; in Arizona to $100; in California and Idaho, $200 ; in Montana and Utah, $300, while in Rhode Island no such provision exists. Sec. 1073. EXCEPTIONS UNDER THE STAT- UTE OF FRAUDS.— There are three different excep- tions or methods pointed out by which the contract may be made good which would be otherwise invalidat- ed under the Statute of Frauds. These are: i. Ex- cept the buyer shall accept part of the goods so sold and actually receive the same. 2. Except the buyer shall give something in earnest to bind the bargain. *Bowman v. Conn, 8 Ind. 58; Watts v. Freind, 10 B. C. 446; Brown v. Sanborn, 21 Minn. 402. ♦♦Irvine v. Stone, 6 Cush. 508. 6o PERSONAL PROPERTY. or in part payment. 3. Except some note or mem- orandum in writing of the bargain be made and signed by the parties to be charged or their agents duly au- thorized. Sec. 1074. SAME SUBJECT— EXCEPT THE BUYER SHALL ACCEPT PART AND ACTUAL- LY RECEIVE SAME.— Under this head we note two things which must concur to take the contract out of the statute ; (a) Acceptance, and (b) an actual receipt of the portion of the goods. These two things do not mean the same thing, as there may be an actual receipt without acceptance ; or there may be an acceptance without actual receipt. Lord Blackburn held that so long as the buyer can, without self-contradiction, declare that the goods will not be taken in fulfilment of the contract he has not ac- cepted. The question so far as the Statute of Frauds is concerned, is not whether he ought to accept them, but whether he has accepted them. The question of ac- ceptance or not is a question as to what was the inten- tion of the buyer, as signified by his outward acts. It matters not whether the g-rounds for refusal be foolish or frivolous. He may take possession of the goods but that is not an actual receipt within the meaning of the statute, it is evidence, and evidence only of acceptance. The receipt by the buyer may be for the very purpose of ascertaining whether or not he will accept them. If a party orders goods of a particular description of a carrier, and they are delivered to him, it is necessary for him to receive the same in order to examine it, and PERSONAL PROPERTY. 6l it may be that he must try the goods by using them, but still it is in his power to say that he took them for the purpose of determining whether to accept or not. So receipt of goods by a carrier; where such receipt is sufficient delivery to the purchaser, is not acceptance by the purchaser so as to bind the con- tract. The carrier is agent to receive but not to ac- cept for the buyer.* Sec. 1075. SAME SUBJECT— WHAT CONSTI- TUTES AN ACCEPTANCE?— This question turns so generally upon the facts in each particular case that it is difficult to lay down any general rule. It may, however, be correctly stated: 1. When the facts and intentions of the parties are ascertained the court will say whether they constitute an acceptance ; that is, when the facts are undisputed, if disputed, it is a question for the jury.** 2. Something more than mere words are necessary to constitute acceptance. There must be some act of the parties amounting to a transfer of possession, and an actual receipt by the purchaser so that the seller no longer retains a lien for the price.*** 3. The acceptance of the goods must be in pur- suance of the contract of sale, and with the intention *Per Lord Blackburn in, Blackburn on Sale, 22, 23; Caulkins v. Hellman, 47 N. Y. 449. **Howard v. Borden, 13 Allen, 299; Pinkham v. Mattox, 53 N. H. 604; Garfield v. Paris, 96 U. S. 563; Schwartz v. Church Etc., 60 Minn. 183. ***Caulkins v. Hellman, 47 N. Y. 49 ; 47 Mich. 615 ; Young V. Blaisdell, 60 Me. 272; 129 Mass. 420; Hinchman v. Lincoln, 124 U. S- 40- 62 PERSONAL PROPERTY. of the parties that the purchaser take possession as the owner.* 4. The buyer and seller must both acquiesce in the acceptance. (Ice Co. v. Webster, 62 Me. 341.) 5. The taking of a sample or the delivery of a sam- ple of the goods may be an acceptance, but only when these samples are treated by both parties as part of the goods sold, and thereby diminishing by so much the quantity to be delivered afterwards.** 6. The acceptance of the goods, or part of them, as required by the statute, may be constructive only, and the question whether the facts proven amount to constructive acceptance is one for the jury. If a man deals with goods as owner, the jury may infer there- from a constructive acceptance, since acts of owner- ship are hostile to the rights of the vendor. So if the buyer marks them with his mark, or examines them and has them set away, such acts are facts to go to the jury.*** The general rule may be stated as follows: if the vendee does any wrongful act to the goods, if he is not the owner, or of right, if he is the owner, the do- ing of those acts is evidence of acceptance, — not the acceptance, but cvidoicc of acceptance.**** *Bowers v. Anderson, 49 Ga. 143; Marsh v. Hyde, 3 Gray 331. **Gilbert v. Lichtenberg, 98 Mich. 417; S7 Wis. 765; 96 U. S. 557. ***Gray v. Davis, 10 N. Y. 285; 38 Ind. 214; 123 Mass. 141 ; 43 Wis. 238. ****Clarkson v. Noble, 2 Up. Can. Q. B. 361; Jones v. PERSONAL PROPERTY. 63 7. Mere delivery is not sufficient; there must be acceptance and receipt by the purchaser.* 8. An acceptance by one of two or more joint pur- chasers will not be for the benefit of all, and therefore is not sufficient to take the case out of the statute.** 9. A dealing with the bill of lading by the buyer is as effectual in constituting acceptance as a dealing with the goods themselves. All the facts are evidence for the jury to determine whether there was a con- structive acceptance. (Meehan v. Sharp, 151 Mass. 564.) 10. The purpose of requiring mutual receipt and acceptance of the goods, or part of them, is to prove that there was a contract of sale. If the vendor can prove acceptance of the goods or part of them, he proves the sale or contract of sale. But though the contract may be thus proved, the terms of the con- tract inay be still in dispute.*** Bank, 29 Md. 287 ; thus a resale by the buyer is plenary proof of acceptance. Hill v. McDonald, 17 Wis. 97; Marshall v. Ferguson, 23 Cal. 65 ; Meehan v. Sharp, 151 Mass. 564. So a lease of an article to a third person is evidence of acceptance, 8s Hun, 537. ♦Schmidt V. Thomas, 75 Wis. 529 ; Furniture Co. v. Furni- ture Co., 10 Utah, 31. Of course the buyer's authorized agent may accept. Jones v. Bank, 29 Md. 287; Barkley v. Railway, 71 N. Y. 20S ; but a common carrier is not ordinarily an agent to accept for the buyer, though specially designated to carry. Agnew V. Dumas, 64 Vt. 147; Maxwell v. Brown, 39 Me. 98 ; Rindskoph v. De Ruyter, 39 Mich, i ; contra, Spencer v. Hale, 30 Vt. 314. **20 Mich. 410; 10 Mich. 319; contra, 22 N. J. L. 525. ***53 Me. 508; 37 Mich. 526; Foy v. Wheeler, 44 Vt. 292. 64 PERSONAL PROPERTY. II. The acceptance need not be simultaneous with the receipt; it may precede or follow it.* The bur- den of proving acceptance is on the party alleging it, and ordinarily this is the vendor.** Sec. 1076. SAME SUBJECT— WHAT CONSTI- TUTES AN ACTUAL -RECEIPT.— At the time of making the contract of sale between the vendor and vendee, the goods may be in the actual possession — • I. of the buyer as bailee or agent of the vendor; 2. of a third person, who may or may not be the agent of the vendor, and 3. in the possession of the vendor himself. This latter case being the most usual one. I. In the first case the purchaser has the posses- sion of the goods, and this being so it can be seen that there is some difficulty in determining when he is in actual receipt of them as the buyer under the pro- visions of the statute. But it seems to be well settled that the buyer though in possession may become pur- chaser by parol or oral agreement, and this takes place so far as actual receipt is concerned, when acts done by the buyer are inconsistent with the supposition that his former possession as agent has remained un- changed. If the buyer has possession before the sale and buys the property when does the actual receipt take place ? There are several ways in which this may appear ; he may attempt to sell the goods, or part of them, as his own, or he may do various other acts *Hewes v. Jordan, 39 Md. 484; Cross v. O'Donnell, 44 N. Y. 661 ; Austin v. Boyd, 23 Mo. App. 317. **Shepherd v. Pressey, 32 N. H. 49; Howard v. Borden, 13 Allen, 229. PERSONAL PROPERTY. 65 which show intention on his part to receive the goods as his own. Such questions generally arise when something has happened to the goods about the time »f the transfer, and each party is trying to shift the ownership upon the other. 2. When the goods are in the possession of a third person as agent or bailee, there is an actual receipt, when the vendor, purchaser and third person agree that the third person holds the goods not for the ven- dor, but holds them for the vendee, this constitutes actual receipt of the goods by the buyer within the meaning of the statute.* An order from the vendor to the bailee directing him to deliver the goods to, or hold them subject to the control of the buyer, is not sufficient, because it lacks the assent of the vendee. There must be evidence that the bailee has consented to hold them for the vendee and no longer for the vendor.** The last stated rule not being uniform in the vari- ous jurisdictions, it may be stated thus: (a) To con- stitute an acceptance and receipt under the Statute of Frauds there must be an assent on the part of the per- son in whose custody the goods are, to hold them for the vendee. All of the authorities agree that this will be sufficient.*** ♦Carter v. Willard, 19 Pick, i ; Barney v. Brown, 2 Vt. 374 ; Caulfield v. Van Brunt, 173 Pa. St. 428 ; King v. Jarman, 35 Ark. 190. **Safford v. McDonough, 120 Mass. 290; Marsh v. Rouse, 44 N. Y. 643 ; 54 Me. 105. ***9S Mass. 53; 16 M. & W. 119. 66 PERSONAL PROPERTY. (b) Some cases seem to hold that a notice of the transfer of the property given to the bailee is suffi- cient, without the bailee's acceptance.* And (c) some cases hold that a bill of lading being a symbol of ownership of the goods covered by it, its trans- mission is such a transfer of the possession of the property which it covers as to meet the requirements of the Statute of Frauds.** 3. Where the actual manual delivery is inconven- ient, impracticable or impossible because of the weight or size of the property, the law will not require actual delivery, but only require that the goods be placed in the power of the purchaser, or that his authority as owner be acknowledged by some formal act or declara- tion on the part of the seller. Thus where piles of pig iron at a furnace were delivered by being pointed out to the agent of the vendee, it was held to be all the delivery that could be made so far as the circumstances or the actual receipt was concerned; and likewise stacks of hay, trees cut and l}ing on the ground of vendor, logs lying loose in stream or in a boom, may all be transferred to satisfy the statute as to receipt without an actual manual delivery.*** But in all these cases there must be acts of such a character as to place the property in the power and ex- ♦Boardman v. Spooner, 13 Allen, 353 ; Bassett v. Camp, 54 Vt. 232. **6 M. & T. 194; 46 Wis. 191. ***28 Md. 396; IS Vt. 221; 10 Wis. 422; 65 U. S. 476; i Minn. 56; contra, Shindler v. Houston, i Corast. (N. Y.) 261. PERSONAL PROPERTY. 67 elusive dominion of the buyer as absolute owner, dis- charged of all liens for the price.* There may be a receipt of part of the goods to make the contract valid, and yet leave the question open as to whether there has been an actual receipt of the bulk. The question here discussed concerns the validity of the contract and not of its performance. It is well settled that the delivery of the goods or- dered to a common carrier, whether designated by the purchaser or not, for conveyance to the buyer, con- stitutes an actual receipt by the purchaser, but not an acceptance, within the meaning of the statute.** De- livery of unordered goods to a carrier will not consti- tute either delivery or acceptance by the person to whom addressed.*** There may be an actual receipt by the vendee though the goods remain with the vendor, as where the vendor agrees to hold the goods as agent or bailee for the vendee. It should appear that the parties clearly agreed to the changed character of the vendor's pos- session.**** Sec. 1077. SECOND EXCEPTION— EARNEST TO BIND THE BARGAIN, OR PART PAY- MENT. — The second exception to save an oral agree- ment from the operation of the Statute of Frauds is *Marsh v. Rouse, 44 N. Y. 643; 20 111. 639; Spear v. Bach, 82 Wis. 192. **Cross V. O'Donnell, 44 N. Y. 661; Fontaine v. Bush, 40 Minn. 141; 23 Md. 344. ***Grey v. Carey, 9 Daly. 363- ****Weld V. Came, 98 Mass. 152; I Taunt. 458; Means y. Williamson, 37 Me. 556; 23 Wis. 51. 68 PERSONAL PROPERTY. "or give something in earnest to bind the bargain, or in part payment." This alone has to do with the valid- ity of the contract. The giving of earnest has become obsolete, it being now regarded as the same thing as part payment. Earnest may be some gift or token or may be money. Among the Romans a ring was usu- ally given by the buyer to the seller. Earnest meant money or money's worth, and must have value, though the amount was quite immaterial. In Massachusetts earnest as used in the Statute of Frauds is regarded as part payment of the price.* So where the buyer drew a shilling across the vendor's hand and which the witness called "striking off the bargain according to the custom of the country" and then returned the coin to his own pocket, the court held that nothing had been- given in earest to bind the bargain.** So far as the payment of money is concerned, the part payment required by the Statute tO' bind a parole contract need not be made in money. Anything of value, which by mutual consent, is given the buyer and accepted by the seller instead of the price, will be equivalent to part payment.*** There must be payment, a promise to pay is not *Benj. Sales, Sec. 189; Donahue v. Parkman, 161 Mass. 413. **Blenkinsop v. Clayton, 7 Taunt. 597; Goodall v. Skelton, 2 H. BI. 316. ***Dow V, Worthen, 37 Vt. 108, where a chattel was given ; Combs V. Bateman, 10 Barb. 573, a third person's note. With reference to a third person's note it is held, that delivery of such note is absolute payment, while the delivery of a party"? own note does not operate in this way. PERSONAL PROPERTY. 69 sufficient.* But payment may be made by the dis- charge of a valid existing indebtedness. Where the agreement was that the debt of the seller to the pur- chaser should be applied as payment on the price of the goods purchased, but the application was not made, it was not sufficient payment to satisfy the statute.** There must be a discharge of the precedent debt in order to satisfy the statute. (55 111. 522; 38 N. J. L. 536.) It is not necessary that the part payment in money be made at the same time the contract is made, except in a few States. But the payment must be made be- fore action brought.*** Sec. 1078. THIRD EXCEPTION— NOTE OR MEMORANDUM IN WRITING.— The third ex- ception saving oral agreements is "or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorized." The object of the Statute as to this point, is to require the signature to a written note or memorandum of the bargain, — not to the bargain itself, but a note or mem- orandum of it. Now it is a rule of evidence that *Howe V. Hayward, 108 Mass. 54; Noakes v. Morey, 30 Ind. 103; Krohn v. Bantz, 68 Ind. 277. **Ely V. Ormsby, 12 Barb. 570; Teed v. Teed; 44 Barb. 96; 68 Ind. 277. ***Gault V. Brown, 48 N. H. 189; Davis v. Moore, 13 Me. 424; In New York, and perhaps some other States, the Statute requires the payment to be made at the time, or the original contract to be renewed at the time of payment. Hunter V, Wetsell, 57 N. Y. 37s ; Jackson v. Tupper, 30 Hun, 220, 70 PERSONAL PROPERTY. whenever a contract is put in writing, the writing must be produced as the best evidence of the contract. The writing contains within itself the bargain and it makes no difference whether the price was for more or less than ten pounds or $50, the rule of evidence re- quires the writing as the best and only evidence, if it be in existence. This existence of a note or memoran- dum, as required by the Statute of Frauds, presup- poses an antecedent contract by parol of which the writing is a memorandum.* The Statute of Frauds does not interfere with the rules of evidence, nor does it change the law, but simply provides that sales of goods above the value of ten pounds may be valid if the memorandum is made and signed as required.** Sec. 1079. SAME SUBJECT— WHAT MAY BE SFIOWN BY PAROL EMDEXCE.— It easily fol- lows from the theory that the note or memorandum presupposes an antecedent oral contract; — 1. That it may be shown by parol evidence that a writing that purports to be a note or memorandum of the bargain, is not a note or memorandum of any ante- cedent parol contract at all. But there is some question as to how far parol evidence is admissible in such cases.*** 2. Parol evidence is admissible for the purpose of *Benj. Sales, Sec. 201-4; 97 Mass. 41; jz Me. 186. **Sievewriglit v. Archibald, 17 Q. B. 104; Ford v. Yates, 2 M. & G. 549; Lockett v. Nicklin, 2 Ex. 93. ***Pym V. Campbell, 6 E. & B. 370; Jcrvis v. Berridge, 8 Ch. App. 360; 78 Pa. St. 469; 51 Wis. 303; 92 Mass. 104; 40 Mich. 84. PERSONAL PROPERTY. 71 showing that the written paper is not a note or mem- orandum of an antecedent parol agreement, but only a part of it. (Benj. Sales, Sec. 209.) 3. So far as the party who sets up the writing as valid for the purpose of binding the other party, is concerned, he cannot supplement the writing by oral evidence of terms or stipulations not contained in it, since this is an admission that the writing is only a part of the bargain.* 4. Whatever is necessarily impHed from the con- tract, although not expressed, the law will supply. 5. The note or memorandum may be contained in two different writings, and it is competent to show by parol evidence that the two writings constitute one contract, or that they refer to the same matter.** 6. When an agreement to do something is not ex- pressed on the face of the agreement signed, but is included in some other writing, oral evidence may be introduced to show what that writing is, so that the two taken together may constitute a contract within the Statute of Frauds. It is also said that when the bargain is to be made out of separate written papers, oral evidence is not allowed to connect them, but they must be either physically attached together to show that they constitute but one instrument, or must be *BoydeIl v. Drummond, 11 East, 142; 13 M. & W. 743; 66 Ind. 474; 43 la. 146; 7° Me. 202; 92 U. S. 412; 3° Vt. 616. **Ridgeway v. Wharton, 6 H. L. C. 238 ; 2 Col. 639 ; 9 la. 344; 19 Up. Can. C. P. 416; contra, Hinde v. Whitehouse, 7 East, 558- 72 PERSONAL PROPERTY. connected by reference in the contents of one to the contents in another* 7. Oral evidence is admissible for the purpose of identifying the subject matter to which the writing re- fers. As to explain what was meant by the expression "Your wool." (McDonald v. Longbottom, 28 L. J. Q. B. 293.) To aid in determining whether this note or mem- orandum is satisfactory, the facts and circumstances that were before the parties at the time of negotiating may be shown. Thus it may be shown that samples were before the parties, and if the writing identified the articles oral evidence is not necessary and would not be admitted. But the authorities are not in har- mony on this point. If the contract is within the Statute of Frauds, it is asserted that it cannot be varied by any subsequent agreement of the parties, unless such new agreement is also in writing. While the general rule with refer- ence to contracts generally, is that they may be waived, modified or annulled by subsequent agree- ments, although the agreement is by parol. But con- tracts within the Statute of Frauds cannot be thus changed.** *Peirce v. Corf, L. R. 9 Q. B. 210; Rishton v. Whatmore, 8 Ch. D. 467; 24 Pa. St. 35 ; 14 N. Y. 584; 52 111. 40S; 5o Ind. 145. **Moore v. Campbell, 10 Ex. 323 ; Marshall v. Lynn, 6 M. & W. 116; 76 U. S. 254; 25 Me. 450; 124 Mass. 19; 28 O. St. joo; 45 Wis. 36; 28 Pa. St. 426; 44 Md. 396; 48 N, Y. 84. PERSONAL PROPERTY. 73 Sec. 1080. WHAT IS A NOTE OR MEMORAN- DUM IN WRITING.— As to the time when the mem- orandum or note is to be made, it may be premised that it must be made and signed before the action is brought. That is, there must be a good contract then in existence, it could not be aided afterwards. It is then a matter of evidence not of contract But it ap- pears that the whole of the terms of the contract need not be agreed to at one time ; nor be written down at one time, nor on one piece of paper. Where the mem- orandum of the bargain is contained in several pieces of paper, these form the memorandum required, pro- vided the contents of the paper signed makes such reference to the other papers, as to make the whole constitute the bargain. It is an open question as to how far you may introduce oral evidence to show that they constitute one bargain. The authorities now say that it is not necessary that the signed papers shall refer to the unsigned papers, if it appears from the instrument that some document is referred to, the doc- ument may be identified by parol evidence. So if the papers seem to identify themselves you may show that they were one whole. When such a note or mem- orandum is on separate pieces of paper, these papers must be consistent and not contradictory.* It is held that the note or memorandum need not be addressed to or passed between the parties, but may *Bird V. Munroe, 66 Me. 347; Argus Co. v. Mayor of Albany, 55 N. Y. 49S; Lerned v. Wannemacher, 9 Allen, 412; 23 Mo. App. 301; 136 U. S. 83; 22 Ohio St. 62; 38 Neb. 512; 14 N. Y. 584; S3 Me. 20. 74 PERSONAL PROPERTY. be addressed to a third person. Thus if A and B make a bargain, and B writes to a friend stating the terms of the contract it is a sufficient memorandum.* Sec. 1081. SAME SUBJECT— WHAT IS A SUFFICIENT MEMORANDUM.— The paper hav- ing been put in evidence before the jury to constitute a memorandum, the question is whether the contents of the writing or writings so proven constitute a suffi- cient note of the bargain. The memorandum must show who the parties are, the person to be charged, and the person in whose favor the charge is asserted. The statute expressly requires that the name of the party to be charged must be signed. It is held that the party who signs, the other not signing, cannot bring an action, but that the one' not signing can sue.** The general rule is that the memorandum required by the statute must contain all the essential terras of the contract expressed with such a degree of certainty as to render it unnecessary to resort to oral evidence to determine the intention of the parties thereto.*** It is held that a memorandum need not go into de- *Moore v. Mountcastle, 61 Mo. 424; Peabody v. Speyers, 56 N. Y. 230. **Grafton v. Cummings, 99 U. S. 100; Anderson v. Harold, ID Ohio, 399; but abbreviations, if intelligible and complete, are held sufficient, Foot v. Webb, 59 Barb. 38; 14 How. 446; 82 111. 311; 72 Me. 186. ***Stone V. Browning, 68 N. Y. 598; Nichols v. Johnson, 10 Conn. 198; 78 III. 607; 44 Ind. i. This perhaps does not require that the consideration be expressed in all the States, unless the statutes expressly require it. Rigby v. Norwood, 34 Ala. 129; Stimson's Am. Statute Law, Sec. 4142. PERSONAL PROPERTY. 75 tails of all the particulars of the contract, but that it is sufficient if it contains the substance. Where credit is given the terms must be stated if agreed on, and if the time of performance is settled it should be stated in the memorandum.* A mere notification by telegram of the acceptance of a previous provisional contract of purchase, will not be a sufficient memorandum to take the case out of the statute. (35 Mich. 434; 32 Mich. 274.) That is, although the telegram accepting the contract which had been entered into by parol would be sufficient to make a contract generally except for the Statute of Frauds, it is not sufficient to make a contract valid and take it out of the Statute. (20 Mich. 353.) If there is no actual agreement as to price, the note or memorandum is sufficient if silent upon that point.** It is not for the reason that the law implies into the bargain the promise to pay a reasonable price. But where the price is fixed by mutual consent it should form part of the memorandum, and the jury would be instructed that it was necessary, otherwise if no price had been fixed.*** *43 Me. 158 ; 54 Mass. 388 ; 20 Pa. St. 380 ; 27 Vt, 167 ; 61 Mich. 505. In the last case the memorandum of sale was, A bought of B for C three hundred cases of B. M. corn at $1.25 cash, less one-half per cent." This was held sufficient if the alleged agent was authorized to act for the party. The contract was signed by one party and the action was brought against him. **Ide V. Stanton, 15 Vt. 685 ; Phelps v. Stillings, 60 N. H. 505- ***Hanson v. Marsh, 40 Minn. 3 ; James v. Muir, 33 Mich. 224; contra, Armsby Co. v. Eckerly, 42 Mo. App. 306. 76 PERSONAL PROPERTY. As to the signing, the statute requires the writing to be signed by the party to be charged. The signature would seem to be the signature of the party against whom the contract is to be enforced; that is, it is good or not at the election of the party who has not signed.* But it is sometimes held that there can be no bargain unless it is binding upon both parties.** The question arises, what is a signature? It means the name of the party in his own handwriting? But the signature need not be the actual name, if the party makes a mark or signs his initials it is sufficient.*** So signing a fictitious name or character will be suffi- cient.**** In general the location of the signature is not im- portant, thus the signed name might appear at the top, bottom or in the middle of the instrument and yet be valid;***** except that in some jurisdictions where the statute uses the word "subscribed" instead of signed, and this word is given such emphasis of con- ♦Justice V. Lang, 42 N. Y. 493; Williams v. Robinson, 73 Me. 186; Lober v. Connit, 36 Wis. 176; Cunningham v. Wil- liams, 43 ; Mo. App. 631 ; 68 Ind. 275. ♦♦Wilkinson v. Heavenrich, 58 Mich. 574. ♦**Sanborn v. Flagler, 9 Allen 474 ; Bickley v. Keenan, 60 Ala. 293. ****Augtir V. Couture, 68 Me. 427; Brown v. Butchers Bank, 6 Hill, 443. The signature may be in pencil or by stamp. Merritt v. Clason, 12 Johns. 102; Brayley v. Kelley, 25 Minn. 160. *****Hawkins v. Chace, 19 Pick. 502; Drury v. Young, 58 Md 546; 165 Mass. 331. Personal ?ROPERtY. -jy Struction that it requires the signature to be at the end of the note.* As to signing by agent, the statute provides th^t the note may be signed by the agent duly authorized. Un- der this it has been held that the agent must be a third person, not the other contracting party.** And that the broker's signed entry in his book constitutes the contract between the parties, and is binding on both.*** There are some decisions in regard to broker's bought and sold notes which we will consider briefly. By a bought note is meant, a written note or mem- orandum of a sale, delivered by the broker who ef- fects the sale to the vendee. While the sold note is the one given by the broker to the seller stating that the goods therein described have been sold by him. These bought and sold notes do not constitute a con- tract, but when they state all the terms of the con- tract they are complete and sufiScient evidence to satis- fy the Statute of Frauds, even though there be no entry in the broker's book, or if the entry in the book be unsigned. Either the bought or sold note alone will *Davis V. Shields, 26 Wend. 341 ; James v. Pateen, 6 N. Y. 9; contra, 117 Cal. 447. **Sharman v. Brandt, L. R. 6 Q. B. 720; Wilson v. Lewis- ton Mill Co. 150 N. Y. 314. ***Butler V. Thompson, 92 U. S. 412; Newberry v. Wall, 84 N. Y. 576. Auctioneers have also implied authority to act for the parties in making the entry and signing, at the time of the sale. (Horton v. McCarty, 53 Me. 394; McBrayer v. Cohen, 92 Ky. 479; Batchelder v. Libbey, 66 N. H. 175; and so has his clerk in his presence and that of the parties. Harvey v. Stevens, 43 Vt. 653 ; Price v. Durin, 56 Barb. 647. 78 PERSONAL PROPERTY. satisfy the statute provided no variance is shown be- tween it and the other note, or between it and the signed entry in the book. If one note is offered in evidence the defendant has the right to offer the other, or the signed entry in the book to defeat the paper as a memorandum of the contract. A variance may ex- ist between the bought and sold notes irrespective of the signed entry in the book of the broker. There is a variance if the bought and sold notes agree but the signed entry differs; in such case the entry will gen- erally control, but if the bought and sold notes cor- respond, and they collectively differ from the entry in the book, it is a question of fact for the jury whether the bought and sold notes constitute evidence of a new contract modifying that which was entered in the book, or whether it is the same contract. Where there is no signed entry in the broker's book, or other writing controlling the terms of the contract, and there is a variance between the bought and sold notes, there is no valid memorandum of the contract. Where a sale is made by a broker on credit, and the name of the creditor has not been previously com- municated to the vendor, evidence of usage is admissi- ble to show that the vendor is not finally bound to the bargain until he has a reasonable time after receiving the sold note to inquire into the responsibility of the buyer, and to withdraw the sale in case he does not approve of it. If the wording of the two notes differ, evidence of mercantile usage is admissible to show the meaning to be the same.* ♦Butters v. Glass, 31 Up. Can. Q. B. 379; Canterberry v. Miller, ;6 111. 355; Bacon v. Eccles, 43 Wis. 241; Reraick v. Sandford, 118 Mass. 107. PERSONAL PROPERTY. 79 CHAPTER V. EFFECT OF THE CONTRACT IN PASSING PROPERTY. Sec. 1082. MEANING OF THIS CHAPTER, WITH DIVISION OF SUBJECT.— Assuming a valid contract of sale to have been formed, the ques- tion arises, What is the efifect of the contract in pass- ing title to the property? That is, when is the bargain to be considered an actual sale, and when a mere ex- ecutory agreement, or promise to sell? The distinction between the two contracts has al- ready been pointed out, and consists in this, that, in the bargain and sale, or actual sale, the thing sold be- comes the property of the buyer the moment the con- tract is concluded, and this is so whether the goods be delivered to the buyer or remain in the custody of the vendor ; while in the executory agreement, the thing sold remains the property of the vendor until the con- tract is executed, that is, carried out as agreed.* This subject becomes important where the goods are lost or destroyed just after the contract, and the question is, who bears the loss? In the first case the buyer loses, and in the second the loss falls upon the vendor as he is still the owner of the goods, the buyer having no right to their possession at common law, but sim- *Benj. Sales, Sec. 308; Heilbutt v. Hickson, L. R. 7 C. P. 438. 8b PERSONAL PROPERTY. ply an action for damages if the agreement to sell is not performed. Both the actual contract of sale, and- the executory agreement are equally valid, so that when disputes arise touching the true nature of the contract, it is obviously a question of fact rather than of law. The contract is what the parties intended to make it. If the intention is clearly expressed in writing, there is not much question, otherwise the surrounding cir- cumstances have considerable to do in arriving at the intention of the parties. In doubtful cases the courts have established rules of construction which operate to determine the class into which the contract shall fall. Thus, if the specific goods to which the bargain is to attach are not agreed on, it is apparent that the parties only contemplate an executory agreement; as where the bargain is to sell ten sheep out of a flock of fifty, and the sheep are not identified or selected at the time, but are to be so selected in the future, it is evident that the ownership of the ten sheep has not changed hands, and would not so long as something remained to be done to identify the particular sheep sold.* While, on the contrary, if the goods bargained for are specific, as if there be but ten sheep in the flock and all are sold, and they are ready for delivery, the con- tract is an actual sale and passes a present title to the sheep. But in this case something may remain to be done to specified goods by the vendor to put them in a *Heilbutt V. Hickson, L. R. 7 C. P. 438; Stephens v. Santee, 49 N. Y. 35 ; Clayton v. Seabold, 35 Mich. 168. PERSONAL PROPERTY. 8i deliverable state, or ascertain the price, and then, as a rule, the contract is only executory until these things have been done. It is the intention of the parties that is to control, and all rules yield to their intention when specific, but when the intention has to be de- termined by construction the rules apply.* The cases and rules of construction evolved may be considered under the five heads:— 1. Where the sale is of a specific chattel uncondi- tionally. 2. Where the chattels are specific but are sold con- ditionally. 3. Where the chattels are not specific. 4. Where there is a subsequent appropriation of specific chattels to an executory agreement. 5. Where the jus disponendi is reserved. Sec. 1083. WHERE THE SALE IS OF A SPECIFIC CHATTEL UNCONDITIONALLY.— Where a bargain is made for the purchase of goods and nothing is said about payment or delivery, the, property passes immediately. Thus if you go into a store and buy a hat, and bargain for it at $5.00, it is your hat as soon as the bargain is made, but you can- not take it away until payment is made. That is, every sale is for cash, unless otherwise specified, and the vendor has the right to hold the goods until payment ♦Bethel Steam Mill Co. v. Brown, 57 Me. 18; Riddle v. Varnum, 20 Pick. 283 ; Chapman v. Shepard, 39 Conn. 413 ; Dyer v. Libbey, 61 Me. 45 ; Wigton v. Bowley, 130 Mass. 254; Kent Iron Co. v. Norbeck, 150 Pa. St. 559; Hatch v. Oil Co. 100 U. S. 131 ; Russell v. Abbott, 91 Ga. -178. 82 PERSONAL PROPERTY. is made. It will be observed that if the property is specific, delivery is not regarded as essential to pass title. (This is aside from any considerations as to the Statute of Frauds, we are assuming the contract to be otherwise valid.) The very appropriation of the chat- tel is equivalent to delivery by the vendor, and the appropriation is made by the selection and the assent of the vendee to take the specific article and pay the price, this being equivalent to possession so far as the passing of the title is concerned.* Sec. 1084. 2. CHATTELS SPECIFIC, BUT SALE CONDITIONAL.— Where the chattels or things bargained for are specific but are sold condi- tionally, or where something remains to be done upon *The common law rules are laid down in Sheperd's Touchstone, (p. 224) as follows : "If one sell me his horse or any other thing for money or other valuable consideration, and, First, the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money, or, Secondly, all ; or. Thirdly, part of the money is paid in hand ; or. Fourthly, I give earnest money, albeit it be but a penny, to the seller; or Lastly, I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment — in all these cases there is a good bargain and sale of the thing to alter the property thereof. In the first case, I may have an action for the thing, and the seller for his money; in the second case, I may sue for and recover the thing bought; in the third, I may sue for the thing bought, and the seller for the residue of the money; in the fourth case, where earnest is given, we may have reciprocal remedies, one agamst another ; and in the last case, the seller may sue for his money." See Noy's Maxims, pp. 87-89; 53 Mich. 444; Dixon v. Yates, 5 B. & Ad. 313, 340; Simmons v. Swift, S B. & C. 862; Martin- dale V. Smith, I Q. B. 389; Seath v. Moore, 11 App. Cas. 370. PERSONAL PROPERTY. 83 the property before delivery, Lord Blackburn enun- ciates two rules, as follows : — First. — Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state into which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circumstances indicating a contrary intention, be taken to be a condition precedent to the vesting of the property. Secondly. — Where anything remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the prop- erty, although the individual goods be ascertained, and they are in the state in which they ought to be ac- cepted.* To these rules has been added a third one, as fol- lows : "Where the buyer is by the contract bound to do anything as a condition, either precedent or con- ■ current, on which the passing of the property depends, the property will not pass until the condition be ful- filled, even though the goods may have been actually delivered into the possession of the buyer."** *Blackburn on Sale, pp. 151-2. **Benj. Sales, Sec. 320, and cases cited; Logan v. Mc- Mesurier, 6. Moo. P. C. 116; Castle v. Playford, L. R. 5 Ex. 165; Foster v. Ropes, in Mass. 10; Groff v. Belche, 62 Mo. 400; Jennings v. West, 40 Kan. 373; Prescott v. Locke, 51 84 PERSONAL PROPERTY. The property in the goods may pass although some- thing remains to be done by the vendor after delivery to the vendee. So where the custom of trade allows the goods to lie at the wharf for a time, and the vendor is held to pay the rent for that time, yet the title might pass immediately to the vendee.* So also, where the vendor was to pay warehouse rent for two months, and while the goods were lying there they were seized by the warehouseman for rent due ; and this is likewise the case where a watch, clock, or other article is to be kept in repair for a certain time after delivery by the vendor.** There has been doubt expressed whether the general rule could be made to extend to the cases where some- thing remained to be done to the goods, not by the seller but by the buyer. The effect does not seem to be the same in obstructing the passing of title.*** In some cases it is held that if an act remains to be done, it must be an act to be performed by the seller and not the buyer, or title passes.**** But this limita- tion is generally repudiated. N. H. 94; Blackwood v. Cutting Packing Co. 76 Cal. 212; Smith V. Sparkman, 55 Miss. 649; Elgee Cotton Cases, 22 Wall. 180; Davis v. Hill, 3. N. H. 382; Hamilton v. Gordon, 22 Oreg. 557. ♦Hammond v. Anderson, i B. & P. N. R. 69; Greaves v. Hepke, 2 B. & Aid. 131; Mt. Hope Iron Co. v. Buffington, 103 Mass. 62; Underbill v. Boom Co. 40 Mich. 660. ♦*I02 Mass. 443; 28 Vt. 153; 57 Me. 9; Olyphant v. Baker, 5 Denio, 379. ***S4 la. 512; 71 N. Y. 291. ♦***30 Mass. 183 ; 6 B & C. 360. PERSONAL PROPERTY. 85 As to the third rule, given in addition to Lord Blackburn's rules, that title does not pass if there is any unperformed condition precedent, or concurrent, it was held in Brandt v. Bowlby, (2 B. & Ad. 932), where iron was delivered under a contract which stip- ulated that certain bills of plaintiff then outstanding were to be taken out of circulation, there was a partial delivery of the iron, and the defendant failed to com- ply with the condition as to the bills of plaintiff, plain- tiff stopped delivery and brought an action in trover for what he had delivered. The jury found that the delivery of the iron and the redelivery of the bills was to be at the same time, and that the delivery of the iron was a conditional delivery so that trover could be maintained. So it has been held that if a tradesman sold goods to be paid for on delivery and a servant delivered them without payment he may bring trover against the purchaser and retake the goods. So a refusal to accept bills for the price, where this was agreed, was a condition concurrent which prevented the property in the cargo ordered from passing to the buyer.* Where goods are sent out on an order, with the un- derstanding that they are to be approved before buy- ing, the title does not pass out of the vendor. (Cush- man v. Holyoke, 34 Me. 289.) Payment by Installments. Contracts of sale are now frequently made where the agreement is that the title ♦Shepherd v. Harrison, L. R. 4 Q. B. 196; Barrow v. Coles, 3 Camp. 92 ; Bishop v. Shillito, 2 B. & Aid. 329. 86 PERSONAL PROPERTY. shall remain in the vendor until payment is made. In America the prevailing rule is, that, in the sale or man- ufacture of things to be paid for in installments, or as the work of manufacture progresses, the title does not pass as fast as the installments are paid, but only when they are all fully paid, unless the facts and circum- stances show that a different intention existed. Such contracts are now made with reference to pianos, sew- ing machines and a variety of articles sold on the in- stallment plan. These are considered executory con- tracts of sale, and no title passes to the vendee until the full price is paid. Many courts holding that the partial payments made by the vendee are forfeited by breach of the contract, or default in paying the whole amount. This has been remedied by statute in some States, which require the vendor to repay at least half of the money received from the purchaser before retak- ing the property sold.* And some courts allow tlie seller, if he insists upon taking advantage of default after receiving partial pay- ment, to retain only so much as will compensate him. The compensation probably being a fair rental value of the article for the time it was in the control of the buyer.** Where the seller permits the buyer to keep the property, and takes payment from him after de- *Rev. Stat. Ohio, Sec. 4152; Clarkson v. Stevens, 106 U. S. 505; Elliot V. Edwards, 35 N. J. L. 265; Lang's Appeal, 81 Pa. St. 18; 8s in. 331; 3S Kans. 492; 67 Me. 428; 128 Mass. 470 ; Sage v. Sleutz, 23 O. St. i ; 25 Kans. 492 ; 128 Mass. 470. **Johnston v. Whittemore, 27 Mich. 470; Ketchum v. Brennan, 53 Miss. 596; Hays v. Jordan, 85 Ga. 750. PERSONAL PROPERTY. 87 fault, the buyer is enabled to become the owner by making a tender of the remainder due.'^ ♦French v. Row, Tj Hun, 380; Hutchings v. Munger, 41 N. Y. 15s; Cunningham v. Hedge, 12 App. Div. (N. Y.) 212, and the right continues until demand for payment by the vendor and refusal by the vendee. But a note given for par- tial payments could not afterwards be collected by the payee if he had retaken the property for failure of some subsequent payment; the consideration of the note fails. Hine v. Roberts, 48 Conn. 267; Bank v. Armstrong, 25 Minn. 530; Loomis v. Bragg, 50 Conn. 228. The vendor may retake the property in case of default, or sue upon the notes to recover the con- tract price; he cannot do both. Aultman v. Fletcher, no Ala. 452. So if he has received part payment and filed claim for the balance against the buyer's estate, he has made his election and cannot retake the goods. Holt Mfg. Co. v. Ewing, 109 Cal. 353. And see the valuable article on this subject as to prepayment of price in the Notes to Benj. Sales, (Bennett's 7th ed.) pp. 298 to 312, where the law in the various States is thus summarized : First. All agree that in simple bailments, or leases with a right to buy on paying a stated price, the bailee or lessee does not acquire by the delivery any power to transfer a title to hona fide purchasers or attaching creditors before payment of the price. Citing, Ballard v. Burgett, 40 N. Y. 314; Cham- berlain V. Smith, 44 Pa, St. 431 ; 63 Ind. 325; Wentworth v. Wood Machine Co., 163 Mass. 32. The vast majority apply the same rules to actual sales and delivery when the title is expressly reserved in the vendor until payment of the price. Third. Most hold that, in case of attempted sales by such conditional purchasers, the vendor, if not paid according to the terms of the contract, may then bring trover against the sub-vendee, without any prior demand or notice of the con- dition, or of its non-performance. Fourth. In such action the vendor may recover the full value of the property without any deduction for partial pay- ments by the first vendee made before the second sale. Fifth. All agree that such conditional sales are valid be- 88 PERSONAL PROPERTY. Sec. 1085. WHERE THE CHATTELS ARE NOT SPECIFIC— Where the contract is for the sale of a thing or chattel not specific, the contract is an ex- ecutory agreement and the title in the thing does not pass.* This class of cases may be arranged under two heads : First. Where something remains to be done by the vendor, as, for example, to manufacture the article. Second. Where the bargain is for a certain quantity out of a larger quantity. In this case the power of appropriation generally remains with the vendor, and he can deliver as he sees fit, provided he conforms to the terms of the contract as to time, quality, etc.** I. As to manufactured articles there is some dis- pute as to when the title passes. It being held in some cases, that completion of the article and notice to the vendee is sufficient to pass title. Others seem to hold that the article must be finished and delivered, or ready for delivery, and approved by the purchaser ; in other words, accepted by the purchaser.*** So where there is a general sale of goods already on tween the parties, and that the vendor may retake the property from his vendee on non-performance of the condition. ♦Wallace v. Breeds, 13 East, 522; White v. Wilks, S Taunt. 176, which was a sale of 20 tons of oil out of the vendor's stock in his cisterns ; Gillett v. Hill, 2 Cr. & M. 530; Bank v. Crowley, 24 Mich. 492; Fordice v. Gibson, 129 Ind. 7- **GiIlett v. Hill, 2 Cr. & M. 530; Gabarron v. Kreeft, L. R. 10 Ex. 274. ***Higgins V. Murray, 4 Hun, 565; Goddard v. Binney, IIS Mass. 450. PERSONAL PROPERTY. 89 hand in stock, or to be procured by the vendor, the mere acceptance of an order, and charging the goods on his books by a merchant, will not pass title in any particular goods to the buyer until they have been set apart, marked, or in some way appropriated and desig- nated as for the buyer. And this is true though the order covers the whole quantity on hand by the vendor.* 2. Where the bargain is to sell a portion of a larger quantity of the same kind, as to sell ten tons out of a hundred, five gallons out of fifty, "100 bushels out of that bin," when the bin contains a thousand bushels, the authorities are in conflict as to whether or not some separation, designation or identification is necessary in order to pass the property in any portion of the whole. The weight of authority seems to be with the EngUsh rule that there must be a specific identification of the goods sold in order to pass the title in such cases.** *Ormsbee v. Machir, 20 Ohio St. 295 ; Winslow v. Leonard, 24 Pa. St. 14; Banchor v. Warren, 33 N. H. 183; Lewis v. Lofley, 60 Ga. 559- **Brewer v. Smith, 3 Greenl. 44; Young v. Austin, 6 Pick. 280; Woods V. McGee, 7 Ohio, 467; Scudder v. Worsted, 11 Cush. 573; McLaughlin v. Piatti, 27 Cal. 463; Bailey v. Smith, 43 N. H. 141; Keeler v. Goodwin, 11 1 Mass. 490; Bank v. Gillette, 90 Ind. 268; Huntington v. Chisholm, 61 Ga. 270. And see the valuable note on this subject in Benj. Sales, (7th ed.) pp. 321-328, with the following conclusions: I. In the sale of a portion of the larger mass, the whole remaining in the possession of the vendor, with a right and power in him to make a separation, both upon principle and the weight of authority, no title passes until that is done, so as to enable the vendor to recover the price, even for goods go PERSONAL PROPERTY. In this country there is an important exception to this general rule, which is applied in the case of prod- ucts stored in an elevator, and which are known as "elevator cases." Where the grain belonging to vari- ous individuals is stored as a mass in "one bin, the own- ers become tenants in common of the grain, by estab- lished usage, to which each is deemed to have assented, and own respective portions of the whole, but no one of them owns any particular grain. Grain thus stored is sold by the usage of trade, by giving the vendee an order on the warehouseman, and the vendee may then take a receipt for the amount purchased and leave it "bargained and sold." Approved in New England Co. v. Standard Worsted Co. 165 Mass. 328. 2. Nor to enable the vendee to maintain trespass, trover or replevin against the vendor, or any one virrongfully taking away the goods from the vendor's possession. ,•*. If the vendee has paid the price, and the vendor refuses to separate or set apart the portion sold, the vendee may re- cover back the amount paid; if not paid, damages for non- fulhllment 4. In case the whole mass is delivered to the vendee, with a right and power in him to make the separation, the title sufficiently passes to render him liable for the price, or enable him to sue anyone for the wrongful conversion of the goods, even before he has separated them. 5. A constructive delivery may be sufficient for this pur- pose, as where a bailee of the goods agrees to hold them on the order of the vendor, for the benefit of the vendee. Cases holding to the contrary of the general rule, are : Crofoot V. Bennett, 2 N. Y. 258; Damon v. Osborn, l Pick. 476; Carpenter v. Graham, 42 Mich. 191; Lamprey v. Sargent, 58 N. H. 241; Sanger v. Waterbury, 116 N. Y. 371, in this case the bags sold had marks on them which served to dis- tinguish them from the mass. PERSONAL PROPERTY. 91 still in the warehouse, and thereby become the owner of so much of the grain. This is not like the sale of property where specific articles are to be selected from a larger mass. The transaction is upon paper, and there is no necessity of weighing, measuring or sep- arating the part sold. The usages of trade have made the possession of the warehouse receipt for the grain equivalent to possession of the property. The trans- fer of these receipts transfers the property. It is not merely a contract of sale, or executory agreement, but an actual sale.* It is said that much the same result is produced by the transfer of a bill of lading. Sec. 1086. SUBSEQUENT APPROPRIATION OF SPECIFIC CHATTELS TO AN EXECUTORY AGREEMENT. — There being no appropriation of the articles sold to the buyer at the time of sale, no title passes, but this executory contract may be converted into a completed sale by specifying the goods to which the contract shall attach, or by the appropriation of specific goods to the contract. The sole element want- ing to complete the contract is thus supplied. And while the contract has thus been made in two suc- cessive stages, yet it is one contract, to wit, a bargain and sale of goods. The selection of the goods by one party, and the adoption of that act by the other, con- verts that which before was a mere agreement to sell into an actual sale, and the property thereby passes.** *Cushing V. Breed, 14 Allen, 380; Morrison v. Woodley, 84 111. 192; 48 Mich. 118; Inglebright v. Hammond, 19 Ohio, 337. These cases are controlled by statutes in some States. **Rhode V. Thwaites, 6 B. & C. 388. 92 PERSONAL PROPERTY. The only difficulty is where the vendor only has made a subsequent appropriation. There is no diffi- culty if the vendee is, by express or implied contract, entitled to make the selection. If the vendor is to se- lect the articles, the question arises as to when the title passes. That is, when has the vendor so far appropri- ated the goods, as to be no longer at liberty to change his intention? His act in simply selecting such goods as he intends to send the buyer is not enough, since he might lay them aside in his warehouse, and then change his mind, or sell them to another, as they do not yet belong to the first purchaser. It is a question of law whether the selection is a mere wish, or a de- termination and expression of his intention which he cannot revoke.* The rule of election with its complement, as laid down by Lord Blackburn, is as follows : When from the nature of the agreement, an election or selection is to be made, the party who is by that agreement to do the first act, has authority to make the choice, in order that he may be able to do that first act, and when he has once done that act, the election has then been irrevocably determined, but till then he may change his mind. Thus A sells to B, one tliou- sand bricks, out of a larger quantity ; B is to send his cart and get them. In this case B is to do the first act, and may make the choice. After the bricks are in the cart he cannot change his mind. While if A were ♦Benj. Sales, Sec. 358. PERSONAL PROPERTY. 93 to load them into B's cart, A's election would be when that was done and not before.* As a complement to the foregoing rule, when the vendor has to dispatch the goods or do anything with them, until the goods are appropriated he has a right to change his mind, or choose as he may see fit, and the property passes the moment the dispatch or other act has commenced. Preparation for performing the act is not sufficient, it must be actually commenced.** It has long been settled law that, where a vendor delivers goods to a carrier by order of the purchaser, the appropriation is determined ; the delivery to the carrier is a delivery to the vendee, and the property vests in the vendee at once.*** The vendor cannot make the selection otherwise than in conformity with the terms of the contract. He can- not send a larger quantity and pass title to even the quantity ordered, nor can he send, a larger quantity and leave the selection to the purchaser. The pur- chaser would not be liable for the price unless he ac- cepted in such a case.**** ♦Blackburn on Sale, 128; Heyward's Case, 2 Co. 36. **Blackburn on Sale, 128; Aldridge v. Johnson, 7 E. & B. 885. ***Dutton V. Solomanson, 3 B. & P. 582; Pacific Iron Works V. Railroad Co., 62 N. Y. 272; Krulder v. Ellison, 47 N. Y. 36; Odell V. Railroad Co., 109 Mass. 50; Swanke v. McCarty, 81 Wis. 109; Carriage Co. v. Lusk, 11 Tex. App. 493; Falvey v. Richmond, 87 Ga. 99. ****Barton v. Kane, 17 Wis. 38 ; Downs v. Marsh, 29 Conn. 409; Larkin v. Lumber Co., 42 Mich. 296; 62 N. Y. 151; Rom- mel V. Wingate, 103 Mass. 327. So if the goods are materially different from those ordered, no title passes, 98 Mass. 517. 94 PERSONAL PROPERTY. Sec. 10S7. WHERE THE jus disponendi IS RESERVED. — There may be cases where, although the vendor has unquestionably appropriated the goods, yet he has reserved expressly, or by implication, the ownership. In such cases the rules of construction heretofore considered give place to the actual and ap- parent intention of the seller. The rules so far con- sidered as to the passing of title are rules of construc- tion, and are only important when the contract is doubtful in its intention, and such rules cannot be ap- plied where the parties do acts repelling the presump- tions on which the rules are founded. So, however complete may be the appropriation by the vendor, the property will not pass, if by other acts he shows a clear intention to retain the ownership of the goods appro- priated. Such questions generally arise where the parties live apart, and the vendor is desirous of securing himself against the vendee's failure to pay the purchase price, through insolvency or otherwise. Thus if A in New \'ork, orders goods of B in Liverpool, there are two methods by which B may fill the order without assum- ing the risk of A's not paying for the goods on arrival in New York. These are: — 1. B may make a bill of lading payable to his own order, or to his agent if he has one in New York, the goods to be paid for before delivery of the bill to A. This act shows that though he appropriated the goods according to the order, yet he did not intend to part with the title. 2. Or B may make a draft on A for the price of the PERSONAL PROPERTY. 95 goods with a bill of lading attached, and transfer these to a bank in New York with instructions to be deliv- ered to A on his paying the amount of the draft, that is, the price of the goods. This method of sale also repels the idea that B intended to transfer the title in the goods sent until payment.* The rules which seem to have been established in this regard are : — 1. Goods delivered by a vendor to a carrier for de- livery to the buyer in pursuance of an order of the buyer, are considered as delivered to the buyer ; the carrier becoming the agent of the vendee, and delivery to an agent is delivery to the principal.**" 2. Goods delivered on board a vessel to be carried, and a bill of lading taken, is not considered as a de- livery to the buyer, but constitutes a delivery to the captain as bailee for the person indicated in the bill of lading.*** 3. If the bill of lading is taken in the name of the vendor, this is decisive to show that his intention not to pass title to the vendee, but to retain the jus disponendi of the goods. This inference that the vendor retains *Benj. Sales, Sec. 382; Van Casteel v. Booker, 2 Ex. 691; Jenkyns v. Brown, 14 Q. B. 496; Walley v. Montgomery, 3 East, s8s; Emery v. Bank, 25 Ohio St. 360; Bank v. Logan, 74 N. Y. 568; Bank v. Bangs, 102 Mass. 291; iii Mass. 163; Bergman v. R. R. Co., 104 Mo. 77; Berger v. State, 50 Ark. 20 **L. R. 7 H. L. 269 ; Wait v. Baker, 2 Ex. I ; Stafford v. Walter, 67 111. 83. ***Wait V. Baker, 2 Ex. i; L. R. 4 G B. 196; 19 C. B. N. S. 290. 96 PERSONAL PROPERTY. the right of disposal may be rebutted b)' proof that in so doing he acted as agent for the vendee and did not intend to retain control of the property.* 4. As a general rule the delivery of goods by the vendor on board the purchaser's own ship is a delivery to the purchaser, and passes the property. Yet the vendor may, by special terms, restrict the delivery and retain the title.** 5. If a bill of exchange for the price of the goods is enclosed to the buyer for acceptance, together with the bill of lading, without the intervention of bank or intermediate agent, the buyer cannot retain the bill of lading without accepting the bill of exchange also.*** 6. A bill of lading addressed to the buyer and mak- ing the goods deliverable to buyer's order, vests the title unconditionally in the buyer, though the seller may have intended the transfer to have been conditional on the acceptance of the bill of exchange. (Benj. Sales, Sec. 399.) 7. The bill of lading having been reserved only to secure the price, the property vests in the buyer upon payment or tender of the contract price. (Mirabita v. Bank, 3 Ex. Div. 164.) 8. Generally when goods are shipped C. O. D., the buyer to pay the freight, the reservation on the part of ♦Wilmhurst v. Bowker, M. & G. 792 ; 2 Ex. 691 ; 14 Q. B. 496 ; Browne v. Hare, 4 H. & N. 822. **Turner v. Dock Trustees, 6 Ex. 543; L. R. 10 Ex. 274. ***Shepherd v. Harrison, L. R. 4 Q. B. 196; Ogg v. Shuter, I C. P. Div. 47. PERSONAL PROPERTY. 97 the seller is of the possession to secure the payment, rather than the title; and the title is held to pass at the time and place of sale, so that the loss in transit would fall upon the buyer. But the buyer has no right to the goods until he does pay the price, and could not maintain replevin against the carrier for refusal to de- liver without payment.* Other cases hold that the sale is executory until the price is paid to the carrier, and the title does not vest until that time.** ♦Commonwealth v. Fleming, 130 Pa. St. 138; Higgins v. Murray, 73 N. Y. 252 ; Pilgreen v. State, 71 Ala. 368 ; Lane v. Qiadwick, 146 Mass. 68. **State V. O'Neil, 58 Vt. 140; People v. Shriver, 31 Albany L. J. 163. 98 PERSONAL PROPERTY. CHAPTER VI. CONDITIONS IN S.\LES. Sec. 1088. GENERAL PRINCIPLES AND DEFINITIONS. — The rules of law governing condi- tions in contracts are said to be subtle and perplexing. In setting up a special count on a contract of sale the pleader has to determine whether a promise made or an obligation assumed by a party to the contract is de- pendent on, or independent of, the promise made by the other ; whether it be a condition to be performed before or concurrently with the demand on the other party for compliance with his promise ; or whether it may be neglected without affecting the right to sue the other party, and only allow him a cross-action for the failure to perform it. All these and many more questions arise under this subject.* The subject of representations, warranty, condi- tions and fraud in contracts are closely connected and often interwoven and the discussion of one fre- quently involves the others. A representation is defined as "a statement or asser- tion made by one party to the other, before or at the time of the contract, of some matter or circumstance relating to it."** It is not an integral part of the con- tract, though included in the written instrument; it may be untrue and the contract remain unbroken, and, *Benj. Sales, Sec. 560, **Benj, 3ales, Sec. 561, PERSONAL PROPERTY. 99 unless made fraudulently its untruth would not give rise to a cause of action. To constitute an untrue rep- resentation a fraud, it must appear that it was made with a knowledge of its untruth, or in reckless disre- gard or ignorance whether it was true or false.* When the representation is in writing, and the ques- tion arises whether or not it is part of the contract, the matter is one of law and not of fact, the court and not the jury decides the question. If it is determined that the representation is a substantial part of the con- tract, then a more difficult question arises, is it a con- dition precedent? or is it an independent agreement? a breach of which will not justify a repudiation of the contract, but only a counterclaim for damages.** The rule laid down by Lord Mansfield to determine whether a representation or statement is a condition or not is as follows : "the dependence or independence of ♦Elliott V. Von Glehn, 13 Q. B. 632; Weir v. Bell, 3 Ex. D. 238. **Glaholm V. Hays, 2 M. & G. 257; Clipsham v. Vertue, S Q. B. 26s; 47 N. Y. 62; 54 N. Y. 167. Thus a statement that a vessel will sail or be ready to receive cargo on a cer- tain day is held to be a condition, vi^hile a stipulation that the vessel will sail with all convenient speed, or within a reasons- able time, is held to be an independent agreement. In the New York cases, the seller in one case was excused from damages for non-delivery of part of 607 bales of cotton by its accidental destruction during delivery, it being unpaid for, while in the other case he was held liable for a failure to de- liver all of a purchase of logs which had been paid for, though the failure was caused by a sudden freshet over which the seller had no control. So failure to make "prompt shipment" by reason of being blocked by ice, was held no excuse in 105 N, Y. 404. 100 PERSONAL PROPERTY. covenants is to be collected from the evident sense and meaning of the parties, and that, however transposed they might be in the deed, their precedency must de- pend on the order of time in which the intent of the transaction requires their performance."* And the rules for discovering the intention are stated to be mainly these: 1. Where a day is appointed for doing any act, and the day is to happer or may happen before the prom- ise by the other party is to be performed, the latter may bring an action before performance, which is not a condition precedent; otherwise, if the day fixed is to happen after the performance, for then the perform- ance is deemed to be a condition precedent. 2. When a covenant or promise goes only to part of the consideration, and a breach of it may be paid for in damages, it is an independent covenant, not a condition. 3. Where the mutual promises go to the whole consideration on both sides, they are mutual condi- tions precedent, formerly called dependent conditions. 4. Where each party is to do an act at the same time as the other, as where goods in a sale for cash are to be delivered by the vendor, and the price to be paid by the buyer, — these are concurrent conditions, and neither party can maintain an action for breach of con- tract without averring that he performed or offered to perform what he himself was bound to do. *Jones V. Barkley, 2 Doug. 684-691 ; Bettini v. Gye, i Q. B. D. 187. PERSONAL PROPERTY. loi 5. Where from a censideration of the whole in- strument it is clear that the one party relied upon his remedy, and not upon the performance of the condi- tion by the other, such performance is not a condi- tion precedent. But if the intention was to rely on the performance of the promise, and not on the rem- edy, the performance is a condition precedent.* The application of these rules of construction must have reference to the circumstances surrounding the making of the contract and its evident purpose. Thus a description of a vessel in a charter party as a "French vessel," might be a mere description in times of peace between the nations of the contracting parties, and a vital condition precedent in times of war.** So a condition precedent which would excuse one party from performing his promise until the other party had complied with it, may, by the acceptance of a substantial part performance of the other's prom- ise, be turned into a warranty or independent -agree- ment, such that its breach would only constitute a counter-claim for damages in an action by the one performing (Ellen v. Topp, 6 Ex. 424). As a general rule, whatever the condition may be, if it is ascertained to be a condition precedent, it must be performed before the contract will take effect, and to maintain an action it must be averred that it was per- *Benj. Sales, Sec. 562; Graves v. Legg, 9 Ex. 709; Pou- sard V. Spiers, i Q. B. D. 410; Cutter v. Powell, 2 Sm. L. C. I ; Roberts v. Brett, 18 C. B. 561 ; Tipton v. Feitner, 20 N. Y. 423 ; Gill V. Wheeler, 52 Md. 8. **Behn V. Burness, 3 B. & S. 751. 102 PERSONAL PROPERTY. formed, or oflfered to be performed. But the necessity of performing such a condition may be waived by the other party, either expressly or by implication from his acts and conduct inconsistent with the expectation of its performance, as where its performance is obstructed or hindered by the other party, or such party has in advance refused to carry out his promise, or made it impossible to perform his part.* But the mere asser- tion that the other party will be unable or refuse to carry out his promise is not sufficient ; it must be a dis- tinct, unequivocal and absolute refusal to perform the promise, and be so treated by the party who relies upon it to excuse the going forward with the condi- tion precedent.** Sec. 1089. SAME SUBJECT— IMPOSSIBIL- ITY OF PERFORMANCE.— It is no excuse for the non-performance of a condition that it is impossible for the obligor to fulfill it, if the performance be in its nature possible; while absolute and inherent im- possibility of performance, in its true sense, is always an excuse. Disability is a very different thing from impossibility; if a thing is possible in itself to be done, that is, possible in the nature of things to be done, a positive contract to do it is binding, though some un- *Hotham v. East India Co., i T. R. 645, in which Ashurst J. said, "that if the performance of a condition precedent had been rendered impossible by the neglect or default of the defendant, it is equal to performance." **Cutter V. Powell, 2 Smith's L, C. i ; Smoot v, United States, 15 Wall. 36, 48, PERSONAL PROPERTY. 103 forseen contingency, accident or calamity may prevent its performance by the promisor.* Sec. 1090. SAME SUBJECT— SALES DE- PENDENT UPON ACTS OF OTHERS, OR SOME CONTINGENT EVENT.— Where the act of a third person is made a condition precedent to the sale, or to the liability for payment, it must be per- formed, or some excuse given for non-performance. Thus if the condition be that the article shall accom- plish a certain result in the opinion of some third per- *Dexter v. Norton, 47 N. Y. 62; Thomas v. Knowles, 128 Mass. 22; McMillan v. Fox, 90 Wis. 173; Jones v. The Unit- ed States, 96 U. S. 24; 60 N. Y. 487; Summers v. Hibbard, 153 111. 102; Taylor v. Caldwell, 3 B. & S. 826; Co. Litt. 206a. The cases hold that the destruction of vendor's mill, where goods are to be made, though making it impossible to per- form the bargain, is not an excuse, otherwise if the contract had been to produce the goods in the vendor's own mill. But if a thing be physically impossible, or be rendered impossible by the act of God, the performance of that thing will be ex- cused, as where the contract is to sell a horse to be delivered on a fixed day, and in the interval the horse dies, the death of the specified horse excuses the performance. Shep. Touch. i73> 382; Rugg. V. Minett, 11 East 210; Dexter v. Norton, 47 N. Y. 62. In Rugg v. Minett, supra, the rule was laid down thus : "the principle seems to be that, in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse the performance." Robinson v. Davidson, L. R. 6 Ex. 269, excusing a lady from playing a piano at a concert because she was too ill to perform her contract; Lorillard v. Clyde, 142 N. Y. 56; Caden v. Farwell, 98 Mass. 137, holding that death of the promisee in contract to per- form personal service excuses perfgrmapce. Harrison v. Cqu-- lap, 10 Allen, 86. 104 PERSONAL PROPERTY. son, his decision, in the absence of fraud, is final. So the architect's certificate in building contracts, and the affidavit of a justice of the peace or notary in insur- ance contracts, are enforced strictly in law when made a part of the contract.* Where the condition upon which the sale depends is the happening of some future event, the question arises as to the duty of the promisee to give notice that the event has happened. The rule is, that if the hap- pening of the event is equally open to the knowledge of both parties, it is not necessary to give notice ; both are bound to take notice. While if the event or con- tingency is peculiarly within the knowledge or infor- mation of the plaintiff, he must give notice before the liability of the defendant becomes fixed. Thus where the sale of a commodity was upon the condition that the vendee would pay as much as the seller could get from any one else, and the vendee could not know without notice how much to pay, it was held that the vendor could not bring an action until he had given such notice.** Sec. lOQi. SAME SUBJECT— SALES TO AR- RIVE. — A very common contract of sale is the sale of goods "to arrive" or "on arrival." Such a sale is conditional or executory in character. No title passes, *Robbins v. Clark, 129 Mass. 145; Nofsinger v. Ring, 71 Mo. 149; Kirtland v. Moore, 40 N. J. Eq. 106; Johnson v. Phoenix Ins. Co. 112 Mass. 49; Smith v. Briggs, 3 Denio, 73. **6 M. & W. 154; Watson v. Walker, 23 N. H. 491; Tas- ker V. Bartlett, S Cush. 364. If the notice is stipulated to be given, this must be done at all events. PERSONAL PROPERTY. 105 as a rule, and no obligation arises on either side, unless the goods arrive.* So the result of the decisions seems to be that goods sold on arrival of a certain ship, or to arrive by a certain ship, the two expressions meaning the same thing, implies the conditions that the ship shall arrive, and the goods sold shall be on board at arrival. The goods which do arrive must be of the kind and quality stipulated for, or the sale is not completed ; so if the months in which shipment is to be made is stipulated, or the routes of shipment, these must be complied with, but where goods were to arrive "by the Christopher" and arrived by the St. Christopher, the buyer was not excused from receiving them.** The sale of a "cargo" to arrive by a certain ship, means the sale of all that the vessel is capable of car- rying, and the buyer is thereby entitled to all she car- ries, and is not bound to accept less.*** In sales of goods to arrive it is a common condition that the vendor shall give notice of the name of the ship on which the goods are expected, as soon as it becomes known to him. And a strict compliance with this stipulation is held a condition precedent to his right to enforce the contract.**** ♦Shields v. Pettie, 2 Sandf. 262; 4 N. Y. 122; Rogers v. Woodruff, 23 Ohio St. 632 ; Clark v. Fye, 121 N. Y. 470. **Smith V. Pettee, 70 N. Y. 13; Hill v. Blake, 97 N. Y. 215 ; Neldon v. Smith, 36 N. J. L. 154. ***Barrowman v. Drayton, 2 Ex. Div. 15; Pembroke v. Parsons, S Gray, 589; Sugar Refinery v. Castano, 43 Fed. Rep. 279. ****4 Camp. 329; II Ex. 642. io6 PERSONAL PROPERTY. Sec. 1092. SAME SUBJECT— CONCURRENT OR MUTUAL CONDITIONS.— In a sale the obli- gation of the vendor to deliver, and that of the buyer to pay are concurrent conditions in the nature of mu- tual conditions precedent, so that neither can enforce the contract without showing performance, or offer to perform, on his part. The first step must be taken by the vendor who delivers, or offers to deliver, but he is not bound to deliver if the vendee is not ready to pay. If no place of delivery is stipulated the articles are, if portable, deliverable at the place of sale, and the seller is not in default until the buyer has come and demanded them.* It is a g^eneral rule, established by the weight of au- thority, that a failure to deliver the first installment of goods according to an entire contract deliverable in in- stallments, unexcused, or unwaived, by the buyer, is a breach of the whole contract and operates to release the buyer from accepting any other installment.** It is not always easy to determine whether time in such contracts is a condition precedent or not. The courts seek to discover what the parties really intended, and if it appears on a fair interpretation of the language and *Jones V. Marsh, 22 Vt. 144 ; Simmons v. Green, 35 O. St. 104; Hanson v. Slaven, 98 Cal. 377; Leslie v. Casey, 59 N. J. L. 6; Lobdell v. Hopkins, 5 Cow. 516; Phelps v. Hubbard, 51 Vt. 489. If the seller agrees to deliver on a stated day, he should seek the buyer and offer delivery. Hapgood v. Shaw, 105 Mass. 276. **Norrington v. Wright, 115 U. S. 188; Catlin v. Tobias, 26 N. Y. 217; Lehigh Zinc Co. v. Trotter, 42 N. J. Eq. 678; contra, 65 la. 390; 66 Pa. St. 35. PERSONAL PROPERTY. 107 circumstances that time is of the essence of the con- tract, stipulations in regard to it will be conditions precedent.* But it does not follow that a failure to pay for one installment, when delivered in accordance with the contract, releases the vendor from delivery of the bal- ance, since prompt payment is not necessarily so im- portant or material to the contract as prompt delivery. So if the refusal to pay for the installment was the result of a misunderstanding, or no time of payment had been stipulated, and is not a clear justification of the inference that he repudiates the entire contract, the vendor is not released from further delivery.** Sec. 1093. SAME SUBJECT— SALES BY SAM- PLE, ON TRIAL, ETC.— If goods are sold by sam- ple it is always an implied condition that the buyer shall have a fair opportunity to compare the bulk with the sample. An improper refusal by the vendor to al- low this is a breach of the contract, which justifies the vendee in rejecting the articles, although in fact, they may conform to the sample, (i B. & C. i.) In sales on trial or delivery with a right to buy if one likes, the buyer has a reasonable time for trial, if ♦Brown v. Guarantee & Trust Co. 128 U. S. 403; Pope V. Porter, 102 N. Y. 366 ; Jones v, U. S., 96 U. S. 24 ; Wood- ward V. Barton, 113 Mass. 81; contra, Davis v. Emery, 61 Me. 140. ** Mersey Steel Co. v. Naylor, 9 App. Cas. (Eng.) 434; Winchester v. Newton, 2 Allen, 492; Shinn v. Bodine, 60 Pa. St. 182; Palmer v. Breen, 34 Minn. 39; Stephenson v. Cady, 117 Mass. 6; McGrath v. Gegner, ^^ Md. 331. I08 PERSONAL PROPERTY. no time has been set; and the risk is in the vendor until such time has elapsed. The question of reason- able time is for the jury to determine." So if the trial agreed upon involves the consump- tion or destruction of what is tried, the jury must de- termine whether the quantity consumed was more than necessary for the trial, for in such case the sale would become absolute by an implied acceptance. (50 Ala. 329; 117 Mass. 321; 3 ]\I. & W. 170.) The contract of "sale or return" diflfers from a sale on trial, as in the sale or return the title passes at once to the buyer, subject to an obligation of the vendor to rebuy within the time stipulated, or w ithin a reasonable time if none has been stated. If the right to return is not exercised, and the property is retained, the sales become absolute. If the buyer resold or pledged the goods it would be inconsistent with the intention to return the goods.** Where the condition is that the sale shall be satis- factory, as where made to answer some special order, this condition is valid, and if the buyer does not find *Hunt V. Wjinan, 100 Mass. 198; Lyons v. Stills, 97 Tenn. 514; Hall Machine Co. v. Brown, 82 Tex. 469; Kahn V. Klabune, 50 ^\■is. 235 ; Turner v. ]SIachine Co., 97 Mich. 174. There may be an express or implied acceptance, but if the time for trial is specified, the failure to return the goods with- in the time makes it a sale. So it may be necessary to give the vendor notice of the trial. Gibson v. Vail, 53 Vt. 476; Aiken v. Hyde, 99 Mass. 183. **McKinney v. Bradley, 117 Mass. 321; Gay v. Dare, 103 Cal. 454 ; Jones v. Wright, 71 111. 61 ; Kirkham v. Allen- borough, I Q. B. 201 ; 88 la. 607 ; 53 Kans. 743. PERSONAL PROPERTY. 109 the article satisfactory he need not accept, regardless whether the article in fact conforms to the order and ought to be satisfactory.* It is held that if one sells an article by a particular description, it is a condition precedent to his right of action, that the thing which he delivers or offers to deliver should conform to the description.** But the American cases usually treat particular words of de- scription as constituting an implied warranty.*** The English rule is exemplified in the sale of stock, notes, bills of exchange and the like, where not by collateral warranty, but by the principal contract it- self, it becomes a condition precedent that the vendor must deliver genuine paper, and not false or counterfeit paper.**** *Brown v. Foster, 113 Mass. 136; Gibson v. Cranage, 39 Mich. 49; Gray v. R. R. Co., 11 Hun. 70; Machine Co. v. Chesrown, 33 Minn. 32; Piatt v. Broderick, 70 Mich. 580. These cases hold the rule applicable to a sale of a "suit of clothes," a "portrait," a "steamboat," a "harvester," and the like. **Chanter v. Hopkins, 4 M. & W. 399; Nichol v. Godts, 10 Ex. 191 ; Allan v. Lake, 18 Q. B. 560. ***Peckham v. Davis, 93 Ala. 474 ; Gardner v. Lane, 9 Al- len, 492. ****Jones V. Ryde, 5 Taunt. 488; Mitchell v. Newhall, 15 M. & W. 487 ; Lamond v. Davall, 9 Q. B. 1030. no PERSONAL PROPERTY. CHAPTER VII. WARRANTY IN SALES OF PERSONAL PROPERTY. Sec. 1094. WARRANTY DEFINED AND EX- PLAINED. — A warranty is a collateral undertaking forming part of the contract, by agreement of the par- ties, express or implied. It is said to be a collateral undertaking because it forms no essential part of the contract of sale. The sale is no less complete in the absence of warranty; nor do antecedent representa- tions form any part of the bargain. A warranty given after the sale is completed is not supported by the consideration of the sale, and is void unless there is some new consideration. It has also been held, that, though the goods have been delivered, if the price has not been paid, the warranty given at the time of fixing the price will form part of the contract.* So if the vendee refuses to receive the goods on account of the vendor's refusal to fulfil some obliga- tion incumbent upon him to give a warranty, and it is then given, though the contract was approved before it, the warranty attaches to the contract and is valid.** *Hillman v. Wilcox, 30 Me. 570; Larey v. Taliaferro, 57 Ga. 443; 100 Mass. 432. See this subject in No. 4 Home Law School Series, under Contracts. **I4 Wis. 258; 62 Ga. 238; 68 Wis. 428. Thus where third persons before purchasing from the original buyer, called upon the seller and asked him if a warranty would follow the goods when they came into their possession, and PERSONAL PROPERTY. itl It is sometimes difficult to determine whether a state- ment is merely an expression of opinion, or whether it is a warranty. It must be a statement of fact, and must express or imply a promise to make good such representations as to the merchandise sold as were re- lied upon by the buyer, if it is to constitute a warranty. It is not necessary in an express warranty to prove any fraud, in an action for the breach, though alleged in the declaration.* Sec. 1095. WHAT CONSTITUTES AN EX- PRESS WARRANTY.— The character of the lan- guage used and the character of the property sold, as well as the intention of the parties finally reached, must all be considered in determining what is a war- ranty. In cases where the alleged warranty was in writing it has been left to the jury to say whether the intention of the parties was that the representations should constitute a warranty or not. In other cases the court determines whether the contract contains an express warranty or not. The well settled proposi- tions as to what constitutes an express warranty are stated to be: — his affirmation that it would, was held to be upon a suffi- cient consideration, and a warranty would be supported by it. In Ohio, the court draws the following distinction between warranty and guaranty : A warranty is an absolute undertak- ing in praesenti, as well as in future. While a guaranty is a collateral warranty, sometimes conditional, against some de- fault or event in the future. 11 Ohio St. 153. *S6 Mich. 447; Dillman v. Nadelhofifer, 119 111. 567; Gart- ner V. Corwine, 57 Ohio St. 246; Shippen v. Bowen, 122 U. S. 575. Contra, 32 Mich. 254; 14 Mich. 108. ii2 PERSONAL PROPERTY. 1. Neither the word "warrant" nor any other par- ticular word or form of words is necessary. 2. Mere words of praise and commendation, or which merely express the vendor's opinion, belief, judgment, or estimate, do not constitute a warranty. 3. Any positive affirmation of a material fact as a fact, intended by the vendor as and for a warranty, and relied upon as such, is sufficient; and some hold the actual intent to warrant unnecessary. 4. Whether a particular assertion is an affirmation of a positive fact, or only praise and commendation, opinion or judgment, is a question for the jury, where the meaning is ambiguous, and the intention of the parties may be gathered from surrounding circum- stances.* Where the vendor knows the use to which goods are to be put, and warrants them perfect, the warranty is qualified by the use inte/ided.** It is said that the in- *Ben]". Sales, (7th ed.) p. 664; Horton v. Green, 66 N. C. 596; Shippen v. Bowen, 122 U. S. 575; Kirchner v. Conrad, 9 Mont. 191; Stevens v. Bradley, 89 la. 174; Figge v. Hill, 61 la. 430; Kenner v. Harding, 85 111. 268; Barnes v. Burns, 81 Wis. 231. In 5 M. & R. 124, the seller after saying that the horse sold was sound to the best of his knowledge, was asked to warrant it, and replied, "I never warrant, I wouldn't warrant myself," it appeared that the horse was unsound and he knew it, and it was held that this was a qualified war- ranty that the horse was sound to the best of his knowledge. So a warranty that a horse is all right except that he would sometimes shy, is broken by partial blindness in the horse so warranted. 49 Conn. 462 ; 8 Neb. 218. **4i Wis. 630; 117 Mass. 523; 28 Conn. 328; 48 Wis. 229. So a warrant is usually limited to the expression used. PERSONAL PROPERTY. 113 terpretation of a written warranty is for the court and of an oral one for the jury. As to oral warranties, if the bargain is formally in writing, and makes no mention of a warranty, no oral warranty made at the same time or previously can be added to it or offered in evidence.* Otherwise if the writing is informal, as a mere "bill of parcels" or a receipt, and the like.** A general warranty is said not to apply to patent and obvious defects, which are apparent on a simple inspection, and do not require skill to discover ; yet the warranty may be so expressed as to protect the buyer from the consequences of apparent defects in the thing sold.*** A warranty against unsoundness in horses, does not cover a temporary and curable injury existing at the sale, and such an injury is not a breach of the war- ranty unless the horse is unfitted for service in conse- quence, or the value is affected.**** Cribbing is held Wason V. Rowe, 16 Vt. 525; 69 Ala. in; Gentilli v. Starace, 133 N. Y. 140. *DeWitt V. Berry, 134 U. S. 312; Zimmerman Mfg. Co. V. Dolph, 104 Mich. 281 ; ■ Johnson v. Truesdale, 46 Minn. 347. **Atwater v. Clancy, 107 Mass. 369; Hersom v. Hen- derson, 21 N. H. 224; Hazard v. Loring, 10 Cush. 267. ***Hill V. North, 34 Vt. 604; Leavitt v. Fletcher, 60 N. H. 182; Williams v. Ingram, 21 Tex. 300; Reed v. Hast- ings, 61 111. 266; Shewalter v. Ford, 34 Miss. 417; Birdseye V. Frost, 34 Barb. 367. The rule seeming to be that if an ob- vious defect is warranted against, it may be enforced against the seller. Fitzgerald v. Evans, 49 Minn, 541 ; Calaway v. Jones, 19 Ga. 2"}^. ****Roberts v. Jenkins, 21 N. H. 116; Kornegay v. White, 10 Ala. 255; Thompson v. Bertrand, 23 Ark. 731. 114 PERSONAL PROPERTY. to be an unsoundness, while lameness may or may not be according as to whether it is permanent or not.* Warranties usually are understood to apply to the state of things existing at the time of sale only, but if the language is sufficiently clear and explicit it may enlarge the warranty to cover future infirmities and defects.** Authorized agents may warrant the thing sold and bind the owner, but neither auctioneers, brokers, nor a special selling agent have power to warrant without express authority, or any usage or custom to that ef- fect.*** And some cases hold that a general selling agent has no authority to warrant without express authority or a custom and usage to that effect.**** Sec. 1096. IMPLIED WARRANTIES.— Implied warranties are created by law, or spring from facts ex- isting at the time of the sale, and from what the par- *Walker v. Hoisington, 43 Vt. 608; Alexander v. Dutton, 58 N. H. 282; Brown v. Bigelow, 10 Allen 242. **Bowman v. Clemmer, 50 Ind. 10; Miller v. McDonald, 13 Wis. 673; Fatman v. Thompson, 2 Disney, 482. In the last case the vendor of a slave warranted that he should be a slave for life in 1861, and the vendor was held liable for breach of this warranty, when in 1863 the slave was liberated by the Emancipation Proclamation. So articles may be war- ranted to last and be free from defects for a period of years, but such stipulations covering a term of years must be in writing under the statute of frauds. ***BIood V. French, g Gray, 198; Dodd v. Farlow, 11 Allen, 426 ; Cooley V. Perrine, 41 N. J. L. 322 ; 42 N. J. L. 623 ; Ahern v. Goodspeed, 72 N. Y. 108. ♦***Upton V. Suffolk Mills, 11 Gush. 586; contra, Murray v. Brooks, 41 la. 45; Talmage v. Bierhause, 103 Ind. 270. PERSONAL PROPERTY. 115 ties did, rather than from what was said ; they are si- lent contracts implied from the transaction. Ordi- narily where there is an express warranty of one thing, as of one quality, there is no implied warranty of some other quality.* Sec. 1097. IMPLIED WARRANTY OF TITLE. — The rules established to determine when there is an implied warranty of title are mainly these: 1. In executory contracts of sale, the vendor, by implication, warrants his title to the goods he prom- ises to sell. The reason for this is, that if A promises to sell a hundred bushels of wheat to B, the contract would not be fulfilled by a transfer of the mere pos- session of another man's wheat. So A, by promising to sell, impliedly warrants that he has the right to sell. No express assertion of ownership is necessary, as the sale itself is an assertion of ownership.** 2. In the sale of an ascertained, speciiic chattel, affirmation by the vendor that the chattel is his, is a warranty, and this affirmation may be implied from his conduct as well as from his words. Thus if the seller is in possession of the chattel, selling in his own right as absolute owner, there is an implied warranty of ownership.*** *The maxim is, expressio unius est exclusio alterius. International Pavement Co. v. Smith, 17 Mo. App. 264; Plow Works V. Niles Co., 90 Wis. 590; Deming v. Foster, 4a N. H. 175. **Benj. Sales, Sec. 627. ***Darst V. Brockway, 11 Ohio, 462; Shattuck v. Green, 104 Mass, 43; Jeffers v. Easton, 113 Cal. 34s; Morris v. Thompson, 85 111. 16; Hunt v. Sackett, 31 Mich. 18. By ii6 PERSONAL PROPERTY. 3. In the absence of such impHcation, and where no express warranty is given, the vendor, by the mere sale of a chattel, does not warrant his title.* But, if, in such a case, the vendor knew he had no title, and concealed that fact from the buyer, he would be liable on the ground of fraud. It is claimed in some text-books that the vendor does not by the mere act of sale assert that he has title, and it is so held in some of the leading cases. But the weight of authority seems to be in favor of the rule that warranty of title arises from the mere act of sale. That is, that the sale of a personal chattel implies an affirmation by the vendor that the chattel is his, and that he warrants the title, unless the facts and circum- stances show a contrary intention, as that he intended only to transfer the interest he had in the thing sold. (Eichholz V. Bannister, supra.) In America, it is the general rule that where goods "possession," is meant constructive possession by a bailee, or agent as well as actual possession. Harper v. Dotson, 43 la. 232; 49 N. H. 310. So a warranty of title means, a free and perfect title, and would be broken if the chattel was sub- ject to mortgage, pledge, incumbrance or lien. Hodges v. Wilkinson, iii N. C. 56. ♦Gould V. Bourgeois, 51 N. J. L. 373; Krumbhar v. Birch, 88 Pa. St. 426; 2 Bl. Com. 451; Morley v. Attenbor- ough, 3 Ex. 500; but see, Eicholz v. Banister, 17 C. B. N. S. 708, from which Mr. Benjamin states the true rule to be, "A sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, but only to transfer such interest as he might have in the chattel sold," Benj. Sales, Sec. 639. PERSONAL PROPERTY. 117 are in the possession of a thira person at the time of a sale there is no warranty by implication of the title in the seller, the maxim caveat emptor applies, and the vendee buys at his peril.* While if the goods are in the possession of the vendor, actual or constructive, there is an implied warranty of title.** But the agent of the vendor would not be considered a third person within the meaning of the rule. The fact of the ven- dor being out of possession, is held to be enough to put the vendee on inquiry. The distinction made where the vendor is in or out of possession of the thing sold in held generally in the United States, but is not the rule in England; where there is no such distinction made. (Pasley v. Free- man, 3 T. R. 58.) But in official sales, that is, sales by officers of ihe law of the interest of the defendant or party, as by sheriffs, executors, guardians, mortgagees, assignees in insolvency, and the like, there is no implied war- ranty of title in the party whom the officer represents, and it is simply his interest, whatever it may be, that is sold.*** In America there is also an implied warranty that the thing sold shall be of the kind or species that it is ♦liuntington v. Hall, 36 Me. 501 ; Long v. Hickingbottom, 28 Miss. 772; Edick v. Crim, 10 Barb. 445; Scranton v. Clark, 39 N. Y. 220. **Bennett v. Bartlett, 6 Cush. (60 Mass.) 225; Burt v. Dewey, 40 N. Y. 283; Porter v. Bright, 82 Pa. St. 141. ***Sheppard v. Earles, 13 Hun. 651; Hicks v. Skinmer, 71 N. C. 539; Johnson v. Laybourn, 56 Minn. 332; Baker v. Arnot, 67 N. Y. 448. ii8 PERSONAL PROPERTY. described to be, that is, an implied warranty of iden- tity. In England this is called an implied condition^ since the right of the vendee to return the article for a breach is more clear than in the case of an implied war- ranty.* An implied warranty also arises in the sale of com- mercial paper, that the paper is genuine, that is, that the signatures to the paper are not forged; that the signers are competent to contract; but not that they are solvent and responsible.** Sec. 1098. IMPLIED WARRANTY AS TO QUALITY OF GOODS— caveat emptor.— In respect to quality, the maxim of the common law, caveat emp- tor, (let the purchaser beware), is the general rule ap- plicable to sales of personal property. The maxim of caveat emptor is universally adopted in America, save perhaps in South Carolina. In a sale of an existing specific chattel, inspected or selected by the buyer, or *Peckham v. Davis, 93 Ala. 474 ; Dounce v. Dow, 64 N. Y. 411; Wolcott V. Mount, 36 N. J. L. 262; Webster Marble Co. V. Dryden, 90 la. ^y; Morse v. Moore, 83 Me. 473; Holt V, Pie, 120 Pa. St. 425. The cases holding that a sale of an article as of a certain description, as "early strap-leaf turnip- seed," or "XX pipe iron," was an implied warranty that the article was of the variety and character represented. So in Jones v. George, 61 Tex. 345 ; a druggist was held liable for the failure of a crop, caused by the breach of his implied warranty in the sale of "Paris green," he having delivered "chrome green." **Bank v. Morton, 4 Gray, 156; Ward v. Haggard, 75 Ind. 381 ; Meyer v. Richards, 163 U. S. 385 ; Lobdell v. Baker, 1 Met. 193; Swanzey v. Parker, 50 Pa, St. 450; Littauer y- Goldman, 72 N. Y. 506. PERSONAL PROPERTY. 119 subject to his inspection, caveat emptor applies, no im- plied warranty of quality arises; or, as sometimes stated, "a sound price does not in and of itself, import a sound quality."* Where a chattel is to be made or supplied, as made to the order of the purchaser, there seems to be an implied warranty that it is fit for the purpose for which it is ordinarily used, and if it is for a specific use, warranty of fitness for that use is im- plied. So in a sale by sample the vendor impliedly warrants the bulk to be equal to the sample.** But it is not to be assumed that in all cases where a sample is exhibited that the sale is by sample. The vendor may want to sell and so show a sample to the vendee; the vendee may ask if the others are all like the sample, but the vendor may not intend to sell by sample, and merely wish to better explain the goods and decline to warrant the bulk to be equal to the sam- ple. (Barnard v. Kellogg, 10 Wall. 383.) Also the buyer may refuse to buy by sample, although the sam- ple is shown, and may require an express warranty. When there is an express warranty there is no im- ♦Hadley v. Clinton, 13 Ohio St. 502; Winsor v. Lom- bard, 18 Pick. 59; Day v. Pool, 52 N. Y. 416; Scott Lumber Co. V. Hafnerlothum, 91 Wis. 667; Morris v. Thompson, 85 111. 16; Moore v. McKinlay, S Cal. 471. These cases hold- ing the maxim to apply in the sale of, a cow, fish, syrup, lumber, cattle, garden seeds, and the like. Contra, Timrod v. Schoolbred, i Bay, 324; Houston v. Gilbert, 3 Brev. 63, South Carolina cases. **Myer v. Wheeler, 65 la. 390; Schnitzer v. Print Works, 114 Mass. 123; Hanson v. Busse, 45 111. 499; Leonard v. Fowler, 44 N. Y. 289 ; Dayton v. Hooglund, 39 Ohio St. 671 ; S Cal. 471 ; Boyd v. Wilson, 83 Pa. St. 319- 120 PERSONAL PROPERTY. plied warranty in law. (De Witt v. Berry, 134 U. S. 306.) If goods are sold by sample, and, upon inspection, the bulk is found not to be equal to the sample, there is no obligation upon the part of the buyer to accept, but, he is perhaps required to give notice that he will not take the goods. When that notice is given the goods are at the vendor's risk, and the vendee is under no obligation to put the goods in a warehouse or in the hands of a carrier. And by the usage of trade, an im- plied warranty of quality may be assumed by the pur- chaser.* Where goods are sold by description, and the plain- tiff has not inspected them, it is said, in some cases, that there is in addition to the condition precedent, that the goods shall answer the description, an implied war- ranty that they shall be salable or merchantable and caveat emptor does not apply.** ♦Jones V. Bowden, 4 Taunt. 847, where it had been usual in auction sales of drugs to state in the catalogue whether they were sea-damaged or not, and in the absence of this statement, it was held that this was an implied warranty that they were not so damaged. But no usage repugnant to the terms of the contract could be admitted. 13 Allen, 353; 114 Mass. 123; II Allen, 426. **Gardiner v. Gray, 4 Camp. 144; Jones v. Just, L. R. 3 Q. B. 197; Gaylord Mfg. Co. v. Allen, 53 N. Y. 518; Alden V. Hart, 161 Mass. 576; Howard v. Hoxey, 23 Wend. 350; Cullen V. Blim, 37 Ohio St. 236. In sales by sample there is no warranty that there is no latent defect in the sample or in the bulk; while they must be alike, neither of them must be perfect. This rule seems to be modified somewhat when applied to the manufacturers of an article. .(Bradford v. PERSONAL PROPERTY. 121 So gcx)ds purchased for a particular use, which use is made known to the seller, are impliedly waranted to be reasonably fit and suitable for that purpose. (Morse V. Union Stock Yards, 21 Or. 829; Bierman v. City Mills Co., 151 N. Y. 482; Byers v. Chapin, 28 Ohio. St. 300; 41 Md. 389.) But the warranty of goods to be merchantable only extends to goods at the time they leave the vendor's possession, and, the vendor is not liable for any deteri- oration caused by the transit or shipment.* And where the buyer relies upon his own judgment or skill to select suitable articles, though they are to answer a particular purpose known to the seller, yet the rule of caveat emptor applies. (Benj. Sales, Sec. 661; Chanter v. Hopkins, 4 M. & W. 399; S Q. B. 288.) Sec. 1099. EXCEPTION TO THE RULE OF caveat emptor. — While it is the general rule that there is no implied warranty of quality in sales of an inspect- ed and specific article, yet an imjjortant exception to this rule exists in the case where articles of food are bought for domestic consumption, and not for trade, in which case it is always implied that the provisions are wholesome. Thus it has been held that a baker war- rants by implication the wholesomeness of bread. Manley, 13 Mass. 139; Sands v. Taylor, 5 Johns. 404; Jones V. Bright, s Bing. 533 ; Merriam v. Field, 24 Wis. 640. The question of merchantability of an article is for the jury, 109 Cal. 242. ♦Bull V. Robinson, 10 Ex. 342; 34 Me. 289. i22 PERSONAL PROPERTY. though sold at a discount to a peddler who is to dis- tribute it.* ♦Sinclair v. Hathaway, 57 Mich. 60; 96 Mich. 24S; How- ard V. Emerson, no Mass. 321; Giroux v. Stedman, 145 Mass 439 ; Hanson v. Hartse, 73 N. W. Rep. 163. PERSONAL PROPERTY. 123 CHAPTER VIII. CONCERNING THE DELIVERY. Sec. 1 100.— IT IS THE VENDOR'S DUTY TO DELIVER.— "After the contract of sale has been com- pleted, the chief and immediate duty of the vendor, in the absence of contrary stipulations, is to deliver the goods to the purchaser as soon as the latter has com- plied with the conditions precedent, if any, incumbent on him." (Benj. Sales, Sec. 674.) Just what is meant by delivery here may be confus- ing from the fact that word is used in three different senses in the law of sales. Thus, it is used with refer- ence to the passing of title and change of possession ; with reference to the transfer of possession, it may be used in connection with the formation of the con- tract, and the performance of it ; and finally as used in delivery of possession in performance of the contract, it may be used where the sale is on credit, and be per- fectly proper, and yet be only a constructive delivery so as to allow the seller to exercise the right of stoppage in transitu, if the purchaser becomes insolvent before the goods are actually delivered to him. The delivery with which we are concerned in this chapter is that required of the vendor in transferring the goods to the buyer in performance of the contract, so as to defend an action by the buyer for non-deliv- ery. The delivery necessitated to destroy the vendor's 124 PERSONAL PROPERTY. lien or right of stoppage in transitu will be discussed in a subsequent chapter, and the other kinds of dehv- ery have already been treated. Sec. iioi. DELIVERY TO PASS PROPERTY BETWEEN THE PARTIES.— All the vendor has to do in order to pass property in the thing sold to the vendee, where there is no contrary agreement or usage, is to deposit the article in some convenient and suitable place for the buyer to take away whenever he may choose. Thus rolling a barrel of flour to the door, or laying the tied up bundle on the counter before the buyer is sufficient delivery on the part of the vendor to pass title to the vendee. The buyer would have a reasonable time in which to remove the goods, after which time any loss in the article would fall on him.* As a general principle then, "readiness to deliver," and full opportunity in the buyer to take away, is amply sufficient to pass the title and the risk to the buyer ; es- pecially is this so whgre the buyer has taken a bill of sale or paid for the articles.** But it may be agreed that the property shall remain with the vendor until the fulfillment of conditions by the vendee, as the pay- ment of the price. It often happens that there is a stipulation that the buyer shall take possession of the goods without paying for them at once. Where this is the agreement, the effect of the taking possession, or being given the opportunity to take possession on the *Frazier v. Simons, 139 Mass. 531 ; Danforth v. Walker, 40 Vt. 257; 60 111. 190. **McNamara v. Edminster, 11 Hun, 597; Dugan v. Nichols, 125 Mass. 43. PERSONAL PROPERTY. 125 part of the buyer, is to pass the title and right to pos- session to him. But even where this is stipulated, should the vendee become insolvent, the vendee may re- fuse to deliver and exercise his right of lien to secure payment of the purchase price.* In regard to this delivery, the vendor is bound only to put the goods at the buyer's disposal, not to send them. The sale is proven by delivery when the prop- erty is so situated that the buyer can take possession of it rightfully.** But if the seller is bound by agree- ment or custom and usage to carry and deliver the ar- ticle at a fixed place, he must do so, and within a rea- *io6 Mass. 422; SI Vt. 489; White v. Welsh, 38 Pa. St. 421 ; 4 B. & C. 941. In this last case, Bloxam v. Sanders, Bayley J. deHverhig the judgment said: "Where goods are sold and nothing is said as to the time of delivery, or the time of payment, and everything the seller has to do with them is complete, the property vests in the buyer, so as to sub- ject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded, upon payment of the price ; but the buyer has no right to have possession of the goods until he has paid the price. The seller's right in respect of the price is not a mere lien which he will forfeit if he parts with possession, but grows out of his original ownership and dominion, and pay- ment or a tender of the price is a condition precedent on the buyer's part; and until he makes such payment or tender he has no right 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 immediately entitled to the possession, 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." **Sibley v. Tie, 88 111. 287; 100 Mass. 523; 23 Vt. 88; 25 N. Y. 520. 126 PERSONAL PROPERTY. sonable time, before he can recover the price.* Where the delivery by the vendor is to take place on the doing of a certain thing or act by the purcha.ser, the vendor is not in default for non-delivery, until given notice of the performance of the act upon which the delivery is to take place.** Sec. 1 102. AS TO THE PLACE OF DELIVERY. — As to the place of delivery, the contract being silent upon this point, it is usually the place where the goods are when sold. If the contract imposes upon the vendor the obligation of sending the goods, the time not being stated, they must be sent in a reasonable time. The word month in this connection means a cal- endar month. If a number of days are named, Sundays are to be counted. If the delivery is to be "as soon as possible," it means as soon as the vendor can deliver with reference to his ability to furnish the articles, con- sistently with the prior orders then on hand.*** Sec. 1 103. AS TO THE SUFFICIENCY OF THE DELIVERY.— The vendor must not deliver more nor less than the contract requires, and if he does, as a general rule, the buyer is entitled to refuse *SteeI Works v. Dewey, 37 Ohio St. 242; Iron Co. v. Cuppy, 41 la. 104 ; Rhoades v. Colter, 90 INIe. 453 ; but if the buyer is to designate the place of delivery and fails to do so, the delivery is excused. Hunt v. Wetsell, 84 N. Y. 549; Stokes V. Mackay, 147 N. Y. 235. **I4 Q. B. 728. ***Benj. Sales, Sec. 682-686; Co. Lit. 210b; Hatch v. Oil Co., 100 U. S. 134; Ellis V. Thompson, 3 M. & W. 445; At- wood V. Emery, 26 L. J. C. P. 73. PERSONAL PROPERTY. 127 the whole of the goods. But if the venaee makes a se- lection out of the whole it is such an appropriation as will pass title to him.* In every delivery the vendor is bound to give the vendee the opportunity of exam- ining the goods to see if they conform to the terms of the contract.** So there may be a constructive or symbolical deliv- ery of goods which will pass title and transfer posses- sion to the buyer. Thus where goods are ponderous or incapable of being handled, there may be a construc- tive delivery, such as the delivery of a key to a ware- house which contains the goods, or the bill of sale of a vessel which is at sea and incapable of being actually delivered.*** *Reuter v. Sala, 4 C. P. D. 239; Hart v. Mills, 15 M. & W. 8s; 81 N. Y. 341; Klein v. Tupper, 52 N. Y. 555; Brawley v. The United States, 96 U. S. 168; in the last case the effect of qualifying words in a contract, as "more or less" are considered, and are said to mean where used in connec- tion with the sale of a cargo, or unmeasured stock, to mean that the estimated quantity is not a warranty but a mere estimate in good faith, and whether more or less is delivered would make no difference, while the mere addition of the words to a contract, where the engagement is to furnish goods to a certain amount, only operates to guard against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure or weight. **I4 M. & W. 347; in this case the buyer having re- ceived notice that the goods were at a certain warehouse ready for delivery after the payment of the price, asked to see the goods, and was shown two casks said to contain them, and no further opportunity being allowed to examine them, the court held that the plaintiff had not made the necessary and contemplated offer of delivery. *** Atkinson v. Maling, 2 T. R. 462 ; Ayers v. McCandless, 128 PERSONAL PROPERTY. The endorsement and transfer of bills of lading, dock warrants, and other like evidences of ownership constitute a good delivery so as to defeat an action for non-delivery, though it might not be sufficient delivery as against second purchasers.* So the rule as to the delivery of growing crops is somewhat relaxed in some States on account of the obvious impossibility of putting the vendee in posses- sion without taking the land itself. Where the part sold of a field of growing corn was distinguished from the rest by cutting the tops off a row separating them, it was held a sufficient delivery as against a subsequent levy (by the creditor) of the vendor.** The rule is stricter as to trees and grass {fritctus naturales), than as to annual crops {fructus industriales) and in some cases a delivery of the former without severance from the soil is held to be impossible.*** 147 Pa. St. 49; Dubois v. Spinks, 114 Cal. 289; 55 Mich. 686; 57 Vt. 565; S3 N, Y. 426; 44 111. 141; Putnam v. Dutch, 8 Mass. 287; Brinley v. Spring, 7 Greenl. 241 ; the latter cases holding that the sale of a vessel or cargo by bill of sale, the property being at sea, is good, if the buyer takes pos- session as soon as they arrive in port. A reasonable taking possession is important, and is a question for the jury. Joy V. Sears, 9 Pick. 4. So a dehvery upon a sale of goods is sufficient if it is all the contract contemplated. S4 Mich, i ; 55 Mich. 686. *Wood V. Manley, 11 A. & E. 34; Winslow v. Leonard, 24 Pa. St. 14; Cole V. Bryant 73 Miss. 297; Dugan v. Nichols, 125 Mass. 43. **Graff V. Fitch, 58 111. 373. ***Stone V. Peacock, 35 Me. 386; Lamson v. Patch, s Allen, 586. PERSONAL PROPERTY. 129 CHAPTER IX. THE buyer's duties ACCEPTANCE, PAYMENT AND TEN- DER. Sec. 1 104. WHAT ARE THE BUYER'S DU- TIES ? — The vendor having done his duty, the vendee must do his, and this consists of two things: i. To accept the thing purchased ; 2. To pay or tender the price. In ordinary sale, there being no stipulations to the contrary, the vendor, to maintain his action against the vendee, needs only to aver a readiness and willing- ness to deliver on the payment of the price. He need not show that the vendee accepted, for the law pre- sumes that the vendee must accept.* If the vendee makes a default in taking away the goods within a reasonable time from the place of sale, he thereby becomes liable to the vendor for warehouse charges, storage, or expenses growing out of the cus- tody of the goods, and if the vendor is prejudiced by the delay, the vendee would be liable to an action for damages.** The vendor would have no right to treat the contract as rescinded on account of the mere de- lay of the vendee to take away the goods, unless he had given the vendee notice that he must take them ♦Cutter V. Powell, 2 Smith's L. Cas. i ; Nichols v. Morse, 100 Mass. 523; 62 N. Y. 272; 20 Oreg. 172; 6 Wash. 299. **(}reaves v. Ashlin, 3 Camp. 426; 30 Vt. 633; 60 111. 71. 130 PERSONAL PROPERTY. away. The question of reasonable tinjc here is one for the jury under all the facts of the case.* Sec. lies.— ACCEPTANCE.— Delivery and ac- ceptance are concurrent conditions. The vendee's duty to accept depends altogether on the sufficiency of the vendor's delivery. The delivery must conform to the contract in every particular, and then the duty to ac- cept arises. The buyer has also the right to inspect the goods and reject them within a reasonable time after receipt if they do not answer the description.** But the buyer cannot insist upon doing something with the goods not contemplated by the contract before ac- cepting. The buyer having had a full and fair opportunity to examine the goods, by accepting them, waives his right to object to them as to any visible defects and im- perfections, whether discovered or not in the absence of a warranty intended to survive such acceptance. (Studer v. Bleistein, 115 N. Y. 317.) The buyer is not bound to pay for goods by merely receiving them, but when he finds that the goods are not according to the contract, it is his duty, within a reasonable time, to notify the vendor of that fact, or he may be considered as accepting.*** The notice to the vendor need not designate the defects in the *Buddle V. Green, 3 H. & N. 906. **Charles v. Carter, 96 Tenn. 607; Edwin v. Harris, 87 Ga. 333; Pierson v. Crooks, 115 N. Y. 539. ***Hudson V. Germain Fruit Co., 95 Ala. 621; 115 N. Y. 317; 79 111- 131; 108 N. Y. 232; 103 Mich. 403; 86 Wis. 441; 89 la. 506; 91 Ky. Z7Z. PERSONAL PROPERTY. 131 goods, especially if the defects are known to the seller.* The notice may be waived by the vendor, and where it is stipulated that the notice of defects shaJl be given in writing this may be waived so as to make oral notice sufficient.** If the goods are retained and put to any use inconsistent with the vendor's own- ership it will be considered as an acceptance by the buyer.*** Sec. 1 106. THE BUYER'S DUTY TO PAY OR TENDER PAYMENT.— It is the buyer's duty, a proper delivery having been made or tendered, not only to accept but to pay. Payment, or its equivalent, may be made in either of three ways; i. In cash; 2. In notes or bills of exchange; 3. By credit agreed upon. This last is not properly a payment, but rather exempts the buyer from making payment at the time of accept- ance. When nothing is said about the payment, absolute payment in cash is required. Therefore an action lies at once against the buyer for the price, and this is so whether he has taken away the goods or not.**** If under the contract of sale no place of payment is pro- vided for, payment may be made at any place the par- ties meet; but the buyer is bound to find the vendor and make the payment, if the vendor is within the *White Bronze Co. v. Gillete, 88 Mich. 231. **Suit v. Bonnell, 33 Wis. 180; Mfg. Co. v. Feary, 40 Neb. 226; Mfg. Co. V. Hanson, 3 No. Dak. 81; Kingman v. Watson, 97 Wis. 596. ***Brown v. Foster, 108 N. Y. 387; 97 Wis. 596. ****Benj. Sales, Sec. 706, 708; Behrends v. Beyschlag, 50 132 PERSONAL PROPERTY. State. It seems, however, that the vendee need not seek him outside of the State.* By "cash" is meant legal tender of the country in which the payment is to be made. But if the parties have contracted as to the kind of money in which pay- ment is to be made, this will control ; so where the con- tract is "payable in gold," nothing but gold can be made a valid payment of the debt. A special judg- ment is rendered in a suit on such a contract, "to be paid in gold."** If the buyer makes the payment in the mode re- quested by the vendor, as where the vendor requests it to be sent by post, the vendee will be discharged though the money never reaches the vendor.*** In the absence of a request upon the part of the vendor, a payment made by post is at the risk of the buyer or sender.**** So the payment may be made in any way the par- ties agree, as by the buyer and seller agreeing that the buyer shall give the vendor credit on an account due from the vendor to the vendee, and the transaction Neb. 304; Bank v. Cannon, 46 Minn. 95; 21 Minn. 15; Sweet V. Titus, 67 Barb. 327; 65 N. Y. 565; 20 N. J. Eq. 39. *2i Minn. 15; 65 N. Y. 565. **Currier v. Davis, III Mass. 480; 105 Mass. 334; Bronson v. Rhodes, 7 Wall. 229; no U. S. 421. As to mean- ing of legal tender see former numbers of this Series, No. 2 and No. 4. ***Hawkins v. Rutt, Peake, 186, 248; Eyles v. Ellis, 4 Bing. 112; 84 N. Y. 63; 99 Mass. 596. ****Gordon v. Strange, I Ex, 477; 78 Mass. 348; 69 Pa. St. 156. PERSONAL PROPERTY. 133 then operates as if on a cash basis, the one paying so much cash, and the other crediting so much cash on the other's account.* Sec. 1 107. SAME SUBJECT— TENDER.— When there is no special mode of payment agreed upon, it becomes the buyer's "duty to make actual pay- ment in cash, or a tender of payment, which if prop- erly made is as sufficient as payment as to his duty to perform. Where a tender of payment is made by the buyer and refused by the seller the question arises as to its suffi- ciency. It is only valid when the buyer produces and offers to the vendor an amount of money equal to the price of the goods. But such a tender may be waived, as well as payment. If the buyer tenders a check in payment, the vendor is not bound to accept it ; but if a check is tendered in payment and it is refused, not be- cause it is a check, but because the vendor waives or refuses to accept payment, it is a waiver of a valid tender. As a rule the creditor should be allowed to see and count the money. The courts are less rigorous in inferring a waiver of tender or payment, where there is something produced at the time of the offer to pay, than where no money is produced. It appears that a tender of more than is due, is in some cases held a good tender, as the creditor should take what he is entitled to, or could take the whole amount. But the tender of a larger sum than is due, with the demand for change, ♦Livingstone v. Whiting, 15 Q. B. 722; Ashby v. James, II M- & W, 542; 13 M. & W. 683, 134 PERSONAL PROPERTY. is not a valid tender. So the tender must be uncon- ditional, and free from any reservation or condition to which the creditor might rightfully object, thus the buyer would have no right to demand, as a condition attached to the tender, a receipt in full of his account, or for the price.* Sec. 1108. PAYMENT BY PROMISSORY NOTE OR BILL. — A payment by promissory note is understood generally to be a conditional payment. The vendor's right to the price revives on non-payment of the note. A payment by check is usually regarded as a prima facie cash payment if the check is accepted. If, however, the check is dishonored, the vendor may re- sort to his original claim. But if the check is not pre- sented within a reasonable time after the vendor takes it in payment, and a loss results, the vendor must stand the loss.** *See this subject under Contracts, in No. 4, of this Series; Benj. Sales, Sees. 712-728; Isherwood v. Whitmore, II M. & W. 347; Polglass V. Oliver, 2 Cr. & J. 15; Bevans V. Rees, S M. & W. 306 ; Dixon v. Clarke, 5 C. B. 365 ; Bowen V. Owen, II Q. B. 130; Cole v. Blake, i Peake, 238. By statute in England, it is provided that the buyer may tender a blank receipt with the stamp required by law, and the creditor is bound to fill it up when the payment is tendered. 16 & 17 Vict. c. 5953, 4. The eflFect of the tender in England is that it is a bar to the action for the amount, and not merely a bar to damages. James v. Vane, 2 E. & E. 883, but the money previously tendered must be brought into court, that is, continue to be tendered. See also, S N. H. 440; 67 Miss. 133; 49 Ind. 269; 51 Tex. 98; 90 Ala. 302; 82 Me. 185; 5 Pick, ids; 39 N. J. L. 413; 119 N. Y. 561; no Ala. 322; 35 Conn. 557. **Broughton v. Silloway, 114 Mass. 71; Hodgson v. Bar- PERSONAL PROPERTY. 135 In most States payment by promissory note amounts to nothing more than a credit extension. Thus if the vendor takes a note for ninety days, he has no right to resort to his original claim until the time for the pay- ment of the note has elapsed.* But the note or bill is regarded as prima facie evidence of payment to the extent that when the vendor seeks to assert his origi- nal claim he must account for the note, and offer to return it.** In a few States a promissory note so given is regarded as prima facie payment in and of it- self, and in these States if there is no fraud involved, the vendor who has taken a promissory note in pay- ment cannot return to the original contract and sue upon it.*** Where a note of a third person is given by the buyer in payment, unless there is positive proof that such note was to be received in final payment, it is consid- ered merely conditional security, and only operates as rett, 33 Ohio St. 63 ; Thompson v. Bank, 82 N. Y. i ; Mordis V. Kennedy, 23 Kan. 408. If the parties so agree or intend, the check may be absolute payment. Blair v. Wilson, 28 Gratt. 165; 24 Wis. 607. *Archibald v. Argall, 53 111. 307; 93 111. 357; 124 Mass. 366; 43 N. Y. 171; 33 Ohio St. 63; 29 Pa. St. 448; 36 Wis. 149; 9 S. C. 70; 37 la. 244. **Walsh V. Lennon, 98 111. 27; Foster v. Hill, 36 N. H. 526; Hughes V. Israel, 73 Mo. 538; League v. Waring, 85 Pa. St. 245- ***Dodge V. Emerson, 131 Mass. 467; Bunker v. Barron, 79 Me. 62; 46 Vt. 458; Kurtsinger v. Brown, 72 Ind. 466; Hunt V. Boyd, 2 La. 109. The prima facie presumption that the note was taken in payment may be easily rebutted, and then the suit may be brought on the sale contract. 136 PERSONAL PROPERTY. an extension of credit until the note is due.* This is the general rule, but a few States hold that such a pay- ment is prima facie payment, until the inference is de- feated by something going to show that this was not the intention of the parties.** If the note given proves worthless it seems that the creditor can dis-affirm the sale, surrender the note, and sue upon the original debt, the worthless note not constituting a consideration for the sale.*** In New York it is held that the creditor can sue upon the original claim though he has accepted the note, on the ground of mistake of fact, the mis- take arising from the worthlessness of the note, each believing it to have been of value and constituting a consideration.**** Payment of a debt may be presumed after the lapse of twenty years from the time it became due and pay- able ; but at common law this presumption may be re- butted by showing that the debtor was unable to pay, that he was absent from the State, or insane, and the ♦Johnson v. Weed, 9 Johns. 310; Holmes v. Briggs, 131 Pa. St. 233; otherwise if the note is agreed to be taken as a final payment, which is a question for the jury. See, Wise V. Chase, 44 N. Y. 337; Sebastian May Co. v. Codd, 77 Md. 293- **Ely V. James, 123 Mass. 127; 67 Ind. 67. ***Little V. American Co., 67 Ind. 67 ; 74 Me. 553 ; 8 Cal. 501; 36 N. Y. 520; Hartshorn v. Hartshorn, 67 N. H. 163. ****Benedict v. Field, 16 N. Y. 595 ; 43 N. Y. 157. *****Bentley's Appeal, 99 Pa. St. 500; Andrews v. Spar- hawk, 13 Pick. 393; Daggett v. Tallman, 8 Conn. 168; Reed V, Reed, 46 Pa. St. 239; Bissell v. Jaudon, 16 Ohio St. 499. PERSONAL PROPERTY. 137 CHAPTER X. AVOIDANCE OF THE CONTRACT. Sec. 1 109. MISTAKE AND FAILURE OF CONSIDERATION. One who has given apparent assent to a contract of sale, if the assent was founded on a mistake of a material fact, not of law, such as the subject-matter of the sale, the price, or in some cases the identity of the other contracting party, will not be bound thereby, as the contract has not come into existence for the want of valid assent.* Thus it is stated by C. J. Bigelow that, "Where parties to the contract of sale agree to sell and purchase a certain kind or description of property, not yet ascertained or distinguished or set apart, and subsequently a delivery is made, by mistake, of articles different in their nature or quality from those agreed to be sold, no title passes by such delivery."** So where there has been a com- mon mistake as to some essential fact forming an in- ducement to the sale, that is, if the circumstances justify the inference that no contract would have been made if the whole truth had been known to the parties, the sale is voidable. And if either party has performed his part during the continuance of the mistake he may set aside the sale on discovering the truth on the ground of failure of consideration. But if he cannot *Benj. Sales, Sec. 414; Strickland v. Turner, 7 Ex. 208. **In 9 Allen, 492. 138 PERSONAL PROPERTY. set aside the contract and leave the parties in statu quo, he must go forward with the contract and resort to his action for damages against the other party.* There are cases where the contract has been car- ried into effect during the continuance of the mistake, and where the party in error is no longer passively de- clining to execute the contract, but is actively seeking to set it aside by reason of the mistake. It is said that when the mistake is of one party only, and unknown to the other, the party laboring under the mistake must bear the consequences. That is, if a man buys goods which he believes to be of a certain kind and the seller does not know that he believes the goods to be of that particular kind, the buyer must bear the results of his own error. Where the error of the one is known to the other contracting party it resolves itself into a question of fraud.** Where there is a failure of consideration, as where an article is bargained to be sold; and does not exist, or is of a different kind, the buyer may recover the *Hunt V. Silk, 5 East, 499; Kimball v. Cunningham, 4 Mass. 502; Thayer v. Turner, 8 Met. 550; Cook v. Oilman, 34 N. H. 560; 79 Ind. 380. See, Boulton v. Jones, 2 H. & N. 564, and Ice Company v. Potter, 123 Mass. 28, in which mis- take of identity of party avoided the contract. ***Doe V. Oliver, 2 Smith's Leading Cas. 803 ; Freeman v. Cooke, 2 Ex. 654 ; Kennedy v. Panama Mail Co. L. R. 2 Q. B. 580. It is a general rule of law that, whatever a man's real intention may be, if he manifests an intention to another party, so as to induce that other party to act upon it, he will be estopped from denying that the intention as manifested was his real intention. PERSONAL PROPERTY. 139 price paid to the seller. But to do so he must tender back the article he received if it was of any value. So where the failure of consideration is partial the buyer may rescind the contract, if it is entire, and he has not accepted part.* But in an entire sale, the failure of consideration as to part, the rest being received and enjoyed, will not authorize a partial rescission and a recovery of what has been paid. Otherwise if the articles purchased are distinct and separate, and the sale is not entire.** Where the buyer gets substantially the thing which he contracted for, though the article is absolutely worthless, he cannot complain, since he has received what he bargained for, and there is no failure of con- sideration.*** Sec. inc. FRAUD AS AVOIDING THE CON- TRACT. — It is a general rule that fraud renders all contracts voidable ab initio, both at law and in equity. Fraud cannot be accurately defined. It has been said that every kind of artifice employed by one person for the purpose of deceiving another is fraud.**** The *Fay V. Oliver, 20 Vt. 118; Vance v. Schroyer, 79 Ind. 380; if the article is of no value, or has been consumed in testing as allowed by the contract return is unnecessary, Brewster v. Burnett, 125 Mass. 68; a purchase of counter- feit bonds, and Quano Co. v. Mullen, 66 Ala. 582, a sale of fertilizer. See, 90 Ind. 48; and 50 C. B. 667, as to partial fail- ure of consideration. **Clark V. Baker, 5 Met. 452; Mansfield v. Triggs, 113 Mass. 350; 121 Mass. 91; Herzog v. Purdy, 119 Cal. 99. ***Lamert v. Heath, 15 M. & W. 487; L- R- 10 Q- B. 491. ****Benj. Sales, Sec. 428. 140 PERSONAL PROPERTY. Civil Code of France, without giving a definition, pro- vides in Art 1116: "Fraud is a ground for avoiding a contract when the devices (les manoeuvres) practiced by one of the parties are such as to make is evident that without these devices the other party would not have contracted." Though difficult to define, the elements of fraud may be designated, and these are, according to Mr. Benjamin: i. To constitute fraud it is essential that the means should be successful in deceiving. 2. To be fraudulent, representations must be material ; that is, the fraudulent representation must go to some essential part of the contract, but the fraud need not be the sole inducement to the contract. 3. There can be no fraud without dishonest intention in fact ; that is, though the representations by the one party to the other are un- true, yet if made honestly and on reasonable grounds, they are not grounds for avoiding the contract as ob- tained by fraud. Though this rule is controverted in some cases.* 4. There must be damage to the party deceived as a result of the false representation, before a right of action arises. Or, as it has been said, "Fraud, without damage, or damage without fraud, gives no cause of action."** The mistaken belief as to facts may be created by active means, as by fraudulent concealment or know- ingly false representations; or, passively, by mere *Benj Sales, Sec. 429; Redgrave v. Hurd, 20 Ch. D. 12. **Pasley v. Freeman, 3 T. R. 51; Attwood v. Small, 6 CI. & Fin. 443. PERSONAL PROPERTY. I4I silence when it is a duty to speak. But it is oniy where a party is under some pledge or obligation to reveal facts to another, that mere silence will be deemed de- ception.* The particular circumstances of the case must determine whether the silence amounts to fraud or not. Where the article is open to the inspection of the purchaser, he cannot complain if the defects are not pointed out to him. So the vendor is at liberty to praise his goods in order to enhance their value if he abstains from fraudulent representations, and the buyer has had full and fair opportunity to inspect the goods. If the buyer then desires further protection than his own judgment he must require a warranty. The fraud may be perpetrated on the vendor; on the vendee, or on creditors. And, further, a party may become liable in an action founded on tort for fraud or deceit or negligence in respect to a contract, by a stranger, or any one who may be injured by such deceit or negligence. This liability being limited in this, that the third person, to maintain his action, must show that the injury came by acting upon defendant's false representation, made with the direct intent that he should act upon it and in the manner which oc- casioned the injury.** ***Benj. Sales, Sec. 430. "The rules are Caveat emptor and Simplex commendatio non obligat." **Langri(ige v. Levy,, 2 M. & W. 519; 4 M. & W. 337; Barry v. Croskey, 2 J. & H. 22. In the last case the limits of responsibility for false representation were stated to be: "First. Every man must be held responsible for the conse- quences of a false representation made by him to another. 142 PERSONAL PROPERTY. Sec. iiii. SAME SUBJECT— FRAUD ON THE VENDOR.— Prior to 1866 it had not been settled whether the property passed when the sale was in- duced by a fraud on the vendor. Then it was decided in England that a distinction should be made between cases where the fraud had resulted in transferring the mere possession to the vendee, or whether the title and possession were so delivered, in the former case no title passed, in the latter case it did pass regardless of the fraud.* So now generally, whenever goods are obtained from their owners by fraud, the contract is voidable at the election of the vendor, and not void ab initio.** It is optional with the vendor to affirm and enforce the contract, or avoid or rescind it. If he sues in assumpsit for the price of the goods, with full knowl- edge of the fraud, he thereby affirms the contract; if he sues in trover or replevin for the goods, he thereby disaffirms the contract.*** In the meantime, and until upon which that other acts, and, so acting, is injured or damni- fied. Secondly. Every man must be held responsible for the consequences of a false representation made by him to an- other, upon which a third person acts, and, so acting, is injured or damnified, provided it appear that such false repre- sentation was made with the intent that it should be acted upon by such third person in the manner that occasions the injury or loss. Thirdly. The injury must be the immediate and not the remote consequence of the representation thus made." *Stevenson v. Newnham, 13 C. B. 285 ; Pease v. Gloahec, L. R. I P. C. 219. **38 Me. 561 ; 91 111. 605. ***Raphael v. Reinstein, 154 Mass. 178; 177 Mass. 23; 38 PERSONAL PROPERTY. I43 he elects, if the vendee transfers the goods to an in- nocent purchaser for a valuable consideration, the rights of the vendor will be subordinate to the rights of the innocent third person. Except where the vendor has not intended to part with the title,, but only with the possession, in such cases the innocent purchaser gets no title, for the fraudulent vendee had none to give ; and in some States the rule is stated that the title taken by an innocent purchaser from a fraudulent vendee depends upon whether the fraud went only to the motive or inducement of the sale, or to the origin and foundation of the contract, in the former case the innocent purchaser would take title, in the latter he would not.* When the vendor rescinds the contract he must return anything of value received from the vendee. (4 Mass. 502; 48 Neb. 124; 18 N. H. 397.) If part of the goods have been sold by the fraudulent vendee, the purchaser may retain the part payment made, and rescind; and so where the vendee has damaged the Me. 561; Kimball v. Cunningham, 4 Mass. 505; Joslin v. Cowee, 52 N. Y. 90. Having affirmed the contract the ven- dor cannot avoid ; and having duly avoided, he cannot affirm. Pence v. Langdon, 99 U. S. 582 ; 87 N. Y. 166. The fraud does not shorten the time of payment where credit has been given. 93 111. 265. *Rodliff V. Dallinger, 141 Mass. i; 135 Mass. 283; Easter v. Allen, 8 Allen, 7 ; Devoe v. Brandt, 53 N. Y. 462 ; Iron Co. v. Bank, loi Mich. 146; Neff v. Landis, no Pa. St. 204; Scheuer v. Goetter, 102 Ala. 313; 49 HI. 4S8; 49 Wis. 316. 144 PERSONAL PROPERTY. goods to a greater amount than the payment. (23 N. Y. 264; 84 Fed. Rep. 293 ; 47 Neb. 228.) In an action concerning the title to the goods, when the vendor has made out a prima facie case of fraud against the vendee, the third person claiming title under the vendee has the affirmative — that is to say, he must show satisfactorily to the jury that he is a bona -fide purchaser, which involves; i. That he had no notice of the fraud perpetrated upon the vendor; 2. That he paid a valuable consideration ; 3. That the valuable consideration was something paid at the time, that is, a present payment, and not a payment by the cancellation of a previous debt. (90 Mass. 10 ; 2 Head, 669; Peterson v. Steiner, 108 Ala. 629.) The two main grounds of fraud which justify the vendor in rescinding a sale and reclaiming his goods, are — 1. Where the buyer has made fraudulent repre- sentations to the vendor as to his solvency or means of payment. A fraudulent misstatement of a material fact in this regard renders the contract voidable. Thus false statements as to the nature of his business, the property he owns, the volume of business he does, and as to incumbrances thereon, are all of this class.* 2. Where the vendee purchases the goods with the preconceived design of not paying for them. This also, as a general rule, avoids the sale.** *Van Neste v. Conover, 20 Barb. 547; Reid v. Cowduroy, 79 la. 169; 18 Am. St. Rep. 359; Gregory v. Schoenell, 55 Ind. loi, **Stewart v. Emerson, 52 N. H. 301, a leading case; PERSONAL PROPERTY. 14S Sec. 1 1 12. SAME SUBJECT— FRAUD ON THE BUYER.^The buyer may refuse to take the goods in case he is defrauded by the contract, if he discovers the fraud before delivery; or he may return them after delivery on discovering the fraud. If he has paid the price he may recover it back on offering to return the goods in the same state in which he received them.* If either party has a right to rescind, he must re- scind all the contract. (22 Pick. 457.) The ability to restore the thing purchased unchanged in condition, is indispensable to the right to rescind, so that if the buyer has innocently changed that condition while ignorant of the fraud he cannot rescind, but must Brower v. Groodyer, 88 Ind. 572; Farwell v. Hanchett, 120 111. 573; 166 Mass. 57; 67 Mich. 410; 93 N. C. 31; 46 Mo. 181; 93 U. S. 631. Contra, Smith v. Smith, 21 Pa. St. 367; 156 Pa. St. 591. The fact that the party buys more than he usually does ; or as soon as he gets possession of the goods mortgages them; or is insolvent, are all important in de- termining whether the party had the intention not to pay for the goods, and go to the jury. It is not enough to make out the intent that the party was not able to pay for them when they were bought, the jury must find that he did not intend to pay. If the party intends to pay and believes that he will be able to do so, the fact that he is mistaken will not make him guilty of fraud. Diggs v. Denny, 86 Md. 116; 33 Cal. 620; IIS Ind. 513; loi Mich. i. See, Talcott v. Henderson, 31 Ohio St. 162. So a combination of buyers or bidders at an auction to prevent competition would justify the vendor in rescinding a sale. (Jackson v. Morter, 82 Pa. St. 291 ; Gardiner v. Morse, 25 Me. 140.) Otherwise if the combination is simply to have one buy for all and then divide the purchases (Kear- ney V. Taylor, 15 How. 521). *2 Ex. 538; Page V. Parker, 43 N. H. 369; Martin v. Jordan, 60 Me. 531 ; Ins. Co. v. Crane, 134 Mass. 56. 146 PERSONAL PROPERTY. resort to some other remedy. (lo H. L. 421.) So the contract is only voidable, and not void. If the buyer by any act has treated the goods as his own, after discovering the fraud his election will be determined, and he cannot then return the property. (50 la. 325.) The same result may come about by delay, for if the buyer does not rescind promptly, and the vendor's po- sition has been altered, the right to rescind is lost, and the buyer must resort to other remedies.* As to what constitutes such a fraud on the buyer as will authorize him to rescind, the early cases in England were in conflict, but in 1845, the Exchequer Chamber stated the true principle to be, that repre- sentations false in fact give no right of action if in- nocently made by a party who believes the truth of what he asserts; and, in order to constitute fraud, there must be a false representation knowingly made, that is, a concurrence of fraudulent intent and false representation. And a false representation is know- ingly made, when a party for a fraudulent purpose states what he does not believe to be true, even though he may have no knowledge on the subject.** It is unnecessary to prove a corrupt motive, this will be inferred if the representation is untrue, and the *L. R. 7 Ex. 26; 45 Vt. 336; 1 A. & E. 40. ♦♦Ormrod v. Huth, 14 M. &; W. 651; Evans v. Collins, 5 Q. B. 820; Childers v. Wooler, 2 E. & E. 287; Joliffe v. Baker, II Q. B. Div. 235; Stone v. Denny, 4 Met. 151; Binneay's Appeal, 116 Pa. St. 169; Ins. Co. v. Matthews, 102 Mass. 226; Kountz V. Kennedy, 147 N. Y. 124;" Scroggin v. Wood, 87 la. 497. Contra, Holcomb v. Noble, 69 Mich. 396, where it seems actual intention to defraud is unnecessary. PERSONAL PROPERTY. 147 party making, it knows it to be untrue, and it is intend- ed that the other party shall act upon it by reason of which damage is actually sustained.* From the leading cases it may be laid down that in order to constitute deceit or fraud, the following things must concur: 1. It must be a false representation of a material fact on the part of the vendor. 2. It must be one on which the vendee relies in whole or in part, and which was made with the inten- tion that he should rely upon it. 3. It must be one which deceives the vendee, and through which he suffers damage. 4. And, except in Michigan, these things must have been done with a fraudulent intent, that is, it must be false to the knowledge of the vendor, or made recklessly, without reasonable grounds for believing it true, or under circumstances which show that he was indifferent whether it was true or false.** All these things concurring the contract is void- able at the option of the vendee or vendor, whichever is imposed upon, if he has done nothing which ex- pressly or impliedly affirms the contract. No notice of rescission is necessary before bringing an action for ♦Foster v. Charles, 6 Bing, 396; Polhill v. Walter, 3 B. & Ad. 122; Stewart v. Stearns, 63 N. H. 105; O'Donnell v. Clinton, 14s Mass. 462; Zinc Co. v. Bamford, 150 U. S. 665; 90 Pa. St. 359. ♦♦Smith V. Chadwick, 9 App. Cas. 187; Derry v. Peek, 14 App. Cas. 337; Salisbury v. Howe, 87 N. Y. 129; Mc- Kown v. Furgason, 47 la. 637. 148 PERSONAL PROPERTY. the goods, the suit operating as notice of intention to rescind. No demand is necessary if the possession of the defendant is tortious, but demand should be made if the possession is rightful.* The vendee may keep the property, and when sued for the price, show the fraud in reduction of the claim. So he may keep the property and sue in tort for the fraud ; or bring a bill in equity to set aside the sale.** False statements to a commercial agency, or to an- other merchant, intended to be communicated to the plaintiff, and on which he relies, will constitute a fraud as though made to the party directly. But the rehance on such statements must be within a reasona- ble time after they are made, and the statements must have been made within a reasonable time before the sale.*** If the fraud perpetrated on the buyer has been per- petrated by an agent of the vendor the right to re- scind is the same, the cases holding that if the princi- pal is honest and the agent not, or the principal dis- honest but the agent not, the vendee may still rescind, return the property and refuse to pay, or if he has paid ♦L. R. 7 Ex. 26; 125 U. S. 250; Strong v. Strong, 102 N. Y. 69; Tarkington v. Purvis, 128 Ind. 182; Parmlee v. Adolph, 28 Ohio St. 10; no Mich. 63; 66 N. Y. 558; 70 Conn. 125. **Dogget V. Emerson, 3 Story, 700; Cheongwo v. Jones, 3 Wash. C. C. 359; Burnett v. Smith, 4 Gray 50. But he cannot collect twice for the fraud. ***Mooney v. Davis, 75 Mich. 188; Kelly v. Gould, 19 N. Y. Supp. 349; Bliss V. Sickles, 142 N. Y. 647; 166 Pa, St. 199. PERSONAL PROPERTY. 149 recover the price from the principal.* And by some authorities the buyer can sue the principal for the de- ceit of the agent;** but others hold that this could only be done if the principal, knowing of the agent's fraud, has distinctly affirmed and approved it.*** Since a sale at auction is on the principle that ev- erything is fair and open, any unfair means by the auctioneer to enhance the bids, as by announcing false bids, or having secret signals with persons as to bids, by which the buyer is deceived, will justify the avoid- ing of the sale.**** Sec. 1 1 13. SAME SUBJECT— FRAUDS ON CREDITORS. — Where the fraud affects creditors, the vendor and vendee are still bound by the contract they have made; the property passes, the veiidee is bound to pay the price to the vendor, and is liable on his note for the price.***** The objection to the sale must be raised by creditors or purchasers of the vendor. As to what constitutes a fraud on creditors, it may be stated that, ordinarily unless both parties share in the intent to delay, hinder, or defraud creditors, there ♦Veazie v. Williams, 8 How. 134; Jewett v. Carter, 132 Mass. 335. **Fitzsimmons v. Joslin, 21 Vt. 139; Durant v. Rodgers, 87 III. Sii; 47 N. Y. 174; loi Ind. 294. ***Kennedy v. McKay, 43 N. J. L. 288; 47 N. J. L. 469. ****8 How. 134; Conover v. Walling, 15 N. J. Eq. 173. *****Springer v. Drosch, 32 Ind. 486; Douglass v. Dunlap, 10 Ohio, 162; Harvey v. Varney, 98 Mass. 118; Beebe v. Saul- ter, 87 111. 518; Maher v. Swift, 14 Nev. 324; Butler v. Moore, 73 Me. 151; 66 Wis. 457. 150 PERSONAL PROPERTY. is no fraud that will entitle creditors to object to the transfer of property.* But a voluntary conveyance with intent in the donor to defraud creditors is void, though the donee had no notice or knowledge of such intent ; while if the conveyance had been upon consid- eration the rule would be different.** So while a voluntary conveyance or gift made by one not in- debted at the time, is not per se void as to future cred- itors, it may become so if it appears that the grantor was actually indebted beyond his probable means of payment, or that he had formed the actual intention to defraud subsequent creditors. The existence of fraud- ulent intent is usually a question for the jury, the bur- den of proof being on the party alleging it,*** and fraudulent intent may be shown to exist though the party receiving the property paid for same, payment not being conclusive proof that the sale was bona fide, though undoubtedly very strong evidence of it.**** So the continued possession, use, and apparent own- ership, of the vendor after an absolute sale of chat- tels is, either: i. A conclusive badge of fraud as a rule of law, such that no evidence of good faith, payment of consideration, etc., can change it; or, 2, is prima *Sexton V. Anderson, 95 Mo. 373 ; 14 Mass. 245 ; 50 Mich. 13; 124 Mass. 121 ; 69 la. 47; 66 Miss. 476. **Wise V. Moore, 31 Ga. 149; 10 Allen, 340; 66 N. Y. 374; 3 Johns. Ch. 481. ♦♦^"Winchester v. Charter, 12 Allen, 606 ; 7 Cow. 301 ; 94 Mo. 621 ; 81 111. 260; 53 Ala. 197. ****Wadsworth v. Williams, 100 Mass. 126; 103 N. Y. 125; 95 Mo. 373. PERSONAL PROPERTY. 151 facie a fraud in law, and unexplained becomes con- clusive as to the title, but with explanation may be- come a question of fact for the jury, subject to the discretion of the court to set aside the verdict when contrary to the evidence.* But the matter is frequent- ly governed by statute. *Claflin V. Rosenberg, 42 Mo. 448; Garman v. Cooper, 72 Pa. St. 32; S3 Vt. 57; 2 Nev. 243, and others hold the sale void; but many States formerly holding the sale void, have by statute or decision concluded that continued possession in the seller is only prima facie evidence of fraud, and may be rebutted. Davis v. Turner, 4 Gratt. 422; Warner v. Norton, 20 How. 460; 21 Wis. 136; 66 Tex. 613; 21 S. C. 385, and many others hold the continued possession only presumptive evidence of fraud or prima facie, and may be rebutted or ex- plained. 152 PERSONAL PROPERTY. CHAPTER XL RIGHTS OF THE VENDOR ON BREACH OF THE CONTRACT. Sec. 1 114. PERSONAL ACTIONS AGAINST THE BUYER, WHERE THE PROPERTY HAS NOT PASSED.— When there is a breach of the con- tract on the part of the vendee, and the circumstances are such that the vendor has not as yet transferred the title to the vendee, the vendor's sole remedy is an action for damages for breach of contract. While he may resell the goods, his only remedy against the buyer is for non-acceptance, and as a rule the dam- ages recoverable, are not the full price, but the differ- ence between the contract price and the market price of such goods at the time when the contract is broken.* There is a difference made by the authorities in reference to the rule of damages, between a contract to sell goods already in existence, and an agreement to furnish goods not in existence at the time of mak- *Laird v. Pirn, 7 M. & W. 478; Barrow v. Arnaud, 8 Q. B. 604; Phillpotts V. Evans, 5 M. & W. 475; Todd v. Gamble, 67 Hun, 38 ; Homer v. Wilson, 7 Mich. 294 ; Railway Co. V. Heck, 50 Ind. 303. The measure of damages in this special action for refusal to accept, brought sometimes before the article is completed, is not the full price of the article, but rather the difference between the contract price and the mar- ket value at the time of delivery, as this will compensate the plaintiff for the loss of the benefits of the bargain, Hinckley V. Steel Co., 121 U. S. 264; Collins v. Delaporte, 115 Mass, 162; 49 111. 446; 92 Wis. 397; 40 N. H. 79. PERSONAL PROPERTY. 153 ing the bargain. In the latter case if the vendee re- fuses to accept the goods, or gives notice before the completion that he will not accept, many American authorities hold that if the maker performs his con- tract and tenders the article as ordered to the vendee, he may recover its full value, and leave the vendee to dispose of the article as he sees fit.* Sec. 1 1 15. SAME SUBJECT— WHERE THE PROPERTY HAS PASSED.— When the title and possession of the goods has actually passed to the vendee, the vendor must, under the common law, re- cover by common counts for goods sold and delivered in a personal action, while where the title has not passed the action is a special count in assumpsit.** Sec. II 16. VENDOR'S REMEDIES AGAINST THE GOODS. — But there are also remedies against the goods themselves, which the unpaid vendor may exercise, although the property or title has actually passed. When the property passes the right to pos- session also passes, but notwithstanding, this right is defeasible if the buyer becomes insolvent, or fails to ♦Shawan v. Van Nest, 25 Ohio St. 490; Gardner v. Nor- ris, 49 N. H. 376; Pollen v. Leroy, 30 N. Y. 459; 46 Pa. St. 177. Sufficient must be done to pass or tender title before the action for the full price will lie. Railway Co. v. Maguire, 62 Ind. 140; 83 Me. 414; 13 Wis. 67; 49 Md. 589. So the action should be for goods bargained and sold, and not for goods sold and delivered, where the delivery has not been effected. 23 N. H. 395; 100 Mass. 523; 28 Or. 386. **Martindale v. Smith, I Q. B. 395; Chitty on Cont. p. 408; Bartholomew v. Markwick, 15 C. B. N. S. 711; 4 N. H. 79 154 PERSONAL PROPERTY. perform conditions precedent or concurrent imposed upon him by the contract. If the goods have been de- livered into the actual possession of the vendee, there is no longer any remedy against them; but if the goods have not been delivered into the actual posses- sion of the vendee, they may be in two different con- ditions as regards delivery : — 1. They may be in the actua. possession of the vendor, his agent or bailee. 2. They may have been put in transit for delivery to the vendee, and thus not in the actual possession of either one. When the goods are thus in transit, the law gives to the unpaid vendor the right of intercept- ing them if he can, and prevent their reaching the actual possession of an insolvent vendee. This right of the unpaid vendor, long known in the law of sales, is called the right of stoppage in transitu. It can only be exercised when the vendee has become insolvent, or the vendor learns of the insolvency in fact during the transit. When the goods have not left the actual possession of the vendor, his agent or bailee, the vendor has a lien for the unpaid price, except where he has agreed to sell on credit, since this agreement waives the lien, and the buyer may take possession while the credit lasts and leave the vendor to his personal action for the price. In this case, the lien being waived, by the credit given, the buyer may leave the goods in the custody of the vendor until the credit expires, and then make default in payment, or become insolvent. PERSONAL PROPERTY. iss The question then arises whether the vendor's lien re- vives on the ground that the waivure was conditional, or can the vendor exercise a quasi right of stoppage before transit? The extent of the vendor's rights in this intermediate state of affairs has not been exactly defined, but there are authorities which seem to ap- prove the following rules: 1. If the question arises as between the unpaid vendor and the insolvent buver, the vendor may refuse to give up the goods without payment. He has a lien on them for the price. 2. The vendor's remedy by lien is not impaired by his giving an order for the delivery of the goods stored in a warehouse, or in other bailment, if the order is countermanded before the vendee secures the assent of the bailee to his possession, that is, before the bailee attorns to the buyer. 3. If the controversy be between the unpaid vendor and a sub-vendee or pledgee, the vendor may retain possession, unless he has transferred to the buyer a bill of lading or other document of title to the goods, which the buyer has lawfully transferred for value to the claimant. If no such title has been transferred, and no assent, express or implied, on the part of the vendor been given to the sub-sale or pledge, the vend- or's lien will prevail. 4. The vendor may assent to the sale to the sub- vendee before it takes place, either by language or conduct, but such assent is not to be implied from a 1S6 PERSONAL PROPERTY. document given the buyer other than a document of title, unless it contains statements of facts creating an estoppel.* While the unpaid vendor has a lien for the price, and a riglit of stoppage in transitu, the failure to pay the price does not rescind the contract, unless that is the express agreement. (Martindale v. Smith, i Q. B. 39S-) Sec. 1 1 17. SAME SUBJECT— LIEN.— A lien is defined by Mr. Benjamin as "a right of retaining prop- erty until a debt due to the person retaining it has been satisfied."** Liens may be either, express, or implied. A lien is always implied, where nothing is said to the contrary, in a sale of goods, until the payment of the price, and unless it is waived the buyer cannot get possession without payment.*** The contract may show that no lien was contem- plated between the parties, or it may be abandoned during the performance of the contract.**** The vendor waives his lien when he takes a bill of ex- ♦Benj. Sales, Sec. 799, citing, Valphy v. Oakley, 16 Q. B. 941 ; M'Ewan v. Smith, 2 H. L. C. 309 ; Craven v. Ryder, 6 Taunt. 433 ; Merchant Banking Co. v. Steel Co., 5 Ch. D. 205; 2 Sm. L. C. p. 829. *Benj. Sales, 196; Conrad v. Fisher, 37 Mo. App. 352; 55 N. J. L. 324. *** Arnold v. Delano, 4 Cush. 33 ; Saffiord v. McDonough, 120 Mass. 291 ; Perrine v. Barnard, 142 Ind. 448; Bohn Mfg. Co. V. Hynes, 83 Wis. 388. ****Pickett V. Bullock, 52 N. H. 354; Re Batchelder, 2 Low. 24s ; McElwee v. Lumber Co., 69 Fed. Rep. 302. PERSONAL PROPERTY. 157 change and gives receipt for the price, and when he delivers the goods to the buyer he abandons it.* Where the goods at the time of the sale are in the possession of a third person, the lien is lost as soon as the vendor, buyer and third person agree together that the third person shall cease to hold for the vendor and hold possession for the vendee. So for the purpose of a lien, the delivery of goods to a carrier for delivery to the buyer as such, will put an end to the vendor's lien, but not to his right of stoppage in transitu. A lien, however, is not divested by merely marking the goods in the name of the buyer, or setting them aside for him, or by boxing them up and putting the pur- chaser's name on the boxes. But the lien will be di- vested if the vendor delivers to the vendee the evi- dence of property or title, as a bill of lading, and in some states, the warehouse receipt for the goods.** If only part of the goods be delivered, the lien is not divested, and attaches to the residue for the whole price.*** So where a deHvery order has been given by the vendor to the buyer on a warehouseman, the ♦Thompson v. Wedge, 50 Wis. 42; Gregory v. Morris, 96 U. S. 619; Freeman v. Nichols, 116 Mass. 309; Bank v. Walbridge, 19 Ohio St. 424; 66 N. Y. 113; but the taking of a note for the price, does not destroy the lien if possession re- mains in the vendor, and he is ready to return the note, es- pecially if the buyer becomes insolvent. (4 Cush. 33; Milli- ken V. Warren, 57 Me. 46; 19 N. H. 419. **Davis v. Russell, 52 Cal. 611 ; Allen v. Jones, 24 Rep. 11 ; 40 111. 320; Benj. Sales, 807. ***Dixon V. Yates, s B. & Ad. 313; Miles v. Gorton, 2 Cr. & M. 504; Buckley v. Furniss, 17 Wend. 504; 128 Mass. 104; 13 Johns. 434. 158 PERSONAL PROPERTY. vendor may, before actual possession is taken by the buyer, or some innocent purchaser of the order has intervened, revoke the order and restore his right to Hen.* Sec. 1118. SAME SUBJECT— RESALE.— Where the buyer has notice to take away the goods and pay the price, but does not do so, can the vendor resell the goods, or must he hold them, obtain a judgment and sell them on execution? Mr. Benjamin states the rule to be in England, that while the lien amounts to more than a mere right to hold the goods, yet it does not amount to a "complete resumption of the right of property, or, in other words, to a right to rescind the contract of sale, but perhaps comes nearer to the rights of a pawnee with a power of sale, than to any other common law rights. At all events, it seems that a resale by the vendor, while the purchaser continues in default, is not so wrongful as to authorize the pur- chaser to consider the contract rescinded, so as to en- title him to recover back any deposit of the price, or to resist paying any balance of it still due ; nor yet so tortious as to destroy the vendor's right to retain, and so entitle the purchaser to sue in trover."** The right of resale on default of the buyer to make payment, and to recover the difference between the proceeds and the original contract price is quite gen- *Keeler v. Goodwin, iii Mass. 490; Anderson v. Reed, 106 N. Y. 333. **Benj. Sales, Sec. 782; Blackburn on Sales, p. 325. PERSONAL PROPERTY. 159 erally admitted in America.* Of course the sale must be fairly made, and within a reasonable time in order to furnish a conclusive test of the vendor's damages against the vendee. It is usual to give notice to the buyer of the time and place of sale, or at least inform the buyer that the vendor intends to exercise the right of sale. But such notice is not held to be absolutely necessary in the cases.** The sale being fairly made, the amount obtained is applied upon the purchase price and the vendor may recover the difference between this amount and the original contract price from the vendee by action. The necessary expenses of the sale is also to be deducted from the amount realized, but not expenses of storage and the like after the prop- erty could have been sold.*** Sec. 1 1 19. SAME SUBJECT— STOPPAGE in transitu. — The right of stoppage in transitu, which the unpaid vendor may exercise, never arises except upon *Haines v. Tucker, 50 N. H. 313; Shawhan v. Van Nest, 25 Ohio St. 490; Sands v. Taylor, S Johns. 395, a leading case; Mason v. Decker, 72 N. Y. 599; Holland v. Rea, 48 Mich. 218; Bagley v. Findley, 82 111. 524. **Maulding v. Steele, 105 111. 644; Linden v. Eldred, 49 Wis. 305 ; Smith y. Pettee, 70 N. Y. 13 ; Saladin v. Mitchell, 45 111. 79; Rosenbaums v. Weeden, r8 Gratt. 785; Clore V. Robinson, 38 S. W. Rep. 687. ***S Johns. 395; Lewis v. Greider, 51 N. Y. 231; Whit- ney V. Boardman, 118 Mass. 242; Chalmers v. McAuley, 68 Vt. 44; Rickey v. Ten Broeck, 63 Mo. 567. If the goods should bring more than the price of the original contract the buyer derives no benefit from it, the increased profit goes to the vendor; but the buyer can show in an action for dam- ages that the breach has caused no loss to the vendor. i6o PERSONAL PROPERTY. the insolvency of the buyer, and is based on the rule that one man's goods shall not be applied to the pay- ment of another's debts.* This right of the vendor, on the insolvency of the buyer, is almost universally recognized among com- mercial nations. It seems that it may be exercised by the vendor or his agent, and those who stand in the relation of vendors or consignors, especially where the bill of lading has been transferred by the vendor to his agent.** There must be three parties in order to exercise the right of stoppage in transitu, — a vendor, a vendee, and a middleman, such as a carrier, having possession of the goods. The goods must be in the possession of a third person, since if they come into the actual posses- sion of the vendee the vendor loses the right.*** While the right of stoppage in transitu may be exer- cised by others than the vendor, and without authority from him, yet if the vendor does not ratify the act be- fore the transit ends it will be ineffective. And, gen- erally, persons having merely liens on the goods and *Gibson V. Carruthers, 8 M. & W. 337, giving a history of the right,' as originally allowed in equity, and subsequently adopted as a rule of law. **Feise v. Wray, 3 East, 93 ; Morison v. Gray, 2 Bing. 260; Seymour v. Newton, 105 Mass. 275; 13 Me. 93; Goss- ler V. Schepeler, 5 Daly, 476; 85 N. C. 429. ***Poole V. R. R. Co., 58 Tex. 134; Stevens v. Wheeler, 27 Barb. 658; Secorab v. Nutt, 14 B. Monr. 324; 106 Mass. 67; 60 la. io8; 160 Pa. St. 527; Guilford v. Smith, 30 Vt. 49; Covell V. Hitchcock, 23 Wend. 611. PERSONAL PROPERTY. i6i not the owners, or in the relation of owners, cannot stop goods in transit under this right. (123 Mass. 12.) This right of the vendor exists notwithstanding the partial payment of the price ; is neither lost by his hav- ing received conditional payment, as bills of exchange or other security, or having given credit and the like.* As regards notes and bills of exchange it is held that even if the vendor negotiates the bills and they are outstanding in third persons' hands, he has still the right of stoppage if the notes are not matured.** But a vendor who has received securities in abso- lute payment of the price has no right of stoppage in transitu. He has no further remedy against the goods but must look to the securities. (32 Vt. 58.) By insolvency, is meant the general inability to pay one's debts. It is probable that the failure to pay one's just debts would be sufficient evidence of insolvency to require the vendee against whom it was charged to show that he was not insolvent. The vendor must have some evidence of the insolvency of the buyer be- fore he can exercise the right of stoppage in transitu. If the vendor stops the goods when the vendee is not in fact insolvent, he does so at his peril, and thereby becomes liable in damages to the vendee for the loss sustained by him.*** ♦Eaton V. Cook, 32 Vt. 58 ; Stubbs v. Lund, 7 Mass. 453 ; Clapp V. Sohmer, 55 la. 273; Buckley v. Furniss, 17 Wend. 504; Newhall v. Vargas, 13 Me. 93; 20 N. H. 154. **Benj. Sales, 83S; 4 Cush. 33. *Benj. Sales, Sec. 837-8; Biddlecombe v. Bond, 4 A. & E. 332; Clapp V. Sohmer, 55 la. 273; 38 Mich. 674; 43 N. H. 580; 63 Ala. 243; 12 Ohio St. 515. i62 PERSONAL PROPERTY. Sec. 1 120. WHEN DOES A TRANSIT BEGIN AND END ? — The transit is held to continue from the time the vendor parts with the possession until the purchaser acquires it. That is, from the time the vendor has so far made delivery that his right to retain the goods and right of lien for the purchase price are gone, to the time when the goods have reached the possession of the buyer, or his assignee. The goods are subject to stoppage as long as they remain in the possession of the carrier as a carrier. But where the buyer sends his own agent or servant for the goods, delivery to such servant or agent is delivery to the buyer, and the right is ended. So if the buyer sends his own conveyance or vessel, they have reached his possession as soon as the vendor has delivered them into the conveyance or vessel.* Goods may be still in transit although lying in a warehouse to which they have been sent by the vendor on the purchaser's order. The test for determining whether the transit is ended is in what capacity is the goods held by him who has them in custody. Where the goods have reached their destination, and the question arises whether they remain in the hands of the carrier, as a carrier, or in some other capacity. The rule is that where the carrier is also a warehouseman and may have the goods as a carrier on deposit in his ♦James v. Griffin, 2 M. & W. 633; Blackburn on Sale, 242; 14 B. Monr. 324; 17 N. Y. 249; 30 Pa. St. 254. The vendor may restrain the delivery to the vendee on his own vessel by taking a bill of lading in the name of the captain as bailee. PERSONAL PROPERTY. 163 warehouse, or in the warehouse independent of the carriage and subject to the order of the buyer, the buyer and carrier must agree before the carriage is terminated and the carrier becomes the bailee of the buyer.* The question is one of intention, and if the vendor shows that he intends to abandon the goods to the carrier as agent for the vendee, the right of stoppage in transitu is ended. So the buyer may anticipate the end of the transit, and put an end to the right of stop- page, by getting possession of the goods by an agree- ment with the carrier.** So the bona-flde sale for a valuable consideration, accompanied with an assign- ment and delivery of the bill of lading, before the ter- mination of the transit defeats the right, and this whether the consideration be cash or an antecedent debt.*** If the vendee had been guilty of fraud the sale would not be effective.**** But a mere sale by *Blackbuni on Sale, p. 248; Whitehead v. Anderson, 9 M. & W. 529; 57 N. H. 454; 60 la. 108; 58 Minn. 464; 8 Pick. 198; Calahan v. Babcock, 21 Ohio St. 281; 35 Kams. 310; 50 Miss. 591; 13 Wis. 79; 93 Wis. 250. Ordinarily where goods are in the carrier's warehouse at the end of their journey, and the freight or other charges have been paid by the vendee, the possession of the party is regarded as that of an agent for the buyer, and the right of stoppage in transitu is at an end. Hall v. Dimond, 63 N. H. 565; Williams v, Hodges, 113 N. C. 36; 40 la. 627. **I4 B. Monr. 324; 106 Mass. 72. ***Si Cal. 345; 32 Barb. 490; Lee v. Kimball, 45 Me, 172; 24 N. Y. 638. But not if the assignment is merely col- lateral security for a pre-existent debt. 63 Ala. 243. ****Rosenthal v. Dessau, 11 Hun, 49; 85 Ind. 457; Pollard V. Vinton, 105 U. S. 7 ; 55 N. Y. 456. i64 PERSONAL PROPERTY. the vendee, without the vendor's consent, and unac- companied by actual or constructive possession does not defeat the right.* The mere arrival of the goods at the place of desti- nation will not necessarily operate to defeat the vend- or's right, but the vendee must take actual possession. What amounts to actual possession will depend upon the Circumstances. Delivery of part of the goods will not operate as a delivery of the whole so as to dis- charge the right of the vendor, unless it is shown that it was so intended. If the goods are actually de- livered to the buyer or the assignee of the buyer, this puts an end to the right of stoppage in transitu.* Sec. 1 121. HOW THE RIGHT IS EXERCISED. — There is no particular mode or manner by which the seller is bound to exercise the right of stoppage in transitu. Any means which he uses to get the goods which is not criminal will be sufficient. The usual mode is by notice to the carrier or third person, for- bidding him to deliver to the buyer and requiring that the goods be held for the vendor. If the carrier de- livers to the vendee, when he should not, he is liable to the vendor, and if he withholds delivery from the vendee when he should deliver he is equally liable to *Engine Co. v. Oliver, i66 Neb. 612; Holbrook v. Vose, 6 Bosw. 77. **S7 N. H. 454; 160 Pa. St. 527; 20 Vt. 172; Crawshay V. Eades, i B & C, 181 ; Tanner v. Scovell, 14 M. & W. 28; Benj. Sales, Sec. 857. PERSONAL PROPERTY. 165 the vendee.* The notice to withhold delivery must be given to the one in possession of the goods, and on behalf of the vendor.** Sec. 1 122. HOW THE RIGHT MAY BE DE- FEATED. — ^The vendee being in possession, with the consent of the vendor, of a bill of lading, or other doc- ument of title to the goods, may, by transferring the same to a third person, who bona Ede gives value for it, defeat the right. At the common law the right was defeasible when the bill of lading was transferred to a bona Ude indorsee other than factors and consignees ; but by the Factor's Act in England, the common law rule was extended to factors and consignees, who pre- viously had tO' be the bona-fide purchasers of the goods in order to divest the vendor of his right of stop- page.*** Sec. 1 123. THE EFFECT OF STOPPAGE in transitu. — The exercise of the right of stoppage in transitu is only an extension of the right of lien, given by the common law to every unpaid vendor before the goods leave his possession. It does not rescind the contract, but simply restores the goods to the posses- sion of the vendor, and the vendor has the same right to recover the price by resale or suit at law as before *7 Taunt, 169; 43 N. H. 580; 105 Mass. 272; s Denio, 629. **S Denio 629. ***Benj. Sales, Sec. 862-3; Lickbarrow v. Mason, i Sm. L. C. 137; 13 Ch. Div. 628; 45 Me. 172. It does not matter that the purchaser knows the goods have not been paid for. ****Newhall v. Vargas, 13 Me. ^^ ; 20 Conn. 53 ; Wentworth i66 PERSONAL PROPERTY. the stoppage.**** So if the price is subsequently ten- dered by the vendee before resale, the vendor must give up the goods, though enhanced in value.* The vendor may, in some cases, sell the goods after stop- page and give a good title as against the creditors of the vendee.** V. Outhwaite, lO M. & W. 436; L. R. 2 Ch. App. 332; 44 N. Y. 661 ; 80 N. Y. 244- *I2 Pick. 313; 13 Me. 93; 126 Pa. St. 485; 10 Tex. 2. **Tuthilly V. Skidmore, 124 N. Y. 148; Hamburger v. Rodman, 9 Daly, 93. PERSONAL PROPERTY. 167 CHAPTER XII. RIGHTS AND REMEDIES OF THE BUYER. Sec. 1 124. RIGHTS AND REMEDIES OF THE BUYER FOR BREACH OF CONTRACT.— The breach of contract of which the buyer may complain may arise from the vendor's default in delivering the goods, or from some defect in the goods when deliv- ered. The buyer's right to avoid the contract for fraud, mistake and failure of consideration and the like has already been considered, and we are now to discuss his rights and remedies for breach before ob- taining possession of the goods, both where the con- tract is executory and where it is executed and title has passed, and also his remedies after getting actual possession of the goods from the vendor. Sec. 1125. REMEDIES BEFORE OBTAINING POSSESSION, WHERE THE CONTRACT IS EXECUTORY. — Where the contract is executory the property or title in the goods does not pass to the buyer, and his remedy for the failure of the vendor to carry out the agreement, is for damages for the breach, and is the same as that which exists for the breach of any contract. The damage which may be re- covered is the difference between the contract price and market price at the time and place of the pro- posed delivery of the goods.* ♦Barrow V. Arpaud, 8 Q. B. 604; Collins v. Delaporte, 115 i68 PERSONAL PROPERTY. Where there are other circumstances in the contract which the rule as to the market price does not cover, it is said that the damages which may be recovered are such as may fairly be supposed to have been in the contemplation of the parties at the time the contract was made, and what this was, will be a matter for the jury to determine.* Sec. 1 126. SAME SUBJECT— WHERE THE CONTRACT IS EXECUTED AND TITLE HAS PASSED. — Where the property has passed to the vendee in an executed contract, though the buyer has not obtained possession, he is entitled to possession because of his title and ownership of the goods. In this case the buyer has still his right of action for breach of contract to deliver, and this was formerly his only remedy. But now he may also maintain an action of trover or conversion on refusal of the vendor to deliver the goods. That is, the buyer may treat the contract as if the title were still in the vendor and sue for the breach of the contract, or consider the title as in himself and sue in trover for the conversion of the goods. There is some diversity of opinion upon this question in the United States, but the weight of authority seems to be that the buyer cannot waive the tort and sue in assumpsit unless the goods have been actually sold or parted with by the vendor. In such Mass. 162; 49 111. 446; 13 Wis. 67; Hadley v. Baxendale, 9 Ex. 341. *Griffin v. Colver, 16 N. Y. 489; Sedgwick on Damages, vol. I, p. 233. PERSONAL PROPERTY. 169 a case the damages is the money received by the vend- or, subject to a counter-claim on the part of the vendor for the price. (Beni. Sales, Sees. 884-886.) Sec. 1 127. REMEDIES OF BUYER AFTER RECEIVING POSSESSION.— .After the buyer has actually received the goods into his possession, the per- formance of the vendor's duties may be incomplete, either by the breach of warranty of title, or breach of warranty of quality. Where the breach is for a war- ranty of quality, as a general rule, because of the maxim, caveat emptor, the warranty must be express. In these cases the buyer has the choice of three reme- dies : — I. He may refuse to accect the goods and return them. 2. He may accept the goods and bring an ac- tion for breach of warranty. 3. He may wait until he is sued for the price of the goods, and then set up the breach of the agreement under which he pur- chased the articles, and thus reduce the price by coun- ter-claim for damages.* If the buyer inteuds to rely upon a defect in the quality of the goods, he should be careful to give no- tice to the vendor and offer to return them ; but this does not affect the legal aspect of the right, since if the defect exists it may be shown, but the failure to *Mondel v. Steel, 8 M. & W. 858; 105 Mass. 17; 108 Mass. 573; 115 U. S. 363; 42 Mo. App. 313; Hoadley v. Huse, 32 Vt. 179; 88 Me. 504; 53 la- 399; 89 la. 400; 50 Minn. 261. 170 PERSONAL PROPERTY. give notice to the vendor might create a presumption or inference that the complaint as to quaHty was not well founded, {dj Me. 78; 97 la. 148.) Where there is an agreement on the part of the vendor to take back the goods if they prove defective, they must be returned as soon as the fault is discov- ered. If there is a remedy agreed upon, as that the vendee may return the goods, it is doubtful whether he has any other remedy for the breach of warranty as to quality.* The general rule of damages in actions upon a war- ranty is the same as that for the breach of the vendor to deliver, that is, the difference between the value of the article delivered, and the article as it was repre- sented to be, or as it is otherwise stated, the value of an article corresponding to the warranty, minus the value of the article actually received and kept, and not nec- essarily the difference between value of the article re- ceived and the price actually paid for it, since the buyer is entitled to the profits if he purchased it for less than its real value.** So the buyer may recover special or consequential damages for a breach of warranty, as the loss occa- *2 H. Bl. 573 ; 79 la. 101 ; Bomberger v. Griener, 18 la. 477; some cases hold that action for breach may be main- tained though vendor expressly agreed to take back the prop- erty for defects, 10 Cush. 88; 21 Minn. 391; 50 Minn. 261; 56 Conn. 289. These cases hold the right to return as merely a cumulative remedy **Brown v. Sharkey, 93 la. 157; Rutan v. Ludlam, 29 N. J. L. 398; Clothers v. Keever, 4 Pa. St. 168; 42 Conn. 9; a Allen 52. PERSONAL PROPERTY. 171 sioned by reason of the defect in the article, the profit that might have been made if the article had been ac- cording to agreement, if they can be clearly shown by evidence to be the natural results of the breach of war- ranty.* But mere contingent or speculative gains or losses cannot be recovered, since it cannot be defin- itely ascertained whether they would or would not have resulted.** It is a general rule that a purchaser of personal property cannot maintain a bill in equity for specific performance of the contract, since he has usually a full and complete remedy at law. But there are a few cases in which the courts allow the buyer to secure specific performance by bill in equity on the ground that his remedy at law is not plain or adequate. Thus to secure the return of surveyor's maps, plans and papers the bill was allowed ; to enforce the assignment of patent rights, to secure heirlooms, and articles which the vendor alone can supply.*** *01dham v. Kerchner, 81 N. C. 430; Griffin v. Colver, 16 N. Y. 489; 40 N. Y. 422; Swain v. Schieffelin, 134 N. Y. 471 ; Thorns v. Dingley, 70 Me. 100; Love v. Ross, 89 la. 400; Ferris v. Comstock, 33 Conn. 513; Jones v. George, 61 Tex. 345- **Goodell V. Lumber Co., 57 Ark. 203 ; Herring v. Skaggs, 62 Ala. 180; McCormick v. Vannatta, 43 la. 389. ***McGowin v. Remington, 12 Pa. St. 56; Somerby v. Buntin, 118 Mass. 287; Williams v. Howard, 3 Murphey, 74; Hapgood V. Rosenstock, 23 Fed. Rep. 86; 46 N. J. Eq. 477; 91 Pa. St. 434; "5 Mass. 244; 74 Wis. S9i; 108 111. 195. EQUITY OR CHANCERY JURISPRUDENCE. 173 EQUITY OR CHANCERY JURIS- PRUDENCE. CHAPTER I. THE SUBJECT INTRODUCED AND DEFINED. Sec. 1128. HISTORY OF THE COURT OF CHANCERY. — While the origin of courts and tri- bunals for the administration of justice in any partic- ular nation usually antedate the history of a nation, the origin and history of the court of chancery is an exception, and is fully covered by recorded history, so that we may trace its development with great ac- curacy. Among the Germans and Anglo Saxons all, legisla- tive, executive and judicial power was at first ex- ercised by the people of each particular community meeting together on stated or special occasions, but the advent of kings and the growth of the principle of royal authority curtailed many of the rights of the people. The Anglo Saxon kings perhaps never as- sumed the prerogative of sitting in a judicial capacity, and permitted justice to be administered by local courts in the several counties, towns and districts, with one general or superior court, with civil and spiritual 174 EQUITY OR CHANCERY JURISPRUDENCE. jurisdiction, known as the Wittena-gemote, or as- sembly of the wise, which body acted not only in a ju- dicial, but also in a quasi-legislative capacity.* After the Norman conquest, and the introduction of the feudal doctrines, the king came to be regarded as the fountain of justice, and did actually at first, and later, in theory, sit as the highest court to administer justice.** But it was early established, that while the king might sit in the court, and in theory was pre- siuned to be always present and speaking by the mouths of his judges, yet he was there as king, and not as judge.*** During the Norman period the "wittena-gemote" of the Anglo-Saxons became the Curia Regis, or king's court. It differed from a modern court, and its vari- ous members composed several distinct counsels act- ing as advisory or quasi-legislative bodies to the king. The Concilium Privatum, or Select Council, a part of this general council, was composed of the great offi- cers of the state, nominated from the nobility by the king and sworn into office. This body advised with the king upon all important state matters, and in a modified form still exists to-day, and is known as the privy council.**** The judicial business coming before the Curia Re- gis was ordinarily referred to one of three permanent ♦3 Bl. Com. 37; I Madox Hist, of the Ex. 92. **4 Inst. 7 ; I Spence Eq. Jur. 330. ***I2 Rep. 63. ****The Lord's House in Parliament, Hale, 4, 13; Eq. Jur. 328; 3 Bl. Com. 36-38. EQUITY OR CHANCERY JURISPRUDENCE. 17^ committees, afterwards known as the courts of Ex- chequer, Common Pleas, and King's Bench. The court of Exchequer assumed jurisdiction of all mat- ters pertaining to the revenues,- the court of Common Pleas of all civil disputes, in which the interest of the king was not involved, and the court of King's Bench, of all crimes and other matters not falling within the jurisdiction of either one of the. other courts.* Under this system one of the principal officers of the kingdom was the Chancellor. He was, probably, at first, the king's private secretary, but at a very early date became invested with many judicial powers and was given a general superintendency over the other officers of state, and had the custody of the king's great seal.** *The Lord's House in Parliament, Hale, 51, 55 ; 3 BI. Com. 44-45. **''The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has its name of chancery, cancellaria, from the judge who presides here, the lord chancellor or cancellarius ; who, Sir Edward Coke tells us, is so termed a cancellando, from can- celling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction. But the office and name of chancellor, however derived, was certainly known to the courts of the Roman emperors, where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a gen- eral superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established 176 EQUITY OR CHANCERY JURISPRUDENCE. The Chancellor was a member of the Curia Regis and of the Concilium Privatmn and, by virtue of his office, exercised certain common law judicial powers. Thus he had authority to repeal letters patent granted by the king; to hear petition of right against tlie crown ; and to hear and determine all personal actions to which the king or his officers were parties, and es- pecially to issue all writs by which all common law actions were commenced. The Chancery, that is, the Chancellor's court, was therefore a common law court, or branch of the judicial system of England from the earliest times.* The Chancellor exercised very important functions aside from these common law powers, as he was at first usually a Bishop, or some other church dignitary, and became the king's spiritual adviser. Owing to his confidential relations with the king, ancj, his priestly character, all matters which required the king to in- upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dignities, accord- ing to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown, as were au- thenticated in the most solemn manner, and, therefore, when seals came in use, he had always the custody of the king's great seal. So that the office of chancellor, or lord keeper whose authority by statute s Eliz. c. i8, is declared to be ex-- actly the same, is with us at this day created by the mere delivery of the king's great seal into his custody." — 3 Bl. Com. 46-7; 4 Inst. 88; Gibb. Decl. & Fall., 2, 99; i Camp. Lives of The Chancellors, 2. *3 Bl. Com. 46-48 ; Com. Dig. Chancy. A, 1,2; Spence Eq. Jur. 336; Bacon's Abrdg. "Ct. of Chy." B. EQUITY OR CHANCERY JURISPRUDENCE. 177 tervene and prevent any hardship which might be oc- casioned by the strict enforcement of the rules of the commoai law courts were naturally referred to the Chancellor, and he thus came to be called the keeper of the king's conscience. And later by a royal order all matters of "grace," that is, special application to the king for equity, were directed to be prosecuted before the Chancellor or keeper of the great se?l* The chancellor and his assistants acted as clerks for the common law courts. All actions in the law courts were commenced by the issuing of an original writ, which writs were framed by the chancellor's clerks, afterwards called masters in chancery, and issued out of the chancery in the name of the king and under his great seal. The writ was directed to the sheriff of the proper county, requiring him to command the defend- ant to right the wrong set forth in the writ or to ap- pear in one of the common law courts and answer for his default.** While the clerks of the chancery issued the writs and drafted them from the facts presented by suitors for justice, the law judges had exclusive authority to pass upon their sufficiency, as well as what would constitute a defence to each cause of action. From their adjudications the form of the writs that might *l Madox Hist. Ex. 60; Hargreave's Law Tracts, 427. Blackstone states the common law functions of the Chan- cellor to be of earlier origin than his equity jurisdiction. 3 Bl. Com. 47-8. **i Spence Eq. Jur. 238; 3 Harv. Law. Rev. 97; i Madox Hist. Ex. 85-6. 178 EQUITY OR CHANCERY JURISPRUDENCE. be issued by the clerks became fixed and rigid, and while ordinary actions had a corresponding writ, causes of action arose for which there was no writ, and the common law courts refusing to allow the old writs to be modified to meet the emergency it was necessary for parliament to attempt to remedy the matter by statute, and by the statute of Westminster II. (13 Edw. I. Chap. 24) it was provided that the clerks oi the chancery might issue a writ in a new case, and if they failed to agree upon one, they should refer the matter to the next parliament, where one might be framed.* This statute gave to the chan- cery, or clerk's office of the law courts, three new writs, trespass on the case, trover and assumpsit, and then it failed. And they are sometimes called the equitable actions of the law, from the fact of their being broader and more liberal than the other common law writs.** In the reign of Edw. III. (1327-1377), the court *i Spence Eq. Jur. 325 ; 3 Bl. Com. 51. Actions at law at this time were divided into two general classes ; first, Real Actions ; second, Personal Actions. Real actions were brought to determine the right to and the pos- session of the various estates in land, and all these proceed- ings were exceedingly technical, both in form and procedure. Personal actions were divided into two classes, ex contractu and ex delicto. And it necessarily happened that there were a great many applicants whose cases did not fall within the ground covered by any writ, and which were still meri- torious and appealed to the conscience of the king. Undoubt- edly at first the king or the Chancellor gave personal atten- tion to such cases and saw that substantial justice was done. **3 Bl. Com. 51; I Spence Eq, Jur. 326. EQUITY OR CHANCERY JURISPRUDENCE. 179 of chancery had assumed jurisdiction to give relief in cases not cognizable by the law courts and requiring extraordinary remedies, and in the 22nd year of Edw. III., by ordinance all matters of equity or grace were referred to the Chancellor or keeper of the great seal.* After this ordinance of Edward III., and the as- sumption of separate jurisdiction by the chancery, suits in equity were instituted by bill addressed to the chancellor. This bill was from a very early period written in English and hence was called an English bill, while the proceedings in the common law courts were in Latin. The earliest bill of which we have any record was filed in the reign of Henry V., and was written in law French.** The bill addressed to the chancellor contained a sim- ple statement of facts upon which relief was predi- *i Madox, 62; I Story, Eq. Jur. Sec. 4411; Rex. v. Hare, i Strange, 150; Pomeroy, Eq. Sec. i; Bispham, Prin. Eq. Intro- Chap. "But .when, about the end of the reign of King Edward III., uses of lands were introduced, and, though totally dis- countenanced by the courts of common law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established ; and John Waltham, who was bishop of Salisbury and chancellor to King Richard II., by a strained interpretation of the above statute of Westm. 2, devised the writ of subpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use; which process was afterwards extended to other matters wholly determinable at the common law, upon false and fic- titious suggestions." — 3 Bl. Com. 51. **Hals V. Hynchly, i Law Quar. Rev. 443 ; 3 Bl. Com. 442, i8o EQUITY OR CHANCERY JURISPRUDENCE. cated. At first, the chancellor, after a personal ex- amination of the bill, if he found the case meritorious, issued a subpoena requiring the defendant to appear before the court of chancery and answer. Afterwards the chancellor required every bill to be signed by the soHcitor who prepared it, and relying upon his judg- ment a subpoena was issued as a matter of course. The writ of subpoena is said to have been invented by John Waltham, master of the rolls, in the fifth year of the reign of Richard II. It obtained its name from the fact that it commanded the defendant to appear and answer the complainant, and abide the order of the court under a certain penalty (subpoena) therein inserted. In case the defendant neglected or refused to appear he was proceeded against for contempt.* Not only did the court of chancery proceed in a different manner in the commencement of suits, but the relief whicTi it afforded was more ample and com- plete than the law courts could give. And this latter circumstance tended materially to increase the number of suitors in chancery. The machinery of the com- mon law courts to either prevent wrongs or compel parties to carry out their agreements was defective. The remedy for a breach of contract at common law was a judgment for damages, but the court of equity could compel the defendant to fulfil his engagement by decreeing specific performance. So the law courts were powerless in most instances to prevent a threat- ened wrong, but the chancery by injunction could re- *3 BI. Com. SI, 443; i Spence Eq. Jur. 338, 345, 369. EQUITY OR CHANCERY JURISPRUDENCE. i8i strain the defendant from committing the injury in- tended. Again, in the law courts a judgment was en- forced against the property of the defendant, that is, they acted in rem, while the chancery court acts in personam, or against the person. And in the trou- blous times of Richard II., the chancery protected the poor and weak against the rich and powerful, assum- ing in some cases criminal jurisdiction.* The court of Chancery did not like the law courts sell justice. In those early times one of the principal revenues of the crown was derived from the sale of justice, or, more accurately, perhaps, from a sale of the means of procuring justice. Every step in a law suit had to be purchased with a fine, or what we should now call costs. The suitor must pay for his writ; for the privilege of pleading certain facts; to hasten the trial; to hasten judgments, and for the col- lection of the judgment. Some of these amounts were very considerable, and it might easily happen that the fines paid the king, together with the attorney's fees, would deter one from bringing a suit at law.** *Spence Eq. Jur. 344, 353", 685. Another important dif- ference between the two courts existed in the method of taking proofs. At law no person in interest could testify, nor could the plaintiff compel the defendant to be a witness; while in chancery the defendant could be compelled to an- swer the complainant's bill under oath, and specifically answer the interrogatories therein contained, and if the defendant desired to obtain the complainant's testimony he could do so by cross-bill. 3- Bl. Cora. 382, 437, 446. **Madox, in his history of the Exchequer, classifies these court fines as: I. JFines to have justice and right; 2. fines for i82 EQUITY OR CHANCERY JURISPRUDENCE. Under Lord Ellesmere (1616), an able chancellor, the practice of the court of chancery in enjoining the collection of judgments and proceedings at law was stoutly resisted by the law courts with Sir Edward Coke, then chief justice of the king's bench, as their chief backer, with the result that the matter was re- ferred to the king and counsel, and they decided in favor of the equity court.* A similar conflict between the law and equity courts arose in this country in New York in 1809.** Under a succession of able chancellors the jurisdic- tion of the equity court became firmly established, and its method of procedure uniform and complete, and so it existed in England side by side with the law courts until 1873, when the passing of the Judicature Acts united the two systems of courts into one supreme court, of which chancery became a division.*** writs, pleas, trials and judgments ; 3. fines for expedition of pleas, trials and judgments; 4. fines for delay thereof; 5. fines payable out of the debt recovered. — Chap. 12. *"This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the council, and even a master in chancery, for having incurred a prae- munire, by questioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and imposi- tion. — 3 Bl. Com. 53-54; Camp. Lives Ld. Chancellors, Chap. 48 ; Courtney v. Glenville, Cro. Jac. 343 ; Earl of Oxford's Case, 2 White & Tudor, 642; 8 Swanst. 22n. **Re Yates, 2 Johns. 317; Yates v. Lansing, s Johns. 282; 9 Johns. 395. ***36 & 37 Vict., c. 66; 25 Am. Law Rev. i; 10 Harvard Law Rev. 442; Kerly, Hist, of Eq p. 273. EQUITY OR CHANCERY JURISPRUDENCE. 183 Sec. 1 129. EARLY HISTORY OF CHANCERY IN THE UNITED STATES.— The American colo- nies were settled during the most influential period of the chancery court in England, and it, along with other serviceable institutions of the mother country, became engrafted on the judicial system of the vari- ous colonies. In most of them the equity powers were exercised by the royal governor in conjunction with his council, while in Rhode Island, during the colonial period, the assembly acted as a court of chancery. In all of the colonies, except Pennsylvania, the chancery existed as a distinct tribunal from the common law courts. In Pennsylvania equity was administered by the law courts and, according to the procedure of the common law, until the middle of the present century. When the colonies became States, they either estab- lished separate courts of equity, presided over by chan- cellors, or conferred the equity powers upon the ordi- nary law courts with a provision for its exercise ac- cording to the forms and procedure of chancery. The Pennsylvania experiment affording a connecting link between the early plan of a chancery court and that which now commonly exists in the United States.* Sec. 1 130. STATUS OF CHANCERY IN THE UNITED STATES AT PRESENT.— As a result of the adopting of the Code system, and the unification of the various actions into a single action under that *Wilson, Cts. of Chan, in America, 18 Am. Law Rev. 233-6; Wells V. Pierce, 27 N. H. 512; Pomeroy Eq. Jur. (2d ed.), Sec. 338. i84 EQUITY OR CHANCERY JURISPRUDENCE. system, the American states and territories may be di- vided into three groups as regards the method fol- lowed of administering equity jurisprudence. These are: — First. Those states in which separate courts of chancery are maintained, and law and equity are ad- ministered by distinct tribunals under different modes of procedure. In this group the chancery court is copied after the Court of Chancery in England, and is similar as to powers and jurisdiction. This group includes Alabama, Delaware, Mississippi, New Jersey and Tennessee.* Second. Those states in which law and equity are still administered in their district and appropriate forms, but by the same court. The boundaries be- tween the two as to jurisdiction being jealously guard- ed, and the chancery jurisdiction not ceasing because the statutes confer the same powers on the law courts.** The most important member of this group is the federal government of the United States, com- prising the various federal courts, which follow the system uniformly and are not influenced by state legis- lation.*** The states belonging to this group are, Ar- kansas, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New Mex- *Ara. & Eng. Encyc. Law (2d ed.), Vol. 11, p. 154; Bar- ton's Suit in Eq. 22; Bispham's Prin. Eq. (5th ed.), Sec. 15. **Barton's Suit in Eq. 23 ; Bispham, Prin. Eq. 23 ; Byrd v. Jones, 84 Ala. 336; McClain v. Smith, 158 Pa. St. 49; 35 W. Va. 167. ***Livingstone v. Story, 9 Pet. 632; 150 U. S. 202, EQUITY OR CHANCERY JURISPRUDENCE. 185 ico, Pennsylvania, Rhode Island, Vermont, Virginia and West Virginia. Third. This group includes the states and terri- tories which have adopted the Civil Code. In these the distinction between actions at law and suits in equity is abolished, and all relief is said to be admin- istered through the uniform procedure of a civil ac- tion. The effect of this is not, however, to abolish entirely the distinction between law and equity, though affording a common method of administration. The fundamental principles of equity are regarded, and it is even quite common to refer to actions involving equity principles as equitable actions, as' distinguished from law actions. The abolition of the distinction be- tween suits in equity and at law as made by the Codes does not allow of the bringing an action not previous- ly cognizable either in law or equity.* Sec. 1 131. EQUITY OR CHANCERY LAW DEFINED. — In its literal acceptation, equity is nearly synonymous with justice, but in its technical sense it means chancery law, or that system of rules by which courts of chancery are governed in the administra- tion of justice. This, like the common law, consists of precedents running through nearly the same lapse of time.** *Ara. & Eng. Encyc. Law (2d ed.), "Equity"; Woodford V. Leavenworth, 14 Ind. 311; Hill v. Barrett, 14 B. Monr. 67; Turner v. Pierce, 34 Wis. 658. **Walker, Am. Law, 55. The early writers on equity were inclined to forget the distinction made by Walker, and like Grotius give all the i86 EQUITY OR CHANCERY JURIS PRUDE^fCE. Sir Henry Maine characterizes equity as a series of "agencies by which law is brought into harmony with society".* While Mr. Lobingier, the author of the article on Equity in the American and English Ency- clopedia of Law, speaks of it as a source rather than a subject — a source which has contributed to our juris- prudence equally with the common law and legisla- tion, and not a subject with rigid boundaries and logi- cal subdivisions.** That the results of the equity or chancery courts in ameliorating the condition of the credit for administering justice to the equity courts, his defin- ition of equity as given by Blackstone, being "the corrections of that wherein the law (by reason of its universality), is de- ficient." — I Bl. Com. 6i. "Equity, then, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity, and a court of law, as contrasted tO' each other, are apt to confound and mislead us: as if the one judged without equity, and the other was not bound by any law. Whereas every definition or il- lustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity in opposition to each other, will be found either totally erroneous, or errone- ous to a certain degree".— 3 Bl. Com. 429, et seq. "By judicial equity is meant a systematic appeal for relief from a cramped administration of defective laws to the dis- ciplined conscience of a competent magistrate, applying to the special circumstances of defined and limited classes of civil cases the principles of natural justice, controlled in measure as well by considerations of public policy as by established precedent, and by positive provisions of law." — Phelps, Jurid. Eq. p. 192. *Maine's Ancient Law, 23-24. **Am. & Eng. Encyc. Law (2d ed.), p. 149. EQUITY OR CHANCERY JURISPRUDENCE. 187 law would have been accomplished by other expedi- ents cannot be doubted, when we see how easily the two systems are united under modern practice and administered by the same judge sitting one moment as a law judge, and the next as an equity coutt. Sec. 1 132. AUTHORITIES ON EQUITY JUR- ISPRUDENCE OR CHANCERY LAW.— Among the early standard works on Equity, is Judge Story's book on Equity Jurisprudence, which has reached its 13th edition. An excellent work of current authority is Pomeroy's Equity Jurisprudence in three volumes, now in its second edition. Adam's Equity, a book viewing the subject from the standpoint of jurisdic- tion, has reached its eighth American edition. Bisp- ham's Principles of Equity is a single volume work of great value, which is in its 6th edition. There are numerous other authorities, among which we mention. Beach, Bigelow, Brett, Merwin, Shiras, Smith, Snell, and Williard. Perhaps the most useful authority for a practitioner is the American and English Encyclo- pedia of Law, which by its cross-references to the spe- cial topics in equity jurisprudence, and numerous cita- tions from the various states, becomes more exhaus- tive than any other work. i88 EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER II. PRINCIPLES OF JURISDICTION, MAXIMS AND DOCTRINES OF EQUITY. Sec. 1133. EQUITY HAS NO JURISDICTION OVER CRIMES.— It is one of the well settled prin- ciples limiting equity jurisdiction, that a court of equity, unless its jurisdiction is enlarged by an express statute, is limited to the protection of civil rights, and has no power either to prevent the commission of crimes, or interfere with their prosecution, pardon or punishment. But where the equity couit has jurisdic- tion because of a wrongful invasion of private prop- erty, this jurisdiction will not be divested because the wrongful act also constitutes a crime.* Sec. 1 134. EQUITY WILL NOT ASSUME JURISDICTION WHERE THERE HAS AL- WAYS BEEN A PLAIN, ADEQUATE AND COMPLETE REMEDY AT LAW.— Ever since equity jurisprudence began to be governed by rules and to approach a definite system of procedure it has refused to entertain actions when there was a com- plete, adequate and practical remedy at law. The principle was early applied by the court in refusing to *Mayor of York v. Pilkington, 2 Atk. 302 (1742) ; Littleton V. Fritz, 65 la. 488 ; Mugler v. Kansas, 123 U. S. 623 ; West v. Mayor, 10 Paige, 539; 75 N. Y. 362; 44 Conn. 419; 70 Miss. 602; 52 Ala. 198; ^^ N. C. 2. EQUITY OR CHANCERY JURISPRUDENCE. i8g entertain actions for the recovery of land, since the remedy by ejectment at law was complete.* Though the court had by mistake assumed jurisdiction in such a case, its adjudication is not void, and will be binding on the parties and cannot be attacked collaterally.** Sec. 1135. ENLARGEMENT OF LEGAL REM- EDY DOES NOT AFFECT JURISDICTION IN EQUITY.— But the fact that after equity has as- sumed jurisdiction of certain subjects, the legal rem- edies is enlarged, whether by judicial construction, or legislative action, will not divest the equity courts of their customary jurisdiction, unless this is the ex- press of fair intention of the statute.*** Sec. 1 136. EQUITY WILL RETAIN JURIS- DICTION TO GIVE COMPLETE RELIEF.— Where the equity court has rightfully taken cognizance *Tcnham v. Herbert, 2 Atk. 483 ; Hipp v. Babin, 19 How. 271 ; Lewis v. Cocks, 23 Wall. 466 ; 136 U. S. 393. **Mellen v. Iron Works, 131 U. S. 352; Goodman v. Win- ter, 64 Ala. 410. Unless the remedy at law is practical, efficient, and of prompt and accurate administration equity will assume juris- diction, and where the matter involves long and complicated accounts, equity will take jurisdiction, notwithstanding the remedy at law. Warner v. McMullin, 131 Pa. St. 370; 130 U. S. 505; 48 Minn. 372; 58 Conn. 12; 62 Mich. 480. *** Atkinson v. Leonard, 3 Brown, Ch. 218, 224; Reeves v. Morgan, 48 N. J. Eq. 429; Darst v. Phillips, 41 Ohio St. 514; Case V. Fishback, 10 B. Monr. 40; Eyre v. Everett, 2 Russ. 381-2. In the last case Lord Eldon stated : "This court will not suffer itself to be ousted of any part of its original juris- diction because a court of law happens to fall in love with the same or a similar jurisdiction." 190 EQUITY OR CHANCERY JURISPRUDENCE. of a particular controversy, it will continue its adjudi- cation for the purpose of giving complete relief, though the matter may involve questions purely legal in nature. As stated by Lord Nottingham, "Where this court can determine the matter, it shall not be handmaid to other courts, nor beget a suit to be ended elsewhere."* This results from the maxim that equity seeks to prevent a multiplicity of suits.** But the suitor must bring himself in the first instance within the equitable jurisdiction of the court, or bring his ac- tion in good faith with reason to believe himself enti- tled to equitable relief, and then the court will grant both equitable and legal relief, or legal relief alone if it is more practicable.*** Sec. 1 137. EQUITY WILL TAKE JURISDIC- TION TO PREVENT A MULTIPLICITY OF SUITS. — In order to prevent a multiplicity of suits, and carry out its scheme of applying practical and speedy justice to controversies, equity courts will as- sume jurisdiction where numerous persons have a community of interest or a common right or title in the subject-matter as against a common adversary, or where such persons have an equitable cause of action or defense against such adversary, involving the same *Parker v. Dee, 2 Ch. Cas. 200; and see, 129 N. Y. 274; 113 N. Y. 213. ♦*Eastman v. Bank, 58 N. H. 421 ; Turner v. Pierce, 34 Wis. 658; 133 N. Y. 16. ***Case V. Minot, 158 Mass. 577; 106 Mass. 232; Gormley V. Clark, 134 U. S. 338; Russell v. Clark, 7 Cranch, 69; 93 Ala. ^Az. Ala. 542. EQUITY OR CHANCERY JURISPRUDENCE. 191 questions of law and fact.* So where there is dan- ger of a number of suits at law between the same in- dividuals, and concerning the same subject-matter, or such suits are actually brought, and are not yet adju- dicated, or not conclusive, equity will assume jurisdic- tion to put an end to the litigation. The principle is a corollary to that which gives jurisdiction where there is no plain, adequate and complete relief at 'law.** MAXIMS OF EQUITY. Sec. 1 138. THE MAXIMS OF EQUITY.— While at first the decisions in the equity courts were sup- posed to be in accordance with the conscience of the *How V. Tenants of Bromsgrove (1681), I Vern. 22; Cadigan v. Brown, 120 Mass. 493; Adams v. Manning, 48 Conn. 477. The action, known as a "bill of peace", may be employed where the claim is preferred by one against a number, or by a number against one. The party defending must liave some defense to the suits to entitle him to equit- able jurisdiction. 29 Fla. 617. "There must be some recog- nized ground of equitable interference or some community of interest in the subject-matter of controversy, or a common right or title involved, to warrant the joinder of all in one suit; or there must be some common purpose in pursuit of a common adversary, where each may resort to equity, in order to be joined in one suit; and it is not enough that there is a community of interest merely in the questions of law or fact involved." — By the court in Tribette v. 111. Cent. R. Co., 70 Miss. 182. **Marsh v. Reed, 10 Ohio, 347 ; Warren Mills v. Seed Co., 65 Miss. 391; Lembeck v. Nye, 47 Ohio St. 336; Wheelock v. Noonan, 108 N. Y. 179; 54 N. Y. 159; Eldridge v. Hill, 2 Johns Ch. 281. 192 EQUITY OR CHANCERY JURISPRUDENCE. Chancellor, and to vary according as the "conscience" of that personage varied, and the court was made the subject of some very caustic remarks by the common law judges in consequence.* This is now remedied, and equity through a long succession of able chan- cellors, and numerous established precedents, which in accordance with the doctrine of stare decisis, — which came to prevail in equity under the chancellor- ship of Lord Eldon, — now claims to be a science, and like other sciences is governed by fixed maxims and doctrines.** The twelve or thirteen maxims of equity are concise statements gleaned from the established practice of *"For law we have a measure, and know what to trust to ; equity is according to the conscience of him that is chancel- lor; and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure a chancellor's foot. What an uncertain measure would this be ! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chencellor's conscience." — Seldon, Table Talk, Tit. Equity, cited in 3 Bl. Com. 432n. **"The doctrines of this court ought to be as well settled and made as uniform almost as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than the recollec- tion that I had done anything to justify the reproach that the equity of this court varies like the chancellor's foot." — Per Lord Eldon in Gee v. Pritchard, 2 Swanst. 414. See also, Kerly's Hist, of Equity; 3 Bl. Com. 429, et seg; Hargrave'a Law Tracts, 325; i Story Eq. Jur. 319. EQUITY OR CHANCERY JURISPRUDENCE. 193 the equity courts, indicating generally as well what equity is, as what it is not, and now are usually ap- plied as determining the limits of equity jurispru- dence. They are stated as follows: — i. He who seeks equity must do equity. 2. He who comes into equity must come with clean hands. 3. Equity aids the vigi- lant, not the slothful. (These three are sometimes classified as pre-requisite maxims.) 4. Equity acts specifically, and not by way of compensation. 5. Equity acts in personam. 6. Equity follows the law. (The last three are classified as descriptive maxims.) 7. Equity suffers no wrong without a remedy. 8. Equity regards that as done which ought to have been done. 9. Equity regards the substance and intent, not the form. 10. Equity imputes an intent to fulfil an obligation. 11. Equality is equity. 12. Where the equities are equal the law will prevail. 13. Where the equities are equal priority of time will prevail. (The maxims from the 7th to the 13th are classified as sub- stantive maxims.)* Sec. 1 139. PRE-REQUISITE MAXIMS.— These show what the applicant for equity must possess be- fore he can invoke the aid of a court of equity, and are three in number. *Ani. & Eng. Encyc. Law (2d ed.) Equity; i Pom. Eq. Jur. Sec. 360. Bispham's Prin. of Eq. omits the maxim, "Equity regards the substance and intent, and not the form," thus enumerating but twelve maxims, and other authorities give them a different classification and vary the language somewhat. See Fetter's Hand Book of Eq. Chap. 3; Hayne's Quthnes of Eq., p. 19; Phelps, Jurid. Eq., p. 296. 194 EQUITY OR CHANCERY JURISPRUDENCE. I. He Who Seeks Equity Must Do Equity. This is one of the earliest maxims of equity to receive general sanction. It arose from the desire of the court to finally dispose of all matters arising and growing out of a controversy over which it had jurisdiction. It therefore required the complainant, as well as the de- fendant, to perform all acts on his part which are nec- essary to the final disposition of the case. Thus if the vendor or the vendee comes into court to enforce spe- cific performance of a contract in regard to the sale of land, the court having ascertained and determined that the contract ought to be enforced, will decree that the vendor shall execute to the purchaser the proper deed of conveyance, and that the purchaser shall pay to the vendor the balance due. This will be the decree no matter which party is complainant* In this class of cases the complainant is not required to do any act which he would not be compelled to do if he had been made defendant. But there is another class of cases where, under this maxim, the complain- ant is required to do what he could not be compelled or required to do if he were defendant, and the de- fendant complainant. For example, if to secure a loan the complainant has executed a bond bearing usurioU6 interest, and the statute makes such bond void, the court will not entertain his bill to annul the bond ex- cept upon the condition that he pay the defendant the amount of the loan.** ♦Willard v. Tayloe, 8 Wall. 557; Eastman v. Plumer, 46 N. H. 480; Bodwell v. Bodwell, 66 Vt. loi. **Campbell v, ISIurray, 62 Ga. 86; Eslava v. Crampton, $1 EQUITY OR CHANCERY JURISPRUDENCE. 195 2. He Who Comes Into Equity Must Come With Clean Hands. This is not a maxim peculiar to equity alone, since law courts also refuse to aid a wrong- doer, and enforce for his benefit an illegal or immoral contract. But the rule is broader and more far reach- ing in equity than at law ; and again there are certain exceptions to the rule as applied in equity, and gener- ally, the rule is limited to bar only cases in which the iniquity of the complainant is directly connected with the matter in litigation.* Ala. 507; Corby v. Bean, 44 Mo. 379; Mason v. Gardiner, 4 Bro. C. C. 436; 42 111. 256. So where the complainant seeks to be relieved from ille- gal taxes, a part of which are lawful, he must, as a condi- tion of being relieved from payment of the illegal taxes, pay the others. Smith v. Auditor, 20 Mich. 398 ; Merrill v. Hum- phrey, 24 Mich. 170; Montgomery County v. Elston, 32 Ind. 27; Reed v. Taylor, 56 111. 288; Casey v. Wright, 14 Mont. 315; 45 Neb. 96; 92 U. S. loi; 99 Ind. 352. The complainant must do equity as a condition precedent. Comstock v. John^ ston, 46 N. Y. 615; Pattee's Cas. 5. Again, where a party seeks the benefit of a purchase made for him in the name of a trustee, to whom he is indebted, he will not be relieved except upon payjnent not only of the purchase money but of the other indebtedness. Sturgis V. Champneys, 5 My. & Cr. 97; Campbell v. Campbell, 21 Mich. 438; Foster v. Wryhtman, 123 Mass. 100; Tongue v. Nutwell, 31 Md. 302. The maxim is also applied in cases of rescission of contracts, partition, quieting title, and the like, where it is equitable that the complainant perform some act on his part. But the maxim is only applied to enforce the doing of something arising from or belonging to the transac- tion in controversy. Otis v. Gregory, ill Ind. 504; Finch v. Finch, 10 Ohio St. 507. *Dering v. Winchelsea, i Cox, 318; Hay's Estate, 159 Pa. St, 384; Foster v. Winchester, 92 Ala. 497. If the complain^ 196 EQUITY OR CHANCERY JURISPRUDENCE. The original and primary jurisdiction of the court of chancery was based upon the fact that the com- plainant could not obtain a recognition of his just rights in a court of law. The very foundation of his claim to be heard, therefore, was grounded upon the theory that in equity and good conscience he was en- titled to relief. It follows, that if he is a wrongdoer, he is on that account without standing in the court, and cannot be heard to complain of another wrong- doer in the same transaction.* The maxim requires the court to refuse relief to a party not only under an illegal contract, but also under one that is unconscionable, owing to the sharp practices of the complainant.** So in all cases where the complainant's claim is tainted with his own fraud, relief will be denied. As where he seeks to recover property which he has conveyed in fraud of creditors, equity will not aid him.*** ant's conduct has been exemplary as regards the subject- matter of the suit, his misconduct in other and independent matters will not be considered. Neither will the complain- ant's fraud be regarded if it has not injured the defendant. Meyer v. Yesser, 32 Ind. 294. *Overton v. Bannister, 3 Hare, 503 ; Lewis' Appeal, 67 Pa. St. 153; Atwood V. Fisk, loi Mass. 363; Bleakley's Ap- peal, 66 Pa. St. 187. **Willard v. Tayloe, 8 Wall. 557; Pomeroy's Eq. Jur. Sec. 400n. ***Bolt V. Rodgers, 3 Paige, 154; Stewart v. Inglehart, 7 G. & J. 132. But a party is sometimes relieved against an illegal contract, when he acted in good faith and was not aware at the time that the contract was in violation of the statute or against public policy. Reynell v. Spyne, 8 Hare, EQUITY OR CHANCERY JURISPRUDENCE. 197 3. Equity Aids the Vigilant, Not the Slothful. This maxim is sometimes stated as "Delay defeats equities," and is a corollary to the first one requiring the com- plainant to do equity. One must not slumber upon his rights, when by thus doing he permits others to acquire interests, or expend money in ignorance of them. Thus if one, having full knowledge that what another is about to do will seriously interfere with his rights, it will be too late for him to apply to the court for relief after such acts have been performed, he must ask the aid of the court immediately tO' enjoin the doing of the acts. After the injury is done he will be left to his remedy at law for damages. It is said that nothing will call forth the action of equity except conscience, good faith and diligence. And the authorities indicate that diligence is not the least im- 222. But if he knew that the contract was unlawful he will not be permitted to enforce it. Sykes v. Beadon, 11 L. R. Ch. D. 170. The right of a plaintiff to recover is sometimes questioned when the given contract was made on the part of the defend- ant to enable him to violate some statute ? The rule in such case is said to be this : If the plaintiff has done anything to aid or assist the defendant to accomplish his illegal purpose, aside from the sale, or payment, or any other part of the contract is in any way dependent upon the execution of the illegal purpose, the complainant cannot enforce the contract. If, however, although the complainant knows for what illegal purpose the contract is made by defendant, he takes no part whatever in such illegal project, and the contract does not depend in any part on such illegal project, then he may re- cover. Tracy v. Talmadge, 14 N. Y. 162; 77 Hun, 215; 144 Pa. St. 235. igS EQUITY OR CHANCERY JURISPRUDENCE. portant of these requisites.* This rule is the statute of limitations in equity. Sec. 1 140. DESCRIPTIVE MAXIMS.— By de- scriptive maxims is meant those which describe the manner in which equity gives relief. They are : — 1. Equity Acts Specifically and Not by Way of Qnnpensation. By this maxim is meant that equity instead of giving a money damage in lieu of the per- formance of an act, compels the defendant to specifi- cally perform the required act, by three remedies known as "specific performance", "injunction", and "reformation". 2. Equity Acts in Personam and Not in Rem. This maxim refers to the manner in which chancery en- forces its decrees, making their performance obliga- tory on the person, rather than by looking to the property of the defendant for satisfaction. By the ap- plication of this maxim the equity courts from the earliest times have been able to enforce decrees re- garding land lying outside the jurisdiction of the court, as in another country, or in another state.** 3. Equity Follows the Law. This maxim is quite restricted, and simply means that equity follows the law, when the rule of the statute or common law is ♦Smith V. Clay, 3 Bro. C. C. 639; Ellison v. Moffat, I Johns. Ch. 46; Pattee's Cas. 4; Calhoun v. 3\Iillard, 121 N. Y. 81 ; 49 N. J. Eq. 397 ; Akins v. Hill, 7 Ga. 573. **Penn V. Lord Baltimore, i Ves. Sr. 444; ]\Iuller v. Dows, 94 U, S. 444; Pattee's Cas. 19; Brown v. Desmond, 100 Mass. 267; Olney v. Eaton, 66 Mo. 563; Palmer v. Mead, 7 Conn. 149; 16 S. C. 276, EQUITY OR CHANCERY JURISPRUDENCE. 199 direct and positive. Thus equity will never direct a party to violate the law, nor dispense with the obli- gations of the statute, and hence will not modify or change the rule in regard to the descent of property.* So where the rules of law are applicable equity will follow them, and in equity matters adopt rules an- alogous to those of the law in similar matters. But this is not always so, and frequently gives relief where the law could not do so.** Sec. 1141- SUBSTANTIVE MAXIMS.— The substantive maxims declare the fundamental doctrines applied by equity in administering rehef, and are: — I. Equity Suffers No Wrong Without a Remedy. This maxim is said to be the very foundation of equity jurisdiction. Under the common law there were many wrongs which the law courts could not remedy at all or only partially redress. It was to meet this defect of the comon law that equity began to assume separate jurisdiction, and the application of this maxim is co-extensive with the jurisdiction of the chancery courts. The Hmitations and restrictions on the maxim are these : That only legal rights as dis- tinguished from moral rights and obligations are en- forced in equity; and where a party has a complete and adequate remedy at law, but the law court is un- able to enforce its command through neglect or ina- *Comper v. Comper, 2 P. Wms. 720. **Burgess v. Wheate, I W. Black, 123; Rookes Case, S Rep. 99b; Kemp v. Prior, 7 Ves. 237; Hedges v. Dixon Co., ISO U. S. 192; Calef v- Parsons, 48 111. App. 258; 165 111. 305; Clark V. Potter, 32 OJiip St. 49- 200 EQUITY OR CHANCERY JURISPRUDENCE. bility, the complainant has a mere moral right to re- dress in equity, and the court will not interfere. If there is no relief at law, due to the nature of the claim, equity will interfere; while if there is no ac- tual relief at law, because in that particular case, al- though ample ground for relief existed in the court, it bore no fruit in fact, equity will not interfere.* The maxim is invoked when the court deals with newly created rights and duties. 2. Equity Regards That As Done Which Ought to Have Been Done. This maxim is the foundation upon which rests the doctrine of equitable estates. Every kind of equitable property, with a few excep- tions, as distinguished from legal ownership, is due to this maxim. In one aspect the meaning of the maxim is declared to be that "the party to a contract, or his legal representatives, may insist upon being placed in a situation equally as advantageous as if the contract had been fulfilled," — or more broadly speaking, it means that "whenever the holder of property is sub- ject to an equity in respect of it, the court will, as between the parties to the equity, treat the subject- matter as if the equity had been worked out, and as impressed with the character which it would then have borne". Thus, in case of an executory sale, where the whole of the price has not been paid, equity *Finnegan v. Ferrandina, 15 Fla. 379; Rees v. City, 19 Wall. 107; Heine v. Leon Corns. 19 Wal. 655-8; Joy v. St. Louis, 138 U. S. I ; R. R. Co. v. Rutherford, 62 Fed. Rep. 796; Weber v. Weber, 90 Wis. 467; Greene v. Keene, id R. I. 388, EQUITY OR CHANCERY JURISPRUDENCE. 2or treats such balance as personal assets of the vendor for which he would have a lien upon the land.* But the maxim is not only applicable to executory con- tracts, but applies to all classes of equities, so as to consider as done any act which ought to have been done to secure the rights of another person.** The maxim does not cover what might have been done, but only what ought to be done, and then only as to those who have stipulated as to what shall be done, or those who stand in their places.*** Again, the maxim is not enforced when innocent third persons would be injured, but gives place to the maxim that when equities: are equal the law must prevail.**** 3. Equity Regards the Substance and Intent, Not the Form. The law courts were bound by rigid rules and forms. Thus an instrument under seal, was, at common law, conclusively presumed to have been *Craig V. Leslie, 3, Wheat. 563, 576; Gardiner v. Gerrish, 23 Me. 46; Williamson v. Krohn, 66 Fed. Rep. 655; Daggett V. Rankin, 31 Cal. 327. **Frederick v. Frederick, i P. Wms. 710; Coventry v. Barclay; 3 DeG. & S. 320; Taylor v. Russell, 119 N. C. 30. One of the oldest and most common application of the maxim is the doctrine of equitable conversion, by which where a will deed or contract directs land to be converted into money, or money expended for land, the courts, in pur- suance of the maxim, will treat the property as having that character which by the terms of the instrument it was di- rected to have. Craig v. Leslie, supra; Jackson v. Snell, 34 Ind. 241 ; Brewer v. Herbert, 30 Md. 301. ***Burgess v. Wheate, i W. Black. 123; Crabtree v. Bramble, 3 Atk. 680; Felch v. Hooper, 119 Mass. 52, 57. ****Casey v. Casvaroe, 96 U. S. 467. 202 EQUITY OR CHANCERY JURISPRUDENCE. made for a consideration, and a total lack of consid- eration could not be shown; mortgages were consid- ered as conditional sales, and penalties and forfeitures were enforced for the full amount. While equity goes back of the mere formal acts of the parties to ascertain with what intent the act was performed, and then, if possible, aids the parties in doing what they intended to do. Hence it will permit parties to show that a contract under seal was in fact made without consid- eration, or that it has since been discharged, although such discharge is not evidenced by a contract under seal.* And resulting from this maxim are the equit- able doctrines authorizing the chancery courts to re- lieve from forfeitures, i>enalties, and the like.** 4. Equity Imputes an Intent to Fulfill an Obliga- tion. This maxim gives rise to the doctrine of result- ing trusts. So that when a party is under obligation, by covenant, to do certain acts for the benefit of the covenantee, and does acts which he might have done in pursuance of the covenant, without an indication of his purpose or intent in so doing, equity will presume that the acts were done with intent to fulfil his obli- gations.*** And when a trustee invests trust funds, and takes the title in his own name, the court will in- *Stinchfield v. Millikin, 71 Me. 567; Meier v. Bank, 55 Ohio St. 460; Campbell v. Freeman, 99 Cal. 546; Varner v. Rice, 44 Ark. 251. **Peachy v. Duke of Somerset, 2 White and T. L. C. noo; 10 Wall. 68; 50 N. J. Eq. 73. ***Deacon v. Smith, 3 Atk. 323 ; Wilcocks v. Wilcocks, 2 Vern 558; Sowdon v. Sowdon. i Bro. C. C. 582. EQUITY OR CHANCERY JURISPRUDENCE. 203 fer that the purchase was made for the benefit of the cestuy que trust, if the trust funds were actually em- ployed in the transaction.* 5. Equality Is Equity. This maxim is Of ancient origin and application, and was designed to mitigate the evils of the common law in allowing certain cred- itors to secure preference in the distribution of an in- solvent estate. Equity seeks to distribute the entire assets pro rata among the creditors, rather than allow each one to take in the order of obtaining judgment against the insolvent.** So at comon law when land was conveyed to several persons they were considered joint tenants, while in equity, if there is any circum- stance which will justify it, they will be regarded as tenants in common.*** The same is true where sev- eral persons own a mortgage taken to secure a loan.**** And the maxim operates to abate legacies pro rata when there is a deficit in the assets ; to make an apportionment among creditors holding liens, and among co-contractors and co-sureties.***** *Ferris v. Von Vechten, yz N. Y. 113; Johnson v. Dough- erty, 18 N. J. Eq. 406. **Butler Paper Co. v. Robbins, 151 III. 632; Bank v. Sher- man, Id U. S. 403; 139 111. S49- ***Rigdon V. Vallier, 3 Atk. 731 ; H-arris v. Ferguson, 16 Sim. 308 ; Aveling v. Knipe, 19 Ves. 441 ; Luke v. Gibson I White & T. L. Cas. 215. ****Randall v. Phillips, 3 Mason, 378; Goodwin v. Rich- ardson, II Mass. 469; Kinsley v. Abbott, 19 Me. 430. *****Russell V. Failor, i Ohio St. 327; Hawker v. Moore, 40 W. Va. 49; Faurot v. Gates, 86 Wis. 569. 204 EQUITY OR CHANCERY JURISPRUDENCE. 6. Where the Equities Are Equal the Law Will Prevail. This maxim is closely allied to the one pre- ceding and the one following it. Under this maxim, where the equities are equal, he who has in addition to his equal equitable claim, a legal claim also will pre- vail.* This maxim, along with the next one, forms the foundation for the doctrine concerning priorities, notice and bona fide purchasers without notice, to which reference will again be made. (See Sec. 1147 et seq.) 7. Where the Equities Are Equal He Who Is First in Time Will Prevail. This maxim is a corollary of the preceding, expressing a different phase of deter- mining priorities where otherwise the equities are equal. The equities must be equal, then if one is prior in time, he shall prevail.** It is usually applied as between lienholders. DOCTRINES OF EQUITY. ESTOPPEL, ELECTION, SATISFAC- TION, PERFORMANCE, CONVERSION, ETC. Sec. 1142. EQUITABLE ESTOPPEL.— In equity, if one by his words or conduct, causes another to rely upon the existence of a certain state of things, and in- duces that other to act on that belief, and thereby to change his former position for the worse, the person ♦Thorndike v. Hunt, 3 DeG. & J. 563; Fitzsimmons v. Ogden, 7 Cranch, 2; Phillips v. Crommond, 2 Wash. C. C. 441; Shiras v. Craig, 7 Cranch, 34; Williams v. Charlier, 15 N. Y. App. Div. 128. **Rice V. Rice, 2 Drwe. 73 ; Spencer v. Clark, L. R. 9 Ch. Div. 137; Berry v. Mutual Ins. Co., 2 Johns Ch. 603. EQUITY OR CHANCERY JURISPRUDENCE. 205 so inducing the other is estopped, or precluded from averring against the other a different state of things as existing at the same time.* The elements necessary to create equitable estoppel include the following: — 1. Misrepresentation or concealment as to material facts by words or conduct of the culpable party. 2. Actual or imputed knowledge as to the untruth- fulness of the facts alleged by the culpable party. 3. Innocent ignorance of the true state of affairs on the part of the party misled. 4. It is enough if the culpable party intend, or ought reasonably to anticipate that his representations will be acted upon by the other party, or by the public generally.** 5. The party asserting an estoppel must have acted promptly and to his prejudice on the assertions or conduct of the culpable party.*** The effect of equitable estoppel is to give the party entitled to its benefits the same rights against the party estopped as though the representations had been true ; in other words, the culpable party has to stand by and make good the facts he has asserted.***" *Keate v. Phillips, 18 Ch. Div. 560; Dickerson v. Cole- grove, 100 U. S. 578; Horn v. Cole, 51 N. H. 287; Pickard V. Sears, 6 Ad. & El. 469; Gillett v. Wiley, 126 111. 310. **Vreeland v. Ellsworth, 71 la. 347; Jackson v. Allen, 120 Mass. 79; 2 Pom. Eq. Jur. Sec. 809-810; Blair v. Wait, 69 N. Y. 113; McLean v. Dow, 42 Wis. 610; 55 N. Y. 41; Combes v. Chandler, 33 Ohio St. 178. *** Andrews v. Aetna Ins. Co., 85 N. Y. 334; Weinstein v. Bank, 69 Tex. 38. ****Grissler v. Powers, 81 N. Y. 57; 97 Mass. 498. 2o6 EQUITY OR CHANCERY JURISPRUDENCE. Sec. 1 143. ELECTION. Resulting from the maxim that he who seeks equity must doi equity, is the doctrine of election, by which when the donor of property in the same instrument undertakes to trans- fer the donee's property or interest to a third person, the donee must elect to take either ; under the instru- ment, and transfer his property to the party named; or, against the instrument, forfeiting so much of the gift as is necessary to indemnify the third person by reason of the donee's failure to carry out all the pro- visions of the instrument.* Election becomes necessary in all cases where the deed or instrument granting property shows a clear intention on the part of the grantor to therein dispose of property belonging to the person required to elect, and property absolutely owned by the grantor is given to the person who is required to elect.** The election may be either express or implied. An *Huhlien v. Huhlien, 8 S. W. Rep. 260; Peters v. Bain, 133 U. S. 670; Brown v. Ward, 103 N. C. 173; Brown v. Brown, 42 Minn. 270. **Hattersley v. Bissett, 25 Atl. Rep. 332; Thompson v. Thompson, 2 Strobh. 48 ; Penn. v. Guggenheimer, 76 Va. 839; Sherman v. Lewis, 44 Minn. 107; Bennett v. Harper, 36 W. Va. 546; Snell's Eq., p. 240. In the absence of express statute, a widow is not com- pelled to elect between her dower and a testamentary be- quest from her husband, unless the will declares the same to be in lieu of dower, either expressly or by implication ; a mere doubtful expression not requiring election, and she takes both. Adsit v. Adsit, 2 Johns. Ch. 448. But statutes now usually require an election in any case. I Pom. Eq. Jur., Sec. 494. EQUITY OR CHANCERY JURISPRUDENCE. 267 election will be implied if the party by his acts, con- duct or dealing with the property indicates his inten- tion to treat it as his own, after a knowledge of his right to elect.* Persons required to elect may first ascertain by ac- tion or otherwise the respective values of their own property, and of that given them in the instrument re- quiring the election.** Married women may elect without the intervention of a court, or they may have an inquiry as to the most beneficial course to pursue before election.*** In the case of infants, the election may be postponed until their majority, but usually the court elects for them according to their best interests, as is also the case where the election, is tO' be made by a person non compos mentis.**** An election once made, and not in mistake of facts, is irrevocable, and binding on the elector, and all claiming under him, as well as the other beneficiaries in the instrument.***** Sec. 1 144. SATISFACTION. — By satisfaction in equity is meant the donation of a thing with the in- *Penn v. Guggenheimer, supra; Watson v. Watson, 128 Mass. 152; Tibbitts v. Tibbitts, 19 Ves. 663. **Pusey V. Desbouvrie, 3 P. Wms. 31S ; 3 Brown Ch. 88. ***Davis V. Page, 9 Ves. 350 ; Hoivell v. Tomkins, 42 N. J. Eq. 305. ****Streatfield v. Streatfield, i White & T. L. Cas. 333; 3 Brown Ch. 285; Kennedy v. Johnston, 65 Pa. St. 451- 61 N. H. 596; 32 Minn. 336. *****Wake V. Wake, 3 Br. Ch. 255 ; Coru v. Cory, 37 N. J. Eq. 198; I Pom. Eq. Jur. Sec. 516. 2o8 EQUITY OR CHANCERY JURISPRUDENCE. tention that it shall be taken either wholly or in part extinguishment of some claim of the donee against the donor. The intention may be implied as well as express, but there must be something to show that the donor's intent was to make a gift in satisfaction of the claim.* If the gift is by parol and not accompanied by any writing explaining it, oral evidence is admissible to show its true purpose, and this will include the donor's declarations made at the time.** If the gift is evi- denced by a written instrument from which, there is a presumption that it was made in satisfaction of a prior claim, parol evidence may be admitted to rebut this presumption, but if there is no presumption from the instrument parol evidence is not admissible tO' show the intent of the parties.*** This doctrine is applied in equity where a debtor, by will or otherwise, confers a pecuniary benefit on his creditor, and where a par- ent or one in loco parentis makes a double provision for a child or person standing towards him in a filial relation.**** *Hardingham v. Thomas, 2 Drew, 353 ; i Pom. Eq. Jur. Sec. 520. **3 Hare, 509; Sims v. Sims, 10 N. J. Eq. 158; 5 Rand (Va.), 577. ***Gilliam v. Chancellor, 43 Miss. 437 ; 82 N. Y. 103 ; Hall V. Hill, I Dru. & War. 94. ****Talbot V. Shrewsbury, 2 White & T. L. Gas. 379; Strong V. Williams, 12 Mass. 390. Where a testator gives a legacy to a creditor equal to or exceeding the amount of the debt, the presumption arises that it was intended as a discharge of the debt, but the pre- EQUITY OR CHANCERY JURISPRUDENCE. 209 Sec. 1 145. PERFORMANCE.— It is a doctrine of equity resting on the maxim which imputes an inten- tion to fulfil an obligation that, a covenant to do an act by which a benefit or specified property will be conferred on another is deemed performed both where the party does some act which practically effects the purpose of the covenant, though not expressly refer- ring or conforming to the covenant, and where by op- eration of law the party allows property to descend to the covenantee and which practically fulfills the obligation.* Sec. 1 146. EQUITABLE CONVERSION.— This subject has already been considered under the maxim that equity regards that as done which ought to be done, and from which it springs. Conversion is said to be that notional change in the nature of property by which, for certain purposes, realty is considered sumption will be overcome by slight circumstances to the contrary. So if a father or person standing xn loco parentis makes a testamentary provision for a child, and then, before death makes a gift or advancement to such child, a pre- sumption arises that such gift was in satisfaction of the tes- tamentary bequest, and such satisfaction is called "'ademp- tion." Jones V. Mason, 5 Rand, 577, and it takes more than slight circumstances to overcome the presumption in favor of ademption, 18 Ves. 140. So where a father, or person standing in that relation, agrees to make a provision for a child, and afterwards makes a testamentary bequest to such child, the presumption arises, that such provision is to be in satisfaction of the agreement. 3 Ves. 516; 2 H. L. Gas. 131. ♦Goldsmid v. Goldsmid, i Swanst. 211; 2 Vern 558. 210 EQUITY OR CHANCERY JURISPRUDENCE. personalty, and personad property as realty, and trans- missible and descendible as such,* Aside from particular terms governing, the rule is, that conversion takes place at the time the instrument becomes operative, that is, in wfills at the death of tes- tator, and in deeds and other instruments, on execu- tion and delivery.** For the purposes of the instru- ment directing it, the conversion operates tO' change the nature of the property as directed, including all the direct consequences resulting from the notional change.*** Sec. 1 147. NOTICE. — Where the equities are equal in the litigants it becomes important to inquire as to other matters which may assist the court in de- termining which should prevail. In so doing it may *3 Pom. Eq. Jur. Sec. 1159. **Snen'3 Eq. p 211; 160 Fa. St. 65; Allen v. Watts, 98 Ala. 384. ***Steed V. Preece, L. R. 18 Ex. 192; In re Simmons, 55 Ark. 485; for purposes not indicated in the instrument it will be treated as it actually is ; thus, land which is considered converted into personalty cannot be sold by the executor as though actually personal property. 95 N. Y. 7; 72 Wis. 539. Contra 123 Pa. St. i. Double Conversion takes place where land is directed to be sold and the proceeds reinvested in other lands, or vice versa; and the court treats it as having gone through the steps directed, however numerous they may be. Pearson v. Lane, 17 Ves. loi ; Ford v. Ford, 80 Mich. 42; 82 Ga. 687. While Reconversion is the changing back to its original state land or personalty equitable converted as before indicated. It occurs where the party getting the property has the right to elect in what form he will accept it. Seeley v. Jago, I P. Wms. 389; 69 N. Y. i; 82 Ga. 687. EQUITY OR CHANCERY JURISPRUDENCE. 211 be of importance to ascertain whether or not one of the claimants took with notice of a prior equitable right in another, and in such case this fact is suffi- cient to defeat the after acquired right. Notice is not the same as knowledge, and may be actual notice, or constructive notice.* Actual notice may be either knowledge of a fact, or conscious possession of the means of knowledge, though not used.** While constructive notice is the legal presum.ption of notice or knowledge arising either from strong evidence, or existing by reason of ex- press statutes defining in advance what shall constitute notice, as the recording acts.*** Thus visible and notorious possession of land is no- tice of the possessor's title to subsequent purchasers and incumbrancers, if not merely temporary or special in its nature.**** And one is charged with notice of all matters appearing on the face of any instrument through which he derives title, or which might be ac- *"By notice is meant the information concerning a fact actually communicated to a party by an authorized person, or actually derived by him from a proper source, or else pre- sumed by law to have been acquired by him, which informa- tion is regarded as equivalent in its legal effects to full knowl- edge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge." — 2 Pom. Eq. Jur. 594. **Drey v. Doyje, 99 Mo. 459 ; Brinkman v. Jones, 44 Wis. 498; 79 Me. 195. ***Story's Eq. 399; Coal Co. v. Doran, 142 U. S 417. ♦***Phelan v. Brady, 119 N. Y. 587; 64 N. Y. 76; 109 U. S. 504; 23 Or. 455- 212 EQUITY OR CHANCERY JURISPRUDENCE. quired from inquiry suggested by such recitals.* State statutes universally require instruments affect- ing title to land to be recorded, and make such record- ing constructive notice or public notice of their con- tents.** Sec. 1 148. BONA FIDE PURCHASERS.— By a bona fide purchaser is meant one who for a valuable consideration and in good faith acquires property, without notice at the time the consideration is paid, of the adverse rights of others therein.*** Such a pur- chaser of property will be protected in equity, though he buys from one who had notice of adverse rights; and the purchaser from a bona fide purchaser will be protected though the former had notice of adverse *Wilson V. Hart, i Ch. App. 463 ; White v. Foster, 102 Mass. 375; 142 U. S. 417. **2 Pom. Eq, Jur. 649; Bird v. Dennison, 7 Cal. 297. Lis Pendens. In the absence of statutes, one who pending a suit to reach specific property, within the jurisdiction of the court, except negotiable paper, acquires from a party thereto any interest therein or lien against the same, is bound by the judgment or decree that may be rendered, and this is so though he purchases for a valuable consideration and without actual notice of the pending suit, since the suit is presumed to be constructive notice to all. i Johns. Ch. 566; Story's Eq. 405; 2 P. Wms. 482; 43 la. 430; 17 N. Y. 125. Perhaps the doctrine does not apply to an action for divorce. Scott V. Rodgers, yy la. 483, unless the particular property to be charged with alimony is described in the complaint. 43 Kan. 590; 20 Nev. 232. ***i Story Eq. Sec. 409; 85 111. 597; 104 N. C. 515; 2 Pom. Eq. Jur. Sees. 737-746. EQUITY OR CHANCERY JURISPRUDENCE. 213 rights, otherwise the title of the bona fide purchaser would be worthless.* Sec. 1 149. PENALTIES AND FORFEITURES. — As a doctrine of equity resulting from the maxim that equity looks to the intent rather than the form, equity will refuse to lend its assistance to enforce a forfeiture or penalty in its strict terms, but will look to the substantial and fair intent of the instrument and decree substantial damages for the failure to perform the act working the forfeiture or penalty.** But this doctrine of equity does not extend to relieve the party from statutory penalties, or liquidated damages payable on the happening of a single event, and where there is no other adequate method of fixing the damage result- ing from the breach of contract.*** ♦Scotland Co. v. Hill, 132 U. S. 107; Church v. Rutland, 64 Pa. St. 432; 87 Mo. 478; 16 Mass. 406. The bona fide purchaser could not pass a good title back to his grantor who had notice. Clark v. McNeal, 114 N. Y. 295. **Sloman v. Walter, 2 White & T. L. Cas. 2022; Little v. Banks, 85 N. Y. 258; Dwinel v. Brown, 54 Me. 468; Myer v. Hart, 40 Mich. 517. ***ll Ap. Cas. 332; State v. Hall, 70 Miss. 678; 94 N. C. 67s; 76 Ala. 51; 127 111. loi; 52 Wis. 669; 57 Pa. St 65. 214 EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER III. GROUNDS FOR EQUITABLE RELIEF. Sec. 1150. ACCIDENT.— One of the oldest grounds for equity relief is that of accident, by which is meant the happening of some unusual event, not intended or provided for, whereby one person, without gross negligence on his part, has been deprived of some right, or another person has obtained an ad- vantage.* In case of many accidents the law gives complete relief, and equity has no jurisdiction, while! in other cases the remedy at law is inadequate or none is given and equity gives relief.** Sec. 115 1. SAME SUBJECT— WHEN RELIEF WILL BE GRANTED.— Two considerations must concur to give equity jurisdiction in case of accident. First, the party seeking relief must show a conscien- tious title thereto; and second, the law courts must have been originally unable to grant suitable relief.*** A party may be injured by an accident, if he resorts to a law court, in that: i. He may have a legal right and lose his remedy at law. 2. He may by accident, *Smith Eq. Jur. p. 36; 2 Pom. Eq. Jur. Sec. 823. **People V. Bartlett, 3 Hill, 571; People v. Manning, '8 Cow. 297. '••**Ex parte Greenway, 6 Ves. 812; Fowler v. Bott, 6 Mass. 63 ; L. R. 9 Q. B. 462 ; 42 N. H. 109 ; 99 Mo. 622. EQUITY OR CHANCERY JURISPRUDENCE. 215 according to rules of law, be deprived of the right it- self. 3. He may incur through the accident under the rules of law, some liability which it is inequitable for him to bear. 1. Legal Right and No Remedy at Law. Under this head may be classed accidents depriving a man of the proof of his rights, as lost bonds, promissory notes, deeds, mortgages, etc. The common law has been enlarged by statute in these cases, but equity maintains its jurisdiction to give relief.* 2. Deprived of the Right Itself. An example of this is where an apprentice has paid a fee for instruc- tion and the master dies during the period; equity will decree the repayment of a reasonable portion of the fee. (Newton v. Rowse, i Vem. 460.) 3. Inequitable Liability Incurred. As where an administrator has paid claims in full, the estate being solvent, and then by accident the assets are destroyed, equity will grant relief. (2 Freem. i.) Not every accident, however, will be relieved against in a court of equity. Accidents covered by the covenants of a contract will not be relieved against; thus, if a lessee has covenanted to keep build- ings in repair and surrender them in the same condi- tion as received, and they are accidentally destroyed by fire, he must rebuild, since that is in reality his contract; so if he has covenanted to pay rent for a *East India Co. v. Boddaur, 9 Ves. 464; Patton v. Camp- bell, 70 111. 72; Adams v. Edmunds, 55 Vt. 352; 107 Mass. 543; 34 Conn. 546; 42 N. H. 109; 16 Ala. 130. 2i6 EQUITY OR CHANCERY JURISPRUDENCE. certain term, he must pay notwithstanding the prem- ises have been made untenantable by casualty.* When from accident there has been a non-execution of a mere power, equity cannot grant relief.** But when there has been a defective execution, equity will grant relief in favor of certain persons who are fa- vored in the law, these are: purchaser or mortgagee, creditors, a wife, a legitimate child, a charity;*** and will refuse aid when there is a defective execu- tion as to, the donee of the power, a husband, a nat- ural child, a grand-child, or a volunteer.**** To en- able the court to grant relief in such cases the defect must not be one that goes to the very essence of the power, such defects as a want of a seal, witnesses or a signature will be aided.***** Prof. Bigelow enumerates the following modern in- stances in which equity grants relief in case of acci- dent: I. Death of sheriff before making conveyance and after making sale. 2. Destruction of the records in a cause. 3. Loss of deed or mortgage. 4. Loss of *Tompkins v. Dudley, 25 N. Y. 272 ; Wells v. Calnon, 107 Mass. 514; 39 la. 11; Bacon v. Cobb, 45 111. 53; 25 Conn. 530. **Arundell v. Philpot, 2 Vern 69; Bull v. Hardy, I Ves. 270. ***Reid V. Shergold, 10 Ves. 370; Wilkes v. Holmes, 9 Mod. 48s; Clifford >. Burlington, 2 Vern. 379; Bruce v. Bruce, L. R. 11 Eq. 371 ; Imus v. Sager, 7 Hare, 377. ****Ellison V. Ellison, 6 Ves. 656; Watt v. Watt, 3 Ves. 244 ; Tudor v. Anson, 2 Ves. Sr. 582 ; Watts v. Bulks, i P. Wms. 60; Smith v. Ashton, i Freem. 309. *****Reid V. Shergold, 10 Ves. 370; Adney v. Field, Amb. 654. EQUITY OR CHANCERY JURISPRUDENCE. 217 sealed instrument. 5. Loss of negotiable paper. 6. Loss of receipt.* Sec. 1152. MISTAKE AS A GROUND FOR EQUITABLE RELIEF.— Mistake may be either of fact or law. Mistake of fact, in a legal sense, is defined to be a mistake not caused by the neglect of a legal duty on the part of the person making the mistake, consisting in: — I. An unconscious ignorance or forgetfulness of a fact, past or present, material to the contract ; or, 2. Belief in the present existence of a thing material to the contract which does not exist, or in the past ex- istence of such a thing which has not existed.** Mistake of law constitutes a mistake only when it arises from, — 1. A misapprehension of the law by all parties, all supposing that they had understood it, and all making substantially the same mistake as to the law ; or, 2. A misapprehension of the law by one party of which the others are aware at the time of contracting, but which they do not rectify.*** *Bigelow's notes to Story Eq. (13th ed), Sec. 78; citing, Stewart v. Stokes, 33 Ala. 494; 45 Ala. 205; lo Heisk. 693; 42 N. H. 109; 70 111. 72; 20 Vt. 407; II W. Va. 386; 107 Mass. 543. **Cal. Code, Sec. 1577; Story's Eq. Jur. Sec. no; Hayne's Eq. p. 80. ***Cal. Code, Sec. 1577; Snell's Eq. p. 525; Willan v. Willan, 16 Ves. 72; 81 Wis. 67; 11 Ohio, 480; 95 Pa. St. 279; 8 Wheat. 174. Ignorance of the law, as a rule, does not excuse, and this was the earlier holdings in all cases, but 2i8 EQUITY OR CHANCERY JURISPRUDENCE. Sec. 1153. SAME SUBJECT— MISTAKE OF LAW. — The court will never make for the parties a contract which they did not intend to make, but one which they would have made, perhaps, had they not been ignorant of the law. But if the parties intended to make a certain contract, and through their mutual ignorance of the law, executed a paper containing a different contract, equity will give relief.* In some cases when a person is in full possession of all the facts, but through ignorance of the law is mis- taken as to his legal rights, duties or obligations, and consequently makes a contract affecting injuriously such rights, duties or obligations, courts ol equity re- gard the mistake as one of fact, rather than of law and will grant relief.** now if the mistake is as to the law governing the conduct of the citizen, a violation of which is a crime, the rule applies, while if it refers to the laws fixing property rights of the individual, there are several exceptions, which may be based on good faith or failure of the parties to assent. Jacobs v. Morange, 47 N. Y. 57; Cooper v. Phibbs, L. R. 2 H. L. 149; Tompkins v. HoUister, 60 Mich. 470; 25 Ala. 694; 19 Tex. 303; Wheaton v. Wheaton, 9 Conn. 96; 36 N. Y. 673; 18 N. J. Eq. 124; 18 Mich. 354. ♦Gillespie v. Moon, 2 John Ch. 585; Stone v. Hale, 17 Ala. 557; McNoughton v. Partridge, 11 Ohio 223; Lont's Appeal, 95 Pa. St. 279; Benson v. Markoe, 37 Minn. 30. **Macknet v. Macknet, 29 N. J. Eq. 54; Pusey v. Des- bourie, 3 P. Wms. 315; Blakeman v. Blakeman, 39 Conn. 320; Petcher v. Hennessey, 48 N. Y. 415. But equity will not disturb a compromise between the parties because of mis- take of fact or law as it seeks to discourage litigation, and especially where the matter compromised affects the honor EQUITY OR CHANCERY JURISPRUDENCE. 219 The ignorance of law which does not excuse, is ig- norance of the law of the land, and not ignorance of the law of another state or country. Ignorance of the law of a foreign state, and of private statutes is treat- ed as mistake of fact.* When a party has been led to make a mistake by a void statute, equity will re- lieve as far as possible.** But when the contract is made under a mistake of law produced by an errone- ous decision, there is considerable conflict of author- ity. By some authorities the courts will give relief ;*** and by others the parties are refused relief in equity.**** When, due to a mistake of law, money is paid by one with full knowledge of all the facts, to another claiming the same, and there is neither fraud or mis- representation in the case, the person making the pay- ment cannot recover the money paid either in law or equity.***** But some courts are inclined to treat the of members of a family. Stapilton v. Stapilton, I Atk. 10; Casy V. Casy; u Ir. Eq. R. 327; Leach v. Fobes, 11 Gray, 506. ♦Haven v. Foster, 9 Pick, in; Morgan v. Bell, 3 Wash. 576; Pomfret v. Windsor, 2 Ves. Sr. 472; Williamson v. Hitner, 79 Ind. 233 ; Bledsoe v. Nixon, 68 N. C. 521 ; 60 Ga. 391; 38 Pa. St. 194. ♦*Harney v. Charles, 45 Mo. 157. ***Jones V. Munroe, 32 Ga. 181; 45 Mo. 157. **** Jacobs V. Morange, 47 N. Y. 57; Kelly v. Turner, 74 Ala. 513. *****Rogers v. Ingham, L. R. 3 Ch. Div. 351; Livermore V. Peru, 55 Me. 469; Erkins v. Nicolin, 39 Minn. 461. 220 EQUITY OR CHANCERY JURISPRUDENCE. ignorance of the law as mistake of fact, and if so treated the money may be recovered in equity.* Sec. 1 154. SAME SUBJECT— MISTAKE OF FACT. — The right of a court of equity to give reHef when a contract has been made through ignorance or mistake of fact is unquestioned. There is no general presumption that a man knows any fact, and whether a particular fact was or was not within the knowledge of a particular person at a given time, is to be in- ferred from the surrounding circumstances. The mis- take may arise from ignorance of the existence of some fact, past or present, which the parties believed did not exist, or from the belief that it did exist, or once existed, when in truth it did not exist, or had never existed. Ignorance of fact and mistake of fact are commonly used as equivalent expressions.** "A mistake as to a matter of fact, to warrant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied, that but for the mistake, the complainant ♦Northrop v. Graves, 19 Conn. 548; Covington v. Powell, 2 Met. (Ky.), 226; Cobb v. Cole, 44 Minn. 278. **Strictly speaking, ignorance implies a total want of knowledge, and hence a total absence of consideration of that particular fact in making the contract, while a mistake of fact implies some knowledge, but more or less defective, resulting in an erroneous conclusion or judgment on the part of the person possessing such imperfect information. Canal Bank v. Bank of Albany, I Hill, 287. EQUITY OR CHANCERY JURISPRUDENCE. 221 would not have assumed the obligation from which he seeks to be relieved."* When there is a mutual mistake, going to the es- sence of the contract, the court will grant relief, even if there is an entire absence of all evidence of deceit, fraud of misrepresentation.** In the United States it is generally held that when the mistake or ignor- ance is due to the negligence of the party complain- ing, equity will not grant relief ; while in England the rule is more liberal, and equity will not refuse relief because at the time the mistake was made the party had the means of knowledge within his power. The doctrine of laches or delay not applying in this case either in law or equity.*** The negligence, however, must amount to the violation of some duty. And if there has been negligence, and the opposite party has not suffered injury thereby, relief will not be grant- The fact must be material to the contract, and not extrinsic to it, or no redress can be given.***** So if *In Grymes v. Sanders, 93 U. S. SS; Brigham v. Brig- ham, I Ves. 126; Smith v. Evans, 6 Binney, 102. **Hitchcock V. Giddings, 4 Price, 135; Colyer v. Clay, 7 Beav. 188; Fane v. Fane, L. R. 20 Eq. 698; Allen v. Ham- mond, II Pet. 63. ***Brown v. Fagon, 71 Mo. 5^3; Grymes v. Sonders, 93 U. S. 55; Conners v. Welch, 51 Wis. 431; Troops v. Snyder, 70 Ind. 554; Kelly v. Solari, 9 M. & W. 54; Redgrove v. Hurd, 20 Ch. Div. i. ****Bank v. Burdick, 87 N. Y. 40; 54 Conn. 488; 10 Wheat. 333; 42 la. I57; 6 H. & J. (Md.), 50a *****Fox V; McRoth, 3 Bro. C. C. 45; Turner v. Harvey, Jacob, 178; Laidlaw V. Organ, 2 Wheat. 178. 222 EQUITY OR CHANCERY JURISPRUDENCE. both parties stand upon the same footing as to a ma- terial fact, and have the same means of obtaining ac- curate means of information, and where the fact is of a doubtful nature and cannot be positively or ac- curately known, neither party can complain even if the bargain resulting is unfavorable to him.* Again, it is a rule of evidence that the terms of a written in- strument cannot be varied by parol, as by adding to or subtracting from the terms of a written instrument, but in equity, where a written instrument by accident or mistake in fact contains something, or fails to con- tain something, which results in the contract being different from what it was intended to be, it will be rectified. Equity not permitting the rule to accom- plish what it was intended to prevent, — a fraud. The party applying to have such a written agreement re- formed or corrected must show by conclusive proof that a mistake has been made, that it is mutual, or rather that the written agreement does not embody the terms of the verbal contract as understood by both parties. The fact that at the time the writing was executed one of the parties knew that it did not set forth the contract agreed upon, , will not prevent the other party from obtaining relief.** But when the mistake is only as to one of the parties and the writ- ten agreement correctly represents the contract as *Mortimer v. Capper, 2 Bro. C. C. 156; Sullen v. Ready, 2 Atk. 592. **Davis V. Simonds, i Cox, 402: Irnham v. Child, I Bro. C. C. 92; Gillespie v. Moon, 2 John Ch. 586; Hilmer v. Smith, ^^ N. Y. 226. EQUITY OR CHANCERY JURISPRUDENCE. 223 understood by the other, such contract cannot be rec- tified. It may possibly be rescinded on the ground that the minds of the parties did not meet, and that therefore in fact they did not enter into contract re- lations.* It is to be remembered that in all cases where a party seeks to be relieved from an obligation on the ground of accident, mistake or fraud, he must have superior equities to the party against whom he brings his action, since if the equities are equal the law must prevail.** Thus if one makes improvements on land supposing that he owns the land, he cannot recover the value from the true owner, who was at the time of the improvements a minor.*** Sec. 1 155. FRAUD AS A GROUND FOR EQUITABLE RELIEF.— The jurisdiction of equity in cases of fraud is largely concurrent, since courts of law also give relief. In those cases where the law courts originally gave full, adequate and complete re- lief equity does not assume jurisdiction.**** At law *Dulany v. Rogers, So Md. 524. **Anderson v. Tydings, 8 Md. 427 ; Smith v. Turrentine, 2 Jones Eq. 253. ***Guckian v. Riley, 135 Mass. 71 ; Peters v. Florence, 38 Pa. St. 194. See, Pomero/s Eq. Jur. Sees. 868-871. ****The jurisdiction of equity courts is divided into con- current, exclusive and auxiliary. Originally there were only a few matters in which the court had concurrent jurisdiction, while now there are. a number in which each court has jurisdiction, the equity courts still maintaining their juris- diction, though the law courts have by enabling statutes also assumed jurisdiction. Sweeney v. Williams, 36 N. J. Eq. 627; 85 111. 341; 136 Mass. 273. 224 EQUITY OR CHANCERY JURISPRUDENCE. the remedy of the party defrauded is either to treat the contract as rescinded, and bring an action to recover the money or property parted with, or allow the transaction to stand and sue for the damages sus- tained by reason of the fraud, or where the agreement is to perform an act or pay money, he may refuse to carry out the agreement and set up the fraud as a de- fense in an action for breach. In equity the party defrauded may have the deed or other instrument pro- cured by fraud rescinded, or reformed so as to consti- tute the true bargain, or if loss has been sustained, in a proper case, have an accounting, or set up the fraud as a defence to an action brought against him. Fraud is difficult to define, and is usually left to be determined from the facts and circumstances in each particular case, it may be said to be any deception or circumvention which affects injuriously the legal rights or title of another.* In an early leading case (Earl of Chesterfield v. Janssen, 2 Ves. Sr. 125), Lord Hardwicke divided fraud into four classes: — i. Fraud arising from facts and circumstances of imposition. 2. Fraud apparent from the intrinsic nature and subject of the bargain itself; inequitable and unconscientious bargains. 3. Fraud which is presumed from the cncumstances of the parties contracting. In this class of frauds, equity courts go further than courts of law, for the latter re- quire the fraud to be proved, while the former pre- ♦Mortlock V. Buller, 10 Ves. 292 ; Parker Hist. Ch. p. 508. EQUITY OR CHANCERY JURISPRUDENCE. 225 sume it exists in the absence of proof to the contrary. 4. Frauds which are inferred from the nature and cir- cumstances of the transaction, since third parties are defrauded. Fraud is also usually divided into the two classes: — I. Actual Fraud. 2. Constructive Fraud. The for- mer including the cases in the first division, of Lord Hardwicke, and the latter including the ether three of Lord Hardwicke's divisions. Sec. 1 1 56. SAME SUBJECT— ACTUAL FRAUD. — One of the largest classes of cases with which equity courts have to do is where the fraud results from mis- representation. It is held that whenever one party intentionally or designedly misrepresents a material fact or produces a false impression whereby another is misled or entrapped and an undue advantage ob- tained over him, there is a case of actual positive fraud.* In order that a misrepresentation may consti- tute a fraud, it must be: i. Untrue; 2. Made for the purpose of inducing the other party to act ; 3. Stated as a fact ; 4. Material ; 5. Relied upon by him to whom it was made. If the statement was true there could not of course be fraud. While it must be for the pur- pose of inducing the other party to act, it need not be to induce any particular person, but suffices if the in- tention was to deceive any person or persons.** If *Hill V. Lane, L. R. 11 Eq. 215. **Eaton V. Avery, 83 N. Y. 31; Rothschneider v. Knick Ins. Co. 76 N. Y. 216; Kisch v. R. R. 3 DeG. & J. & S. 122; L. R. 2 H. L. 99. 226 EQUITY OR CHANCERY JURISPRUDENCE. the statement is made as a mere opinion instead of a fact, it is not a fraud.* If the fact is material, and one on which if the party deceived had been correctly informed the contract would not have been made, it will be a fraud, whether the party making the mis- statement knows it to be false, or whether he is sim- ply ignorant, when it was his duty to have ascer- tained the exact truth.** If the party complain- ing has not been misled, as. where he knew that the representation was false at the time it was made, or has not been misled to his prejudice or injury by the misrepresentation, equity will not consider his com- plaint.*** It is also said that the statement or false represen- tation relied upon must have been entitled to credence, or the party deceived must have been justified in rely- ing on it, but he is not obliged to investigate or probe statements made by the other party as facts and upon such party's faith and credence.**** It is a rule that where the statements constituting the misrepresenta- tion are within the knowledge of the party making *Doggett V. Emerson, 3 Story, 700; Pike v. Fay, loi Mass. 134; Haygarth v. Wearing, L. R. 12 Eq. 320. **Pulsford V. Richards, 17 Beav. 87; Rawlins v. Wick- ham, 3 DeG. & J. 304; Iron Co. v. Trout, 83 Va. 397; 14 Mich. 109; 37 Ind. i; 147 Mass. 403. ***Nelson v. Stocker, 4 DeG. & J. 458; Redgrove v. Hurd, L. R. 20 Ch. Div. i ; Smith v. Chadwick, L. R. 20 Ch. Div. 27 ; 33 W. Va. 624 ; 22 Or. 29 ; 98 Mo. 598 ; 40 la. 286; 13s Ind. 655. ****Leyland v. Illingworth, i DeGex, F. & J. 248 ; Boynton y. Hazelboorn, i<^ Allen, 107; Rorer v. Front, 83 Va. 397. EQUITY OR CHANCERY JURISPRUDENCE. 227 them, or his supposed knowledge, and not within the knowledge of the other, the injured party will be given relief, while if the complaining party had the opportunity to investigate and verify the knowledge and forms an opinion from such investigation, or had equal means of knowledge relief will be denied.* Fraud may also result from the suggestion of a falsehood, or the suppression of the truth. The sug- gestion of a falsehood differs merely in the manner of conveying the untruth from a misrepresentation, and the same rule applies. While in reference to the sup- pression of the truth the rule is different. If the rela- tion of the parties is such that one is under no obli- gation, legal or equitable, to communicate his special information, the failure to do so will not constitute fraud, although the contract may be a hard one, and would not have been executed if both parties had been equally informed.** Where the fraud complained of results from suppression or concealment, the com- plairiant must show either, that the relation existing between them was such that it was the defendant's duty to disclose the truth, or that in the particular transaction he reposed special confidence in the de- fendant, and the defendant was aware of the special *Chapman v. Shillito, 7 Beav. 146; Attwood v. Small, 7 CI. & F. 232 ; Clapp v. Hoffman, 28 All. Rep. 362. **Fox V. Mackreth, 2 Bro. C. C. 420; Turner v. Harvey, Jacob, 178; De Costa v. Scandret, 2 P. Wms. 170; Dajnb- mann v. Schulting, 75 N. Y. 55. 228 EQUITY OR CHANCERY JURISPRUDENCE. confidence, or that the transaction itself was one which required the defendant to make a full disclosure.* In reference to that class of frauds arising from the peculiar situation of the injured party, it may be said that to make the contract valid, the consent of the party which is one of the essential elements of the contract, impHes, physical power, moral power, and a free use of those powers. Hence if a contract is made by a person who under the circumstances could not have given a legal consent, it cannot be enforced to his detriment. In this class of persons, are persons, non compos mentis, that is, lunatics, drunkards, imbe- ciles, etc. When such persons have been contracted with, and any undue advantage has been taken, equity will grant relief.** So contracts made under duress, or in cases of extreme necessity by infants, married women, sailors, and the like, fall in this class, and each will be relieved from such contracts if the other party took undue advantage.*** But to rescind such contract the injured party must act promptly, and not perform after learning of the advantage taken of him, or the agreement cannot be rescinded.**** The party defrauded by reason of the misrepresen- *Howard v. Gould, 28 Vt. 523; Hadley v. Clinton, 13 Ohio St. 502; Potter's Appeal, 56 Conn. I. **Clarkson v. Kitson, 4 Grand (Up. Can.), 244; Kelly v. Smith, 73 Wis. 191; 94 U. S. 506; 63 Md. 371; 72 Mich. 420. ***Francis v. Wilkinson, 147 111, 470; 44 la. 679; Farmer V. Farmer, i H. L. Cas. 724; 120 N. Y. 614. **** Woodcock V. Bennett, I Cow. 711; Merrill v. Wilson, 66 Mich. 232. EQUITY OR CHANCERY JURISPRUDENCE. 229 tation or suggestion of another, has the option of compelling the defendant to make such statement good when that can be done.* And the defendant cannot re- tain what he has secured by the fraud, nor can his grantee or vendee unless such purchaser has obtained it without notice of the fraud and for value. "A court of equity will wrest property fraudulently acquired, not only from the perpetrator of the fraud, but from his children and his children's children, or from any persons amongst whom he may have parceled out the fruits of his fraud."** Sec. 1 156. SAME SUBJECT— CONSTRUCTIVE FRAUD. — In all cases of actual fraud the defendant is guilty of some moral turpitude, while in cases of constructive fraud he is not necessarily guilty of moral turpitude. By constructive frauds are meant acts and contracts which, although not really designed by the parties thereto to work a positive fraud and injury upon another person, yet have a general and manifest tendency to mislead such person, or are detrimental tO' the public interests. Such frauds are, in equity, as reprehensible as positive frauds. Constructive frauds may be divided into three class- es: i. Contracts made in violation of some statute, or of some general public policy, or the policy of the law. ♦Pulsford V. Richard, 17 Beav. 87; Rowlins v. Wickham, 3 DeG. & J. 304; L. R. 9 Ch. 397; Piper v. Hoard, 107 N. Y. 73. **Vane v. Vane, L. R. 8 Ch. Div. 383 ; Huguenin v. Base- ly, 14 Ves. 273. 230 EQUITY OR CHANCERY JURISPRUOENCE. 2. Contracts which owe their existence to the abuse of a confidential and fiduciary relation existing be- tween the parties. 3. Contracts whicli unconsciona- bly and injuriously affect the private rights, interests and duties of the parties themselves or third persons. These will now be considered in succession. Sec. 1 157. SAME SUBJECT— i. CONTRACTS MADE IN VIOLATION OF SOME STATUTE.— There are many acts that are not malum in se, but which for the good of the public and the protection of the weak and unfortunate, are prohibited. Thus usury wa.s at the early common law forbidden, but now by statute the penalty for taking more than the statutory rate of interest is a mere forfeiture of the excess of interest so taken. At common law a wager was not unlawful while a gambling consideration was. By statute now gaming and wagering agreements are alike illegal and void.* So agreements for the purchase of grain or stock in the future, where there is no intent that there shall be any actual purchase or delivery, but a mere settlement, the purchaser's gains or losses de- pending upon whether the stock or grain bought has advanced or fallen in the market, are voidable.** A contract to be enforced in another state, made in vio- lation of the laws of that state, will not be en- forced.*** *Wilkinson v. Tousley, 16 Minn. 299, 10 Am. Rep. 139. **I\IcGrew v. City Prod. Ex. 85 Tenn. 572; Harvey v. Merrill, 150 Mass. i ; Harris v. White, 81 N. Y. 532. ***Chainbers v. Church, 14 R. I. 398; 51 Am. Rep. 410. EQUITY OR CHANCERY JURISPRUDENCE. 231 Sec. 1 158. SAME SUBJECT— 2. CONTRACTS MADE IN VIOLATION OF PUBLIC POLICY.— Under this head fall marriage brokage contracts, con- tracts in restraint of trade or marriage generally, and contracts with the object of private gain at the ex- pense of the public service, and for controlling or in- fluencing legislative, judicial or administrative func- tions. These have all been discussed in this Series in Vol. IV., under the head of Contracts, to which sub- ject the student is referred. By a marriage brokage contract is meant where a person engages another for reward to negotiate a mar- riage for him, such contracts are absolutely void, and the reward of course cannot be collected, and if paid cannot be recovered.* So it is held that any secret disposition of property by either of the parties to a marriage contract, made for the purpose and with the intent to deprive the other of the interest in same accruing from the mar- riage, is a fraud upon the other party.** But to en- able the husband to set aside the ante-nuptial convey- *Roberts v. Roberts, 3 P. Wms. 67 ; Cole v. Gibson, i Ves. Sr. 503; Duval v. Wellman, 124 N. Y. 156; Williamson v. Gihon, 2 Sch. &Lefoy, 356. In the last case the court can- celled bonds given by a husband after marriage to one who assisted him in eloping with the woman he married, on the ground that it was a fraud on the wife, from whose property the bonds might have to be paid. But the true ground of the objection to such contracts is that they tend to annul the free consent of the parties. **Gale V. Lindo, i Vern. 475 ; Neville v, Wilkinson, i Bro, C. C. 543- 233 EQUITY OR CHANCERY JURISPRUDENCE. ances of the wife he must show: i. That marriage was in the contemplation of the parties at the time of the conveyance; 2. That the woman executed such conveyance in contemplation of the marriage ; and 3. That the conveyance was concealed from the hus- band.* While conditions annexed to legacies, gifts and devises in restraint of marriage generally are void, yet if they are reasonable in themselves and do not operate as an undue restraint upon marriage they will be upheld.** So a restraint annexed to devises re- straining a widow or widower from marrying gener- ally are upheld.*** And conditions precedent annexed to a devise of land prevent the title from vesting until the condition has been performed, regardless of the fact whether they are in restraint of marriage or are illegal or impossible.**** An agreement between husband and wife to sep- arate and live apart was formerly void as against pub- lic policy, but now by statute and otherwise, such an agreement made upon sufficient consideration and in *Bigelow on Fraud, 49-51 ; Strathmore v. Bours, I Ves. Jr. 22; Goddard v. Snow, i Russ. 485. So antenuptial con- veyances of the husband to defeat the wife's dower will be set aside in equity upon the application of the wife. Kelly v. McGrath, 70 Ala. 75 ; Leach v. Duvall, 8 Bush, zoi ; Cranson v. Cranson, 4 Mich. 230; 35 Mich. 415; 3 Del. Ch. gg. **Scott V. Tyler, 2 Bro. C. C. 431 ; Story, Eq. Jur. Sec. 274 ; Bigelow's notes. ***AlIen V. Jackson, L. R. i Ch. Div. 399; 6 Mass. i6g. ****Commonwealth v. Stauffer, 10 Pa. St. ;3So; 6 Mass. J69. EQUITY OR CHANCERY JURISPRUDENCE. 233 valid form will be enforced to the extent of prevent- ing either from interfering with the other in violation of the agreement.* Contracts for the purpose of restraining trade gen- erally, are void as against public policy, for the rea- son that they tend to promote monopolies and to pre- vent a just and healthy competition. This includes all contracts or agreements or combinations like trade unions, trusts, corners, or any scheme to embarrass trade generally, or in a particular article; or to en- hance the value of any commodity for the benefit of a few individuals. They are all alike void, incapable of being enforced, and in addition equity will enjoin their continuance.** But contracts merely intended to protect the good will of a business for the benefit of a purchaser, as where the vendor agrees not to establish a similar business within a limited territory, or for like pur- poses, will be enforced if reasonable; the question of reasonableness in such cases being for the court in equity procedure.*** ♦Wilson V. Wilson, I H. L. Cas. 538; 5 H. L. Cas. 40; Clark V. Fosdick, 118 N. Y. 7, 16 Am. St. Rep. 733. **Mitchel V. Reynolds, i P. Wms. 181 ; Stanton v. Allen, s Denio, 434; Gale v. Kalamazoo, 23 Mich. 344; Crawford v. Wick, 18 Ohio St. 190; Rigby v. Connol, L. R. 14 Ch. Div. 482 ; Sampson v. Shaw, loi Mass. 145 ; Central, Etc., Co. v. Guthrie, 35 Ohio St. 666; Wiggins, Ferry Co. v. R. R., S Mo. App. 347; Arnott v. Pittson, 68 N. Y. 582; Craft v. McConoughy, 79 111. 346; Emery v. Ohio, Etc., Co., 47 Ohio St. 320; Chicago Gas. Co. v. Co., 121 111. 530. ***Taylor v. Blanchard, 13 Allen, 370 ; Hubbard v. Hiller, 234 EQUITY OR CHANCERY JURISPRUDENCE. When public contracts are left to the lowest bidder, any agreement or plan among the bidders to increase the cost of the work for their own benefit will be void. So if goods are sold at auction, and the sale is not fair, as where puffers are employed, the sales so made may be avoided.* Another class of contracts void as against public policy, are those whose purpose and object is some private gain or emolument at the expense of the pub- He service, or which seek to secure the election of some particular person, or which interfere with the freedom of elections, or which are made for the pur- pose of influencing legislative will, or to secure the appointment of some particular person to office, or to influence or control executive or administrative func- tions, or for influencing or controlling judicial pro- ceedings.** But contracts made for the clear purpose of benefiting private persons, and not affecting in- juriously the interests of the public may be valid.*** So it is an immemorial right of citizens to petition the legislature for a redress of grievances, as well as to 27 Mich, is; 52 la. 241; 7 Daly, 354; 47 la. 137; 68 N. Y. 300; 43 Fed. Rep. 208; 106 N. Y. 473. *Weld V. Lencoster, 56 Me. 453; Atcheson v. Mallon, 43 N. Y. 147; Peck V. List, 23 W. Va. 338. **McGuire v. Corwine, lOI U. S. loS; Gaston v. Drake, 14 Nev. 175; Gurnsey v. Cook, 120 Mass. 501; 135 U. S. 507; 37 Cal. i68; 14 Bush. -755; 129 U. S. 643; 7 Mo. App. 165- 89 111. 349; 41 Kans. 364; 72 la. 130; Law v. Law, 3 P. Wms. 392. ***48 la. 211; 93 U. S. 548; 7y 111. 310; 103 U. S. 261. EQUITY OR CHANCERY JURISPRUDENCE. '235 appeal to the legislature as a whole or any of its com- mittees and urge the passage of any particular act. These things a citizen may do in person or by attor- ney, but contracts to secure the votes of particular members of the legislature through personal appeals to them, individually "lobbying", are void.* Contracts contrary to good morals, are also void These include contracts based on illicit intercourse ; leases of premises to be used for unlawful purposes ; contracts compounding a felony, or to forbear from prosecution of a criminal case, or to abandon a crimi- nal prosecution already commenced, and at common law contracts amounting to champerty or main- tenance.** Sec. 1 159. SAME SUBJECT— 3. CONTRACTS ARISING FROM ABUSE OF CONFIDENTIAL OR FIDUCIARY RELATIONS.— Equity will grant relief, as a general rule, wherever one has reposed a confidence or trust in another, and such confidence or trust has been abused. The classes of persons who stand in a confidential or fiduciary relation to each other are: — i. Parent and child. 2. Guardian and ward. 3. Physician and patient. 4. Clergyman and parishioner. 5. Attorney and client. 6. Trustee and ♦Marshall v. R. R., 16 How 314; Mills v. Mills, 40 N. Y. 543; 22 Kan, 692. **Batty V. Chester, 5 Beav. 103; Gray v. Mathias, 5 Ves. 286; Powell V. Knowles, 2 Atk. 224; Newby v. Sharpe, L. R. 8 Ch. Div. 39; 42 111. 198; 78 N. C. 328; 50 Vt. 657; 48 Cal. 74; 131 Mass. 436; 70 Ala. 174. 236 EQUITY OR CHANCERY JURISPRUDENCE. cestuy que trust. 7. Principal and agent. In all cases falling under one of these classes, the burden of proof is upon the party in whom the confidence is reposed to show affirmatively that no undue advantage has been taken of the other. If the contract is not a fair one it will be presumed, until removed by proof, that it was not fairly made.* I. Parent and Child. Equity scrutinizes carefully all contracts between parent and child, and to be sus- tained they must be reasonable and characterized by perfect good faith.** A child is presumed under par- ental influence as long as the dominion lasts, so that a transaction entered into shortly after the child be- comes of age, or while still living at the parental home it comes within the rule. But after the child is fully emancipated in law and fact, the rule no longer ap- plies.*** This relation is reversed when the parent has become aged and enfeebled and the child has driven a hard bargain with such parent, and such a contract may be avoided.**** *Tate V. Williamson, L. R. 2 Ch. 55; Rhodes v. Bates, L. R. I Ch. 252 ; Cowee v. Cornell, 75 N. Y. 91 ; 81 Ala. 530. Equity will not allow a person abusing the confidence re- posed in him to retain the advantage of the transaction, al- though the matter could not have been impeached if no such confidential relation had existed. **Kempson v. Ashbee, L. R. 10 Ch. App. 13 ; Savery v. King, s H. L. Cas. 627; 96 N. Y. 414; 72 Mo. 669. ***Wright v. Vanderplank, 8 DeG. M. & G. 133; Miller V. Simonds, 5 Mo. App. 33; 46 la. 684; 96 N. Y. 414; 120 111. 277. ♦***Highbeger v. Stiffler, 21 Md. 338; 5 W. Va. 188; 40 Mich. 473. EQUITY OR CHANCERY JURISPRUDENCE. 23? 2. Guardian and Ward. While this relation contin- ues the parties may not contract with each other at all, and courts of equity go^ still further and do not allow the parties to contract immediately after the relation has terminated, unless there is perfect good faith on the part of the guardian, and careful deliberation on the part of the ward.* This rule applies to settle- ments between such parties, and applies where the re- lation subsists in fact and not in law.** After the relation has fully ended, and the ward is fairly eman- cipated and independent of his former guardian, the former relation will cease to raise a presumption of fraud in their contracts.*** 3. Physician and Patient. The same principles are applicable to this relation, and a physician dealing with his patient is bound to use the utmost good faith and fair dealing or contracts made under such condi- tions will be set aside in equity. (Billage v. Souther, 9 Hare, 534.) 4. Priest and Parishioner. Courts of equity look with suspicion on all contracts made between the priest and parishioner, as well as contracts made under the advice of the priest, since the relation is a peculiarly confidential one and easily abused. There ♦Pierce v. Waring, i P. Wms. I2in; Hatch v. Hatch, 9 Ves. 292; 100 111. 356; 10 H. L. Cas. 26; 52 Ala. 430. **Say V. Barnes, 4 Sar. & R. 112; 44 Mo. 465; 129 U. S. 663; 126 III. 310; no Pa. St. 349; 89 Cal. 575; 56 Mich. 166. ***Bickerstaff V. Marlin, 60 Miss. 509; 129 U. S. 663. 238 EQUITY OR CHANCERY JURISPRUDENCE. is no distinction as to sect or denomination of the parties.* 5. Attorney and Client. While an attorney may contract with his client for the purchase of land or chattels, equity obliges the attorney to show in the first instance that the dealing was fair and no ad- vantage was taken of the client, and if this appears the contract will stand.* But gifts from the client to the attorney while the relation exists are void, if made inter vivos, while testamentary bequests may stand if the testator's capacity and freedom to act clearly ap- pear.** An attorney, aside from his fees, is not entitled to make any profit out of his employment. Whatever he makes is made for his employer. If he conducts a ju- dicial sale he cannot become a purchaser for himself without the consent of his client obtained after a full disclosure of all matters affecting, the transaction.*** And these rules apply not only to attorneys-at-law, but to all persons occupying substantially the same po- sition of trust and confidence.**** *Lyon V. Home, L. R. 6 Eq. 655 ; Connor v. Stanley, 72 Cal. 556; 70 Mo. 580; 44 la. 679. *Holman v. Loynes, i8 Jur. 839; Hobday v. Peters, 28 Beav. 439; Gibson v. Jeyes, 6 Ves. 266; 97 Mo. 509. ♦♦Morgan v. Minett, L. R. 6 Ch. Div. 638; Hatch v. Hatch, 9 Ves. 292 ; Greenfield's Estate, 14 Pa. St. 489 ; Walker V. Smith, 29 Beav. 394; 95 N. Y. 516; 91 N. Y. 539. ***Tyrell v. Bank of London, 10 H. L. Cas. 26; 18 Ves. 120; 41 Mich. 227; 62 Pa. St. 461; 122 111. 607; 56 Mien. 28s; loi U. S. 189. ****Vellette v. Tedeme, 122 111. 607; L. R. i Eq. 528. EQUITY OR CHANCERY JURISPRUDENCE. 239 6. Trustee and Beneficiary. A trustee cannot ac- quire for himself an interest in trust property, and if he does so the transaction is void.* This relation will be discussed further in the next chapter. 7. Principal and Agent. The agent's relation to his principal is much the same as that of the trustee to his beneficiary. Equity will not permit him to act for two principals whose interest are conflicting with- out the consent of both. He may not make anything out of his employment except his wages, and if em- ployed to sell property he cannot become the pur- chaser directly or indirectly.** Sec. 1 160. SAME SUBJECT— 4. CONTRACTS WHICH AFFECT INEQUITABLY THE RIGHTS OF THE PARTIES OR THIRD PERSONS.— Un- der this head may be classed the following : — ■ I. Sailors. Sailors are regarded as special wards of the chancery, since their life in all ages has tended to make them careless and reckless in matters where others are prudent. The civil law protected them to the extent that they must receive at least half the benefit of the thing sold ; equity looks to the whole cir- cumstance and if the contract made is inequitable it will set it aside.*** ♦Romaine v. Hendriclcson, 27 N. J. Eq. 162 ; 55 Cal. 91 ; 22 W. Va. 678. **Scribner v. Collar, 40 Mich. 375; Murry v. Beard, 102 N. Y. 508; Hagenmyer v. Marks, 37 Minn. 6. ***How V. Weldon 2 Ves. Sr. 516; Taylor v. Rochfort, 2 Ves. Sr. 281. 240 EQUITY OR CHANCERY JURISPRUDENCE. 2. Heirs, Reversioners, and Expectants. Equity will not permit harsh bargains to be driven with this class of persons, and will presume that the injured expectant was in distress, and was unduly influenced thereby to make the contract, which, if inequitable will be set aside.*' 3. Post Obit Bonds. By post obit Lands is meant agreements to pay, in consideration of a sum of money received, a sum in excess of the amount re- ceived and interest thereon, on the death of some person from whom the obligor expects to receive an inheritance. Equity will cancel such obligation, the obligor paying what is equitably due thereon.** 4. Contract of Suretyship. By suretyship one be- comes liable for the debt of another, and equity re- quires good faith on the part of the debtor and the creditor, both of whom are benefitted by the contract. If any material fact is concealed from the surety by the other parties, equity will relieve the surety from his obligation.*** While the creditor need not volun- teer information, he is bound to inform the surety of all material facts touching the transaction for which the surety becomes liable, and if this is not done the *MorrHl v. Snelling, 15 Ch. Div. 679; Butler v. Duncan, 47 Mich. 94. **Boynton v. Hubbard, 7 Mass. 112; Chesterfield v. Jans- sen, 2 Ves. 124. ***Davis V. London, Etc., Ins. Co., L. R. 8, Ch. Div. 469; Dennison v. Gibson, 24 Mich. 186; 35 Mich. 525; 72 Pa. St. 372. EQUITY OR CHANCERY JURISPRUDENCE. 241 surety cannot be held.* So after the suretyship con- tract is complete, equity still requires nothing to be done by the creditor to enlarge the risk of the surety, as giving time absolutely, surrendering collateral se- curities, and the like.** 5. Composition with Creditors. Equity requires that when a debtor enters into an agreement with his creditors whereby they agree to discharge their debts against him upon the payment of a certain per cent of their respective claims, that there shall be perfect good faith, and that no advantage shall secretly be given one over the other, since equality is equity. If any undue and secret advantage has been given, such preference will authorize the court to set aside the deed of composition.*** Such agreement is a fraud upon the others ; so any arrangement between a bank- rupt and his assignee to withdraw a part of the prop- erty from the assets for the bankrupt oi his family is a fraud on creditors.**** But after a composition with **HaniiIton v. Watson, 12 CI. & Fin. 109; Pidcock v. Bishop, 3 B. & C. 197; II Wheat. 59; 33 Mich. 410; Owen v. Homan, 4 H. L. Cas. 997. ***Wright V. Simpson, 6 Ves. 714; 6 Ves. 805; Boultby V. Stubbs, 18 Ves. 20; Hagey v. Hill, 75 Pa. St. 108. See also the subject of Suretyship in No. 6 Home Law School Series. *Cullingworth v. Loyd, 2 Beav. 385 ; 4 East, 372 ; 8 Met. 27; 41 Am. Dec. 503. **Miller v. Sauerbiner, 30 N. J. Eq. 71; McNeil v, Co- hill, 2 Bligh. 228, 242 EQUITY OR CHANCERY JURISPRUDENCE. creditors or discharge in bankruptcy a creditor may be paid in full by the debtor.* 6. Fraudulent Conveyances of Property. Equity will not allow a debtor to dispose of his property with intent to defraud his creditors. And such a transfer was voidable at common law by a creditor. When the transfer is made upon a valuable consideration the ac- tual intent to defraud must be shown.** When the conveyance is voluntary, there is a presumption that it was made with a fraudulent intent, but this pre- sumption may be overcome.*** So a conveyance of property to defraud future creditors is void, but in this class of cases the evidence of the fraudulent in- tent must be clearly shown.**** *Argall V. Cook, 43 Conn. 160. **Kevan v. Crawford, L. R. 6 Ch. Div. 29; Bulmer v. Hunter, L. R. 8 Eq. 46. ***Sexton V. Wheaton, 8 Wheat. 229; Lerow v. Wilmarth, 9 Allen, 382 ; Vesplank v. Storj', 12 Johns, 536. ****Case V. Phelps, 39 N. Y. 164 ; Mullen v. Wilson, 44 Pa. St. 413. The matter is largely controlled by statutes in the various states, EQUITY OR CHANCERY JURISPRUDENCE. 243 CHAPTER IV. PROPERTY IN EQUITY- — TRUSTS AND USES. Sec. 1161. ORIGIN OF USES AND TRUSTS. — The origin of uses and trusts is traced back to the civil law, but yet the equity judges are indebted to the Roman jurists for little more than the bare idea. Under the civil law a testator was permitted to name or designate his heir, and such heir took with the es- tate of the testator all the liabilities existing at his death. That is, he fell heir to both property and debts, and was even liable for the debts when there was no property, or less property than was required to pay the debts. The law assuming that the legal existence of the testator was prolonged by placing the heir in the exact legal status occupied by the testator. The testator was also restricted in his choice of an heir to certain persons, so that it resulted that certain persons could acquire property by purchase or gift that could not do so by testament. To evade this rule of the civil law, wills were drawn making a qual- ified person the testator's heir, but requesting such person to transfer the estate to some other person, who could not have been named as heir directly.* ♦Sander's Justinian, 245-280. At first it was left to the con- science of the heir to carry out the directions of the testa- ment, but after a time the courts interfered and compelled a compliance. Id. 337-8. Since the heir was liable for the 244 EQUITY OR CHANCERY JURISPRUDENCE. Trusts owed their origin in England to certain conditions which were inserted in deeds for the pur- pose of evading the statute of Mortmain. Prior to the statute of Uses, a simple gift of land to a person and his heirs, accompanied by livery of seizin, con- veyed to such person an estate in fee simple, and no consideration was necessary to support the gift. At that time no estate in land except an estate at law was known. The statute of Mortmain prohibited the giving of lands to religious houses. This statute was evaded by an ingenious device of the conveyancers, by making the grant of the land to some qualified per- son with livery of seizin, for the use and benefit of the religious house which the donor or grantor de- sired to assist. At law the person receiving the gift and the livery of seizin was the owner of the fee un- conditionally, the use expressed in the deed was void, being in derogation of the grant. But in equity, where the intent rather than the words and acts of the grantor were regarded, it was held that while the grantee was the owner of the fee, he was required as a matter of good faith and conscience to turn over to the person entitled to the use of the lands the income of such lands. This was called a use or trust, and debts of the testator, it was customary for him to take back a bond from the person to whom he was directed to trans- fer the property requiring such person to pay the debts. In A. D. 62, during the reign of Emperor Nero, a statute was passed which made the beneficiary, and not the heir, liable for the testator's debts, and thus the equitable estate of the beneficiary was fully established, EQUITY OR CHANCERY JURISPRUDENCE. 245 the estate of the person entitled to the use or trust, an equitable estate. This equitable estate was in fact, under this construction of the deed, the entire benefi- cial interest in the land, the grantee holding the bare legal title. In a short time conveyances to uses were made for other purposes than to evade the statute of Mort- main. Turbulent barons and other landed proprie- tors, who in that troublous time were in continual danger of having their estates confiscated by siding with the wrong dynasty, found it politic to have the legal title to their estates held by some person for their use. This plan was adopted by so many pro- prietors that the wholesome fear of confiscation was fast losing all influence in the government, and in the reign of Henry VIII, parliament passed a law to regulate uses, called the Statute of Uses. (27 Hen. VIII, c. 10.) This statute provided that when any person shall stand seized of any lands or heredita- ments to the use of some other person, the person entitled to the beneficial use shall be deemed to be in lawful seizin of such lands. The object of the statute was to reunite the legal and equitable estate in the same person. Thus, if lands were granted to A, for the use of B, before the Statute of Uses, A took the legal estate and B the equitable estate, but after the passage of the statute the legal estate did not remain in A, but passed through him to B imme- diately. The conveyancers, not to be outdone, added aijoth- 246 EQUITY OR CHANCERY JURISPRUDENCE. er link to the chain of grantees, and made a convey- ance to A, for the use of B, and then added, "to the use of C," or "in trust for C." The common-law courts decided that a use could not be limited upon a use ; that is, that the statute converted the first use into a legal etsate, but thereby exhausted its power, leaving the second trust or use unaffected.* While the chancery courts, following their former holdings, preserved the intent of the grant, and upheld the trust, making an equitable estate identical with the former use, which the law refused to recognize. So that the effect of the statute of uses was utterly fu- tile, except to add several words to a conveyance.** Sec. 1 162. CLASSIFICATION OF TRUSTS.— Trusts may be classified as follows: — i. Express trusts ; that is, those created by the intentional acts of the parties. 2. Imphed or constructive trusts ; that is, created by operation of law.*** Express trusts may be either (a) private or (b) public; that is, they may be created for the benefit of some private individual, ♦Tyrrell's Case, 3 Dwyer, issa; i White & T. Lead. Cas. Eq. 335- **Hopkins v. Hopkins, I Atk. 591 ; Sugden, Gilbert on Uses, p. 63; Kerley's Hist. Eq. pp. 132-3; 6 B. & C. 305; 13 E. C. L. 180. ***A trust may be created by the act of the party which clearly expresses an intent to create a trust, or a trust may be created by an act which does not openly express any in- tention to create a trust, but from which the law implies a trust; hence law writers have divided trusts into two great classes : express trusts, and implied, resulting or construe^ tive trusts. Lewin, Trusts, p. 188, EQUITY OR CHANCERY JURISPRUDENCE. 247 and neither the general public nor any particular class of the public may have any interest therein, or the trust may be created expressly for the general public or some particular class or portion of the public. For this reason express trusts are divided into two class- es, private trusts, and public trusts, or charities. Express private trusts are again divided into two classes, pure and special* A pure or passive trust is one where property is conveyed to one person for the use and benefit of another, with no power or au- thority to manage the same except as directed by the beneficiary. The subject matter of the trust in this class is usually personal property.** A special trust exists when the trustee by the express provisions of the instrument creating the trust is required to per- form certain duties, or when the performance of such duties are incident to the powers conferred upon the trustee. These powers vary, but they are at least such as have been expressly conferred, or are neces- sarily incident thereto, and always include those re- quired to enable the trustee to execute the trust.*** *An express private trust is defined to be one created for the benefit of individuals or families, and designed for pri- vate convenience and support. Perry, Trusts, Sec. 22. **Boone v. Savings Bank, 84 N. Y. 83 ; Leighton v. Bowen, 75 Me. 504; Dean v. Long, 122 111. 447. ***Zabriskie v. R. R. Co., 33 N. J. Eq. 22; East Rome v. Cothran, 81 Ga. 359; i Spence Eq. Jur. 491; 2 Pom. Eq. Jur. Sec 991. Mr. Pomeroy divides pure trusts into four classes : I. When the trust is simply to convey the property to some designated person or class of persons. 2. When the primary 248 EQUITY OR CHANCERY JURISPRUDENCE. Trusts may also be either executed or executory. When the instrument creating the trust so defines the intention of the testator or grantor, that the court has nothing to do except to take the limitations given, and convert the equitable into legal estates, the trust is said to be executed. While when the instrument does not by its terms constitute the trust, or effect the conveyance which it directs, but contains mere direc- tions to convey upon certain trusts, it is said to be executory.* In the case of executed trusts the court of equity will put the same construction on technical words as does a court of law. That is, if such words in a court of law, in a deed to A, would create an estate in tail in the grantee, they will also in a deed to A, for the use of B, for the use of C, create an equitable estate in tail in C.** But while in case of executory trusts the court will in certain cases follow this rule as to the construction of technical words, it is not bound by that construction in all cases. Neither is the rule arbitrary, so that where a technical construc- object is to sell or dispose of the entire trust property in some manner and to use the proceeds for some ulterior pur- poses. 3. When the primary object is to hold and invest the entire property and its proceeds, and thus to accmumulate for some ulterior purposes. 4. When the primary object is to hold the corpus of the property, receive its rents and profits and income, and apply them to some prescribed uses. Id. Sec 992. *Egeston v. Brownlow, 4 H. L. Cas. i ; Cushing v. Blake, 30 N. J. Eq. 689. ♦♦Williams, Real Property, 160-1. EQUITY OR CHANCERY JURISPRUDENCE. 249 tion would defeat the evident intention of the grantor, as gathered from the whole instrument, such rule will be disregarded. If, however, there is nothing in the instrument to indicate that the real intention of the grantor will not be carried out by giving the words used their technical meaning, the legal construction of the instrument will be followed.* Sec. 1 163. EXPRESS PRIVATE TRUST- PARTIES. — The parties necessary to the creation of an express trust are: i. The settlor, or person creat- ing the trust. 2. The trustee, or the person in whom the legal title is vested. 3. The cestui que trust, or person entitled to the beneficial interest. The Settlor. Any person competent to deal with the legal estate, may, if he desires, vest it in a trus- tee for the purpose of executing the settlor's inten- tion. That is, all persons .owing property incJheir own right may impress a trust upon such property.** The Trustee. To be a trustee the party should be legally capable of taking and holding the legal es- tate, with legal ability and capacity to execute the trust, and domiciled within the jurisdiction of the court. A corporation may now be a trustee as to matters within the general scope of its corporate powers.*** ♦Trevor v. Trevor, I P. Wms. 622; Sweetapple v. Brin- don, 2 Vern, 536. **Lewin, Trusts, p. 30; Perry, Trusts, Sees. 32-35. ***Atty. Gen. v. Hospital, 2 De Gex, J. & S. 621 ; Vidal v. Girard. 2 How. 188; Winslow v. Cummings, 3 Cush. 358. 250 EQUITY OR CHANCERY JURISPRUDENCE. The Cestui Que Trust. As equity follows the law, any one capable of taking the legal estate may, through the channel of trusts, become the recipient of the equitable estate, but the designation of the per- son must be definite and certain. If the beneficiary of the trust is not definite and certain, it cannot be en- forced. But it is held that the cestui que trust may be designated by description and need not be named.* Sec. 1 164. SAME SUBJECT — PROPERTY SUBJECT TO TRUST.— It is a general rule that all property, both real and personal, legal or equitable, may be made the subject of a trust. This includes choses in action, patent rights, growing crops, and the like.** But a trust as to foreign lands cannot be enforced, from the fact that the land is subject to the laws of the country where located.*** Sec. 1 165. SAME SUBJECT— THE TRUST MAY BE VOLUNTARY, OR FOR VALUE.— The maxim that no action can be maintained on a nudum pactum, is recognized in equity as fully as at law.**** So that in equity an imperfect conveyance made for value is binding, while if such conveyance is volun- tary it is not binding; but a voluntary conveyance when complete and perfect is binding, or, in other ♦Levy V. Levy, 33 N. Y. 97; Holmes v. Mead, 52 N. Y. 332; Sale V. Moore, i Sim. 534. **Row V. Dawson, i Ves. Sr. 332; Robinson v. Maudlin, II Ala. 977; Russell's patent, 2 De G. & J. 130. ***Lewin, Trusts, p. 49. ♦***Jefferys v. Jeflferys, Cr. & P. 138. EQUITY OR CHANCERY JURISPRUDENCE. 251 words, a trust may be raised without any considera- tion for the transfer.* Where the conveyance is voluntary the first ques- tion which presents itself to the court asked to en- force it is, has the trust been completely declared or constituted? If it has it is good, and will be en- forced ; if not, it is worthless, because the court will not aid a volunteer. But this question is not always an easy one to answer, and depends upon various considerations, which we briefly mention. First. When the donor is the owner of both the legfal and equitable interest in the subject matter of the trust, and has made an actual legal conveyance of the property in favor of a volunteer, or when he has declared himself a trustee for the donee, a binding trust is created.** But when the donor has made no declaration of trust, and his assignment or conveyance of the property is incomplete or imperfect, when it might have been made complete and perfect at law, the court will not aid in completing such conveyance or assignment.*** When, however, a complete and perfect conveyance or assignment could not be made at law, and the donor has done all he could do, it will be held good; but if the donor has omitted to do *Jones V. Lock, L. R. i Ch. 25. **Ex parte Pye, 18 Ves. 140. ***Antrobus v. Smith, 12 Ves. 39; Searle v. Law, 15 Sim. 95. 252 EQUITY OR CHANCERY JURISPRUDENCE. something which he might have done, it will be held bad.* Second. When the donor is the equitable owner of property, and he directs trustees to hold the prop- erty in trust for the donee, the trust is well created.** If the property is pure personal property, the trust may be created by parol, but if the property is an in- terest in land, either freehold or a chattel real, the direction must be given in writing to satisfy the pro- visions of the statute of frauds.*** A voluntary trust may be good as between the par- ties, and void as to third persons or creditors ; that is, where the voluntary conveyance operates to hinder, delay or defraud creditors.**** *Fortescue v. Barnett, 2 My. & K. 36; Edwards v. Jones, I My. & Cr. 226 ; Pearson v. Ins. Office, 27 Beav. 229 ; Otis v. Beckwith, 49 111. 121. **Bill V. Canton, 2 My. & K. 503. ***McFadden v. Jenkins, i Ph. 153; Kronheim v. John- son, 7 Ch. Div. 60 ; Penford v. Mould, L. R. 4 Eq. 562. ****A statute passed in the time of Elizabeth declared all conveyances, gifts and alienations of lands and goods, whereby creditors might in anywise be disturbed, hindered, delayed or defrauded of their just rights, utterly void. Simi- lar statutes are in force in all the states. Halloway v. Mil- lard, I Mod. 22s ; Ex parte Elliott, L. R. 2 Ch. Div. 104. There may be a voluntary conveyance made by a person in debt and be good. Thus if it can be shown that the grantor was perfectly solvent after making the assignment, the fact that he was in debt is immaterial. The question as to what amount of indebtedness will raise the presumption of fraud is always a question of fact to be determined in each case. As a general rule it may be said that if the donor was in embarrassed circumstances at the time he made the EQUITY OR CHANCERY JURISPRUDENCE. 253 It is a general rule in this country that a gen- eral assignment in favor of creditors, creates a trust in favor of such creditors and is irrevocable, and that such a trust may be enforced without the creditors doing any act indicating their acceptance.* In En- gland, it seems that such a transfer is not an irrevo- cable trust until the creditors have been informed of the assignment and accepted it by forbearing to press their claims.** In many of the states, debtors instead of giving mortgages to their creditors, give a deed of trust to a third person, conditioned that if the grantor does not pay the debt mentioned within a specified time, the grantee shall sell the land and out of the pro- ceeds pay such debt, and pay over to the grantor any surplus that may remain.*** In many states this form of security has come into general use. Such deeds do not differ materially from mortgages containing a power of sale, and they are usually considered and treated as mortgages.**** Therefore in those states gift, or that he became embarrassed immediately after and by reason of the assignment, it is void as to creditors. Spirett V. Willows, I Mod. 225; Freeman v. Pope, L. R. 5 Ch. 538; Story, Eq. Jur. Sees. 362-5. *Moses V. Murgatroyd, i Johns. Ch. 119; Fuller v. Has- brouck, 47 Mich. 78; Preston v. Spaulding, 120 111. 209; Pom. Eq. Jur. Sec. 3994. **Walwy V. Coutts, 3 Sim. 14; Acton v. Woodgate, 2 My. & K. 492; Watson v. Knight, 19 Beav. 369; Johns v. James, 8 Ch. Div. 744. ***Taylor v. Stevens, 18 Gratt. 244. ****Wrebb V. Houlton, 4 Neb. 308 ; Austin v. Sprague Mtfg. Co., 14 R. I. 464; Partridge v. Shepard, 71 Cal. 470. 2S4 EQUITY OR CHANCERY JURISPRUDENCE. where the mortgagee holds the legal title, the legal title passes to the trustee, and in those states which treat a mortgage as a mere security the trustee is con- sidered to hold a lien simply.* The trustee on ac- count of the special trust reposed in him cannot as- sign the trust unless the power is given in the deed, otherwise with a mortgage.** So when the trus- tee has once accepted the trust he cannot renounce it without the consent of the beneficiary or the court, and the court can compel him to discharge the trust.*** The trustee must use reasonable diligence to pro- tect the interests of the grantor, and is liable for all damages arising from his neglect in that regard. His duties are not merely formal. He must inform him- self as to the condition of the property, and pursue that course in its sale which will secure the best price.**** A distinction is to be noted between a trust deed to secure the payment of a particular debt or particular debts, and a deed of trust conveying prop- erty unconditionally, with power to sell and raise funds to pay off the grantor's debts generally; the former is a mere security for the debt or debts, the *Newman v. Samuels, 17 la. 528; Railroad v. Auditor Gen., 41 Mich. 635; Bank v. Lonahan, 45 Md. 396. ♦♦Pickett V. Jones, 63 Mo. 193; Irish v. Antioch College, 126 111. 638. ***Sayent v. Howe, 21 111. 48; Commond v. Railroad, 122 Pa. St. 306. ****Cassidy v. Cook, 97 III. 385 ; Landum v. Union Bank, 63 Mo. 48 ; MuUu's Admr. v. Stone, 84 Va. S34. EQUITY OR CHANCERY JURISPRUDENCE. 255 latter is an absolute deed of trust not subject to a condition of defeasance.* Sec. 1 166. HOW EXPRESS TRUSTS ARE CREATED. — No particular form of words need be used in creating a trust. If it appears that the donor intended to create a trust that is sufficient. It being stated as a general rule, that when property is given absolutely to any person, and such person is requests ed, or entreated, or recommended to dispose of such property in favor of another, such request, entreaty or recommendation will create a trust, — ^provided: First. That the words are so used that they can be fairly construed as imperative.** Second. That the subject matter of the request be definite and cer- tain.*** Third. That the designation of the cestui que trust be also certain and definite.**** *Hoffman v. Mackall, 5 Ohio St. 124; McDonald v. Kel- logg. 30 Kan. 170. Contra, Bank v. Chapelle, 40 Mich. 447. **The words of request as used must fairly import a com- mand. They must show that the donor had in his mind an intent and purpose that his gift should be for the benefit of a particular object or person. The manner in which he has expressed that intent and purpose is unimportant. Such words and phrases as, "wish and request" (Leddard v. Led- dard, 28 Beav. 266), "have fullest confidence" (Shovelton v. Shovelton, 32 Beav. 143), "well know" ((Bardswell v. Bards- well, 9 Sim. 319), have been held sufficient to create a trust. ***The subject matter of the request must be definite and certain. If there is an absolute gift of property to one per- son, and the request be that an uncertain part of it be given to another, as, what shall be left, or what he shall die pos- sessed of, such request will be ineffectual to create a trust for uncertainty. Pope v. Pope, 10 Sim. i; Ruggins v. Yates, 9 Mod. 122; Curtis v. Rippley, s Mod. 434. ****If it does not appear certainly wha,t person is to be 2S6 EQUITY OR CHANCERY JURISPRUDENCE. If the language used does not import a command; that is, a clear intent on the part of the donor that the property shall be held for the use of some particu- lar person or object, but leaves it optional with the donee, or discretionary on his part, to apply the prop- erty as requested or suggested, no trust will be created.* If the trust fails for uncertainty, the trustee does not reap the benefit, as it is clear that he was not to have the beneficial use of the property, and the court will consider him as trustee for the use of the person or persons to whom the property would have descend- ed if there had been no effort to create a trust.** Sometimes a power is given to a person which par- takes of the nature of a trust ; the court considers such powers as quasi trusts, and if the person who has the power does not discharge the duty which the power imposes, the court will perform it in his place.*** By a section of the Statute of Frauds (29 Car. 11.) , it was enacted, that all declarations or creations of trusts, or confidence in any lands, tenements or hered- itaments, shall be manifested and proved by some writing, signed by the party who is by law able to declare the trust, or by his last will in writing, or else benefitted, or what object the settlor had in mind, the trust fails for uncertainty as to the object of the trust. Sales v. Morse, i Sim. 534. *Howorh V. Dewell, 29 Beav. 18; Benson v. Whittam, 5 Sim. 22. **Briggs V. Penny, 3 Mac. & G. 546; Sidgrcaves v. Brewer, 15 Ch. Div. 594. ***Tweedale v. Tweedale, 7 Ch. Div. 633; Burroughs v. Philcox, 5 My. & Cr. 72. EQUITY OR CHANCERY JURISPRUDENCE. 257 they shall be utterly void. This statute has been adopt, ed substantially in all of the states, although the word- ing of the statutes vary in the several states.* The trust itself need not be declared in the writing con- veying lands ; it may be manifested and proved by some writing, duly signed, which may have been exe- cuted at the time the conveyance was made, or subse- quently, and it may be quite informal.** And this written evidence may be a writing signed by the grantor or the trustee. The grantor may also de- clare himself the trustee, that is, that he holds cer- tain lands in trust for a particular purpose.*** But the statute of frauds does not apply to trusts the subject matter of which is pure personalty; such trusts may be created by parol, providing the lan- guage creating them is clear, explicit and free from all ambiguity.**** The provisions of the statute of frauds apply to chattels real, but not to a money indebtedness secured by a mortgage upon real estate.***** To summarize, if the trust is in lands, it must be manifested and proved by a writing. While no par- ticular form of words is necessary, yet it must show *Perry, Trusts, Sec. 78n; Clark v. Haney, 62 Tex. 511. **Forster v. Hale, 3 Ves. 696; Ambrose v. Ambrose, i P. Wms. 322; Gordon v. McCoUoh, 66 Md. 245. ***MiIes V. Thome, 38 Cal. 335; 11 Busk 120; 109 Mass. S8i; 24 N. J. Eq. 43i- ****Davis V. Coburn, 128 Mass. 377; 70 Ind. 135; 52 Md. 255; II R. I. 266; 49 Mich. 14; 62 Mich. 598. *****Sapia V. Demartini, "jy Cal. 383; 11 Am. St. Rep. 288. 258 EQUITY OR CHANCERY JURISPRUDENCE. clearly an intent to create a trust; must sufficiently designate the subject matter of the trust; definitely and explicitly designate the beneficiaries, and the in- terest each is to have ; and designate the manner in which the trust is to be executed. If the language used fails to express either of these essentials, the trust thereby fails.* The intention to create a trust may appear infer- entially from the express purpose and object of the conveyance, which purpose and object are clearly ex- pressed. So the intent to create an express trust may appear from the powers given the trustee.** The intention may also be inferred when property is con- veyed, or willed, and the object of making the con- veyance is expressed.*** Sec. 1 167. EXPRESS PUBLIC OR CHARITA- BLE TRUST.— Where the trust is a public one, no particular person or persons are designated, but the trust is always for the benefit of unnamed persons, a part of the general public, as, for example, the "poor" of a particular district. In order that the trust may be regarded as public, it must be created for such an uncertain and indefinite class of persons. The bene- ficiaries are uncertain, since no particular persons are named, and indefinite, for the reason that the persons ♦Smith V. Ford, 48 Wis. 115; Society v. Bowen, 21 Hun, 389; 87 Pa. St. 263; 31 Ark, 580; 54 Cal. 6; 63 Ga. 711. **Tobias v. Ketchum, 32 N. Y. 319. ***Taft V. Taft, 130 Mass. 461 ; 35 N. Y. 83 ; 65 N. Y, 389; 80 Pa. St. 258. EQUITY OR CHANCERY JURISPRUDENCE. 259 forming the class are continually changing. The class, however, must be clearly designated, and the purpose and object of the trust indicated.* The object of the trust must be in its essential fea- tures one for the benefit of the public. A mere pri- vate object does not come within the definition of a public charity. Consequently, while property may be given in perpetuity for a public charity, if the object is essentially private, such gift would be void, falling within the statute against perpetuities. A trust created for the purpose of keeping a private tomb, or monu- ment in repair, has been held to be a private and not a public trust.** The purposes which will constitute a public trust are enumerated in the statute of charitable uses (43 Eliz. c. 4) as follows, — ^"The relief of aged, impoverished and poor people ; the maintenance of maimed and sick soldiers and marines ; the support of schools of learn- ing, free schools and scholars of universities ; repairs of bridges, ports and havens, causeways, sea-banks, ♦Morice v. Bishop of Dunham, 9 Ves. 399. "A charity is a gift to be applied, consistently with ex- isting laws, for the benefit of an indefinite number of per- sons, either by bringing their minds or hearts under the in- fluence of education or religion; by relieving their bodies from disease, suffering or restraint; by assisting them to es- tablish themselves in life; or by erecting and maintaining public works; or otherwise lessening the burden of the gov- ernment." Per Curiam, in Jackson v. Phillips, 14 Allen, 539. **In re Rickard, 31 Beav. 244; Piper v. Moulton, 72 Me iSS; Bates v. Bates, 134 Mass. no; 79 Ala. 423; 28 Mich, 153 ; 73 Pa- St. 362 ; 142 Mass. 21$. 26o EQUITY OR CHANCERY JURISPRUDENCE. churches and highways ; the rehef, stock and mani- tenance of houses of correction; marriage of poor maids, aid and help of young tradesmen, handicrafts- men, and persons decayed, rehef and redemption of prisoners and captives ; aid of poor inhabitants con- cerning payment of fifteenths, setting out of soldiers and other taxes." All the objects mentioned are in- cluded in the term public charity, and there are sev- eral not mentioned which are also included. These are: — 1. Religious Purposes. The report and spread of religion is regarded- as a public charity, and conse- quently a trust for the purpose of furthering such objects will be sustained. This subject is very cor- rectly restrained in England as to hold void such trusts as would aid "superstitious purposes.* While in America the greatest latitude and freedom of be- lief and practice is permitted and sanctioned, with the result that trusts to very foolish uses would be sus- tained.** 2. Benevolent Purposes. A trust for any benevo- lent purpose which will aid or assist any class of the general public is upheld as within the spirit of the *In re Blundell, 30 Beav. 360; Atty. Gen. v. Fishmongers' Co., 5 My. & C. II. **HoIland v. Allcock, 108 N. Y. 312; 72 Me. 496; 26 Am. Dec. 61. A trust to aid in the overthrow of all other relig- ions or beliefs will not be sustained, the donor can only aid in the propagation of his own particular belief, ^eiswiess v, James, 63 Pa. St. 43S. EQUITY OR CHANCERY JURISPRUDENCE. 261 act.* The class to be relieved and the mode of aid- ing them must be essentially public.** 3. Educational Purposes. A trust for the estab- lishment and maintenance of public schools, or the education of a particular class of persons will be up- held.*** 4. PubHc Purposes. The statute enumerates cer- tain public works, highways, bridges, etc., it follows that any trusts having for their object public works, or the maintenance of any service in which the public is interested, falls within the statute.**** Sec. 1 168. SAME SUBJECT— HOW CREATED AND CONSTRUED.— Public trusts or charities are highly favored in the law, and charitable gifts are sometimes held good, when if they had been made to a private person they would have failed. For in- stance, if a testator has clearly expressed an inten- tion to create a trust in favor of some private person but has not definitely indicated the person, it fails; while the same gift to a charitable purpose, leaving uncertain the mode by which it was to be carried into effect, would be upheld, the court supplying what was defective in the trust. But in such a case the trust .must be purely and wholly charitable, not partly char- *Sohier v. Burr, 127 Mass, 221; 29 N. J. Eq. 32; 95 U. S. 303; 121 III. 269. **Bangor v. Masonic Lodge, 73 Me. 428; ^Z Pa. St. 362. ***Russell V. Allen, S Dillon, 235; 125 Mass. 321; 28 Mich. 153; Came v. Long, 2 De G. F. & J. 75. ****Atty. Gen. v, Webster, L, R, 2p Eq. 483 ; 88 Pa. St. 389, 262 EQUITY OR CHANCERY JURISPRUDENCE. itable and partly private, for example, for charitable and general purposes at discretion.* Sec. 1 169. SAME SUBJECT— THE DOCTRINE OF cy-pres. — When the literal execution of a charita- ble trust becomes impracticable or inexpedient, the court will execute it — cy-pres — that is, as nearly as possible to the original purpose, so as to execute it in substance. The court assumes in such cases that the real intent of the donor or settlor was to give a cer- tain sum to the charitable purposes named, and that he merely indicated one particular mode of accom- plishing his purpose, and if that mode proves imprac- ticable, it is the duty of the court to substitute an- other mode that the true purpose and intent may not fail.** But if there is no intent apparent to give to some general charitable objects, and an intent to give solely and exclusively to some particular object, the doctrine of cy-pres is not applicable. In such cases the trust fails and goes to the heirs.*** We have seen that equity will not aid a private vol- unteer where the trust is defective, but a charity will be aided under like circumstances.**** *Pocock; V. Atty. Gen. L. R. 3 Ch. Div. 342; 9 Ves. 399; L. R. 12 Eq. 574; 4 Wheat, i. **Moggridge v. Thackwell, 7 Ves. 36; Atty. Gen. v. Iron- Mongers' Co., 2 Beav. 313. ***Loscombe v. Wintringham, 13 Beav. 87. ****Sayer v. Sayer, 7 Hare, 377; Innes v. Sayer, 3 Mac, & G. 696, EQUITY OR CHANCERY JURISPRUDENCE. 263 Sec. 1 170. IMPLIED OR RESULTING TRUSTS TO CHARITIES.— The following rules as to result- ing trusts in gifts to charities are given by Levin, in his work on Trusts (pp. 130-1). I. When a person expressing an intention to aid charitable purposes generally, makes a valid gift, but does not particularize any objects, or those particular- ized do not exhaust the gift, the court will not suffer the gift in the first instance, or the surplus in the sec- ond, to revert to the donor or his representatives, but will execute the trust by declaring the purposes to which the fund or the surplus shall be applied.* 2. When a person settles land, or the rents and profits of land to certain purposes, and afterwards there is, after supplying such purposes, owing to an increase in the revenue of the lands or the diminished expense, a surplus, the court will direct such surplus to be ex- pended in a similar manner with the original amount.** If, however, the donor does not give the land or all the rents, but appropriates a part only to charity, the surplus or residue in that case will be- long to the donor or his representatives.*** So a court of equity will not allow a trust to fail, whether it be in favor of an individual or a charity, for want of a trustee. Thus when property is given by will *Atty. Gen. v. Herrick, Amb. 712 ; Atty. Gen. v. Tonna, 2 Ves. Jr. I. **6 H. L. Cas. 310; Atty. Gen. v. Marchant, L. R. 3 Eq, 424. ***5 H. L, Cas, i; 24 Beav. 383. 264 EQUITY OR CHANCERY JURISPRUDENCE. to such a person as the testator shall name, in trust for an individual or a charity, and no such person is named; or, when property is given to such person as the executor shall name in trust, etc., and the executor names no one, the court of chancery will carry the trust into effect, since while the trustee is uncertain, the beneficiary is certain.* Sec. 1 171. IMPLIED TRUSTS OR RESULT- ING TRUSTS.— An implied trust is founded upon the intention which the court presumes the settlor had when he created the trust. Implied trusts are often called resulting trusts. When a man purchases prop- erty, furnishing the purchase money, taking the title in the name of a stranger, there will be a resulting trust in favor of such purchaser. And when two or more persons advance the purchase money jointly, and the title is conveyed to one only, there is a resulting trust in favor of the others, in proportion to the money which each has advanced.** The money must be paid at the time of the conveyance. If at the time of the conveyance a trust is not created, subsequent payments or advancement of money will not change an absolute conveyance into one in trust for the benefit of the party so paying.*** The party seeking to raise such a trust must show : I. That there was an intention to create a trust. 2. *7 Ves. 36 ; 3 My. & K. 344. **Waterman v. Seeky, 28 Mich. "JT, 26 Ind. 319; 55 111. 403- ***Gerry v. Stewson, 60 Me. 186; Cutler v. Tuttle, 19 N. J. Eq. 549. EQUITY OR CHANCERY JURISPRUDENCE. 265 That there has been an actual payment of the consid- eration by such person of his individual money. And clear proof is required to establish both of these prop- ositions.* A voluntary conveyance of land does not create a trust in favor of the grantee.** Nor will a trust be created when it appears that it was the purpose and intent of the parties to circumvent a statute.*** So if title is taken in the name of another for the purpose of defrauding creditors, the better rule seems to be that there is no resulting trust in favor of the pur- chaser, except upon the application of a creditor.**** Since the resulting trust is based upon the presumed intention of the party actually making the purchase, if it can be shown, that in fact he had no intention to create a trust for himself, but on the contrary intend- ♦Bernard v. Bongard, Har. Ch. 130 ; 2 Johns Ch. 405 ; 2 Wend. S70. As between strangers, proof of payment shown by parol will usually raise a presumption in favor of the intention to create a trust, but such presumption may be rebutted by parol. No such presumption is raised if the payment is made by one who stands in loco parentis to the grantee. In such a case the natural and legal presumption is, that the money paid, is a donation or advancement to the grantee, and not for the benefit of the one making it. Sand. on Uses and Trusts ; 32S ; 8 Ves. 195 ; Loflft. 490 ; i Coll- ver, 261. **Jackson V. Cleveland, 15 Mich. 94; Gerry v. Stimson, 60 Me. 186; Campbell v. Brown, 129 Mass. 23; Higgins v. Senior, 8 M. & W. 834. ***Miller v. Davis, 50 Mo. 572; S Paige, 114; IS Ves. 60. ****Cutler v. Tuttle, 19 N. J. Eq. 549; 23 N. J. Eq. 60; 50 N. H. 491; 98 Mass. 118. 266 EQUITY OR CHANCERY JURISPRUDENCE. ed to make a donation to the party in whose name the title was taken, there will be no resulting trust.* And, as before stated, if the purchaser is under any legal or moral obligation to aid, assist or provide for the per- son in whose name the purchase was made, the fact of such obligation is, of itself, sufficient to overcome the legal presumption upon which an implied trust rests, and raise the presumption that an advancement was intended. This presumption of advancement will be raised in favor of: — a legitimate child;** any person to whom the person advancing the money has placed himself in the relation of a parent ;*** and in favor of a wife.**** The presumption of advancement will not arise in favor of a woman with whom the man has contracted an illegal marriage, or with whom he has contracted no marriage at all.***** And the presumption of ad- vancement being a mere presumption, may be rebut- ted by evidence showing what was in fact the true and real intention of the purchaser at the time the purchase or payment was made.****** *Ayer v. Jenkins, L. R. i6 Eq. 275 ; Amb. 413. **Sidmouth v. Sidmouth, 2 Beav. 447; 69 Pa. St. 239. ***Beckford v. Beckford, Lofft. 490; 2 Ch. Cas. 26; I Coll. C. Ch. 261. ****Drew V. Martin, 2 H. & 1^1. 130; L. R. 6 Ch. Div. 115; 16 Minn. 512. *****Soar V. Foster, 4 K. & J. 152; 10 Ves. 360. ******Williams v. Williams, 32 Beav. 370; L. R. 8 Ch. App. 88; I P. Wms. 113; 39 la. 419. EQUITY OR CHANCERY JURISPRUDENCE. 267 Sec. 1 172. SAME SUBJECT— RESIDUE OF TRUST PROPERTY.— When property is conveyed to trusts which do not exhaust the whole property, there will be a resulting trust as to the residue to the settlor. And when property is so devised by will, the residue will go to the party to whom it would have descended had there been no will.* It being a gen- eral rule with regard to resulting trusts, that the trustee cannot take beneficially in case there is a fail- ure of the trust, and this is so whether the failure is in whole or in part.** When there is a devise, bur- dened with a charge, the devisee takes the property beneficially, subject merely to the charge. But when the devise is wholly in trust, the devisee takes no in- terest whatever.*** Sec. 1 173. SAME SUBJECT— DISPOSITION OF TRUST ESTATE ON FAILURE OF HEIRS, ETC. — Where property is conveyed in trust, and the trust designated does not exhaust the property, and the settlor dies leaving no will, and no one entitled to take under the statute of descent, the question arises as to whom the residue belongs, the state or the trus- tee.**** If it is real estate it belongs to the trustee. While if it is personal property and the ex- ecutor holds as trustee, it goes to the state.***** *Esterbrooks v. Tillenghast, 5 Gray, 17. **King V. Dennsion, i V. & B. 272. ***State v. Uhrig, 56 Mo. 482. ****Sputing v. Rochefort, 16 Ch. Div. 18; Burgess v. Wheate, I Eden, 177. *****Tayler v. Haygarth, 14 Sim. 8 ; 15 Ch. Div. 67. While 268 EQUITY OR CHANCERY JURISPRUDENCE. Joint tenancy is not favored in equity, and although in this class of cases it follows the law if there is a case of joint tenancy pure and simple; when there is anything which the court of equity can lay hold of to take the estate out of joint tenancy, it will do so, and will regard the survivor as holding in trust, and not in ownership, the deceased tenant's share. This will be done if the purchasers advance unequal shares of the purchase money.* There is no survivorship in commercial transactions ; in such transactions the joint purchasers are regarded as partners, and in case of death of one partner, the survivor or survivors hold in trust for the personal representatives of the de- ceased.** if the executor holds as executor simply, and not as trustee, he may retain the residue. Blinkham v. Feast, 2 Ves. Sr. .26. The reason for the rule is that the state comes under no branch or head of equity, and if real estate is given by will to a trustee in trust for a particular person, who dies before the testator, the state cannot enforce the resulting trust in favor of itself. If it is personal property the interposition of a court of equity is unnecessary, as the property goes to the state upon failure of heirs. 14 Sim. 8. While if the legatee survives the testator and dies without heirs, the estate escheats to the state. 14 Sim. 8; I Bro. C. C. 201. *Rigden v. Vallier, 2 Ves. Sr. 258; 3 Ves. 631; 44 Vt. 311; 9 Ves. 591. ♦♦Jeffreys v. Small, i Vern. 217 ; Bell v. Phryn, 7 Ves. 453. If the land is not purchased by a partnership, but is devised to two or more persons who have formed a partnership, but who make no use of it for partnership purposes, they will hold as joint tenants, and in case of death it will go to the survivor or survivors. Otherwise if they have used it for partnership purposes, or classed it as part of the firm assets. Jackson v. Jackson, 9 Ves. 491. EQUITY OR CHANCERY JURISPRUDENCE. 269 Parties owning a mortgage jointly are always re- garded in equity as tenants in common, and not as joint tenants, and the survivor will be trustee of the interest of the deceased mortgagee, in trust for his heirs or legatees.* These doctrines of equity were established long be- fore there was any statute upon the subject. But it has happened in this class of cases, as in many others, that the equitable rule has commended itself tO' the legislature, and has been made the statutory rule. So that statutes in the various states provide now that where a conveyance is made to two or more persons jointly, they are held to be tenants in common, unless it is made to appear from the instrument that they in- tended to hold as joint tenants. Sec. 1 174. CONSTRUCTIVE TRUSTS.— A con- structive trust is one that is raised by construction of equity, without reference to any intention of the par- ties, either express or presumed. The following are instances of constructive trusts. 1. Vendors Lien for Unpaid Purchase Money. Where there has been a simple sale of property for money, and the purchase price has not been paid, or only paid in part, the vendor has a lien for the whole of the unpaid portion of the purchase money, as be- tween the vendor and vendee and volunteers, although the property has been conveyed unconditionally, and he has acknowledged payment in full in the instrument ♦Randall v. Phillips, 3 Mason, 378; Goodwin v. Richard- son, II Mass. 469; 19 Me. 430. 270 EQUITY OR CHANCERY JURISPRUDENCE. passing title.* This is the well established EiogUsh doctrine, but- it does not prevail universally in this country. In some of the states it has been repudiated by the courts, in others the rule has been modified or altogether abrogated by statute.** When collat- eral security is taken, such as a bond or a promissory note, there is no waiver of the lien, and the security is regarded as cumulative.*** But if such bond or note was substituted for the purchase money, or was what the vendor bargained for, and what the vendee agreed to give, there is no lien, or Constructive trust.**** In such cases, when the vendor has a lien for un- paid purchase money, it binds the estate conveyed not only in the hands of the vendee, but also in the hands of: (a) Heirs and all persons taking under the vendee or his heirs as volunteers.***** (b) Subsequent pur- chasers with notice of the purchase money remain- ing unpaid.****** (c) In case of the insolvency of the vendee, the lien binds the estate in the hands of ♦Mackreth v. Symons, 15 Ves. 329; i Tudor & W. L. Gas. Eq. 355 ; 60 Ala. 281. **Pomeroy, Eq. Jur. Sec. 1250. ♦**Collins V. Collins, 31 Beav. 346; 12 R. I. 92. ****Buckland v. Pocknell, 13 Sim. 406; 21 Beav. 118. *****IS Ves. 329; Warton v. Hargroves, 42 Miss. 18. ******2 Ves. Sr. 622 ; 29 Beav. 246. And when the subse- quent purchaser purchases without notice, and does not pay the full purchase price, the lien binds the estate to the ex- tent of the unpaid purchase money still in the hands of the purchaser. That is, equity will subrogate the first vendor to the rights of his vendee against the second vendee. EQUITY OR CHANCERY JURISPRUDENCE. 271 the assignee, for the reason that he takes no greater interest than the insolvent or bankrupt.* On the other hand, a bona fide purchaser without notice, and for value, having paid the full purchase price, takes the estate relieved of the lien, since, "when the equities are equal the law shall prevail." (i Bro. C. C. 302; 2 Bro. C. C. 282.) In England this lien is regarded as an interest in land which the holder can assign ; and not a mere per- sonal claim. But in this country there is a great conflict of authority upon this question.** The grant- or's lien for a part of the purchase money may be re- served by an express provision in the deed of convey- ance. And this is the practice in some of the states. This lien being evidenced by the deed itself, operates to make all subsequent purchasers and incumbrances take subject to it.*** When a vendor contracts to convey land, or gives a bond conditioned that he will convey, and lets the purchaser into possession before the purchase money is paid in full, the purchaser takes the land subject to the agreement to pay. In default of his paying the vendor can enforce the contract in equity, and have the land sold to satisfy the unpaid purchase money. *Ex parte Hanson, 12 Ves. 346. **Dryden v. Frost, 3 My. & C. 670; 2 Phill. Ch. 413; 71 Mo. 387; 128 111. 178; II Ind. 504. ***Cordova v. Hood, 17 Wall, i ; 104 Pa. St. 64. 272 EQUITY OR CHANCERY JURISPRUDENCE. But this is not strictly a vendor's lien, since the vendor retains the legal title.* The vendee, under the contract for the purchase of land, in case the vendor defaults or is unable to perform, has a lien for the purchase money paid, and for the value of improvements made upon the land, and this lien is analogous to a true vendor's lien.** Sec. 1 175. SAME SUBJECT— 2. CONSTRUC- TIVE TRUST ARISING FROM A RENEWAL OF A LEASE BY A TRUSTEE, TENANT FOR LIFE OR PARTNER.— When a trustee renews a lease belonging to his cestui que trust in his own name, he holds such lease for his cestui que trust; and when a partner renews a lease of partnership prem- ises in his own name, he holds as trustee for the part- nership. And a like rule applies to all persons occu- pying a fiduciary, or quasi fiduciary position and mak- ing contracts with reference to such property.*** Sec. 1 176. SAME SUBJECT— 3. CONSTRUC- TIVE TRUST ARISING FROM BENEFITS BE- STOWED ON PROPERTY.— A constructive trust may arise when a person who is only part owner of an estate, and acting bona Me benefits such estate by repairs and improvements, by giving him a lien there- fore.**** But ordinarily where one by mistake ex- *Avery v. Clark, 87 Cal. 619; Rose v. Watson, 10 H. L. Cas. 672. **Stults V. Brown, 112 Ind. 370; 10 H. L. Cas. 672. *** James v. Dean, II Ves. 383; 15 Ves. 236; L. R. 2 H. L. 149. ****Lake v. Cradock, 3 P. Wms. 158. EQUITY OR CHANCERY JURISPRUDENCE. 273 pends money to improve the property of anotner with- out the owner's knowledge or consent, he has no equit- able claim against the owner. But if the owner is compelled to resort to equity to get possession of his property, the court will require him to do equity be- fore giving relief, by compelling payment for the per- manent improvements made.* Sec. 1 177. SAME SUBJECT— 4. FOR MONEY HAD AND RECEIVED.— Money received by one person from another by mistake, accident or fraud, or breach of trust, is regarded in equity as being held in trust for the true owner. In many such cases an ac- tion at law in assumpsit may be maintained, but in all cases where a judgment does rot afford complete and adequate relief, a bill in equity can be maintained.** So if property is wrongfully disposed of, the person obtaining it with notice will be treated as a trustee, and can only be protected if he purchase in good faith, without notice and for value.*** So where trust money is paid on account and the receiving creditor has no notice of their character, they will be dis- charged of the trust.**** Sec. 1 178. SAME SUBJECT— 5. PROPERTY PURCHASED WITH TRUST FUNDS.— When- ever a person holding property in trust, invests such *Neeson v. Clarkson, 4 Hare, 97; 4 My. & Cr. 180; 30 Beav. 363; L. R. 2 Ch. Div. 285. **Newton v. Porter, 69 N. Y. 133 ; 120 Mass. 507 ***Leake v. Watson, 58 Conn. 332. ****Burnett v. Gustafson, 54 la. 86; 56 N. Y. 478; 79 N. Y. 183. 274 EQUITY OR CHANCERY JURISPRUDENCE. funds, rightfully or wrongfully, and takes title in his own name, the property acquired is trust property, and the party is still trustee. This rule applies to all fiduciary relations, as executors, guardians, partners, treasurers, etc.* So when property is purchased by the executor or guardian which he is empowered to sell in pursuance of his trust, such property is still trust property if the beneficiary elects to treat it so, so all profit from the use of trust funds goes to the beneficiary.** Sec. 1 179. SAME SUBJECT— 6. TRUSTS EX DELICTO. — When one obtains the property of an- other by fraud, misrepresentation, concealment or duress, or undue influence and the like, the courts will regard him as a trustee. Thus, a legatee that pro- cures a bequest to himself to the injury of an heir or other legatee, will be a trustee for the person right- fully entitled.*** And where property is given upon a verbal promise that it will be held in trust, and the agreement is not carried out, equity will enforce the trust.**** In all cases of trusts arising ex delicto, the benefi- ciary is considered to be the true owner of the prop- *Moritz V. Lavelle, ■^y Cal. 10; 100 Mo. 446; 73 N. Y. 113. ♦♦Gardner v. Ogden, 22 N. Y. 327; 35 Kan. 106; 122 111. 607. ***Moore v. Crawford, 130 U. S. 122 ; 93 III. 295 ; 14 Kan. 202; 50 Mich. 190; 107 N. Y. 73; 29 N. -J. Eq. 417; 104 Pa. St 609; 95 N. Y. 403; 3 Wall. 279. ****Ryan V. Dox, 34 N. Y. 307 ; 26 N. J. Eq. 484 ; 4 N. J. Eq. 410. EQUITY OR CHANCERY JURISPRUDENCE. 275 erty, and the trustee as the holder of the bare legal title. The beneficiary, therefore, can compel the trus- tee to convey the property and account for the rents and profits which he has received, or, which he ought to have obtained while the property has been in the hands and control of the trustee.* *Barnes v. Taylor, 30 N. J. Eq. 7; Greenwood's Appeal, 92 Pa. St. 181. 276 EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER V. PROPERTY IN EQUITY — MORTGAGES, LIENS AND ASSIGN- MENTS. Sec. 1180. REAL ESTATE MORTGAGES.— In equity a real estate mortgage is regarded as a lien or claim on land to secure the payment of a debt.* This construction was early placed upon mortgages by the equity courts to modify the rigor of the early com- mon law, which held that on default the estate of the mortgagee became absolute and indefeasible, the prop- erty passing to him, regardless of the fact that it might be far more valuable than the claim or debt. Chancery during the reign of Charles I., established the rule that the mortgagor could redeem after de- fault, by paying principal and interest, until the mort- gagee had obtained from the chancery a decree of ab- solute foreclosure. The right to redeem was known as the "equity of redemption".** Resulting from the principle that equity regards substance rather than form, the chancery courts will *Seton V. Slade, 7 Ves. 265 ; I Spence, p. 602. **How. V. Vigures, I Ch. R. 32; Casborne v. Scarfe, I Atk. 603 ; 2 White & Tudor, L. C. Eq. 1945. An attempt to have the mortgagor renounce or waive his equity of redemp- tion after default, was met by the equity courts laying down the rule, that "once a mortgage always a mortgage", and up- holding the equity of redemption notwithstanding the waiver. Howard v. Harris, i Vern. 90; White & T. L. C. Eq. 1949. EQUITY OR CHANCERY JURISPRUDENCE. 277 regard as a mortgage, a formal deed, if it was exe- cuted to secure the repayment of a loan or debt. And the real intention of the parties as to such a deed may be shown by parol, notwithstanding the rules of evi- dence and the statute of frauds.* So a sale of land, with an option reserved to the vendor to repurchase the same land within a speci- fied time, will be regarded in equity as a mortgage, where the conveyance was intended by the parties to operate as security for a debt.** The debt being the principal thing regarded by the court of equity it follows naturally that the security would go with the debt when the latter is assigned or transferred, so that a transfer of the note which the mortgage secures transfers the mortgage. Except that in those states where the mortgagee is vested with the legal title by virtue of the mortgage, a formal deed is necessary to vest the legal title in the assignee.*** And when mortgaged premises are conveyed subject to the mortgage, the land continues to be charged with the payment of the debt, but the grantee is not personally liable for the debt unless he assumes the mort- ♦Helm V. Boyd, 124 111. 370; Turpie v. Lowe, 114 Ind. 37; III Pa. St. 14; 96 U. S. 332; 120 N. Y. 655; Beach, Eq. Jur. Sec. 406; 109 Mass. 130; 54 Miss. 90; 32 Ala. 97 **Schriber v LeClaire, 66 Wis. 579; 122 N. Y. 467; 4 Kent. Com. p. 14S. ***Carpenter v. Longan, 16 Wall, 271 ; Sanders v. Cassa- day, 86 Ala. 246; 11 la. 580; 95 Ind. 521; 127 Mass. 511. ****Johnson v. Zink, 51 N. Y. 333; 41 Conn. 369; 121 III. 130; 108 U. S. 140; 4 N. J. Eq. 454; 22 N. Y. 438. 278 EQUITY OR CHANCERY JURISPRUDENCE. In England, by foreclosure of a mortgage is meant a proceeding in chancery, at the instance of the mort- gagee, by which the mortgagor's right of redeeming the mortgaged premises is barred forever. This method of foreclosure prevails in some of the Ameri- can states and is known as "strict foreclosure".* While in most of our states a foreclosure proceeding has for its object a sale of the mortgaged lands, and the application of the proceeds to the payment of the debt and costs, and a personal judgment against the mortgagor for any deficiency after such application.** Before a final foreclosure and in some states for a definite time thereafter, the mortgagor or any person having an interest in the property covered by the mortgage may redeem by paying same in toto. The person so redeeming the whole mortgage, if only liable for a portion thereof, may enforce contribution from other persons liable.*** Sec. 1181. CHATTEL MORTGAGES.— By a chattel mortgage is meant a sale of personalty on con- dition that it shall be avoidable on the performance of the specified condition — usually the payment of a debt within a stated time. At law, on default, the title *2 Jones, Mortgages, Sec. 1238. Strict foreclosure is still employed in England and several of the New England States, and some others. **Foreclosure by judicial sale is followed in most of the states. 2 Jones, Mortg. 1709; 112 N. Y. 93; 134 111. 422; 49 Wis. 200. ***2 Jones, Mortg. Sec. 1093 ; Pearce v. Morris, 5 Ch. App. 229; 42 Minn. 476; 128 111. 95; 62 la. 661 ; 127 N. Y. 117. EQUITY OR CHANCERY JURISPRUDENCE. 279 vests absolutely in the mortgagee, while equity allows the mortgagor to redeem after default. In all of the states except California and a few of the western states, a chattel mortgage, unlike the rule in most states as to real estate mortgages, vests the title in the mortgagee, which title becomes absolute on default of the condition, subject to an equitable right of re- demption prior to public or private sale of the article without foreclosure suit, except where foreclosure is made necessary by special statutes, as in Ohio, in re- gard to mortgages of household chattels.* Sec. 1 182. EQUITABLE LIENS AND MORT- GAGES. — An equitable lien is the right to subject a particular fund or specific property to the satisfaction of a demand. It is a charge on the property, rather than an interest in it. It differs from a common law lien, in that it is independent of the possession or re- tention of the property on which the lien exists.** An equitable mortgage is a charge or lien on prop- erty, and may be created by : — an agreement to give a mortgage; the imperfect execution of a mortgage; a deposit of title deeds, or by a formal mortgage of an estate recognized only in equity.*** *Rev. Stat. Ohio, 4155-1 ; Flanders v. Chamberlain, 24 Mich. 305; 54 Wis. 193; 12 Wend. 61; 46 Ind. 595; Jones, Chat. Mortg. c. 18. **Hammonds v. Barclay, 2 East, 227; 5 Pom. Eq. Jur. Sec. 1234; I Beach, Eq. Sec. 287. < ***Payne v. Wilson, 74 N. Y. 348; SO Conn. 104; 65 Tex. 238; 47 Ohio St. 306; 109 U. S. 211; 12 Wis. 413; 18 N. J. Eq. 104. 28o EQUITY OR CHANCERY JURISPRUDENCE. Equity not only enforces express liens created by the parties, but will create one where the considera- tions of justice require that one should exist. Thus, improvements made to land by an occupant, under the belief that he was the owner ; repairs by a tenant in common to preserve the common property, may be recovered in equity from the owner or co-tenant.* Under this head fall the vendor's lien for the pur- chase price in whole or part remaining unpaid, al- ready considered in the previous chapter, and the vendee's lien on default of the vendor to convey. An equitable charge on land is created where it is devised subject to, or charged with, the payment of testator's debts and other legacies. Such an inten- tion may be expressly stated in the will or implied from the whole instrument and the circumstances sur- rounding its execution.** Sec. 1 183. ASSIGNMENTS.— An assignment is defined to be the transfer or making over to another the whole of any property, of whatever description, or any interest therein ; the term including the act of transfer, as well as the instrument effecting it.*** ♦Bright V. Boyd, i Story, 478; 8 Wheat. ^^\ 50 N. Y. 337 ; 19 111. 9S ; 79 Ky. 148. **Stevens v. Flower, 46 N. J. Eq. 340; 79 N. Y. 136; 22 Conn. S9S ; Pom. Eq. Jur. Sec. 1246. ***Bouv. Law Diet. "Assignment." At law now, if the cause of action survives, and passes to the personal represen- tative of a decedent as assets, or continues as liabilities against his representatives, it is assignable, otherwise not. EQtJITY OR CHANCERY JURISPRUDENCE, 281 At the common law the assignment of possibilities and choses in action were not permitted, but they were recognized and enforced in equity whenever made up- on a valuable consideration. The early common law rule is now abrogated, and the matter is largely regu- lated by statutes in the various states. In equity the assignment of a mere possibility or expectancy will be enforced, whenever such possibility or expectancy becomes a vested interest or possession, providing the property to be acquired at a future time is described with certainty.* So in equity, an order made pay- able out of a particular fund then due or which is to become due, from the drawee to the drawer, operates as an equitable assignment of the fund to the payee. But an ordinary check or draft not appropriating the fund does not operate as an assignment.** The assignee of a chose in action takes it subject to all equities existing against the assignor, except in the case of the transfer of negotiable paper before fl 11 f* *Holroyd v. Marshall, 10 H. L. Cas. 191; 124 Pa. St. 455; 79 Mo. 216; 90 N. Y. 387; 41 Minn. 219. **Row V. Dawson, i Ves. Sr. 331; 120 U. S. 511; 151 Mass. 383; 55 Mich. 201; 71 N, Y. 325; 100 Ind. 515. ***Fairbanks v. Sargeant, 104 N. Y. 116; 130 U. S. 416; 23 N, J, Eq. 78; 41 Ohio, St. 403; SO Mich. 544- 282 EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER VI. EQUITABLE REMEDIES CONSIDERED. Sec. 1 184. NECESSITY FOR EQUITABLE REMEDIES. — As equity undertook to give fuller and more perfect relief than could be had at law it fol- lowed that special remedies and a distinctive pro- cedure would result in many actions. While at com- mon law an action of damages was all the aggrieved party had for redress, equity allowed a bill for spe- cific performance, injunction, cancellation, reforma- tion, and the like, according to the nature of the case and the wrong to be righted or prevented. The vari- ous equitable remedies will now be discussed briefly, and some mention made of their purpose and applica- tion. Sec. 1 185. ACCOUNTING.— This was a common law action of great antiquity, but it was limited to certain cases, and the procedure was cumbersome and incomplete, in that the court could not compel a dis- covery or the giving of testimony by the parties to the action. The action at law fell into disuse, but equity took it up and gave the master in chancery power to examine the parties under oath and compel discovery and the production of all necessary papers and documents, and applied the action to many mat- ters in addition to those at common law. It is ap- plied in matters of administration, settling of estates. EQUITY OR CHANCERY JURISPRUDENCE. 283 the winding up of corporations and partnerships, and in England to matters pertaining to tithes. Equity does not, however, assume jurisdiction in all matters of account, but only where a fiduciary relation exists between the parties, or mutual accounts, or where there are circumstances of great complication and an accounting seems the most practical way of adjusting the matters.* In an accounting, equity will allow the debtor at the time of payment tO' make the payment apply to the discharge of any designated debt, and the intention to so appropriate the payment may be either express or implied. If no such appropriation is made by the debtor then the creditor has the right to make the appropria- tion. And if neither the debtor or creditor have ap- propriated the payment, the law will do so by apply- ing the credit to discharge the oldest indebtedness, except that it will not apply the payment to debts barred by the statute of limitations when there are debts not so barred.** Sec. 1 186. CONTRIBUTION — EXONERA- TION. — Equity allows a joint, or joint and several obligor on a contract, who has paid or satisfied more than his appropriate share of such obligation, to en- ♦Smith, Prin. Eq. p. 497; 3 Bl. Com. 437; Docker v. Somes, 2 My. & K. 664; Adams' Appeal, 113 Pa. St. 449; Uhlman v. Life Ins. Co., 109 N. Y. 421. **Coleman v. Slade, 75 Ga. 61 ; 100 Ind. 105 ; "jy Ala. 367 ; Clayton's Case, i Mer. 585 ; 6 DeG. M. & G. 474. 284 EQUITY OR CHANCERY JURISPRUDENCE. force contribution from his co-obligor.* And like- wise one secondarily liable for the payment of a debt, not arising ex delicto, is entitled to exoneration from the primary debtor.** Sec. 1 186. SUBROGATION— MARSHALLING. Equity also allows the person paying a debt for which he is not primarily liable, to be substituted or subro- gated to the position of the creditor, with the right to enforce against the real debtor all the securities, benefits and advantages held by the discharged credi- tor.*** And the court of equity will so marshall the assets of a debtor as to compel a creditor having re- sort to two funds to protect a creditor having resort to but one fund, by either compelling the double cred- itor to exhaust the fund not held by the other first, or subrogate the second creditor to the rights of the double creditor in the surplus of both funds.**** Sec. 1 187. PARTITION— BOUNDARIES.— By partition is meant the segregation or separation of property owned in undivided shares, so as to vest in each of the former owners exclusive title to a specific portion, in lieu of his undivided interest in the whole. *3 Pom. Eq. Jur. Sec. 1418; Camp v. Bostwick, 20 Ohio St. 337- **White V. Miller, 47 Ind. 385; 58 Conn. 22; 49 N. Y. S7I. ***Pease v. Eagan, 131 N. Y. 262; 61 N. H. 356; 124 U. S. 534 ; 90 Tenn. 306 ; 125 Mass. 506 ; 72 la. 338. The rule does not extend to volunteers so paying. 2 Beach Mod. Eq. 801. ****Dolphin V. Aylward, L. R. 4. H. L. 486; Kerley, Hist. Eq. p. 2is; 30 W. Va. 204; 72 Ga. 751. EQUITY OR CHANCERY JURISPRUDENCE. 285 Partition was also allowed in a few cases at the early common law, but was later supplanted by equity and is now exclusively an equitable remedy in England. In America the matter is regulated by statutes in the various states, equity courts retaining their jurisdic- tion unless precluded by words of express prohibi- tion.* Partition is a matter of right, in equity, and may be compelled by any co-owner entitled to- the possession, but not while his interest is only in re- mainder or reversion.** Both real and personal prop- erty within the jurisdiction of the court may be par- titioned.*** In the fixing of boundaries where they are in dispute, equity will only assume jurisdiction where there is some peculiar equity affected by the acts of the parties, or the dispute is as to the owner- ship of the soil, or the premises are in defendant's possession. And as the statutes have enlarged the jurisdiction of the law courts in such cases, equity has little to do in the case of disputed boundaries, since where there is an adequate legal remedy equity has no jurisdiction.**** Sec. 1 188. SPECIFIC PERFORMANCE.— By specific performance is meant a judicial order that a *Haynes, Eq. p. 99 ; 36 N. H. 332 ; 85 III. 341 ; 74 Ala. 203. **Hawkins v. McDougall, 125 Ind. 597; 28 Vt. 228; 65 Miss. 60. ***Moore v. Darby, 18 Atl. Rep. 768; Turner v. Morgan, 8 Ves. 143. By statute if the property is incapable of divis- ion, the court may order it sold and the proceeds divided. 109 N. Y. 49S ; 69 Md. i. ****Perry v. Pratt, 31 Conn. 433; Bouverie v. Prentice, I Brown, Ch. 20a. 286 EQUITY OR CHANCERY JURISPRUDENCE. legal contract be actually carried mto> effect, or per- formed according to the terms of the contract. It is employed where damages for a breach would not give adequate compensation. Thus, generally, where the thing contracted for is specific and its exact counter- part cannot be purchased in the open market, equity will decree specific performance ; so chattels of spe- cial value or interest, as works of art, keepsakes, heir- looms, contracted for, are proper subjects for a spe- cific performance order.* As a rule, contracts relating to personal acts, as hiring or service and agency will not be specifically enforced, since skill, care and the like could scarcely be enforced in a satisfactory manner.** As defenses to the action for specific performance, the defendant may show that the contract is not binding for want of capacity, in the contracting parties, that the contract has not been concluded or completed in its formation, or that it is illegal, and these defenses have the same effect in equity as at law, namely, making the con- tract unenforceable and being a bar to the action.*** Or the defenses may be, want of mutuality of obliga- tion, hardship, want of fairness, and inadequacy of consideration, defenses peculiar to specific perform- ♦UnderhiU, Eq. p. 196 ; Hall v. Warren, 9 Ves. 605 ; Pusey V. Pusey, I Vern. 273, i White & T. L. C. 1 109; McGowin v. Remington, 12 Pa. St. 56; 68 la. 643. **Lindsay v. Glass, 119 Ind. 301; 83 Ala. 398; 85 Va. 653; 30 L. J. Ch. 409; 29 Mich. 166. ***Mayer v. McCreery, 119 N. Y. 434; 53 Pa. St. 373; 62 Mich. 50; 104 Mo. 349; 91 Cal. 112; 25 S. C. 405. EQUITY OR CHANCERY JURISPRUDENCE. 287 ance, and allowing the court to refuse specific per- formance under the maxims, "he who seeks equity must do equity", and "he who comes into equity must come with clean hands".* Laches on the part of the plaintiff will be ground for refusing specific performance, as will fraud and mistake in the contract.** A greater amount of cer- tainty and definiteness is required m the contract which is to be specifically enforced than in an action for damages.*** The plaintiff must also make out a good title in himself, or one free from a reasonable doubt, and have performed the material and essential parts of the contract on his part to be entitled to have specific performance.**** The statute of frauds has not the same effect in equity as at law, and the sec- tion which provides that no action can be brought on a contract for the sale of land unless the same is in writing and signed by the party to be charged, will not prevent the court of equity from decreeing spe- cific performance of such a contract not in writing, where there has been some part performance by plain- tiff, or where fraud has prevented the contract from *Rushton V. Thompson, 35 Fed. Rep. 635; 103 Mo. 513; 42 Minn. 482; 47 Mich. 449; 5 Pet. 269; 125 N. Y. 294; 99 N. C. 215; 83 Ky. 367; 130 111. 41s; 135 U. S. 457. **Ridgway v. Ridgway, 69 Md. 242; 118 Pa. St. 610; 45 N. J. Eq. 27. *** Woods V. Evans, 113 III. 186; 33 Ohio St. 147; 76 Wis. 662. ****Emmert v. Stouffer, 64 Md. 543; 120 N. Y. 253; 89 Ala. 429 ; 130 111. 42 ; 46 N. H. 464. 288 EQUITY OR CHANCERY JURISPRUDENCE. being put in writing, or where the defendant fails to plead the statute as a defense.* Specific performance of a contract may be decreed where, though it cannot be strictly carried out ac- cording to its terms, yet with compensation for de- fects, the parties are put in substantially the same sit- uation as if the contract had been literally fulfilled. Thus, there may be a discrepancy in the fulfillment of the contract as to time of performance or as to the subject matter, and yet equity will require specific per- formance along with compensation to the injured party to equalize the discrepancy.** Sec. 1 189. INJUNCTION.— An injunction is de- fined to be a judicial order, operating in personam, requiring a party to do or abstain from doing some particular act. If the order requires the performance of particular acts, it is called a mandatory injunction, while those requiring the defendant to abstain from doing particular acts are known as restraining orders. Mandatory injunctions are less common than those of a restraining character, but will be granted in a proper case, as to compel the abatement of a nuisance, or to do some act required by law.*** An injunction *Maddison v. Alderson, 8 App. Cas. 467; 43 N. Y. 34; 45 N. J. Eq. 34; 77 Wis. 182; I2S 111. 313; 45 Ind. 581; i Story, Eq. Jur. Sec. 161. **Bostwick V. Beach, 105 N. Y. 661; 20 Beav. 56; 31 W. Va. 424; 112 111. 217; 139 111. 296; 57 Ind. 34. ***High, Inj. Sec. i; Kerr, Inj. p. 9; 20 N. J. Eq. 379; Beach, Eq. Sec. 630. EQUITY OR CHANCERY JURISPRUDENCE. 289 with respect to duration may be either interlocutory or final. The interlocutory injunction, also called tem- porary or preliminary injunction, is one made pending the hearing of the cause on its merits, to prevent dam- age and preserve the property in statu quo until the action can finally be disposed of, at which time the in- junction is either dissolved or made final or perpet- ual.* To be entitled to an order of injunction, the com- plainant must show : that he has no plain, adequate and complete remedy at law, and that an irreparable injury will result unless the relief is granted. The equity court will then assume jurisdiction, and prevent the meditated wrong, or put an end to a continuing evil. By irreparable injury is meant, one not to be ade- quately redressed by damages, or of a burdensome nature, or one likely to destroy the subject-matter of the action.** Injunctions will be allowed upon a proper showing in the following classes of cases: — I. To restrain proceedings at law, where by acci- dent, mistake, or otherwise, a party has an unfair advantage in a court of law, and it is against con- science that he should use that advantage. We have seen that this jurisdiction of equity was resisted by the law courts, but came to prevail nevertheless. The common law courts would not recognize equitable de- *l Mylne & K. 154; High, Inj. Sec. $. **LumIey v. Wagner, i De G. M. & G. 616; 50 Miss. 363; 67 Md. 44; 43 N. J. Eq. 342; 39 La. Ann. 901, 290 EQUITY OR CHANCERY JURISPRUDENCE. fenses, and so a party who had a proper defense at equity would lose at law, unless equity restrained the proceeding at law. The injunction was directed to the parties and not to the court of law, and for diso- bedience of the order the party restrained was ad- judged in contempt. The court also issued injunc- tions against the enforcement of common law judg- ments, if after the judgment additional circumstances are discovered converting the action into an equitable controversy, and this would be the same if the circum- stances discovered would have been cognizable at law, where they have been fraudulently concealed by the successful party.* The powers of the law courts have been so enlarged by legislation to correct errors and prevent injustice and hardship, that equity is seldom called upon to enjoin the collection of a judgment.** 2. To restrain breach of contract where the con- tract is of a negative character, and the breach would result in irreparable injury, or injury which could not be properly compensated in damages. Thus, equity will restrain the breach of a contract as to covenants in a deed or lease as to the use to which the premises may be put, as not to sell liquor, or erect certain improvements, and will restrain the breach of a contract not to enter into trade, where such limi- *Story, Eq. Jur. Sec. 875; 61 N. Y. 378; Kerley, Hist. Eq. 89; 2 White & Tudor L. Gas. Eq. in et seq. 17 How. (U. S.) 443; 45 N. J. Eq. 5; 133 U. S. 152; 22 Wis. 311; 61 Tex. 412. **3 Pom. Eq. Jur. Sec. 1365; 127 Ind. 51 1; 86 Mo. 333; 59 Md. 313. EQUITY OR CHANCERY JURISPRUDENCE. 291 tation is reasonable, and even to prevent the breach of a negative contract as to services, as not to perform the stipulated service for others.* 3. To restrain the commission of a tort, where a legal right exists and is threatened to be violated, and the violation is not to be adequately compensated in damages without a multiplicity of actions, and is of a weighty and not a trivial character. This class of cases is important, as it is independent of contract relations between the parties, and equity will assume jurisdiction to restrain the commission of a tort or wrong as to property, person or reputation in a prop- er case.** To restrain the violation of a legal right the com- plainant must show the existence of the right which he asserts, and an actual violation of the right or a real existing danger of such violation ; in addition to the fact that the injury is not susceptible of being re- dressed by an action for damages.*** The jurisdic- tion in such cases extends to protect real property, from waste, trespass and nuisance;**** to protect *Beach, Mod. Eq. Jur. Sec. 768; 48 Ohio St. 324; 59 N. H. 459; 39 Kan. .193; 41 N. J. Eq. 323; 58 Pa. St. 51; 125 Mass 258; Lumley v. Wagner, I De G. M. & G. 616; 18 Or. 221. **Tuchman v. Welch, 42 Fed. Rep. 548; 3 Pom. Eq. Jur. Sec. 1338. ***Saunders v. Smith, 3 My. & C. 714; 32 N. J. Eq. 755; 54 Pa. St. 183; 3 My. & K. 174; 10 N. J. Eq. 57 ****Brock V. Dole, 66 Wis. 142; 79 N. Y. 568; 6 Ves. 147; 82 Pa. St. 373; High, Inj. Sec. 739; Kerr, Inj. p. 106, 292 EQUITY OR CHANCERY JURISPRUDENCE. property rights in patents, copyrights, and trade- marks,* and to protect other than property rights, where the violation results from a breach of trust, confidence or contract.** 4. Equity will also restrain the breach of a trust or confidence, or the violation of equitable rights, under proper circumstances. Thus, a trustee will be restrained from using his powers except for the le- gitimate purposes of the trust; a corporation at the instance of a stockholder may be restrained from do- ing acts beyond the scope of its charter ; and public officers may be enjoined from doing acts inconsistent with their powers and duties.*** Sec. 1 190. REFORMATION.— Equity will re- form a written contract or other instrument inter vivos where, through mutual mistake, or mistake of one of the parties accompanied by the fraud of the other, such instrument does not truly express the in- tention of the parties.**** Sec. 1 191. CANCELLATION.— Equity will can- cel a written instrument or contract, where though ut- terly void, it is apparently valid on its face ; and where *Smith, Pr. Eq. p. 730; 105 U. S. 189; loi U. S. 99; Jeflferys v. Boosey, 4 H. L. Cas. 833 ; 46 Fed. Rep. 624 **Schuyler v. Curtis, 64 Hun, 594; 19 N. Y. Supp. 264; contra, Corliss v. Walker Co., 57 Fed. Rep. 434. ***Balls V. Strutt, i Hare, 146; 2 Del. Ch. 188; 44 Miss. 202; 104 U. S. 450; 14 Ohio St. 31 ; 55 N. Y. 390; 5 R, I. 472. ****Murphy V. Rooney, 45 Cal. 78; 17 Conn. 559; 48 Wis, 331; 78 N. Y. 618. EQUITY OR CHANCERY JURISPRUDENCE. 293 the instrument is voidable on the ground of fraud or mistake.* Sec. 1 192. REMOVING CLOUD ON TITLE.— Whenever a deed or other instrument- exists which may be vexatiously used after the evidence to im- peach or invalidate it is lost, or which constitutes a cloud on title, and for which there is no proper pro- ceeding at law, a court of equity will order the deed or instrument delivered up and canceled, or make any other decree which justice and right require. The matter is largely regulated by statute, and independ- ent of statute the action can only be brought by one in possession.** Sec. 1 193. ANCILLARY REMEDIES— DIS- COVERY. — In addition to the remedies which equity employs to adjudicate controversies and award relief, are certain remedies which are termed ancillary from the fact that they only serve to preserve the status quo of the property or a-ssist in acquiring the means for the final determination of the matter. Discovery' is one of these ancillary remedies. A bill of discovery prays for no relief, but simply for a discovery of facts within the knowledge of the defendant, or of deeds and writings in the possession or control of defend- ant; the object being to get the evidence for some other action in a court of law, already instituted, or ♦Underbill, Eq. p. 215 ; 3 My. & C. 97 ; 96 Mo. 324. **Story, Eq. Jur. Sec. 694; 113 Pa. St. 510; no U. S, 86; 68 Mich, 220; 123 111. 666; 72 Wis. 420. 294 EQUITY OR CHANCERY JURISPRUDENCE. to ascertain the proper party defendant at law.* The remedy was to correct the common law which made the parties to the action incompetent to testify, which of course has been remedied by statute long since.** Three controlling rules regarding discovery were formulated, as follows: i. No man need discover matter tending to criminate himself, or to make him liable to a penalty or a forfeiture.*** 2. No man need discover legal advice which has been given him by his advisers, or the statements of facts which have passed between him and his advisers, nor a married woman discover facts to the damage of her hus- band.**** 3. Public officials need not disclose mat- ters of state prejudicial to the community.***** Sec. 1 194. SAME SUBJECT— BILLS TO PER- PETUATE TESTIMONY.— Chancery will entertain a bill to perpetuate testimony where it is in danger of being lost before the matter to which it related could be made the subject of judicial investigation. The mat- ter is now regulated by statute and the remedy by bill in chancery is not resorted to for this purpose.****** *Snell, Eq. p. ;i8; 8 Ves. 404; i Sim. & S. 83. **Fenton v. Hughes, 7 Ves. 287; 2 Story, Eq. Jur. Sec. 1499. ♦**East India Co. v. Campbell, i Ves. Sr. 246; 116 U. S. 616; 109 Mo. 118; 97 Pa. St. 147. ****Greenough v. Gaskell, i My. & K. 98; S Ves. 322. *****Smith V. East India Co., i Phil. Ch. 50. ******SneIl, Eq. p. 721; Angell v. Angell, i Sim. & S. 83; 32 Beav, 299. EQUITY OR CHANCERY JURISPRUDENCE. 295 Sec. 1 195. SAME SUBJECT— EXAMINATION OF WITNESSES de bene esse.— A bill in equity could also be maintained by either party to a contro- versy, praying for a commigsion to examine witnesses who were old and infirm, or who might not be pres- ent at the trial by reason of being abroad, and thus preserve the testimony which might otherwise be inca- pable of being produced. Such bills could only be brought during the pendency of the action, not be- fore.* Sec. 1 196. SAME SUBJECT— THE WRIT OF ne exeat. — The writ of ne exeat is a writ issued by courts of equity to prevent a person from leaving the state until bail has been given to obey the decrees or orders of the court. It is only issued in cases of equitable debts and claims and operates in the nature of equitable bail. The demand must be certain in nature and not contingent or prospective.** In some cases it may be issued before suit is brought.*** And when alimony has been decreed to a wife, and where the balance claimed by plaintiff is larger than admit- ted by defendant the writ may be used to prevent the defendant evading his obligation by leaving the state.**** *Angell V. Angell, i Sim. & S. 83. **Bonesteel v. Bonesteel, 28 Wis. 245; 5 Cush. 241; 68 111. 100. ***Clark V. Clark, 26 Atl. Rep. 1012. ****Denton v. Denton, I Johns. Ch. 364; 7 Ves. 171 ; 24 Qa. 40^. 296 EQUITY OR CHANCERY JURISPRUDENCE. Sec. 1 197. SAME SUBJECT— INTERPLEAD- ER. — Where two or more persons, between whom there is privity of title, claim the same thing, debt or obligation from a third party, such third party, if he does not himself claim any interest in the matter, and has incurred no independent liability to either of them, may file a bill of interpleader against them setting forth their several claims and his own position in the matter, praying that the claimants may interplead, that the court may adjudge to whom the subject of dispute properly belongs, and if suits at law have been brought against him, he may also pray that such suits be restrained until the matter is adjudicated. The matter is largely regulated by statute permitting a de- fendant to substitute a third person in his place where he has no interest in the action.* Sec. 1 198. SAME SUBJECT— RECEIVERS.— A receiver is a party appointed by a court of equity to take charge of the property or fund in controversy, pending final adjudication, when it does not seem best that either party should retain it. The applica- tion for the appointment of a receiver does not affect or determine the ultimate rights of the parties, but the plaintiff should show that he has a clear ri^ht to the property or some lien or claim upon it, and that the defendant obtained it through fraud, or that the ♦Crawford v. Fisher, i Hare 436; 31 Mich. 85; Civ. Code, N. Y. Sec. 820; Adams Eq. p. 203; 3 Pom. Eq. Jur. Sec 1322; Story, Eq. Jur. Sec. 820. EQUITY OR CHANCERY JURISPRUDENCE. 297 property or the income therefrom is Hable to be wasted or lost by the neglect, misconduct or insolvency of the defendant, in order to justify the court in exercis- ing its discretion to appoint a receiver.* Sec. 1 199. SAME SUBJECT— WHEN A RE- CEIVER WILL BE APPOINTED.— In a proper case, a receiver will be appointed, where the person entitled to the possession of property pending litiga- tion concerning it is incompetent to take such posses- sion, as infants, lunatics and the like ; so a receiver will be appointed where both parties are equally enti- tled to possession, as co-tenants, partners, and the like, but it is best for some third person to be in control, and where the party entitled to possession is wasting, destroying or misapplying the property or its proceeds; so a receiver will be appointed in order to reach property of a judgment debtor which cannot be seized on execution, and by statute one may be ap- pointed in proceedings to dissolve and wind up cor- porations.** ♦Booth V Clark, 17 How. 322 ; High, Rec. Sec. i ; 107 Mass. i; 57 Pa. St. 83; 92 N. C. 519; 41 Kan. 475; 11 Md. 36s; 8s Ala. 371. ***Hicks V. Hicks, 3 Atk. 273 ; Word v. Word, 90 Ala. 81 ; 82 N. C. i6s; 79 Ga. 367; 2 Paige, 342; 2 N. J. Eq. 173; ^^ N. Y. 272; 2 Tenn. Ch. 398. QUESTIONS. 299 QUESTIONS FOR STUDENTS. The questions are numbered to correspond with the sec- tions in this book. The answers and references for further study may be obtained by referring to the corresponding sections. SALES OF PERSONAL PROPERTY. CHAPTER I. 105 1. Explain the importance of the law of sales, and give the more accurate designation of the subject. 1052. Define a sale, and name the four essential elements in a contract of sale. 1053. What is the difference between bargain and sale and an executory agreement of sale? 1054. How is a contract of sale to be distinguished from, — bailment; pledge; chattel mortgage; assignm.nt; consign- ment; gift; and exchange? 1055. Name the principal authorities on the law of sales. CHAPTER II. 1056. What general rules apply as to the capacity of the parties to the contract of sale? 1057. Discuss each of the class of cases in which a party may sell though not the owner of the property sold. What is the general rule? 1058. Discuss who may buy, giving the general rule and the exceptions. 1059. How may the mutual assent of the parties be made? When an offer to sell is made when does it become binding 300 QUESTIONS. on the other party? When must acceptance of an offer be made? What is necessary to constitute an acceptance? 1060. Discuss the offer and acceptance in a contract of sale made by post and by telegraph. 1061. When will a contract of sale be implied without any expression of the will or intention of the parties? What remedy has the owner for property taken wrongfully? 1062. What effect has mistake on assent in a contract of sale? Explain fully, discussing the case of Wood v. Boynton, and the effect of a mistake as to quality or a single point. When will a contract be void for uncer- tainty? CHAPTER III. 1063. What is the effect of a contract to sell a thing which has ceased to exist? Why? What is the liability for a failure to perform such a contract? 1064. May an article not yet in existence be the subject of sale? What class of such articles may be the subject of an executed sale? What is meant by potential existence? What may be said of things being sold which have not a potential existence? When does the title pass in such cases? What may be said as to sales for future delivery? io6s. Of what may the price consist, and how is it ascer- tained? What is meant by a fixed price? If nothing is said as to price how is it determined? What is a reasonable price, and how is it determined? CHAPTER IV. 1066. What was the purpose of the Statute of Frauds, and what was the effect of the 17th section? Give the substance of this section. Who may take advantage of the .;ontract being within the statute of frauds? If the contract is partly within and partly without the statute, what is the effect? 1067. Are executory agreements within the statute of frauds? Explain fully. What was the effect of Lord Ten- terden's Act? Give Lord Blackburn's rule for determining QUESTIONS. 301 what contracts fell within the statute of frauds, and what are contracts for work and labor. Discuss the holdings in America as to what are contracts for work and labor, and give the three principles of construction laid down by Schouler. 1068. Are sales at auction ana oy sheriffs within the statute of frauds? 1069. What may be said as to the contract for taking back the goods being within the statute? 1070. What classes of property are included within the words "Goods, wares and merchandise" in America? In England ? 1071. What may be said as to fixtures and growing crops when sold coming within the statute of frauds? Under which section does a contract for the sale of fixtures come? What classes of growing crops, and under which section does a sale of each fall? 1072. Discuss what contracts fall within the clause ''price or value of ten pounds or upwards." 1073. What exceptions or conditions are there to the statute of frauds taking effect? 1074. What is the distinction between acceptance and receipt? 1075. Give the propositions determining what constitutes an acceptance. What is the purpose of requiring actual re- ceipt and acceptance ? When may an acceptance be given ? 1076. Discuss what constitutes an actual receipt, when the goods are in possession of the buyer as agent for the vendor; in the possession of a third person, and in the pos- session of the vendor; delivery to a carrier. 1077. What is meant by earnest? By part payment? What will constitute part payment? 1078. What may be said as to the provision of the stat- ute of frauds as to a note or memorandum in writing as af- fecting the rules of evidence as to the admission of evidence? 1079 What may be shown by parol evidence in regard to a note or memorandum of the contract of sale? 1080. Discuss what will constitute a note or memorandum in writing. May the note be on separate pieces of paper? 1081. What must the memorandum show to be sufficient? 302 QUESTIONS. Discuss fully. What is meant by a signature? What may be said as to the broker's bought and sold notes constituting a sufficient memorandum? CHAPTER V. 1082. What is the distinction between executed and ex- ecutory contracts as to passing title in the thing sold? Dis- cuss fully. 1083. What is the effect of the contract where the sale is of a specific chattel unconditionally? 1084. What is the effect of the contract where the chat- tels are specific but the sale is conditional ? Give the three rules applicable to the subject. Discuss the case of Brandt V. Bowlby. Discuss the effect of a contract in which the pay- ments are to be made in installments. 1085. What is the effect of a contract for the sale of a chattel or chattels not specific? What is the effect as to articles to be manufactured? As to the sale of a portion of a larger quantity of the same material? What is the hold- ing as to grain stored in elevators? 1086. May the contract be completed by the subsequent appropriation of specific goods to the contract ? What is the rule as to who may make the selection or election of goods to the contract? 1087. What is the effect of the contract of sale when the vendor has reserved expressly or by implication the own- ership of the goods? How may the jus disponendi be re- served ? CHAPTER VI. 1088. What other subjects are connected with conditions in sales? Define a representation and state when it con- stitutes a condition precedent and when an independent covenant. What may be said in regard to the application of the rules determining conditions? 1089. Is impossibility of performance an excuse for fail- ure to perform a condition precedent? Why? logo. Must a condition dependent upon the act of a third person be performed? What is the rule as to giving notice of the happening of a future event? QUESTIONS. 303 1091. Discuss the effect of sales "to arrive'' or "on ar- rival." What is meant on the sale of a "cargo?" What is a common condition in regard to sales on arrival? 1092. What is meant by concurrent or mutual conditions? Give an example. What is the effect of a failure to deliver the first installment of an entire contract deliverable in in- stallments? What is the effect of a failure to pay for such an installment? Give reason for answer. 1093. What is the implied condition in sales by sample? How does sale or return differ from a sale on trial? What is the effect of selling goods by a particular description? CHAPTER Vn. 1094. Define a warranty, and discuss its effect on the contract. 1095. Discuss what is necessary to constitute an express warranty, and the elements to be considered in determining whether one exists. Give the well-settled proposition in re- gard to express warranties. May an oral warranty be shown to a formal written agreement which does not mention war- ranty? What is said as to warranties as regards unsound- ness in horses? To what does the warranty apply as a rule? May an agent warrant? 1096. Y/hat is meant by implied warranties, and from what do they spring? What is the rule where there is an express warranty as to one thing? 1097. Give the established rules to determine when there is an implied warranty of title. Does the vendor by the mere act of sale warrant that he has title? What is the rule in sales by public officers? What is the American rule as to the implied warranty as to identity? As to genuineness in sales of commercial paper? 1098. What is meant by caveat emptorf To what extent is the maxim applicable in America? If a chattel is made to order for a purpose or for a specific use what warranty at- taches? What warranty is implied in sales by sample? What constitutes a sale by sample? In sale by sample and the goods do not conform to the sample what is the duty of the buyer? How long does the warranty of merchantability last? 304 QUESTIONS. 1099. What important exception to the rule of caveat emptor as to implied warranty of quality? CHAPTER VIII. 1 100. Discuss the vendor's duty to deliver, and explain what is meant by delivery on the part of the vendor. Iioi. What is necessary to constitute a delivery by the vendor to pass title or property? Must the vendor send the goods to the buyer in the absence of agreement, custom or usage? When must the buyer give notice before delivery is necessary? 1 102. What may be said as to the place of delivery, and the time within which they must be sent? 1 103. Discuss the sufficiency of the delivery as to quan- tity, and explain what is meant by symbolical delivery and when it may be made. What may be said as to the delivery of growing crops? CHAPTER IX. 1 105. What are the buyer's duties generally? For what does the vendor become liable if he defaults in taking away the goods from the place of sale? Who deterniines what is a reasonable time? 1105. When should acceptance be made as regards de- livery? What may the buyer do as to examining the goods before acceptance? If the goods are not according to con- tract what should the buyer do? What is the effect of re- taining the goods and using them by the buyer? 1 106. When must the buyer pay, and in what ways may payment be made? 1 107. Define and discuss what is meant by tender. May the buyer demand a receipt on tender of the price? 1 108. What sort of a payment is payment by prom- issory note? Discuss fully, and give the rule when the pay- ment is made by giving the note of a third person. When suit is brought by the vendor, where a note has been given, what must he do as to the note? When will payment be presumed ? QUESTIONS. 305 CHAPTER X. I109. Define mistake, and discuss when a contract of sale may be set aside on the ground of failure of consideration. If the buyer gets what he bargained for, and it proves worth- less, is this a failure of consideration? mo. What is the effect of fraud on a contract of sale? Explain what is meant by fraud. Give the elements of fraud as stated by Mr. Benjamin. On whom may the fraud be per- petrated in a contract of sale? 1111. What is the general holding now as to the effect of the fraud as to title passing to the fraudulent buyer? When may such a buyer pass title to an innocent purchaser for value? What must the vendor do to rescind? What must an innocent purchaser show as against the vendor under a contract induced by fraud? What are the main grounds for rescinding a sale for fraud on the vendor? 1 1 12. What are the rights of the buyer where he has been induced to make the contract through fraud? What must he do to rescind? What is sufficient to constitute a fraud on the buyer? Give the elements which must exist to constitute such a fraud or deceit. What may be said as to false statements furnished to a commercial agency as constituting fraud? What will constitute a fraud at an auction sale? 1 1 13. If the fraud exists as against creditors what is its effect as to vendor and vendee? Explain and discuss what will constitute a fraud on creditors. What is the general holding as to a sale where the vendor continues in the ap- parent ownership, use and possession of the thing sold? CHAPTER XI. 1 1 14. What are the rights of the vendor, the property not having passed, for a breach of the contract of sale? What is the rule of damages? 1115. What is the vendor's remedy where title has passed? 1 1 16. Define and discuss the vendor's remedies against the goods on breach of contract, where the title has passed, 3o6 QUESTIONS. and the goods are still in his possession, and where the goods are in transit to the buyer. Does the buyer's failure to pay the price rescind the contract? 1117. Define and explain what is meant by a lien. When is a lien implied? How may it be waived or abandoned? How is it lost or waived when the goods are in the hands of a third person? If part of the goods are delivered, may the rest be held for the whole price? 1118. What may be said as to the vendor's right to re- sale where the buyer has not paid for them and taken them away? May it be done in America? What steps should be taken in such a resale? 1 1 19. ^^'hat do you understand by the right of stoppage in transitu? What is it based on? How many parties must there be? May it be exercised by other than the vendor of goods? May it be exercised where a part payment or con- ditional payment by note or bill has been made? What is meant by insolvency, and how is it shown? 1 120. Explain and discuss when the transit may be said to begin and end. What may be said where the goods are in a warehouse at the end of their journey? Will a deliver of a part of the goods to the buyer defeat the right? 1 121. Explain the method by which the right is exer- cised. What is the liability of the carrier in such cases? 1 122. Explain by what method or methods the right may be defeated. 1 123. What is the effect of a stoppage in transitu f May the bu}-er tender the price before resale and get the goods? CHAPTER Xn. 1 124. From what may the breach of contract arise for which the buyer can claim redress? 1 125. What are the buyer's remedy for a breach on the 1 125. What is the buyer's remedy for a breach on the property? What is the rule of damages? 1 126. What are the buyer's remedies for breach when the contract is executed and title has passed ? If sued for dam- ages, may the vendor counter-claim for the unpaid price? 1 127. After obtaining possession and title of the goods, QUESTIONS. 307 what further remedy has the buyer against the vendor for a breach of the contract? Discuss each remedy. What is the general rule of damages in an action for breach of a warranty? When may a bill in equity for specific perform- ance be maintained in a contract of sale? EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER I. 1 128. What may be said as to the origin of the court of chancery? Explain the method of government among the Anglo-Saxons and Germans. When did the king come to be regarded as the fountain of justice? What was the Curia Regis? Who was one of the principal officers in the king- dom under the feudal system? What does Blackstone say as to this officer? What were his powers and duties? Why was the Chancellor called the "Keeper of the Icing's con- science?" What writs did the Chancellor issue? What was the purpose of the statute of Westminster II? When did the court of chancery assume to give relief in cases not cognizable by the law courts ? What was the origin and pur- pose of the writ of subpoena? When were matters of grace referred by statute to the Chancellor? How were appeals to the Chancellor or suit in equity instituted? What may be said as to the nature of the relief granted in chancery, and to what beneficial use was it early put? How did the court of equity differ from the law court in the matter of fines and costs? What conflict arose between the law courts and the chancery? How did it end? What is the present state of the chancery courts in England ? 1 129. Discuss the early history of chancery courts in the United States. How was equity administered in Pennsyl- vania during colonial times? Was the chancery a separate! tribunal in most cf the States? 3o8 QUESTIONS. 1 130. By the adoption of the code system in some states, what three systems of administering equity in the United States now prevail ? Explain each, and state which system prevails in your State. 1 131. Define and explain what is meant by equity or chan- cery law? How does Sir Henry Maine characterize equity? 1 132. Name the leading authorities on equity jurispru- dence. CHAPTER II. 1 133. Has equity jurisdiction over criminal matters? Ex- plain fully. 1134. What general principle or doctrine limits the juris- diction of equity courts? Illustrate and explain. 1 135. If equity has established its jurisdiction, and the law courts also assume jurisdiction, will the equity jurisdic- tion be divested? 1 136. When will equity retain jurisdiction to give relief, though the matter involves purely legal questions? 1 137. Explain how and when equity will assume juris- diction in order to avoid a multiplicity of suits. 1 138. What criticism was early made against equity courts? Does equity now follow precedents in making de- cisions? What is meant by the maxims of equity, and how are. they classified as to their character and effect? 1 139. What is meant by prerequisite maxims? Discuss and illustrate the maxim that "He who seeks equity must do equity." Discuss and illustrate the maxim that "He who comes into equity must come with clean hands." Discuss and illustrate the maxim that "Equity aids the vigilant, not the slothful." What is this rule called in equity? 1 140. What is meant by descriptive maxims? Explain the maxim, "Equity acts specifically, and not by way of com- pensation." Explain the meaning and effect of the maxim that "Equity acts in persojiam and not in rem. Explain the maxim, "Equity follows the law," and state the limitations of its application. 1 141. What is meant by substantive maxims? Discuss QUESTIONS. 309 the maxim, "Equity suffers no wrong without a remedy." Why is this maxim said to be the foundation of equity juris- diction? Discuss and explain the application of the maxim, "Equity regards that as done which ought to have been done." Will the maxim be enforced to the inquiry of inno- cent third persons? Explain and discuss the maxim, "Equity regards the substance and intent, not the form." Illustrate the application of the maxim. Explain and illustrate the maxim, "Equity imputes an intent to fulfill an obligation." Explain and illustrate the maxim, "Equality is equity." Ex- plain the meaning of the maxim, "Where the equities are equal the law will prevail." To what equitable doctrine does this maxim give rise? 1 142. What is meant by the equitable doctrine of es- toppel? What ?re the elements necessary to create an es- toppel? What is the effect of estoppel? 1 143. Define and discuss the doctrine of election in equity. When does it become necessary? What rights have the va- rious parties required to elect? What is the effect of an elec- tion once made? 1 144. What 'is meant by satisfaction in equity? To what extent is oral evidence admissible in regard to an oral gift? How is the intent of the grantor to be determined? When is the doctrine applicable? Illustrate. 1145. From what maxim does the doctrine in regard to performance arise ? What is the effect of the doctrine ? 1 146. What is meant by equitable conversion, and from what maxim does it arise? When does the conversion take place under the doctrine? What is the effect? 1 147. What is meant by notice as an equitable doctrine? When does it become important ? What two kinds of notice ? Explain each. What is the doctrine applicable to lis pendens? 1 148. Explain and define what is meant by a bona Me purchaser in equity. Will purchasers from a bona fide pur- chaser be protected? 1 149. What is the doctrine of equity in regard to penal- ties and forfeitures? Does it extend to statutory penalties? What other limitations on the doctrine? 3IO QUESTIONS. CHAPTER III. 1 150. What is meant by accident in equity? What is the jurisdiction of equity as regards accident? 1151. What two things must concur to warrant equitable relief in cases of accident? How may a party be injured so as to give rise to equitable jurisdiction? Explain each, and illustrate. Give the instances of accidents for which equity grants relief enumerated by Prof. Bigelow. 1152. What may be said as to Mistake as a ground for equitable relief? What is meant by mistake of fact, and in what does it consist? When will mistake of law constitute a mistake to be relieved against? 1153. What may be said as to mistake of law, and the reasons given for not relieving against it? When will courts of equity regard a mistake of law as one of fact? What law is it that ignorance of does not excuse? What is done when the mistake arises from a statute subsequently declared void? When money is paid under a mistake of law, what is the efifect ? 1 154. What is the presumption as to knowing facts? What mistake of fact will equity relieve against? Discuss fully. If the fact is extrinsic to the contract will equity re- lieve? If the mistake is mutual what is the effect? If it is only a mistake of one of the parties? What other maxim must be remembered in this connection? 1155. Why is equity jurisdiction concurrent in cases of fraud? Into what classes was fraud divided by Lord Hard- wicke? Into what two general classes is fraud divided? 1156. What is meant by actual fraud? What are the elements necessary to make a misrepresentation constitute a fraud? May fraud result from the suggestion of a false- hood or the suppression of the truth? What are the rights of a party defrauded in equity? How far will the equity court follow property taken by fraud? 1156a. Wherein does constructive fraud differ from actual fraud? Into what classes are constructive frauds divided? 1 157. Discuss constructive frauds arising from contracts made in violation of some statute. 1 158. What are the classes of contracts made in violation QUESTIONS. 311 of public policy which are regarded as constructive frauds? How are they regarded in equity? What conditions may be annexed to legacies in restraint of marriage? May hus- band and wife separate and agree to live apart? What are the limitation contracts in restraint of trade? Will a con- tract seeking private gain at the expense of the public serv- ice be upheld? Why? What may be said as to lobbying? 1 159. Name and discuss the classes of persons standing in confidential relations who will be protected from having such relation or confidence used to their injuiy? Explain the rules applicable to each of such fiduciary relations. 1 160. What classes of persons are protected in equity? Why? What is meant by post obit bonds? What is the equitable holdings as to the contract of suretyship? What does equity require of a debtor in making composition with creditors? What is the equitable doctrine in regard to con- veyances of property with intent to defraud creditors? What presumptions arise in the case of a conveyance without con- sideration? How may this presumption be overcome? CHAPTER IV. 1 161. Give the historical origin of uses and trusts. What was the effect of the statute of uses? 1 162. How are trusts classified? What classification of express trusts is made? Define and explain a pure or passive trust, and a special trust. When are trusts said to be ex- ecutory and when executed? What construction is put on technical words in executory and executed trusts? 1 163. Define an express private trust, and designate the parties thereto. 1 164. What classes of property are subject to the creation of a trust? 1165. Explain and discuss voluntary trusts, and trusts for value. Why may a voluntary trust be good as between the parties and void as to creditors? What is the effect of a general assignment for creditors in America? How are trust deeds made to take the place of mortgages? How are they regarded where customarily used? What are the duties and obligations of the trustee? 312 QUESTIONS. 1166. Explain how express trusts are created. If the language is optional to the trustee, is the trust well created? What is meant by a quasi trust? How is the creation of trusts affected by the statute of frauds? Does the statute of frauds apply to trusts in personalty? What is necessary as to the writing to satisfy the statute of frauds? How may the intention to create a trust be made to appear? 1 167. What is meant by an express public or charitable trust? What must be the object of such a trust? What pur- poses have come to be recognized as public, so that trusts may be created for their benefit? Discuss and explain each. 1 168. How are public trusts created and construed? Il6g. What is meant by the doctrine of cy-pres as ap- plied to public or charitable trusts? Explain fully. 1170. What may be said as to implied or resulting trusts to charities? 1171. From what does an implied or resulting trust spring? What must be shown to raise such a trust? What will not constitute such a trust? For whom will the pre- sumption of an implied trust be made? For whom will it not be made? 1172. What becomes of the residue of property conveyed to a trust? Illustrate. 1 173. Discuss the disposition of trust property on the failure of heirs. In the case of joint tenants, and joint own- ers of a mortgage, what is the equitable doctrine? 1174. What do you understand by constructive trusts? Discuss the instances of such trusts. 1 175. Discuss how a trust results from the renewing of a lease by a partner, trustee, and the like, in his own name. 1 176. Discuss resulting trusts from benefits bestowed on property belonging to others, and illustrate. 1 177. When will a resulting trust arise from the receiv- ing of money? 1178. Illustrate when property purchased with trust funds will constitute a resulting trust. 1 179. Discuss trusts arising ex delicto, or from torts. Il- lustrate, In such cases who is the owner of the property? QUESTIONS. 313 CHAPTER V. 1 180. How are real estate mortgages regarded in equity? What is meant by the "equity of redemption?" What other instruments and contracts will be regarded in equity as mort- gages? Why? Explain what is meant by foreclosure of a mortgage, and how it is accomplished and what is the result. 1 181. What is meant by a chattel mortgage? How are they regarded in equity? 1 182. What is meant by an equitable lien? By an equi- table mortgage? Explain under what circumstances equity will create a lien on land or charge against same. 1 183. Define an assignment. What assignments will be upheld in equity that are disregarded at law ? How does the assignee take? CHAPTER VI. 1 184. Explain the necessity for the existence of equitable remedies. 1185. Explain and discuss Accounting as an equitable remedy. What are the equitable rules as to the application of payments in accounting? 1 186. What is meant by contribution in equity? By ex- oneration ? 1 187. What is meant by subrogation? Illustrate. Ex- plain what is meant by marshalling in equity. 1 188. Define partition, and explain how it came to be an equitable remedy. When will equity assume jurisdiction to fix disputed boundaries? ii8g. What is meant by specific performance? When will it be decreed as to chattels ? What contracts will not usually be specifically enforced? What effect has laches in a bill for specific performance? May it be decreed though the contract cannot be strictly carried out? 1 190. Define and discuss the equitable remedy by in- junction. What kinds of injunctions are there? What show- ing should be made for the allowance of an injunction? In what classes of cases will they be allowed? Discuss each class. 314 QUESTIONS. II^I. What is meant by reformation in equity? When will it be employed? 1 192. What is meant by cancellation in equity and when will it be employed? 1 193. When will equity interfere to remove a cloud on title? Is the remedy statutory? 1 194. What are meant by accillary remedies? Explain what is meant by discovery. What are the controlling rules? 1195. When would chancery entertain a bill to perpetu- ate testimony? 1 196. What is meant by the examination of witnesses de bene esse? When could such a bill be brought? 1197. What is the writ of ne exeat? For what was it used? When may it be used before suit is brought? 1 198. Discuss and explain what is meant by interpleader, and what is necessary in such a bill. 1 199. What is meant by a receiver, and when will a re- ceiver be appointed by a court of equity? What should be shown ? 1200. Illustrate when a receiver will be appointed. ABBREVIATIONS. "See also the abbreviations given in previous numbers.) A. & E. or AD. & EL.— Adolphus & Ellis' Reports, En- glish King's Bench. Amb. — Ambler's Reports, English Court of Chancery. Atk.— Atkyn's Reports, English Chancery. B. & P. — Bosanquet & Puller's Reports, English Common Pleas. Blackf. — Blackford's Reports, Indiana Supreme Court. Bosw. — Bosworth's Reports, New York City Superior Court. Bro. C. C. or Brown Ch. — Brown's Chancery Cases, En- glish Chancery. Camp. — Campbell's Reports, English Nisi Prius. Ch. — Chancery Reports. Ch. D. — Chancery Division Reports. CI. & Fin. or C. & F.— Clark & Finelly's Reports, Eng. House of Lords. Com. Dig. — Comyns' Digest. Cro. Jac. — Croke's Reports, Eng. King's Bench and Com- mon Pleas. Cr. & J. or Cromp. & J. — Crompton & Jervis's Reports, Eng. Exchequer. Cr. & M. — Crompton & Meeson's Reports, Eng. Ex- chequer. Cr. & P. or Craig & P.— Craig & Phillips' Reports, En- glish Chancery. DeG. F. & J.— DeGex, Fisher & Jones' Reports, English Chancery. De G. J. & S. — DeGex, Jones and Smith's Reports, Eng. Chancery. De G. M. & G.— DeGex, McNaughton & Gordon's Reports, Eng. Chancery. De G. & J. — DeGex and Jones' Reports, Eng. Chancery. Dill. — Dillon's Reports, U. S. Circuit Court. Doug. — Douglas' Reports, English King's Bench. Drew. — Drewry's Reports, English Chancery. Eden. — Eden's Reports, English Chancery. E. & E. or El. & E. — Ellis & Ellis' Reports, Eng. Queen's Bench. Eq. or Eq. R. — Equity Reports, Eng. Chancery and Ap- peals from Colonial courts. Esp. — Espinasse's Reports, Eng. Nisi Prius Cases. Freem. — Freeman's Reports, Eng. King's Bench and Chan- cery. H. & C. — Hurlstone and Coltman's Reports, English Ex- chequer. H. & M. (Md.).— Harris & McHenry's Reports, Maryland Provincial Court, and Court of Appeals. H. & J. — Harris and Johnson's Reports, Maryland Court of Appeals. Har. Ch. (Mich.). — Harrington's Reports, Michigan Chan- cery. Hare. — Hare's Reports, English Chancery. Harv. L. Rev. — Harvard Law Review. Heisk. — Heiskell's Reports, Tennessee Supreme Court. Jacob. — Jacob's Reports, English Chancery. J. & H. — Johnson and Heming's Reports, English Chan- cery. Johns. Ch. — Johnson's Reports, English Chancery. Jur. — The Jurist. K. & J. — Kay and Johnson's Reports, English Chancery. M. & G. — Manning & Granger's Reports, Eng. Common Pleas. Moo. P. C. — Moore's Privy Council Cases, Eng. Privy Council. My. & Cr. — Mylne & Craig's Reports, English Chancery. My. & K. — Mylne & Keen's Reports, English Chancery. N. J. Eq. — New Jersey Equity Reports, Chancery and Court of Errors and Appeals. Or. or Oreg. — Oregon Reports, Supreme Court. Phill. Ch. — Phillips Chancery Reports, English Chancery. P. Wms. — Peere Williams' Reports, English Chancery. Ry. & Moo. or Ry. & M.— Ryan & Moody's Reports, Eng. Courts Nisi Prius. Sawy. — Sawyer's Reports, U. S. Circuit Courts. Sim. — Simond's Reports, Eng. Chancery. Sim. & S. — Simons and Stuart's Reports, Eng. Chancery. Sch. & Lef. or Sch. & L. — Schoale and Lefroy's Reports, Irish Chancery. Sm. L. C. — Smith's Leading Cases. Taunt. — Taunton's Reports, Eng. Common Pleas. Up. Can. — Upper Canada Reports. V. or vs. — Versus, against.' V. & B. — Vesey & Beames' Reports, English Chancery. Ves. or Ves. Sr. — Vesey's Reports (Senior), Eng. Chan- cery. Ves. Jr. — Vesey Junior's Reports, English Chancery. Vern. — Vernon's Reports, English Chancery. W. & S. or Watts & S.— Watts & Sergeant's Reports, Pennsylvania Supreme Court. White & T. L. Cas. — White & Tudor's Leading Cases in Equity. CONTENTS. Page. Preface iii Abbreviations v SALES OF PERSONAL PROPERTY. CHAPTER I. Scope and Meaning of the Subject of Sales i Definitions and Essentials of a Sale 2 A Sale, or Bargain and Sale, Distinguished from Con- tract of Sale, or Executory Agreement 5 A Sale Distinguished from other Transactions 6 Authorities on the Law of Sales 11 CHAPTER II. CONCERNING THE PARTIES AND MUTUAL CONSENT. Of the Parties to the Contract in General 12 Same Subject — Who May Sell 12 Same Subject — Who May Buy 16 Mutual Assent — How Expressed 18 Same Subject — Sales Contracted by Mail and by Telegraph 22 Same Subject — Implied Contract '. ... 93 Same Subject — Mistake Annuls Assent 26 CHAPTER III. CONCERNING THE THING SOLD AND THE PRICE. Sale of a Thing Which has Ceased to Exist 33 ix Page. Sale of Things not yet in Existence 34 The Price May be Express or Implied 39 CHAPTER IV. EFFECT OF THE STATUTE OF FRAUDS ON SALES. The Statute of Frauds — 17th Section 42 What Contracts are Embraced under the 17th Section?. . 46 Same Subj ect — Auction Sales 52 Same Subject — Rescission S3 What are Goods, Wares and Merchandise ? S3 Same Subject — Fixtures, Growing Crops, Etc SS Construction of the Words "Price or Value of Ten Pounds or Upwards" 57 Exceptions under the Statute of Frauds 59 Same Subject — Except the Buyer shall Accept Part and Actually Receive Same 60 Same Subject — What Constitutes an Acceptance? 61 Same Subject — What Constitutes an Actual Receipt 64 Second Exception — Earnest to Bind the Bargain or Part Payment; 67 Third Exception — Note or Memorandum in Writing 69 Same Subject — What may be Shown by Parol Evidence . . 70 What is a Note or Memorandum in Writing 73 Same Subject— What is a Sufficient Memorandum 74 CHAPTER V. EFFECT OF THE CONTRACT IN PASSING PROPERTY. Meaning of this Chapter with Division of Subject 79 Where the Sale is of a Specific Chattel Unconditionally. . 81 Chattels Specific, But Sale Conditional 82 Where the Chattels are Not Specific 88 Subsequent Appropriation of Specific Chattels on Execu- tory Agreement 91 Where the Jus Disponendi is Reserved 94 CHAPTER VI. CONDITION IN SALES. Page. General Principles and Definitions 98 Same Subject — Impossibility of Performance 102 Same Subject — Sales Dependent Upon Acts of Others, Or Some Contingent Event 103 Same Subject — Sales to Arrive 104 Same Subject — Concurrent or Mutual Conditions 106 Same Subject — Sales by Sample, On Trial, Etc 107 CHAPTER VII. WARRANTY IN SALES OF PERSONAL PROPERTY. Warranty Defined and Explained no What Constitutes an Express Warranty Ill Implied Warranties 114 Implied Warranty of Title nS Implied Warranty as to Quality of Goods — Caveat Emp- tor 118 Exception to the Rule of Caveat Emptor 121 CHAPTER VIII. CONCERNING THE DELIVERY. It is the Vendor's Duty to Deliver 123 Delivery to Pass Property Between the Parties 124 As to the Place of Delivery 126 As to the Sufficiency of the Delivery 126 CHAPTER IX. THE buyer's duties — ACCEFTANCEj PAYMENT AND TENDER. What are the Buyer's Duties ? 129 Acceptance 130 The Buyer's Duty to Pay or Tender Payment 131 xi Pag«. Same Subject — Tender 133 Payment By Promissory Note or Bill 134 CHAPTER X. y^VOIDANCE OF CONTRACT. Mistake and Failure of Consideration 137 Fraud as Avoiding the Contract 139 Same Subject — Fraud on the Vendor 142 Same Subject — Fraud on the Buyer 145 Same Subject — Frauds on Creditors 149 CHAPTER XL RIGHTS OF THE VENDOR ON BREACH OF THE CONTRACT. Personal Actions Against the Buyer, Where the Property Has Not Passed 152 Same Subject — Where the Property Has Passed 153 Vendor's Rernedies Against the Goods 153 Same Subject — Lien 156 Same Subject — Resale 158 Same Subject — Stoppage in Transitu 159 When Does a Transit Begin and End ? 162 How the Right is Exercised 164 How the Right May Be Defeated 165 The Effect of Stoppage in transitu 165 CHAPTER Xn. RIGHTS AND REMEDIES OF THE BUYER. Rights and Remedies of the Buyer for Breach of Con- tract 167 Remedies Before Obtaining Possession, Where the Con- tract is Executory 167 Same Subject — Where the Contract is Executed and Title Has Passed 168 Remedies of Buyer After Receiving Possession 169 xii EQUITY OR CHANCERY JURISPRUDENCE. CHAPTER I. THE SUBJECT INTRODUCED AND DEFINED. Page. History of the Court of Chancery 173 Early History of Chancery in the United States 183 Status of Chancery in the United States at Present 183 Equity or Chancery Law Defined 185 Authorities on Equity Jurisprudence or Chancery Law ...187 CHAPTER IL PRINCIPLES OF JURISDICTION, MAXIMS AND DOCTRINES OF EQUITY. Equity Has No Jurisdiction Over Crimes 188 Equity Will Not Assume Jurisdiction Where There Has Always Been a Plain, Adequate Remedy at Law 188 Enlargement of Legal Remedy Does Not Affect Jurisdic- tion in Equity 189 Equity Will Retain Jurisdiction to Give Complete Relief. 189 Equity Will Take Jurisdiction to Prevent a Multiplicity of Suits igo MAXIMS OF EQUITY. The Maxims of Equity 191 Pre-Requisite Maxims 193 Descriptive Maxims 198 Substantive Maxims 199 DOCTRINES OF EQUITY. Equitable Estoppel 204 Election 2o£ Satisfaction 207 Performance 209 Equitable Conversion 209 Notice 210 Bona Fide. Purchasers 212 Penalties and Forfeitures 213 xiii CHAPTER III. GROUNDS FOE EQUITABE RELIEF. Page. Accident ■ 214 Same Subject — When Relief Will be Granted '.214 Mistake as a Ground for Equitable Relief 217 Same Subject — Mistake of Law 218 Same Subject — Mistake of Fact 220 Fraud as a Ground for Equitable Relief 223 Same Subject — Actual Fraud 225 Same Subject — Constructive Fraud 229 Same Subject — Contracts Made in Violation of Some Statute 230 Same Subject — Contracts Made in Violation of Public Policy 231 Same Subject — Contracts Arising from Abuse of Confiden- tial or Fiduciary Relations 235 Same Subject — Contracts Which Affect Inequitably the Rights of the Parties or Third Persons 239 CHAPTER IV. PROPERTY IN EQUITY — TRUSTS AND USES. Origin of Uses and Trusts 243 Classification of Trusts 246 Express Private Trusts — Parties 249 Same Subject — Property Subject to Trust 250 Same Subject — The Trust May be Voluntary, or For Value 250 How Express Trusts are Created 255 Express Public or Charitable Trust 258 Same Subject — How Created and Construed 261 Same Subject — The Doctrine of Cy-Pres 262 Implied or Resulting Trusts to Charities 263 Implied Trusts or Resulting Trusts 264 Same Subject — Residue of Trust Property 267 Same Subject — Disposition of Trust Property on Failure of Heirs, Etc 267 Page. Constructive Trusts 269 Same Subject — 2. Constructive Trust Arising from a Re- newal of a Lease by a Trustee, Tenant for Life or Partner 272 Same Subject — 3. Constructive Trust Arising from Bene- fits Bestowed on Property 272 Same Subject — 4. For Motiey Had and Received 273 Same Subject — 5. Property Purchased with Trust Funds*273 Same Subject — Trusts Ex Delicto 274 CHAPTER V. PROPERTY IN EQUITY^MORTGAGESj LIENS AND ASSESSMENTS. Real Estate Mortgages 276 Chattel Mortgages 278 Equitable Liens and Mortgages 279 Assignments 280 CHAPTER VI. EQUITABLE REMEDIES CONSIDERED. Necessity for Equitable Remedies 282 Accounting 282 Contribution — Exoneration 283 Subrogation — Marshalling 284 Partition — Boundaries 284 Specific Performance 285 Injunction 288 Reformation 292 Cancellation 292 Removing Cloud on Title 293 Ancillary Remedies — Discovery 293 Same Subject — Bills to Perpetuate Testimony 294 Same Subject— Examination of Witnesses De Bene Esse — ^295 Same Subject— The Writ of Ne Exeat 29s Same Subject — Interpleader 296 Same Subject — Receivers 296 Same Subject — When a Receiver will be Appointed 297 XV LEARN LAW AT HOME We Offer You a Legal Education Within the Reach of JfU Bhe Home Law School Series By Chas. E. Chadmam, LL.D., Member of the Ohio Bar LAW PRACTICE ^fTN State examinations in every State for admission to the Bar* stu- II dents of these books have passed with distinction. This course is indorsed by the Bench, Bar and Law Schools. During eight suc- cessful years these books have proven their practicability. Every man or boy who aspires to the highest success in business will be helped im- mensely by this modern course in Commercial Law. The demands of the day are for business men with sufficient knowledge to guide great enterprises safely. No business man can afford to miss this opportunity to enlarge his capacity ^'Tn Public Life." Legal training is almost es- sential in an efficient executive or law maker. Our government must, in all its branches, be dominated by minds with legal training. Single copies can be had at $1.50 each, or the set of twelve volumes, boxed, for $18.00. They are elegantly and substantially bound in Half Law Sheepf Library Style, with Leather Labels Stamped in Gold, and average 325 pages per volume. All sent charges paid upon receipt of price to any address in United States or Canada. 1. How to Study Law »1,50 2. Constitutional Law- -Federal and State 1.50 3. Personal Rights and Domestic Relations 1.50 4. Contrails and Partnerstip 1.50 5. Agency and Bailments, Including Common Carriers 1.50 6.~ Negotiable Instruments and Principal and Surety 1.50 7. "Wills and Settlement of Estates 1 .50 8. Personal Property and Equity or Chancery Law 1.50 9. Public Corporations and Private Corporations 1.50 10, Real Property and Pleading and Practice 1.50 1 1 - Criminal Law, Criminal Procedure and Evidence 1.50 12. Public International Law and Legal Ethics 1.50 Send us your name and the names of friends who may likely be in- terested in the study of law, and we will send literature, and also an easy payment plan of purchasing these volumes in a way that you do not miss the money. Frederick J. Drake & Company PUBLISHERS 211-213 E.Madison Street, Chicago, III. THE HOME LAW SCHOOL SERIES PLAN OF THE WORK Book I. How to Study Law. Contains a general introduction to the science, explaining the nature and scope of law, and pre- senting its divisions and leading definitions. It preaente a clear idea of Blackstone, the foundation on which all law rests. No more valuable treatise on law has ever been published, and the price is certainly within the reach of every young man or woman. Book 2. Constitutional Law — Federal and State. A complete presentation and analysis of the Constitution, together with the leading decisions and basic principles which go to make up the fundamental law of the State and Nation. This is an exceedingly valuable and helpful book for the beginner. Book 3. Personal Rights and Domestic Relations. The third book covers two distinct subjects, that of personal rights, or the absolute rights of individuals, and the domestic relations, including a complete analysis of the five topics: Husband and Wife, Parent and Child, Guardian and Ward, Infancy and Master and Servant. Book 4. Contracts and Partnerships. The subject of "Con- tract" is simplified and arranged so that any person by reading the book will understand the essential elements necessary to make a complete and binding contract, as well as the effect of a contract when made, and the method of construing or inter- preting its terms. A number of practical forms for use in draw- ing contracts are given. A Partnership is explained and dis- cussed from its creation to its dissolution, and the rights, duties, powers and obligations of partners are fully presented. Forms for the creation of general and limited partnerships are given. Book 5. Agency and Bailments. With clearness and brevity this book acquaints the business man and student with the law governing delegated authority, and presents the rights, duties and liabilities of the principal, the agent and third per- sons springing from the relation. The duties and liabilities of the various classes of bailees, including Innkeepers, Post- masters, Telegraph Companies, and Common Carriers, are accurately presented in a compact yet comprehensive manner. Book 6. Negotiable Instruments, and Principal and Surety. Under the subject of Negotiable Instruments or Commercial Paper, the author discusses the origin and history of Bills of Exchange, Promissory Notes, etc., and gives a complete and accurate summary of all the rules of law governing Bills, Notes, Checks, and other forms of negotiable paper. The title Prin- cipal and Surety also includes the law of Guaranty, and both subjects are presented with a view to acquaint the student with the common law rules of Guaranty and Suretyship, as well as the statutory modifications of them which obtain in tHE HOME LAW SCHOOL SERIES many States. This book as a whole will be one of the most necessary and helpful manuals which a citizen, desirous of ready and accurate knowledge of every-day business law, can obtain. Almost every one signs notes, gives and receives checks, or becomes a surety of guarantor. This little book gives all the law pertaining to these subjects in simple and concise form. The book wiU prove a perfect guide for notaries and justices of the peace. Book 7. Wills, or the Law'of Succession After Death. Including the Origin and History of Wills, the Statute of Wills, the Inter- pretation of Wills, Statutory Enactments Governing Wills, with forms and a summary of the Statutes of Descent and Distribution, and the Law of Administration. Book 8. Personal Property, or the Law of Sales. Now in prep- aration. Other numbers to follow. T/>e}iome Law School Series Presents to you a practical, inexpensive and comprehensive plan, whereby you will know how to read and study law, and further shows you what to read and study, and at the same time fur- nishes in compact form all the reading necessary to obtain a practical knowledge of Law, or to enable you to pass every exam- ination required to gain admission to the bar of any State or Terri- tory in the Union. These books are being compiled especially for studenta-at-law and for citizens and business men who desire to know their rights and liabilities under the law. Technicality and • verbiage are avoided; the principles of legal science are presented in a plain and orderly manner for the purpose of being understood and grasped by the reader. The books offer the advantages of a complete law school course to every student-at-law. THE HOME LAW SCHOOL. The Home Law School has been established to enable students- at-law to secure, at slight expense, the benefit of the personal supervision of a competent instructor, as weU as the further advantage of examinations upon the subjects treated, and a certificate or diploma on the completion of the course. The Home Law School is under the personal di.ection of Charles E. Chadman, LL. M., the author of these books. Any person may become a student in this school by sending his or her name to Prof. Chadman, in care of the publishers, and becoming a subscriber to the Home Law School Series. All students are examined upon each branch in the following manner: When the student is ready for an examination upon one or more TliE HOME LAW SCHOOL dERIBS subjects he so notifies the principal of the school, who will at onc« forward by mail ten or more questions to be answered by the student from memory. The answers to these questions together with a certificate that the student has honestly taken his exam- ination, are forwarded to the principal for examination and grad- ing. The fee for each such examination is 50 cents, to accompany the answers. A final examination will also by given before the granting of certificates at the end of the course. Id he Field of Politico offers many openings to the young man of this country, but before he can make, administer or execute laws he must himself know the law. Almost all great statesmen have been lawyers. Successful politicians have generally been lawyers, while all have had the rudiments of the science gained by extensive reading or a course in some law school, whether admitted to practice or not. The law is a stepping-stone to greater opportunities. Comparatively few persons have the time or money to attend a law school, there- fore the next best place is at home, utilizing the time not required at other things. In this series of books there is no charge made for the name of a successful lawyer, eminent judge and accomplished professor of law in a famous institution of learning, as is invariably the case in more voluminous legal works. The thousands of unsolicited testimonials from lawyers in all sections of the country, prove the usefulness of these timely little Toliunes, as will be seen from the following, selected as fairly representative of the importance attached to these books: "Your 'Hand Book of Constitutional Law, Federal and State,' gives in a small compass the fundamental principles of our political organization, both national and state; and the price puts it within the means of any person to procure a copy. It wUl, therefore, help in diffusing that knowledge which is indispensable to a realiza- tion of the theory that this is a government of the people, by THE HOME LAW SCHOOL SERIES the people, and for the people."— J. H. Vance, Law Librarian, University of Michigan. "I have recently taken pains to give your No. 1, 'How to Study Law,' a thorough reading, and must say that my admlra^ tion has increased until it has reached high mark. Your little book brings before my mind's eye in terse and concise manner the lengthened memories of years "of study." — Hon. L. H. Weller, Editor Farmers' Advocate, Nashua, Iowa. Mr. Weller was a member of the 48th Congress, and is a practitioner before the U.S. Supreme 'Court. "I have read Mr. Chadman's book on 'Constitutional Law,' and have no hesitancy in stating that it is the best short treatise on the subject I have ever seen. The arrangement being especially convenient for the student in that the sections of the Constitution are before him while reading the appended explanations. I gladly recommend this book to any student-at-law." — N. C. Kingsbury, Attorney, Columbus, Ohio. "No. 2 of the 'Home Law School Series' is a compact volume of 224 pages, the second of a series of twelve studies in American law, of great value to any busy man who needs to look up any question within its scope. This volume is worthy of the most conscientious study." — Chicago Chronicle. "Among the many interesting questions made plain, and which every citizen should study, we notice the following: paper money, income tax, coinage laws, suffrage, taxation, the com- merce power, trusts, monopolies, and strikes." — Freeborn County Standard, Albert Lea, Minn. Several students who successfully passed the Ohio Bar examin- ation in June, 1899, and made use of No. 2 of the series, unite in the following endorsement: "This is to certify that we used No. 2 of the 'Home Law School Series,' entitled, 'Constitutional Law, Federal and State,' in pre- paring for the Ohio Bar examination; that we found it perfectly satisfactory and complete as a student's compendiima, and that we unite in recommending the book to students-at^law. "N. C. KINGSBURY, Att'y, Columbus, Ohio. "R. N. BRUMBAUGH, Att'y, Dayton, Ohio. "F. E. MALONE, Att'y, Conneaut, Ohio." "I have read No. 1 of the 'Home Law School Series,' and think well of it; it is perfectly adapted to the purpose for which it is intended; is very comprehensive, and the subject is presented in a lucid and orderly style. You are doing a good work." — Judge Samuel D. Irvin, Tionesta, Pa. 6 THE HOME LAW SCHOOL SERIES "The second number of the 'Home Law School Series,' entitled, 'Constitutional Law, Federal and State,' is one of tha clearest and most concise books on the subject that I have ever seen." — Hon. A. W. Thomas, of the Chicago Bar. "'The Home Law Series,' twelve compact little volumes, covering the twenty branches of law, will do for the American student what Blackstone's celebrated commentaries did for the English student." — The Grand Rapids Democrat. "These books should be in the hands of every thinking citizen, and would prove most valuable text-books for high schools and colleges, as they afford students an opportunity to get ideas as well as legal precepts." — Messenger, Rockdale, Texas. "The books throughout treat the various subjects in a manner that holds the interest^ and attention of the reader or student. We predict a large sale, as the price is exceptionally reasonable." —The People, Erie, Pa. "I am very favorably impressed with the arrangemenl of topics in your 'Home Law School Series.' In your 'Constitutional L^w' I think you have selected a very fortunate method of treating that subject, and that any young man who masters this work will have a good foundation for future study and personal develop' ment. I am sure that he wiU have more of useful information than he might get if he read some larger work on the subject, because I notice that nearly all of that which you have introduced into your book belongs to the subject-matter of a lawyer's ele- mentary training. I congratulate you indeed on the effort you have made in this direction." — John W. Heston, President South Dakota Agricultural College. "Your No. 2 of the 'Home Law School Series' has been received and read oarefuUy. It is very satisfactory, and is all you claim for it." — E. L. Wells, Los Angeles, Cal. "I must say that I am more than pleased with the numbers of the 'Home Law School Series,' and have reason to believe them superior to any other student's work." — R. E. Mikesell, New Paris, Ohio. "My attention having been accidentally directed to 'Home Law School Series,' I procured the first five volumes, the perusal of which has aroused my interest in the subject to such a degree that I desire to pursue the study farther. Heretofore I had con- sidered the study of law too extended and difficult a field to be entered upon during leisure hours, and also to require the im- mediate supervision of one qualified to direct the student; your 'Home Law School Series,' however, present the matter in a new light, and serve to sharpen one's appetite and desire for more." — ThDs. Flanagan, M.D., Hidalgo Mining Compfuiy, Farral, Mexico. KF 915 Z9 C^3 Author Vol. Chadman, Charles Erehart Title The elements of the law of sales I of pergonal . . . Copy Date Borrower's Name